Exhibit 4.1
$600,000,000
GLOBAL MARINE INC.
Zero Coupon Convertible Debentures
Due June 23, 2020
PURCHASE AGREEMENT
PURCHASE AGREEMENT
June 20, 2000
Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Global Marine Inc., a Delaware
corporation (the "COMPANY"), proposes, subject to the
terms and conditions stated herein, to issue and sell to Credit
Suisse First Boston Corporation, as purchaser (the"PURCHASER"),
U.S.$600,000,000 principal amount at maturity of its Zero Coupon
Convertible Debentures due June 23, 2020 (the "FIRM SECURITIES")
and, at the election of the Purchaser an aggregate of up to an
additional $60,000,000 principal amount at maturity ("OPTIONAL
SECURITIES") of its Zero Coupon Convertible Debentures due June 23,
2020 (the Firm Securities and the Optional Securities which the
Purchaser may elect to purchase pursuant to Section 3 hereof are
herein collectively called the "OFFERED SECURITIES") each to be
issued under an indenture dated as of September 1, 1997, as
supplemented by a supplemental indenture dated as of June 23, 2000
(as so amended and supplemented, the "INDENTURE"), between the
Company and Wilmington Trust Company, as Trustee, on a private
placement basis pursuant to an exemption under Section 4(2) of the
United States Securities Act of 1933 (the "SECURITIES ACT"), and
hereby agrees with the Purchaser as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to, and agrees with, the Purchaser
that:
(a) An offering circular relating to the Offered
Securities has been prepared by the Company. Such offering circular
(the "OFFERING CIRCULAR"), as supplemented as of the Closing Date
(as defined herein), together with the any other documents approved
by the Company for use in connection with the contemplated resale
of the Offered Securities, are hereinafter collectively referred to
as the "OFFERING DOCUMENT". On Closing Date, the Offering Document
does not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company by the Purchaser
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b)
hereof. Except as disclosed in the Offering Document, on the
Closing Date, the Company's Report on Form 10-K most recently filed
with the Securities and Exchange Commission (the "COMMISSION") and
all subsequent reports (collectively, the "EXCHANGE ACT REPORTS")
which have been filed by the Company with the Commission or sent to
stockholders pursuant to the Securities Exchange Act of 1934 (the
"EXCHANGE ACT"), taken together, do not include any 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. The
Exchange Act Reports, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Offered Securities have been duly authorized by
the Company and, when delivered and paid for pursuant to this
Agreement and the Indenture, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company, entitled to the
benefits provided in the Indenture and enforceable in accordance
with their terms.
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Offering Document.
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to this Agreement on
the Closing Date, the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document and the
Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company, enforceable against the
Company, 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).
(e) When the Offered Securities are delivered and paid
for pursuant to this Agreement on the Closing Date, such Offered
Securities will be convertible into the shares (the "UNDERLYING
SHARES") of common stock, par value $.10 per share (the "COMMON
STOCK"), of the Company, at the rate of 12.2182 shares of Common
Stock per $1,000 principal amount at maturity of such Offered
Securities, in accordance with the terms of the Indenture; the
Underlying Shares initially issuable upon conversion of such
Offered Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable;
and the stockholders of the Company have no preemptive rights with
respect to the Offered Securities or the Underlying Shares.
(f) The outstanding shares of Common Stock are listed on
the New York Stock Exchange.
(g) The Company has not paid or agreed to pay to any
person any compensation for soliciting another to purchase any
Offered Securities (except as contemplated under this Agreement).
(h) This Agreement has been duly authorized, executed
and delivered by the Company; the Registration Rights Agreement has
been duly authorized, and as of the Closing Date, will have been
duly executed and delivered by the Company.
(i) Except as disclosed in the Offering Document and the
Exchange Act Reports, the Company and its significant subsidiaries
(as defined in Section 1-02(w) of Regulation S-X under the
Securities Act) ("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 other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole ("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 and permit that
individually or in the aggregate is likely to have a Material
Adverse Effect.
(j) Except as disclosed in the Offering Document and the
Exchange Act Reports, 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
Offered Securities as contemplated by the Offering Document or
Exchange Act Reports.
(l) The Company is not, and after giving effect to the
offer and sale of the Offered Securities and application of the net
proceeds therefrom as described in the Offering Document, will not
be an open-end investment company, unit investment trust or face-
amount certificate company that is or is required to be registered
under Section 8 of the United States Investment Company Act of 1940
(the "INVESTMENT COMPANY ACT").
(m) No securities of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as the Offered
Securities are listed on any national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system.
(n) The offer and sale of the Offered Securities by the
Company to the Purchaser in the manner contemplated by this
Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof; and it is not
necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT").
(o) Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf (i) has, within the six-
month period prior to the date hereof, offered or sold in the
United States or to any U.S. person (as such terms are defined in
Regulation S under the Securities Act) the Offered Securities or
any security of the same class or series as the Offered Securities
or (ii) has offered or will offer or sell the Offered Securities by
means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act. The
Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities except for this Agreement.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from the Company, at a purchase price
of 97.75% of the issue price of U.S.$499.60 per $1,000 principal
amount at maturity thereof, U.S. $600,000,000 aggregate principal
amount at maturity of the Firm Securities.
The Company will deliver against payment of the purchase price
the Firm Securities in the form of one or more permanent global
Securities in definitive form (the "FIRM GLOBAL SECURITIES")
deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent global Securities will
be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the
Firm Securities shall be made by the Purchaser in Federal (same
day) funds by official check or checks or wire transfer to an
account at a bank acceptable to the Purchaser drawn to the order of
the Company at the office of Xxxxxxx & Xxxxx L.L.P., Houston,
Texas at 9:00 A.M. (Houston time), on June 23, 2000, or at such
other time not later than seven full business days thereafter as
the Purchaser and the Company determine, such time being herein
referred to as the "FIRST CLOSING DATE", against delivery to the
Trustee as custodian for DTC of the Firm Global Securities
representing all of the Firm Securities. The Firm Global Securities
will be made available for checking at the above office of Xxxxxxx
& Xxxxx L.L.P.,Houston, Texas at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from the Purchaser given to
the Company from time to time not more than 30 days subsequent to
the First Closing Date, the Purchaser may purchase all or less than
all of the Optional Securities at the purchase price per principal
amount of Offered Securities (including any accrued original issue
discount thereon to the related Optional Closing Date) to be paid
for the Firm Securities. The Company agrees to sell to the
Purchaser the number of Optional Securities specified in such
notice, and the Purchaser agrees to purchase such Optional
Securities. Such Optional Securities may be purchased by the
Purchaser only for the purpose of covering over-allotments made in
connection with the sale of Firm Securities. No Optional
Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion
thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time
upon notice by the Purchaser to the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as the "OPTIONAL CLOSING
DATE", which may be the First Closing Date (the First Closing Date
and each Optional Closing Date, if any, being sometimes referred to
as a "CLOSING DATE"), shall be determined by the Purchaser but
shall not be later than seven full business days after written
notice of election to purchase Optional Securities is given.
The Company will deliver against payment of the purchase price
the Optional Securities being purchased on each Optional Closing
Date in the form of one or more permanent global Securities in
definitive form (each, an "OPTIONAL GLOBAL SECURITY") deposited
with the Trustee as custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC. Payment for such Optional
Securities shall be made by the Purchaser in Federal (same day)
funds by official check or checks or wire transfer to an account at
a bank acceptable to the Purchaser drawn to the order of the
Company at the office of Xxxxxxx & Xxxxx L.L.P.,Houston, Texas,
against delivery to the Trustee as custodian for DTC of the
Optional Global Securities representing all of the Optional
Securities being purchased on such Optional Closing Date.
4. REPRESENTATIONS BY PURCHASER; RESALE BY PURCHASER. (a)
The Purchaser represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) The Purchaser acknowledges that the Offered
Securities have not been registered under the Securities Act and
may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities
Act. The Purchaser represents and agrees that it has offered and
sold the Offered Securities and will offer and sell the Offered
Securities (i) as part of their distribution at any time and
(ii) otherwise until the later of the commencement of the offering
and the latest Closing Date, only in accordance with Rule 144A
("RULE 144A") or Rule 903 under the Securities Act. Accordingly,
neither the Purchaser nor its affiliates, nor any persons acting on
its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and the
Purchaser, its affiliates and all persons acting on its or their
behalf have complied and will comply with the offering restrictions
requirement of Regulation S. The terms used in this subsection (b)
have the meanings given to them by Regulation S.
(c) The Purchaser agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities except with the prior written consent of the Company.
(d) The Purchaser agrees that it and each of its
affiliates will not offer or sell the Offered Securities by means
of any form of general solicitation or general advertising, within
the meaning of Rule 502(c) under the Securities Act, including, but
not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media
or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general
solicitation or general advertising. The Purchaser agrees, with
respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such
resale or otherwise prior to settlement of such resale a notice to
the effect that the resale of such Offered Securities has been made
in reliance upon the exemption from the registration requirements
of the Securities Act provided by Rule 144A.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees
with the Purchaser that:
(a) The Company will advise the Purchaser promptly of
any proposal to amend or supplement the Offering Document after the
Closing Date and will not effect such amendment or supplementation
without the Purchaser's consent, which will not be reasonably
withheld. If, at any time prior to the completion of the resale of
the Offered Securities by the Purchaser any event occurs as a
result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, the Company promptly will notify
the Purchaser of such event and promptly will prepare, at its own
expense, an amendment or supplement which will correct such
statement or omission or effect such compliance. Neither the
Purchaser's consent to, nor delivery to offerees or investors of,
any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(b) The Company will furnish to the Purchaser copies of
the Offering Document and all amendments and supplements to such
documents, in each case as soon as available and in such quantities
as the Purchaser requests, and the Company will furnish to the
Purchaser on the Closing Date three copies of the Offering Document
signed by a duly authorized officer of the Company, one of which
will include the independent accountants' reports therein manually
signed by such independent accountants. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act
and any of the Offered Securities or Underlying Shares are
"restricted securities" within the meaning of Rule 144 under the
Securities Act, the Company will promptly furnish or cause to be
furnished to the Purchaser and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders
and purchasers, copies of the information required to be delivered
to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities in reliance upon Rule 144A. The Company will pay the
expenses of printing and distributing to the Purchaser all such
documents.
(c) The Company will arrange for the qualification of
the Offered Securities for sale and the determination of their
eligibility for investment under the laws of such states in the
United States as the Purchaser designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchaser; PROVIDED that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state or to
subject itself to taxation in any jurisdiction where it is not now
so subject.
(d) During the period of five years hereafter, the
Company will furnish to the Purchaser 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
Purchaser as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders. It is understood
and agreed that the Company may satisfy its obligations under this
Section 5(d) by publishing such reports and proxy statements at the
Company's Web site on the World Wide Web or through such other
public medium as the Company may use at that time.
(e) During the period of two years after the Closing
Date, the Company will, upon request, furnish to the Purchaser and
any holder of Offered Securities a copy of the restrictions on
transfer applicable to the Securities.
(f) During the period of two years after the Closing
Date, the Company will not, and will not permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Offered Securities that have been reacquired by
any of them, other than pursuant to a registration statement filed
with the Commission.
(g) During the period of two years after the later of
the First Closing Date and the last Optional Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, any filing
fees or other expenses (including fees and disbursements of
counsel) in connection with the qualification pursuant to Section
5(c) of the Offered Securities or Underlying Shares for sale and
any determination for eligibility for investment under the laws of
such jurisdictions as the Purchaser may designate and the printing
of memoranda relating thereto, any fees charged by investment
rating agencies for the rating of the Offered Securities, the fees
and expenses of the Trustee and its professional advisers; all
expenses in connection with the execution, issue, authentication,
packaging and initial delivery of the Offered Securities and, as
applicable, the Underlying Shares, the preparation and printing of
this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and as
applicable the Underlying Shares; the cost of qualifying the
Offered Securities for trading in The PortalSM Market ("PORTAL") of
The Nasdaq Stock Market, Inc. and any expenses incidental thereto,
the cost of any advertising approved by the Company in connection
with the issue of the Offered Securities; for any travel expenses
of the Company's officers and employees and any other expenses of
the Company in connection with attending or hosting meetings with
prospective purchasers of Registered Securities and for expenses
incurred in distributing the Offering Document (including any
amendments and supplements thereto).
(i) The Company will not at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer,
sale, pledge, contract or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act to cease to be
applicable to the offer and sale of the Offered Securities.
(j) For a period of 90 days after the date hereof, the
Company will not offer, sell, contract to sell, pledge, or
otherwise dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or
exchangeable for Common Stock without the prior written consent of
the Purchaser, or publicly disclose the intention to make any such
offer, sale, pledge or disposition, except (i) grants of employee
or director stock options, stock appreciation rights or restricted
stock grants pursuant to the terms of a plan in effect on the date
hereof, issuances of Common Stock pursuant to the exercise of such
options or the exercise of any other employee stock options
currently outstanding or under our savings plan, or the
registration of such Common Stock by filing with the Commission of
a registration statement on Form S-8 and (ii) the issuance of up
to 500,000 shares of common stock in connection with one
acquisition transaction; PROVIDED, that during such 90-day period
the Company may also file with the Commission a universal shelf
registration statement but may not issue any shares of Common Stock
pursuant thereto.
(k) The Company will promptly apply for the listing on
the New York Stock Exchange of the Underlying Shares and will use
its best efforts to obtain such listing within 10 days of the
Closing Date.
6. CONDITIONS OF THE OBLIGATION OF THE PURCHASER. The
obligation of the Purchaser to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations
and warranties on the part of the Company herein, to the accuracy
of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions
precedent:
(a) The Purchaser shall have received a letter, dated
the Closing Date, of PricewaterhouseCoopers LLP confirming that
they are independent public accountants with respect to the Company
within the meaning of the Securities Act and the applicable
published rules and regulations thereunder ("RULES AND
REGULATIONS") and to the effect that:
(i) In their opinion the financial statements
examined by them and included or incorporated by reference in
the Offering Document and in the Exchange Act Reports comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included or
incorporated by reference in the Offering Document and in the
Exchange Act Reports;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included or
incorporated by reference in the Offering Document or in
the Exchange Act Reports do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(B) 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 the long-term
debt or any decrease in consolidated net current assets
or shareholders' equity of the Company as compared with
the amounts shown on the Company's most recent
consolidated balance sheet included or incorporated by
reference in the Offering Document and the Exchange Act
Reports; or
(C) for the period from the closing date of the
latest income statement included in or incorporated by
reference in the Offering Document and Exchange Act
Reports to the closing date of the latest available
income statement read by such accountants there were any
decreases, as compared with the corresponding period of
the previous year and with the period of corresponding
length ended the date of the latest income statement
included in or incorporated by references in the Offering
Document and Exchange Act Reports, in the revenue,
operating income or net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Offering Document
and Exchange Act Reports disclose have occurred or may occur
or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document and
the Exchange Act Reports (in each case to the extent that such
dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company
and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in United
States or international financial political or economic conditions
or currency exchange rates or exchange controls as would, in the
judgment of the Purchaser, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings
in the secondary market, or (ii) (A) any change, or any development
or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations
of the Company or its subsidiaries which, in the judgment of the
Purchaser is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale
of and payment for the Offered Securities; (B) any downgrading in
the rating of any debt securities or preferred stock of the Company
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or
any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of
a possible upgrading, and no implication of a possible downgrading,
of such rating); (C) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange
or any setting of minimum prices for trading on such exchange; (D)
any suspension of trading of any securities of the Company on any
exchange in the over-the-counter market; (E) any banking moratorium
declared by U.S. Federal or New York authorities; or (F) any
outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in
the judgment of the Purchaser, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the offering or sale
of and payment for the Offered Securities.
(c) The Purchaser shall have received an opinion, dated
the Closing Date, of Xxxxxx X. Xxxxx, Esq., the Assistant General
Counsel of the Company, to the effect that:
(i) each of Global Marine Drilling Company, Applied
Drilling Technology Inc. and Global Marine International
Drilling Corporation (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 Offering Document and Exchange Act Reports, and the
Company and each of the Specified Subsidiaries is duly
qualified to transact business as a foreign corporation and is
in good standing under the laws of each jurisdiction where the
character of its activities requires such qualification,
except as would not have a Material Adverse Effect;
(ii) all of 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 Offering Document
and Exchange Act Reports, 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 Offering Document and
Exchange Act Reports;
(iv) no consent, approval, authorization or order of
any court or governmental agency or body is required in
connection with the performance by the Company of its
obligations under this Agreement or the issuance and sale of
the Offered Securities and the Underlying Shares, 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 Offered Securities by the Purchaser, as to
which such counsel need express no opinion, and such other
approvals (specified in such opinion) as have been obtained;
(v) the issuance and sale by the Company of the
Offered Securities, the execution and delivery by the Company
of the Indenture, the consummation of the transactions
contemplated thereby, and the fulfillment of the terms of this
Agreement will not 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,
(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 cases 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 Offering Document
and the Exchange Act Reports, the Company and its Specified
Subsidiaries possess and are in compliance with all approvals,
certificates, authorizations, licences and permits issued by
the appropriate state, Federal or foreign regulatory agencies
or bodies necessary to conduct their business as described in
the Offering Document and Exchange Act Reports, 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 have 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 any 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 Offering Document
and the Exchange Act Reports which are not described as
required or of any contracts or documents of a character
required to be described in this Offering Document or Exchange
Act Reports or to be filed as exhibits to the Exchange Act
Reports which are not described and filed as required.
The opinions expressed in such opinion may be limited to the
laws of the State of Texas, the corporate laws of the State of
Delaware and the federal laws of the United States.
(d) The Purchaser shall have received an opinion, dated
such 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 Offering Document and Exchange Act Reports;
(ii) 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); and the issuance and the
sale of the Offered Securities have been duly authorized by
the Company, and the Offered Securities, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement and 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
or whether considered in a proceeding in equity or at law);
(iii) this Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by
the Company and the Registration Rights Agreement (other than
Section 4 thereof as to which no opinion need be expressed) 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;
(iv) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental
agency or body is required in connection with the execution
and delivery of this Agreement or the Registration Rights
Agreement or for the consummation by the Company of the
transactions contemplated hereby or thereby, 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 Offered Securities by the Purchaser (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 Offered
Securities by the Company, the execution and delivery by the
Company of the Indenture, this Agreement and the Registration
Rights Agreement and the consummation of any other of the
transactions contemplated hereby and thereby 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 or 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;
(vi) the Offered Securities are convertible into
Common Stock in accordance with the Indenture; the shares of
Common Stock issuable upon conversion of the Offered
Securities have been duly authorized and reserved for issuance
upon such conversion, and such Common Stock, when issued upon
such conversion in accordance with the Indenture, will be validly
issued, fully paid and non-assessable; and each of the Offered
Securities and Common Stock conform as to legal matters in all
material respects to the respective descriptions thereof
contained in the Offering Document;
(vii) the Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations promulgated by the
Commission thereunder (the "Investment Company Act");
(viii) assuming (A) the accuracy of the
representations and warranties and compliance with the
agreements of the Company and the Purchaser contained herein,
(B) the compliance by the Purchaser with the offering and
transfer procedures and restrictions described in the Offering
Document, (C) the accuracy of the representations and
warranties made in accordance with this Agreement and the
Offering Document by the purchasers to whom you initially
resell offered Securities and (D) that purchasers to whom you
initially resell Offered Securities receive a copy of the
Offering Document prior to such sale, it is not necessary in
connection with (i) the offer, sale and delivery of the
Offered Securities by the Company to the Purchaser pursuant to
this Agreement or (ii) the resales of the Offered Securities
by the Purchaser in the manner contemplated hereby to register
the Offered Securities under the Securities Act or to qualify
an indenture in respect thereof under the Trust Indenture 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 for the Company, representatives of the Purchaser and
representatives of counsel for the Purchaser, at which conferences
the contents of the Offering Document and related matters were
discussed, and, although such counsel has not independently
verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements contained
in the Offering Document (except to the extent specified above)
(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 Purchaser), no facts have come to such
counsel's attention which lead such counsel to believe that the
Offering Document (other than the financial statements and
schedules, the notes thereto and the auditor's reports thereon, and
the other financial, numerical, statistical and accounting data
included or incorporated by reference or omitted therefrom, as to
which such counsel need express no belief), at the time the
Offering Document was issued or at the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made,
not misleading or that the documents incorporated by reference in
the Offering Document as filed with the Commission prior to the
Closing Date (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 or omitted therefrom, and the exhibits
thereto, as to which such counsel need express no belief) as of the
dates they were filed with the Commission contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
contained therein not misleading.
Such opinion may be limited to the laws of the States of New
York and Texas, the corporate laws of the State of Delaware and the
federal laws of the United States.
(e) The Purchaser shall have received from Xxxxxxx &
Xxxxx L.L.P., counsel for the Purchaser, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities, the Offering
Circular, the exemption from registration for the offer and sale of
the Offered Securities by the Company to the Purchaser and the
resales by the Purchaser as contemplated hereby and other related
matters as the Purchaser may 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.
(f) The Purchaser shall have received a certificate,
dated such Closing Date, of the President or any Vice President and
a principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties
of the Company in this Agreement are true and correct, in all
material respects, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to such Closing Date, and that,
subsequent to the respective date of the most recent financial
statements in the Offering Document and Exchange Act Reports there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole except as set
forth in or contemplated by the Offering Document or Exchange Act
Reports or as described in such certificate.
The Company will furnish the Purchaser with such conformed
copies of such opinions, certificates, letters and documents as the
Purchaser reasonably request. The Purchaser may in its sole
discretion waive on behalf of the Purchaser compliance with any
conditions to the obligations of the Purchaser hereunder, whether
in respect of an Optional Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
will indemnify and hold harmless the Purchaser, its partners,
directors and officers and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or
several, to which the Purchaser may become subject, under the
Securities Act or the Exchange Act 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 any material fact contained in the
Offering Document, or any amendment or supplement thereto, or the
Exchange Act Reports, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will
reimburse the Purchaser for any legal or other expenses reasonably
incurred by Purchaser in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses
are incurred; 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 an untrue
statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by the
Purchaser specifically for use therein, it being understood and
agreed that the only such information consists of the information
described as such in subsection (b) below.
(b) The Purchaser will indemnify and hold harmless the
Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities
to which the Company may become subject, under the Securities Act
or the Exchange Act 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 any material fact contained in the Offering Document, or any
amendment or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material
fact required to be stated or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company
by the Purchaser specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by
the Purchaser consists of the following information in the Offering
Document furnished on behalf of each Purchaser: the third, fourth
and fifth paragraphs under the caption "Plan of Distribution;"
PROVIDED HOWEVER, that the Purchaser shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon
the Company's failure to perform its obligations under Section 5(a)
of this Agreement.
(c) Promptly after receipt by an indemnified party under
this Section 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 subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above, except to the
extent a defense or counterclaim has been foreclosed. In case any
such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes (i) an unconditional release of such
indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include any
statement as to, or an admission of, culpability or a failure to
act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Purchaser on the
other from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Purchaser
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Purchaser on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by
the Purchaser from the Company under this Agreement. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Purchaser and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), the Purchaser shall not be
required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities purchased by it
were resold exceeds the amount of any damages which the Purchaser
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Purchaser
within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Purchaser under this Section shall be in
addition to any liability which the Purchaser may otherwise have
and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
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
Purchaser 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 the
Purchaser, 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 for any reason the
purchase of the Offered Securities by the Purchaser is not
consummated, the Company shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company and the Purchaser pursuant to
Section 7 shall remain in effect and if any Offered Securities have
been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall remain in
effect. If the purchase of the Offered Securities by the Purchaser
is not consummated for any reason other than solely because of the
occurrence of any event or events specified in Section 6(b)(i) and
clause (C), (D), (E) or (F) of Section 6(b)(ii), the Company will
reimburse the Purchaser for all out-of-pocket expenses (including
fees and disbursements of counsel) incurred by it in connection
with the offering of the Offered Securities.
9. NOTICES. All communications hereunder will be in writing
and, if sent to the Purchaser will be mailed, delivered or
telegraphed and confirmed to the Purchaser at Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department Transactions Advisory Group, or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to
it at 000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000, Attention:
General Counsel.
10. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder,
except that holders of Offered Securities shall be entitled to
enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as
if such holders were parties hereto.
11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one
and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Purchaser's
understanding of our agreement, kindly sign and return to the
Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and the Purchaser in
accordance with its terms.
Very truly yours,
GLOBAL MARINE INC.
By: /s/ W. Xxxx Xxxxx
Name: W. Xxxx Xxxxx
Title:Senior Vice President,
Chief Financial Officer and
Treasurer
The foregoing Purchase Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxx
Name: Xxxxxxxxxxx Xxxxx
Title:Director
