EXHIBIT 1.1
GLOBAL MARINE INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
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1. Introductory. Global Marine Inc., a Delaware corporation ("Company"),
proposes to issue and sell from time to time certain of its debt securities
registered under the registration statements referred to in Section 2(a)
("Registered Securities"). The Registered Securities will be issued under the
indenture, dated as of September 1, 1997, between the Company and Wilmington
Trust Company, as Trustee, with respect to senior debt securities, or under an
indenture to be entered into between the Company and a trustee, with respect to
subordinated debt securities (the applicable indenture being referred to as the
"Indenture"), in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with all such
terms for any particular series of the Registered Securities being determined at
the time of sale. Particular series of the Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Securities." The firm or firms which agree to purchase the
Securities are hereinafter referred to as the "Underwriters" of such Securities,
and the representative or representatives of the Underwriters, if any, specified
in a Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives," as
used in this Agreement (other than in Sections 2(b), 5(c) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) Two registration statements (Nos. 33-58577 and 333-49807) relating
to the Registered Securities have been filed with the Securities and
Exchange Commission ("Commission") and have become effective; no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
threatened under the Securities Act of 1933, as amended ("Act"). Pursuant
to Rule 429 under the Act, the prospectus included in the second of such
registration statements also relates to the first of such registration
statements, and such registration statements are sometimes collectively
referred to herein as one registration statement. Such registration
statements, as amended at the time of any Terms Agreement referred to in
Section 3, including all material incorporated by reference therein, are
hereinafter collectively referred to as the "Registration Statement," and
the prospectus included in the Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the Securities and the
terms of offering thereof, as first filed with the
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Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus."
(b) On the effective date of each of the registration statements
relating to the Registered Securities, such registration statements
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in
all respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements in
or omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(c) None of the Company or its subsidiaries (as defined in Section 1-
02(w) of Regulation S-X promulgated under the Act) ("Subsidiaries") is
required to be registered or regulated as an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and after giving effect to the offer and sale of
the Securities and the application of the proceeds thereof as described in
the Prospectus, none of the Company or its Subsidiaries be required to be
registered or regulated as an "investment company" as defined in the
Investment Company Act.
(d) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any Securities (except as
contemplated by the Terms Agreement).
(e) Except as set forth in the Prospectus, the Company and its
Subsidiaries possess and are in compliance with all approvals,
certificates, authorizations, licenses and permits issued by the
appropriate state, Federal or foreign regulatory agencies or bodies
necessary to conduct the business now being operated by them, except where
the failure to possess such approvals, certificates, authorizations,
licenses and permits or be in compliance therewith is not reasonably likely
to have a material adverse effect on the condition, financial or otherwise,
earnings, business or prospects of the Company and its Subsidiaries, taken
as a whole (a "Material Adverse Effect"), and none of the Company or its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such approval, certificate,
authorization, license or permit that individually or in the aggregate, is
likely to have a Material Adverse Effect.
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(f) Except as set forth in the Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or, to the knowledge of the Company and
its Subsidiaries threatened against the Company or any of its Subsidiaries
that is likely to result in any Material Adverse Effect or materially and
adversely affect the offering of the Securities in the manner contemplated
by Prospectus.
(g) The Terms Agreement has been duly authorized, executed and
delivered by the Company.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount of Securities to be purchased
by each Underwriter, the purchase price to be paid by the Underwriters and the
terms of the Securities not already specified in or pursuant to the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements and whether any of the Securities
may be sold to institutional investors pursuant to Delayed Delivery Contracts
(as defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representatives and the Company agree
as the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. The Securities delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities pursuant to delayed
delivery contracts, the Company authorizes the Underwriters to solicit offers to
purchase Securities pursuant to delayed delivery contracts substantially in the
form of Annex I attached hereto ("Delayed Delivery Contracts") with such changes
therein as the Company may authorize or approve. Delayed Delivery Contracts are
to be with institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and educational and
charitable institutions. On the Closing Date the Company will pay, as
compensation, to the Representatives for the accounts of the Underwriters, the
fee set forth in such Terms Agreement in respect of the principal amount of
Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts. If the Company
executes and delivers Delayed Delivery Contracts, the Contract Securities will
be deducted from the Securities to be purchased by the several Underwriters and
the aggregate principal amount of Securities to be purchased by each Underwriter
will be
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reduced pro rata in proportion to the principal amount of Securities set forth
opposite each Underwriter's name in such Terms Agreement, except to the extent
that the Representatives determine that such reduction shall be otherwise than
pro rata and so advise the Company. The Company will advise the Representatives
not later than the business day prior to the Closing Date of the principal
amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to Fulbright & Xxxxxxxx L.L.P.,
counsel for the Underwriters, one signed copy of the registration statement
relating to the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the second business
day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs 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 to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company promptly
will prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. The terms "supplement" and "amendment" as used in this
Agreement shall include, without limitation, all documents filed by the
Company with the Commission subsequent to the date of the Prospectus
included in the Registration Statement which are deemed to be incorporated
by reference in the Prospectus. Neither the Representatives' consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the
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effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the
date of such Terms Agreement and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of such Terms Agreement, which will satisfy the provisions of Section
11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company will not be required in
connection therewith to register or qualify as a foreign corporation where
it is not now so qualified or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation in any
jurisdiction where it is not then so subject.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report (other than
on Form 11-K) or definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 ("Exchange Act") or
mailed to stockholders, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Registered Securities for sale
and determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities, for any filing fee of the
National Association of Securities Dealers, Inc. relating to the Registered
Securities and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses and any preliminary prospectus supplements to
Underwriters.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the
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representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) On or prior to each of the date of the Terms Agreement and the
Closing Date, the Representatives shall have received letters, dated,
respectively, as of the date of the Terms Agreement and the Closing Date,
of Coopers & Xxxxxxx, L.L.P., confirming that they are independent
certified public accountants with respect to the Company under Rule 101 of
the Code of Professional Conduct of the American Institute of Certified
Public Accountants (the "AICPA"), and its interpretations and rulings, and
stating in effect that:
(i) in their opinion, the audited financial statements and
schedules examined by them and included or incorporated by reference
in the prospectus contained in the registration statement relating to
the Registered Securities, as amended at the date of such letter,
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) on the basis of performing procedures specified by the AICPA
for a review of interim financial information as described in SAS No.
71, Interim Financial Information, on the unaudited condensed
consolidated financial statements; a reading of the minutes of the
meetings of the directors and audit committee of the Company; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the end of
the Company's most recent fiscal year for which the Company has filed
an Annual Report on Form 10-K, nothing came to their attention that
caused them to believe that:
(1) any material modification should be made to the
unaudited condensed consolidated financial statements included or
incorporated by reference in such prospectus for them to be in
conformity with generally accepted accounting principles;
(2) the unaudited condensed consolidated financial
statements included or incorporated by reference in such
prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and
related published rules and regulations of the Commission;
(3) there were, at the date specified in the letter, any
changes in the capital stock, increases in the long-term debt, or
decreases in net current assets or shareholders' equity of the
Company as compared with the amounts shown in the Company's most
recent consolidated balance sheet included or
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incorporated by reference in such prospectus, or for the period
commencing immediately after the date of such balance sheet to
the date specified in the letter, there were any decreases, as
compared to the corresponding period in the preceding year, in
consolidated revenues or in total or per-share amounts of net
income except in all instances for changes, increases, or
decreases that such prospectus discloses have occurred or may
occur; or
(4) there was, at a specified date not more than five
business days prior to the date of the letter, any change in the
capital stock, increase in long-term debt or any decrease in
consolidated net current assets or shareholders' equity of the
Company as compared with amounts shown on the Company's most
recent consolidated balance sheet included or incorporated by
reference in such prospectus; or for the period commencing
immediately after the date of such balance sheet to such
specified date, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated
revenues or in the total or per-share amounts of net income,
except or changes, increases, or decreases that such prospectus
or documents incorporated by reference therein discloses have
occurred or may occur;
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in such prospectus agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of any unaudited pro forma
financial statements included or incorporated by reference in such
prospectus ("pro forma financial statements"), inquiries of officials
of the Company who have responsibility for financial and accounting
matters, other specified procedures, and proving the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in such pro forma financial statements, nothing
came to their attention which caused them to believe that such pro
forma financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
pro forma statements.
All financial statements and schedules included in material incorporated by
reference into such prospectus shall be deemed included in such prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and
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no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission.
(c) Subsequent to the execution of the Terms Agreement, or, if
earlier, the dates of which information is given in such prospectus, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any notice given of any intended or potential decrease
in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change; (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of the Company by the
Commission or the New York Stock Exchange; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States or a national emergency or war or
other calamity or crisis the effect of which on financial markets which in
any case referred to in clauses (i) through (v) above, is such as to make
it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by
the Prospectus.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxx & Xxxxx, L.L.P., counsel for the Company, 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 State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) the Company's authorized equity capitalization is as set
forth in the Prospectus under the caption "Capitalization;"
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) is a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement of remedies
thereof may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other laws affecting
creditors' rights generally from time to time in effect and general
principles of equity (regardless of whether considered in a proceeding
in equity or at law); the Indenture has been duly qualified under the
Trust Indenture Act; and the issuance and the sale of the Securities
have been duly authorized by the Company, and the Securities, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and
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paid for by the Underwriters in accordance with the terms of the Terms
Agreement and, in the case of Contract Securities, the terms of the
Delayed Delivery Contract, and in accordance with the terms of the
Indenture, will constitute legal, valid and 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 applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other laws affecting creditors'
rights generally from time to time in effect and general principles of
equity (regardless of whether considered in a proceeding in equity or
at law); and the Securities other than any Contract Securities
conform, and any Contract Securities, when so issued and delivered and
sold, will conform, to the description thereof contained in the
Prospectus;
(iv) the Terms Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company and each
of the Terms Agreement and any Delayed Delivery Contract is a valid
and 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 applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other laws affecting
creditors' rights generally from time to time in effect and general
principles of equity (regardless of whether considered in a proceeding
in equity or at law), and except as rights to indemnity and
contribution thereunder may be limited by any applicable laws or
principles of public policy;
(v) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated by the
Terms Agreement, except such as may be required under the blue sky or
securities laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters (as to which
such counsel need express no opinion), the Trust Indenture Act and
such other approvals (specified in such opinion) as have been
obtained;
(vi) neither the issue and sale of the Securities by the Company,
the execution and delivery by the Company of the Indenture, the Terms
Agreement and any Delayed Delivery Contracts and the consummation of
any other of the transactions contemplated by the Terms Agreement nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or constitute a default under (A) any law, (B)
the certificate of incorporation or by-laws of the Company or (C) the
terms of any indenture or other agreement or instrument providing for
the borrowing of money known to such counsel and to which the Company
or any of its subsidiaries is a party or bound except in the case of
clauses (A) and (C) above, such conflict, breach, violation or default
that is not, individually or in the aggregate reasonably likely to
have a Material Adverse Effect;
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(vii) the Registration Statement has become effective under the
Act; any required filing of the Prospectus with the Commission
pursuant to Rule 424(b) has been made in the manner and within the
time period required thereby; and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the Act, and the
registration statement relating to the Registered Securities, as of
its most recent effective date, and the Prospectus, as of its issue
date, and any amendment or supplement thereto, as of its effective or
issue date (in each case, other than the financial statements and
schedules, the notes thereto and the auditor's reports thereon, the
other financial, numerical, statistical and accounting data included
or incorporated by reference therein, or omitted therefrom, as to
which such counsel need not comment), appear on their face to comply
as to form in all material respects with the requirements of the Act
and the Rules and Regulations and the Trust Indenture Act; and
(viii) the Company is not required to be registered or regulated
as an "investment company" within the meaning of the Investment
Company Act.
Such counsel shall also state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company,
representatives of the Underwriters and counsel to the Underwriters at
which the contents of the Registration Statement and the Prospectus 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 and the Prospectus, on the basis of the
foregoing (relying as to factual matters upon statements of officers and
other representatives of the Company and as to materiality to a large
degree on officers and other representatives of the Company and
representatives of the Underwriters) no facts came to such counsel's
attention that led such counsel to believe that the Registration Statement
(other than the financial statements and schedules, the notes thereto and
the auditor's reports thereon, the other financial, numerical, statistical
and accounting data included or incorporated by reference therein, or
omitted therefrom, and the exhibits thereto, as to which such counsel need
express no belief) at the date of the Terms Agreement contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus (other than the financial
statements, the notes thereto and the auditor's report thereon and the
other financial, numerical, statistical and accounting data included or
incorporated by reference therein, or omitted therefrom, as to which such
counsel need express no belief) as of its issue date included an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of New York, the State of Texas or the United
States, to the extent they deem proper and specified in such opinion, upon
the opinion of other counsel of good standing provided such opinions are
also addressed to the Underwriters and are in form and substance
satisfactory to them and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials.
(e) The Representatives shall have received an opinion, dated the Closing
Date, of Xxxxx X. XxXxxxxxx, general counsel of the Company, to the effect that:
(i) Each of Global Marine Drilling Company, Applied Drilling
Technology Inc. and Global Marine Integrated Services - International Inc.
(individually a "Specified Subsidiary" and collectively the "Specified
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it
is chartered or organized, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and the
Company and each of the Specified Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except as would
not have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of each Specified
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the Specified
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest and,
to the knowledge of such counsel, any other security interests, claims,
liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectus;
(iv) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by the Terms Agreement, except such as may be
required under the blue sky or securities laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters, as to which such counsel need express no opinion, and such
other approvals (specified in such opinion) as have been obtained;
(v) neither the issue and sale of the Securities by the Company, the
execution and delivery by the Company of the Indenture, the consummation of
any other of the transactions therein contemplated nor the fulfillment of
the terms of the Terms Agreement, will conflict with, result in a breach or
violation of, or constitute a default under (A) any law, (B) the
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certificate of incorporation or by-laws of the Company, (C) the terms of
any indenture or other agreement or instrument known to such counsel and to
which the Company or any of its Subsidiaries is a party or bound or (D) any
judgment, order or decree known to such counsel to be applicable to the
Company or its Specified Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Company or its Specified Subsidiaries except in the case of
clauses (A), (C) and (D) above, such conflict, breach, violation or default
that is not, individually or in the aggregate reasonably likely to have a
Material Adverse Effect;
(vi) except as set forth in the Prospectus, the Company and its
Specified Subsidiaries possess and are in compliance with all approvals,
certificates, authorizations, licenses and permits issued by the
appropriate state, Federal or foreign regulatory agencies or bodies
necessary to conduct their business as described in the Prospectus, except
where the failure to possess such approvals, certificates, authorizations,
licenses and permits or be in compliance therewith would not be reasonably
likely to have a Material Adverse Effect and to the knowledge of such
counsel, none of the Company or its Specified Subsidiaries, has received
any notice of proceedings relating to the revocation or modification of any
such approval, certificate, authorization, license or permit which,
individually or in the aggregate, if it became the subject of an
unfavorable decision, ruling or finding, would be reasonably likely to have
a Material Adverse Effect; and
(vii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or government
agency, authority or body or any arbitrator to which the Company or its
Specified Subsidiaries is a party required to be described in the
Registration Statement or Prospectus which are not described as required or
of any contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
Such counsel shall also state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company,
representatives of the Underwriters and counsel to the Underwriters at
which the contents of the Registration Statement and the Prospectus 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 and the Prospectus, on the basis of the
foregoing (relying as to factual matters upon statements of officers and
other representatives of the Company and as to materiality to a large
degree on officers and other representatives of the Company and
representatives of the Underwriters) no facts came to such counsel's
attention that led such counsel to believe that the Registration Statement
(other than the financial statements and schedules, the notes thereto and
the auditor's report thereon and the other financial, numerical,
statistical and accounting data included or incorporated by reference
therein, or omitted therefrom, and the exhibits thereto, as to which
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such counsel need express no belief) at the date of the Terms Agreement
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus (other than
the financial statements, the notes thereto and the auditor's report
thereon and the other financial, numerical, statistical and accounting data
included or incorporated by reference therein, or omitted therefrom, as to
which such counsel need express no belief) as of its issue date included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of Texas or the United States, to the extent he
deems proper and specified in such opinion, upon the opinion of other
counsel of good standing provided such opinions are also addressed to the
Underwriters and are in form and substance satisfactorily to them and (B)
as to matters of fact, to the extent he deems proper, on certificates of
responsible officers of the Company and public officials.
(f) The Representatives shall have received from Fulbright & Xxxxxxxx
L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement and the Prospectus and other related
matters as the Underwriters may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriters a certificate
of the Company, signed by the Chairman of the Board or the President or any
Vice President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Prospectus, any amendment or
supplement to the Prospectus and the Terms Agreement and that:
(i) the representations and warranties of the Company in the
Terms Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any amendment or supplement
thereof or thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties of
the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or
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contemplated in the Prospectus (exclusive of any amendment or
supplement thereof or thereto); and
(iii) that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission.
(h) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter 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, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, 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 such 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 in any of such documents, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriters specifically for inclusion therein;
provided further, that with respect to any untrue statement or omission of
material fact made in any preliminary prospectus or preliminary prospectus
supplement, the indemnity agreement contained in this Section 6(a) shall not
inure to the benefit of any Underwriter 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 Underwriter 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 Prospectus to the Underwriters, (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
-14-
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.
(b) Each Underwriter agrees to severally indemnify and hold harmless
the Company, its directors, its officers and 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 Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter specifically for inclusion in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement. This indemnity agreement will be in addition to any liability that
any Prospectus may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 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 6, 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 6(a) or 6(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 6(a) or 6(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 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
-15-
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 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 6(a) or 6(b)
hereof is unavailable to or insufficient for any reason to hold harmless an
indemnified party (other than as set forth therein), the Company and the
Underwriters agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company and by the Underwriters
from the offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among the
Underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters 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 total net proceeds from the offering of the Securities (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth
on the cover page of the Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or the Underwriters. The Company and the
Underwriters 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 6(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 6, each person who
controls any Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act
and each officer and 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 6(d).
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Securities under the Terms Agreement and the
aggregate principal amount of the Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities, the Representatives may make
-16-
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except as
provided in Section 6. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter of its liability, if any, to the
Company or any non-defaulting Underwriter for damages occasioned by its default
hereunder. The respective commitments of the several Underwriters for the
purposes of this Section shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the principal amounts of the
Securities set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will not
apply if the Terms Agreement specifies that such obligations and agreements will
not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of and
payment for the Securities. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Securities by the
Underwriters under the Terms Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 5(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their addresses furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx
00000-0000, attention of General Counsel.
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10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York.
12. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
13. Counterparts. Any Terms Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
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ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on...................................... 19.... .)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of public offering]
Global Marine Inc.
c/o [insert name of lead underwriter]
Gentlemen:
The undersigned hereby agrees to purchase from Global Marine Inc. , a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 19 ("Delivery Date"),]
[$] ........................................
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating thereto, receipt of copies of
which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
I-1
DELIVERY DATE PRINCIPAL AMOUNT
------------- ----------------
--------------------- ------------------------
--------------------- ------------------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order [by certified or official bank check in New York Clearing House (next day)
funds at the office of at
M.] [by wire transfer of same day funds to an account specified by the Company]
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the -- each--Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
win mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by copies of the opinions of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below.
I-2
This will become a binding contract between the Company and the undersigned when
such counterpart is so mailed or delivered.
Yours very truly,
-----------------------------------------
(Name of Purchaser)
By
---------------------------------------
---------------------------------------
(Title of Signatory)
---------------------------------------
---------------------------------------
(Address of Purchaser)
Accepted, as of the above date.
Global Marine Inc.
By
---------------------------
[Insert Title]
I-3
