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EXHIBIT 4.3
GLOBAL MARINE INC.
$300,000,000 7 1/8% NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
New York, New York
September 15, 1997
Salomon Brothers Inc
BT Alex. Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Global Marine Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to certain purchasers (the "Initial Purchasers"),
upon the terms set forth in a purchase agreement of even date herewith (the
"Purchase Agreement"), its 7 1/8% Notes Due 2007 (the "Securities") (the
"Initial Placement"). As an inducement to the Initial Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, (i) for your benefit and the benefit
of the other Initial Purchasers and (ii) for the benefit of the holders from
time to time of the Transfer Restricted Securities (as defined herein) (each of
the foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
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"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" means the 180-day period
following the expiration date of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to exchange Securities
acquired for its own account as a result of market-making activities or other
trading activities for New Securities.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Securities dated
as of September , 1997, between the Company and Wilmington Trust Company, as
trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of securities registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"New Securities" means debt securities of the Company identical in
all material respects to the Securities (except that the interest rate step-up
provisions and the transfer restrictions will be modified or eliminated, as
described herein), to be issued under the Indenture.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities, covered by
such Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Securities, a
like principal amount of the New Securities.
"Registration Default" has the meaning set forth in Section 4
hereof.
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"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or New Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Transfer Restricted Security" means each Security or New Security
until (i) the date on which such Transfer Restricted Security has been
exchanged by a person other than a broker dealer for a New Security in the
Registered Exchange Offer that is freely transferable under the Act, (ii)
following the exchange by a broker dealer in the Registered Exchange Offer of a
Transfer Restricted Security for a New Security, the date on which such New
Security is sold to a purchaser who receives from such broker dealer on or
prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Transfer
Restricted Security has been effectively registered under the Act and disposed
of in accordance with the Shelf Registration Statement or (iv) the date on
which such Transfer Restricted Security is distributed to the public pursuant
to Rule 144 under the Act or is saleable pursuant to Rule 144(k) under the Act.
"Trustee" means the trustee with respect to the Securities under
the Indenture.
"underwriter" means any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New Securities by
Exchanging Dealers; Private Exchange.
(a) To the extent not prohibited by law (including
any applicable interpretations of the staff of the Commission),
the Company shall prepare and, not later than 150 days following
the Closing Date, shall file with the Commission the Exchange
Offer Registration Statement with respect to the Registered
Exchange Offer. The Company shall use its best efforts to cause
the Exchange Offer Registration Statement to become effective
under the Act within 180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to
exchange Securities for New Securities (assuming that such Holder
is not an affiliate of the Company within the meaning of
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the Act, acquires the New Securities in the ordinary course of
such Holder's business and has no arrangements with any person to
participate in the distribution of the New Securities) to trade
such New Securities from and after their receipt without any
limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion
of the several states of the United States.
(c) In connection with the Registered Exchange Offer,
the Company shall:
(i) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Registered Exchange Offer open
for not less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable
law);
(iii) utilize the services of a depositary for
the Registered Exchange Offer with an address in the
Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all
applicable laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company shall:
(i) accept for exchange all Securities
tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation
all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to
authenticate and deliver to each Holder of Securities New
Securities equal in principal amount to the Securities of
such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company
acknowledge that, pursuant to interpretations by the Commission's
staff of Section 5 of the Act, and in the absence of an applicable
exemption therefrom, each Exchanging Dealer is required to deliver
a Prospectus in connection with a sale of any New Securities
received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Securities acquired for its own
account as a result of market-making activities or other trading
activities. Accordingly, the Company shall:
(i) include the information set forth in
Annex A hereto on the cover of the Exchange Offer
Registration Statement, in Annex B hereto in the forepart
of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, and in Annex
C hereto in the underwriting or plan of distribution
section of the Prospectus forming a part of the Exchange
Offer Registration Statement, and include the information
set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and
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(ii) use its best efforts to keep the Exchange
Offer Registration Statement continuously effective under
the Act during the Exchange Offer Registration Period for
delivery by Exchanging Dealers in connection with sales of
New Securities received pursuant to the Registered
Exchange Offer, as contemplated by Section 5(i) hereof.
(f) In the event that any Initial Purchaser
determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Company shall issue and
deliver to such Initial Purchaser or the party purchasing New
Securities registered under a Shelf Registration Statement as
contemplated by Section 3 hereof from such Initial Purchaser, in
exchange for such Securities, a like principal amount of New
Securities. The Company shall seek to cause the CUSIP Service
Bureau to issue the same CUSIP number for such New Securities as
for New Securities issued pursuant to the Registered Exchange
Offer.
3. Shelf Registration. If, (i) because of any change in law
or applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof, (ii)
if for any other reason the Exchange Offer Registration Statement is not
declared effective within 180 days of the Closing Date, (iii) if any Initial
Purchaser so requests with respect to Securities not eligible to be exchanged
for New Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer, (iv) if in the reasonable
opinion of Fulbright & Xxxxxxxx L.L.P. any Holder (other than an Initial
Purchaser) is not eligible to participate in the Registered Exchange Offer or
(v) in the case of any Initial Purchaser that participates in the Registered
Exchange Offer or acquires New Securities pursuant to Section 2(f) hereof, such
Initial Purchaser does not receive freely tradeable New Securities in exchange
for Securities constituting any portion of an unsold allotment (it being
understood that, for purposes of this Section 3, (x) the requirement that an
Initial Purchaser deliver a Prospectus containing the information required by
Items 507 and/or 508 of Regulation S-K promulgated under the Act in connection
with sales of New Securities acquired in exchange for such Securities shall
result in such New Securities being not "freely tradeable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of New Securities acquired in the Registered Exchange Offer in exchange
for Securities acquired as a result of market-making activities or other
trading activities shall not result in such New Securities being not "freely
tradeable"), the following provisions shall apply:
(a) The Company shall as promptly as practicable (but
in no event more than 30 days after so required or requested
pursuant to this Section 3), file with the Commission and
thereafter shall use its best efforts to cause to be declared
effective under the Act by the 210th day after the Closing Date
(or promptly in the event of a request by an Initial Purchaser), a
Shelf Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the Holders
from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration
Statement; provided, that with respect to New Securities received
by an Initial Purchaser in exchange for Securities constituting
any portion of an unsold allotment, the Company may, if permitted
by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Regulation S-K
Items 507 and/or 508, as applicable, in satisfaction of its
obligations under this Section 3(a) with respect thereto, and any
such Exchange Offer Registration Statement, as so amended, shall
be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
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(b) The Company shall use its best efforts to keep
the Shelf Registration Statement continuously effective to permit
the Prospectus forming part thereof to be usable by Holders until
the earliest of (i) the second anniversary of the Closing Date (or
the first anniversary of the date the Shelf Registration Statement
is declared effective by the Commission if the Shelf Registration
Statement is filed at the request of an Initial Purchaser), (ii)
the time when the Securities or New Securities, as applicable,
covered by the Shelf Registration Statement can be sold by
non-affiliates pursuant to Rule 144 promulgated under the Act
without limitation under clauses (c), (e), (f) and (h) of Rule 144
or (iii) when all the Securities or New Securities, as applicable,
covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period"). During
any consecutive 365-day period, the Company will have the ability
to suspend the availability of the Shelf Registration Statement
for up to two periods of up to 45 consecutive days each, but no
more than an aggregate of 60 days during any 365-day period. The
Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in
Holders of securities covered thereby not being able to offer and
sell such securities during that period, unless (i) such action is
required by applicable law or (ii) such action is taken by the
Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as the
Company promptly thereafter complies with the requirements of
Section 5(l) hereof, if applicable.
4. Special Interest. In the event that either (i) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 150th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective nor (if the Registered
Exchange Offer is not permitted as described in Section 3 hereof) a Shelf
Registration Statement is filed with the Commission with respect to the
Securities on or prior to the 180th day following the Closing Date or (iii) the
Registered Exchange Offer is not consummated or a Shelf Registration Statement
with respect to the Securities is not declared effective on or prior to the
210th day following the date of original issuance of the Securities (each such
event referred to in clause (i), (ii) or (iii), a "Registration Default"),
interest will accrue (in addition to stated interest on the Securities) from
and including the next day following each such Registration Default. In each
case such additional interest (the "Special Interest") will be payable in cash
semiannually in arrears each March 1 and September 1, commencing March 1, 1998,
at a rate per annum equal to 0.25% of the principal amount of the Securities
for each such Registration Default. The aggregate amount of Special Interest
payable pursuant to the above provisions will in no event exceed 0.25% per
annum of the principal amount of the Securities. Upon (1) the filing of the
Exchange Offer Registration Statement after the 150-day period described in
clause (i) above, (2) the effectiveness of the Exchange Offer Registration
Statement after the 180-day period described in clause (ii) above or (3) the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 210-day period described in clause
(iii) above, the Special Interest payable as result of the applicable
Registration Default on the Securities from the date of such filing,
effectiveness or consummation, as the case may be, will cease to accrue and all
accrued and unpaid Special Interest as of the occurrence of clause (1), (2) or
(3) shall be paid to the holders of the Securities on the relevant payment date
referred to above. For purposes of the preceding sentence, the curing of a
Registration Default by the means described in clause (2) above shall
constitute a cure of the Registration Defaults described in clauses (i) and
(ii) above, and the curing of a Registration Default by the means described in
clause (3) above shall constitute a cure of the Registration Defaults described
in clauses (i), (ii) and (iii) above.
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In the event that a Shelf Registration Statement is declared
effective pursuant to Section 3, if the Company fails to keep such Registration
Statement continuously effective for the period required by this Agreement
(except as specifically permitted herein), then from such time as the Shelf
Registration Statement is no longer effective until the earlier of (i) the date
that the Shelf Registration Statement is again deemed effective and (ii) the
date that is the earliest of (x) the second anniversary of the original
issuance of the Securities (or the first anniversary of the date the Shelf
Registration Statement is declared effective by the Commission if the Shelf
Registration Statement is filed at the request of an Initial Purchaser), (y)
the time when the Securities or New Securities, as applicable, covered by the
Shelf Registration Statement can be sold by non-affiliates pursuant to Rule 144
promulgated under the Act without limitation under clauses (c), (e), (f) and
(h) of Rule 144 or (z) when all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement, Special Interest shall accrue at a rate
per annum equal to 0.25% of the principal amount of the Securities and shall be
payable in cash semiannually in arrears each March 1 and September 1.
5. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to you and each Holder
named therein, prior to the filing thereof with the Commission, a
copy of any Shelf Registration Statement and any Exchange Offer
Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included
therein and shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
or such Holder reasonably may propose.
(b) The Company shall use its best efforts to ensure
that (i) any Registration Statement and any amendment thereto and
any Prospectus forming a part thereof and any amendment or
supplement thereto complies in all material respects with the Act
and the rules and regulations thereunder, (ii) any Registration
Statement and any amendment thereto does not, when it becomes
effective, 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 and (iii)
any Prospectus forming part of any Registration Statement, and any
amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
(c) The Company shall advise you and, in the case of
a Shelf Registration Statement, the Holders of securities covered
thereby, and, if requested by you or any such Holder, confirm such
advice in writing:
(i) when a Registration Statement and any
amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or
the Prospectus included therein or for additional
information.
(d) The Company shall advise you and, in the case of
a Shelf Registration Statement, the Holders of securities covered
thereby, and, in the case of an Exchange Offer
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Registration Statement, any Exchanging Dealer that has provided in
writing to the Company a telephone or facsimile number and address
for notices, and, if requested by you or any such Holder or
Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale
in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iii) of the happening of any event that
requires the making of any changes in the Registration
Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to
state a material fact required to be stated therein or
necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(e) The Company shall use its best efforts to obtain
the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(f) The Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder
so requests in writing, any documents incorporated by reference
therein and all exhibits (including those incorporated by
reference).
(g) The Company shall, during the Shelf Registration
Period, deliver to each Holder of securities included within the
coverage of any Shelf Registration Statement, without charge, as
many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders
of securities in connection with the offering and sale of the
securities covered by the Prospectus or any amendment or
supplement thereto.
(h) The Company shall furnish to each Exchanging
Dealer that so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules,
any documents incorporated by reference therein, and, if the
Exchanging Dealer so requests in writing, any documents
incorporated by reference therein and all exhibits (including
those incorporated by reference).
(i) The Company shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or
supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with
a sale of New Securities received by it pursuant to the Registered
Exchange
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Offer; and the Company consents to the use of the Prospectus or
any amendment or supplement thereto by any such Exchanging Dealer,
as aforesaid.
(j) Prior to the Registered Exchange Offer or any
other offering of securities pursuant to any Registration
Statement, the Company shall register or qualify or cooperate with
the Holders of securities named therein and their respective
counsel in connection with the registration or qualification of
such securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holder reasonably
requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Registration
Statement; provided, however, that the Company will not be
required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action that would
subject it to general service of process or to taxation in any
such jurisdiction where it is not then so subject.
(k) Unless the applicable Securities shall be in
book-entry only form, the Company shall cooperate with the Holders
of Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request
prior to sales of securities pursuant to such Registration
Statement.
(l) Upon the occurrence of any event contemplated by
Section 5(d)(iii) hereof, the Company shall promptly prepare a
post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to
purchasers of the securities included therein, the Prospectus will
not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(m) Not later than the effective date of any such
Registration Statement hereunder, the Company shall provide a
CUSIP number for the Securities or New Securities, as the case may
be, registered under such Registration Statement, and provide the
applicable trustee with certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository
Trust Company.
(n) The Company shall use its best efforts to comply
with all applicable rules and regulations of the Commission and
shall make generally available to its security holders as soon as
practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(o) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(p) The Company may require each Holder of securities
to be sold pursuant to any Shelf Registration Statement to furnish
to the Company such information regarding the holder and the
distribution of such securities as the Company may from time to
time reasonably require for inclusion in such Registration
Statement and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
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(q) The Company shall, if requested, promptly
incorporate in a Prospectus supplement or post- effective
amendment to a Shelf Registration Statement, such information with
respect to the Managing Underwriters and Majority Holders as they
shall reasonably agree should be included therein and shall make
all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(r) In the case of any Shelf Registration Statement,
the Company shall enter into such agreements (including
underwriting agreements) and take all other appropriate actions to
expedite or facilitate the registration or the disposition of the
Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than
those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 7 from Holders of Securities to
the Company.
(s) In the case of any Shelf Registration Statement,
the Company shall (i) make reasonably available for inspection by
the Holders of securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter, at the
offices where normally kept, during reasonable business hours, all
relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries; (ii)
cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection
with any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering
matters generally consistent with those set forth in the Purchase
Agreement; (iv) use its best efforts to obtain opinions of counsel
to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to the underwriters, if
any, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may
be reasonably requested by such underwriters; (v) use its best
efforts to obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired by
the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters,
if any, including those to evidence compliance with Section 5(l)
hereof and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company. The foregoing actions set forth in clauses (iii),
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(iv), (v) and (vi) of this Section 5(s) shall be performed at (A)
the effectiveness of such Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(t) In the case of any Exchange Offer Registration
Statement, the Company shall (i) make reasonably available for
inspection by such Initial Purchaser, and any attorney, accountant
or other agent retained by such Initial Purchaser, at the offices
where normally kept, during reasonable business hours, all
relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries; (ii)
cause the Company's officers, directors and employees to supply
all relevant information reasonably requested by such Initial
Purchaser or any such attorney, accountant or agent in connection
with any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by such Initial Purchaser or any such
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and
covering matters generally consistent with those set forth in the
Purchase Agreement; (iv) use its best efforts to obtain opinions
of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to such Initial Purchaser and its counsel, addressed
to such Initial Purchaser, covering such matters as are
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such Initial Purchaser or its counsel; (v) use its best efforts to
obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement),
addressed to such Initial Purchaser, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings, or if
requested by such Initial Purchaser or its counsel in lieu of a
"cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters requested
by such Initial Purchaser or its counsel; and (vi) deliver such
documents and certificates as may be reasonably requested by such
Initial Purchaser or its counsel, including those to evidence
compliance with Section 5(l) hereof and with conditions
customarily contained in underwriting agreements. The foregoing
actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 5(t) shall be performed at the close of the Registered
Exchange Offer and the effective date of any post-effective
amendment to the Exchange Offer Registration Statement.
6. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3, 4 and 5 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel, reasonably satisfactory to the Company, designated by
the Majority Holders to act as counsel for the Holders in connection therewith,
and, in the case of any Exchange Offer Registration Statement, will reimburse
the Initial Purchasers for the reasonable fees and disbursements of one
counsel, reasonably satisfactory to the Company, acting in connection
therewith.
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7. Indemnification and Contribution.
(a) In connection with any Registration Statement, the
Company agrees to indemnify and hold harmless each Holder of
securities covered thereby (including each Initial Purchaser and,
with respect to any Prospectus delivery as contemplated in Section
5(i) hereof, each Exchanging Dealer), the directors, officers,
employees and agents of each such Holder and each person who
controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus,
or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the Company will not be liable
in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any such
Holder specifically for inclusion therein; provided further, that
with respect to any untrue statement or omission of material fact
made in the Registration Statement, any amendment thereto or the
preliminary Prospectus, the indemnity agreement contained in this
Section 7(a) shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage or
liability purchased the securities concerned, to the extent that
any such loss, claim, damage or liability of such Holder occurs
under the circumstance where it shall have been determined by a
court of competent jurisdiction by final and nonappealable
judgment that (w) the Company had previously furnished copies of
the preliminary Prospectus to the Holder, (x) delivery of the
Prospectus was required to be made to such person, (y) the untrue
statement or omission of a material fact contained in the
preliminary Prospectus was corrected in the Prospectus and (z)
there was not sent or given to such person, at or prior to the
written confirmation of the sale of such securities to such
person, a copy of the Prospectus. This indemnity agreement will
be in addition to any liability that the Company may otherwise
have.
The Company also agrees to indemnify or contribute to
Losses of, as provided in Section 7(d) hereof, any underwriters of
Securities registered under a Shelf Registration Statement, their
officers and directors and each person who controls such
underwriters on substantially the same basis as that of the
indemnification of the Initial Purchaser and the selling Holders
provided in this Section 7(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 5(r) hereof.
(b) Each Holder of securities covered by a
Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(i)
hereof, each Exchanging Dealer) severally agrees to indemnify and
hold harmless (i) the Company, (ii) each of its directors, (iii)
each of its officers who signs such Registration Statement and
(iv) each person who controls the Company within the meaning of
either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each
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such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf
of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability that any such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under Section 7(a) or 7(b)
hereof unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the
indemnification obligation provided in Section 7(a) or 7(b)
hereof. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying
party, it being understood that the indemnifying party shall not
be liable for more than one separate firm (in addition to one
local counsel in each jurisdiction) for all indemnified parties in
each jurisdiction in which any claim or action arising out of the
same general allegations or circumstances is brought. An
indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit
or proceeding. An indemnifying party will not, without its prior
written consent, be liable for any settlement or compromise or
consent to the entry of any judgment.
(d) In the event that the indemnity provided in
Section 7(a) or 7(b) hereof is unavailable to or insufficient to
hold harmless an indemnified party for any reason (other than as
set forth therein), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint
and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred
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in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits
received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement
and the Registration Statement that resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or
any subsequent Holder of any Security or New Security be
responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in
the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth on the cover
page of the Final Memorandum (except as may be provided in any
agreement among the Initial Purchasers relating to the offering of
the Securities), nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under
the Registration Statement that resulted in such Losses. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand,
and such indemnified party, on the other hand, in connection with
the statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of (x) the
total net proceeds from the Initial Placement (before deducting
expenses) as set forth on the cover page of the Final Memorandum
and (y) the total amount of additional interest that the Company
was not required to pay as a result of registering the securities
covered by the Registration Statement that resulted in such
Losses. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions
as set forth on the cover page of the Final Memorandum, and
benefits received by any other Holders shall be deemed to be equal
to the value of receiving Securities or New Securities, as
applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement that
resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the
one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this Section 7(d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer,
employee and agent of such Holder shall have the same rights to
contribution as such Holder, and each person who controls the
Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this Section 7(d).
(e) The provisions of this Section 7 will remain in
full force and effect, regardless of any investigation made by or
on behalf of any Holder or the Company or any of the officers,
directors or controlling persons referred to in this Section 7,
and will survive the sale by a Holder of securities covered by a
Registration Statement.
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8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not,
as of the date hereof, entered into, nor shall it, on or after the
date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate
principal amount of Securities (or, after the consummation of any
Exchange Offer in accordance with Section 2 hereof, of New
Securities); provided that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each
such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders,
determined on the basis of securities being sold rather than
registered under such Registration Statement.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telex, facsimile, or air courier
guaranteeing overnight delivery:
(1) if to a Holder, at the most current
address given by such holder to the Company in accordance
with the provisions of this Section 8(c), which address
initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to Salomon Brothers
Inc;
(2) if to you, initially at the respective
addresses set forth in the Purchase Agreement; and
(3) if to the Company, initially at its
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of each of the parties, including, without the need for an
express assignment or any consent by the Company thereto,
subsequent Holders of Securities and/or New Securities. The
Company hereby agrees to extend the benefits of this Agreement to
any Holder of Securities and/or New Securities and any such Holder
may specifically enforce the provisions of this Agreement as if an
original party hereto.
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(e) Counterparts. This agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one
and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. This agreement shall be governed
by and construed in accordance with the internal laws of the State
of New York (without regard to the conflict of law provisions
thereof).
(h) Severability. In the event that any one of more
of the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(i) Securities Held by the Company, etc. Whenever
the consent or approval of Holders of a specified percentage of
principal amount of Securities or New Securities is required
hereunder, Securities or New Securities, as applicable, held by
the Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed
to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
GLOBAL MARINE INC.
By: /s/ X.X. XXXXXXXXX
-------------------------------
Name: X.X. XxXxxxxxx
Title: Vice President
The foregoing Agreement is
hereby accepted as of the
date first above written.
SALOMON BROTHERS INC
BT ALEX. XXXXX INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
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XXXXXX XXXXXXX & CO. INCORPORATED
By: SALOMON BROTHERS INC
By: /s/ XXXXXX X. XXXX
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Associate
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ANNEX A
Each broker-dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of New Securities received in exchange for Securities where such
New Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting
on the Expiration Date (as defined herein) and ending on the close of business
on the 180th day following the Expiration Date, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
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ANNEX B
Each broker-dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Securities for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. The Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Securities received in exchange for Securities
where such Securities were acquired as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date and ending on the close of business on the 180th day following
the Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale.
The Company will not receive any proceeds from any sale of New Securities by
broker-dealers. New Securities received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Securities. Any
broker-dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of [ ] days after the Expiration Date, the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items
507 and/or 508.]
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ANNEX D
Rider A
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE
10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
------------------------------------------
Address:
---------------------------------------
-----------------------------------------------
Rider B
The undersigned represents that it is not an affiliate of the
Company, that any New Securities to be received by it will be acquired in the
ordinary course of business and that at the time of the commencement of the
Registered Exchange Offer it had no arrangement with any person to participate
in a distribution of the New Securities.
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of New Securities. If the undersigned is a broker-dealer that
will receive New Securities for its own account in exchange for Securities that
were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection
with any resale of such New Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
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