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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): MAY 20, 1998
GLOBAL MARINE INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-5471 95-1849298
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
777 N. ELDRIDGE PARKWAY
HOUSTON, TEXAS 77079
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (281) 596-5100
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ITEM 5. OTHER EVENTS.
On May 20, 1998, Global Marine Inc. (the "Company") entered into a
Terms Agreement (incorporating by reference the terms of an Underwriting
Agreement for Debt Securities (the "Underwriting Agreement")) dated May 20, 1998
(the "Terms Agreement") with Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Howard, Weil, Labouisse, Friedrichs
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon
Brothers Inc, as underwriters, relating to the offering of $300,000,000
aggregate principal amount of the Company's 7% Notes Due 2028 (the "Notes")
under its Registration Statements on Form S-3 (Registration Nos. 33-58577 and
333-49807). Each of the Terms Agreement and the Underwriting Agreement is being
filed as an exhibit to this report. The Terms of the Notes and a Form of Note
are also being filed as exhibits to this report. The Notes will be issued under
the Indenture dated September 1, 1997 between the Company and Wilmington Trust
Company, as trustee (the "Trustee"), which was filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-4 (333-39033) filed with the
Commission on October 30, 1997 (the "S-4 Registration Statement"). The Statement
of Eligibility and Qualification under the Trust Indenture Act of 1939 of the
Trustee was filed as Exhibit 25 to the S-4 Registration Statement.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
1.1 -- Form of Underwriting Agreement for Debt Securities.
1.2 -- Terms Agreement dated April 20, 1998 among Global Marine Inc. and
Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation, Howard, Weil, Labouisse, Friedrichs
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated
and Salomon Brothers Inc.
4.1 -- Terms of 7% Notes Due 2028.
4.2 -- Form of 7% Note Due 2028.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GLOBAL MARINE INC.
By: /s/ Thomas R. Johnson
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Thomas R. Johnson
Vice President and Corporate Controller
Date: May 22, 1998
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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 & Jaworski 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 & Lybrand, 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 Baker & Botts, 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 James L. McCulloch, 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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<PAGE>
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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<PAGE>
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 & Jaworski
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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<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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 777 North Eldridge Parkway, Houston, Texas
77079-4493, attention of General Counsel.
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<PAGE>
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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<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT 1.2
GLOBAL MARINE INC.
("COMPANY")
7% NOTES DUE 2028
TERMS AGREEMENT
May 20, 1998
Global Marine Inc.
777 North Eldridge Parkway
Houston, Texas 77079-4493
Dear Sirs:
We offer to purchase, on and subject to the terms and conditions of the
Underwriting Agreement attached hereto (the "Underwriting Agreement"), the
following securities ("Securities") on the following terms:
TITLE: 7% Notes Due 2028.
PRINCIPAL AMOUNT: $300,000,000.
INTEREST: 7% per annum, from May 26, 1998, payable semiannually on June 1
and December 1, to holders of record on the preceding May 15 or November 15, as
the case may be beginning December 1, 1998.
MATURITY: June 1, 2028.
OPTIONAL REDEMPTION: The Securities may be redeemed at the option of the
Company, at any time in whole or from time to time in part, at a price equal to
100% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of redemption, plus a Make-Whole Premium, if any, relating to the
then prevailing Treasury Yield plus 30 basis points and the remaining life of
the Securities.
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<PAGE>
DELAYED DELIVERY CONTRACTS: None.
PURCHASE PRICE: 99.526% of principal amount, plus accrued interest, if any,
from May 26, 1998.
EXPECTED REOFFERING PRICE: 98.651% of principal amount, subject to change
by the undersigned.
CLOSING: 9:00 A.M. (Houston, Texas time) on May 26, 1998 in Federal (same
day) funds.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, NY 10172
Howard, Weil, Labouisse, Friedrichs Incorporated
Energy Centre
1100 Poydras Street, Suite 3500
New Orleans, LA 70163
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, NY 10281
Salomon Brothers Inc
388 Greenwich Street
New York, NY 10013
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking and packaging at the
office of Wilmington Trust Company at least 24 hours prior to the Closing Date.
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<PAGE>
Please signify your acceptance of our offer by signing below in the space
provided and returning it to us.
Very truly yours,
Morgan Stanley & Co. Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
Howard, Weil, Labouisse, Friedrichs Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Brothers Inc
By Morgan Stanley & Co. Incorporated
By: /s/ Michael Fusio
----------------------------------
Name: Michael Fusio
Title: Vice President
We accept the offer contained in your letter above, relating to
$300,000,000 principal amount of our 7% Notes Due 2028.
Very truly yours,
Global Marine Inc.
By: /s/ Thomas R. Johnson
----------------------------------
Name: Thomas R. Johnson
Title: Vice President and
Corporate Controller
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<PAGE>
SCHEDULE A
PRINCIPAL
UNDERWRITER AMOUNT
----------- ------
Morgan Stanley & Co. Incorporated..................... $ 90,000,000
Donaldson, Lufkin & Jenrette Securities Corporation... 52,500,000
Howard, Weil, Labouisse, Friedrichs Incorporated...... 15,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................ 52,500,000
Salomon Brothers Inc.................................. 90,000,000
------------
Total............................................ $300,000,000
============
A-1
<PAGE>
EXHIBIT 1.1
GLOBAL MARINE INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
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 & Jaworski 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 & Lybrand, 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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<PAGE>
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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<PAGE>
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 Baker & Botts, 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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<PAGE>
(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 James L. McCulloch, 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 & Jaworski
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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<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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 777 North Eldridge Parkway, Houston, Texas
77079-4493, attention of General Counsel.
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<PAGE>
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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<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT 4.1
GLOBAL MARINE INC.
7% Notes Due 2028
A series of Securities is hereby established pursuant to Section 2.01
of the Indenture dated as of September 1, 1997 between Global Marine Inc. (the
"Company") and Wilmington Trust Company (the "Trustee"), as follows:
1. The title of the Securities of the series shall be "7% Notes Due 2028"
(the "Notes").
2. The limit upon the aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of other Notes pursuant to Sections 2.08, 2.09, 2.12, 3.07 or 9.05 of the
Indenture) is $300,000,000.
3. The Notes shall be issued as permanent Global Securities (as defined
in the Indenture) under the Indenture. The Depository Trust Company is hereby
designated as the Depositary for the Global Securities under the Indenture.
4. The date on which the principal of the Notes is payable shall be June
1, 2028.
5. The rate at which each of the Notes shall bear interest shall be 7%
per annum. Interest will be computed on the basis of a 360-day year of twelve
30-day months. The date from which interest shall accrue for each of the Notes
shall be May 26, 1998. The Interest Payment Dates (as defined in the Indenture)
on which interest on the Notes shall be payable are June 1 and December 1,
commencing December 1, 1998. Interest on the Notes shall be payable to the
persons in whose name the Notes are registered at the close of business on the
Record Date (as defined below) for such interest payment. The record dates
(each a "Record Date") for the interest payable on the Notes on any Interest
Payment Date shall be the May 15 and November 15, as the case may be,
immediately preceding such interest payment date.
6. The place or places where the principal of, premium (if any) on and
interest on the Notes shall be payable is at the office or agency of the Trustee
in New York, New York. Payments in respect of the Notes evidenced by a Global
Security (including principal, premium, if any, and interest) shall be made by
wire transfer of immediately available funds to the accounts specified by the
Holder (as defined in the Indenture) of the Global Note. In all other cases,
payment of interest may be made at the option of the Company by check mailed to
the address of the person entitled thereto as such address shall appear in the
register of the Notes maintained by the Registrar (as defined in the Indenture).
1
<PAGE>
7. The Notes will be redeemable, at the option of the Company, at any
time, in whole or from time to time in part, upon not less than 30 and not more
than 60 days' notice as provided in the Indenture, on any date prior to maturity
(the "Redemption Date") at a price (the "Redemption Price") equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of holders of record on the relevant
record date to receive interest due on an Interest Payment Date that is on or
prior to the Redemption Date) plus the Make-Whole Premium, if any. In no event
will the Redemption Price ever be less than 100% of the principal amount of the
Notes plus accrued interest to the Redemption Date.
The amount of the Make-Whole Premium with respect to any Note (or portion
thereof) to be redeemed will be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption Date,
of:
(A) each interest payment that, but for such redemption, would have been
payable on the Note (or portion thereof) being redeemed on each Interest Payment
Date occurring after the Redemption Date (excluding any accrued interest for the
period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would have been
payable at the final maturity of the Notes (or portion thereof) being redeemed;
over
(ii) the principal amount of the Note (or portion thereof) being redeemed.
The present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield (as defined below) plus 30 basis
points.
The Make-Whole Premium shall be calculated by an independent investment
banking institution of national standing appointed by the Company; provided,
that if the Company fails to make such appointment at least 45 business days
prior to the Redemption Date, or if the institution so appointed is unwilling or
unable to make such calculation, such calculation shall be made by Morgan
Stanley & Co. Incorporated or, if such firm is unwilling or unable to make such
calculation, by an independent investment banking institution of national
standing appointed by the Trustee (in any such case, an "Independent Investment
Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Notes, calculated to the nearest 1/12th of
a year (the "Remaining Term"). The Treasury Yield shall be
2
<PAGE>
determined as of the third Business Day (as defined in the Indenture)
immediately preceding the applicable Redemption Date. The weekly average yields
of United States Treasury Notes shall be determined by reference to the most
recent statistical release published by the Federal Reserve Bank of New York and
designated "H.15 (519) Selected Interest Rates" or any successor release (the
"H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly
average yield for United States Treasury Notes having a constant maturity that
is the same as the Remaining Term, then the Treasury Yield shall be equal to
such weekly average yield. In all other cases, the Treasury Yield shall be
calculated by interpolation, on a straight-line basis, between the weekly
average yields on the United States Treasury Notes that have a constant maturity
closest to and greater than the Remaining Term and the United States Treasury
Notes that have a constant maturity closest to and less than the Remaining Term
(in each case as set forth in the H.15 Statistical Release). Any weekly average
yields as calculated by interpolation shall be rounded to the nearest 1/100th of
1%, with any figure of 1/200% or above being rounded upward. If weekly average
yields for United States Treasury Notes are not available in the H.15
Statistical Release or otherwise, then the Treasury Yield shall be calculated by
interpolation of comparable rates selected by the Independent Investment Banker.
8. The Notes shall not be entitled to the benefit of any sinking fund or
other mandatory redemption provisions.
9. The Notes shall be in substantially the form of Annex A hereto (the
"Form of Note").
10. Each Note that is a Global Security shall bear the legend set forth on
the face of the Form of Note.
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<PAGE>
EXHIBIT 4.2
[FACE OF SECURITY]
GLOBAL MARINE INC.
7% NOTE DUE 2007
CUSIP No.
$
Global Marine Inc., a Delaware corporation (the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received promises to pay to Cede & Co. or registered assigns, the
principal sum of _____________________________________________________ Dollars
[or such lesser amount as indicated on the schedule of exchanges of definitive
Securities,]/1/ on June 1, 2028.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and its corporate seal
or a facsimile thereof to be affixed hereto or imprinted hereon.
Dated: May 26, 1998
[SEAL] GLOBAL MARINE INC.
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
- -----------------
/1/ This phrase to be included only if the Security is a Global Security.
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<PAGE>
Certificate of Authentication:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as Trustee
By: ________________________________
Authorized Officer
[Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depository Trust Company (55 Water Street, New York, New York)
("DTC"), shall act as the Depositary until a successor shall be appointed by the
Company and the Registrar. Unless this certificate is presented by an
authorized representative of DTC to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.] /2/
___________________
/2/ This paragraph should be included only if the Security is a Global
Security.
2
<PAGE>
[REVERSE OF SECURITY]
GLOBAL MARINE INC.
7% NOTE DUE 2028
This Security is one of a duly authorized issue of __% Notes Due 2028
(the "Securities") of Global Marine Inc., a Delaware corporation (the
"Company").
1. Interest. The Company promises to pay interest on the principal
amount of this Security at 7% per annum from May 26, 1998 until maturity. The
Company will pay interest semiannually on June 1 and December 1 of each year
(each an "Interest Payment Date"), or if any such day is not a Business Day, on
the next succeeding Business Day. Interest on the Securities will accrue from
the most recent Interest Payment Date on which interest has been paid or, if no
interest has been paid, from May 26, 1998; provided that if there is no existing
Default in the payment of interest, and if this Security is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
December 1, 1998. The Company shall pay interest on overdue principal from time
to time on demand at a rate equal to the interest rate then in effect; it shall
pay interest on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender
this Security to a Paying Agent to collect principal payments. The Company will
pay the principal of and interest on the Securities in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay such amounts by check
payable in such money. Payments in respect of the Securities evidenced by a
Global Security (including principal, premium, if any, and interest) shall be
made by wire transfer of immediately available funds to the accounts specified
by the Holder of the Global Security. In all other cases, payment of interest
may be made at the option of the Company by check to a Holder's registered
address.
3. Paying Agent and Registrar. Initially, Wilmington Trust Company
(the "Trustee"), the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar, co-registrar or
additional paying agent without notice to any Holder. The Company may act in
any such capacity.
4. Indenture. The Company issued the Securities under an Indenture
dated as of September 1, 1997 (the "Indenture") between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb) (the "TIA"), as in
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effect on the date of execution of the Indenture. The Securities are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Securities are unsecured general obligations of the
Company limited to $300,000,000 in aggregate principal amount. The Indenture
provides for the issuance of other series of debt securities (including the
Securities, the "Debt Securities") thereunder.
5. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or register
the transfer of any Securities during the period between a record date and the
corresponding Interest Payment Date or of any Security selected for redemption,
except the unredeemed portion of any Security being redeemed in part.
6. Persons Deemed Owners. The registered Holder of a Security shall
be treated as its owner for all purposes.
7. Redemption. The Securities will be redeemable, at the option of
the Company, at any time in whole or from time to time in part, upon not less
than 30 and not more than 60 days' notice as provided in the Indenture, on any
date prior to maturity (the "Redemption Date") at a price (the "Redemption
Price") equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of holders of
record on the relevant record date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date) plus the Make-Whole
Premium, if any. In no event will the Redemption Price ever be less than 100%
of the principal amount of the Securities plus accrued interest to the
Redemption Date.
The amount of the Make-Whole Premium with respect to any Security (or
portion thereof) to be redeemed will be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption
Date, of:
(A) each interest payment that, but for such redemption, would have
been payable on the Security (or portion thereof) being redeemed on each
Interest Payment Date occurring after the Redemption Date (excluding any
accrued interest for the period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would have
been payable at the final maturity of the Securities (or portion thereof)
being redeemed;
over
(ii) the principal amount of the Security (or portion thereof) being
redeemed.
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The present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield plus 30 basis points.
The Make-Whole Premium shall be calculated by an independent
investment banking institution of national standing appointed by the Company;
provided, that if the Company fails to make such appointment at least 45
business days prior to the Redemption Date, or if the institution so appointed
is unwilling or unable to make such calculation, such calculation shall be made
by Morgan Stanley & Co. Incorporated or, if such firm is unwilling or unable to
make such calculation, by an independent investment banking institution of
national standing appointed by the Trustee (in any such case, an "Independent
Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield"
means a rate of interest per annum equal to the weekly average yield to maturity
of United States Treasury Notes that have a constant maturity that corresponds
to the remaining term to maturity of the Securities, calculated to the nearest
1/12th of a year (the "Remaining Term"). The Treasury Yield shall be determined
as of the third Business Day (as defined in the Indenture) immediately preceding
the applicable Redemption Date. The weekly average yields of United States
Treasury Notes shall be determined by reference to the most recent statistical
release published by the Federal Reserve Bank of New York and designated "H.15
(519) Selected Interest Rates" or any successor release (the "H.15 Statistical
Release"). If the H.15 Statistical Release sets forth a weekly average yield
for United States Treasury Notes having a constant maturity that is the same as
the Remaining Term, then the Treasury Yield shall be equal to such weekly
average yield. In all other cases, the Treasury Yield shall be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term (in each case as
set forth in the H.15 Statistical Release). Any weekly average yields as
calculated by interpolation shall be rounded to the nearest 1/100th of 1%, with
any figure of 1/200% or above being rounded upward. If weekly average yields
for United States Treasury Notes are not available in the H.15 Statistical
Release or otherwise, then the Treasury Yield shall be calculated by
interpolation of comparable rates selected by the Independent Investment Banker.
8. Amendments and Waivers. Subject to certain exceptions and
limitations, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Debt Securities of all series of Debt Securities affected by
such amendment or supplement (acting as one class), and any existing or past
Default or Event of Default under, or compliance with any provision of, the
Indenture may be waived (other than any continuing Default or Event of Default
in the payment of the principal of or interest on the Securities) by the Holders
of at least a majority in principal amount of the then outstanding Debt
Securities of any series or of all series (acting as one class) in accordance
with the terms of the Indenture. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Securities or waive
any provision of either, to cure any
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ambiguity, omission, defect or inconsistency; to comply with the provisions of
the Indenture relating to merger, consolidation and certain other transactions;
to provide for uncertificated Securities in addition to or in place of
certificated Securities; to provide any security for the Securities or to add
guarantees of the Securities; to comply with any requirement in order to effect
or maintain the qualification of the Indenture under the TIA; to add to the
covenants of the Company for the benefit of the Holders of the Securities, or to
surrender any right or power conferred by the Indenture upon the Company; to add
any additional Events of Default with respect to all or any series of the Debt
Securities; to change or eliminate any of the provisions of the Indenture,
provided that no Security is adversely affected in any material respect; to
supplement any of the provisions of the Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of the Securities
pursuant to the Indenture; or to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
thereunder by more than one Trustee, pursuant to the requirements of the
Indenture.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required or sought as of
a date fixed in accordance with the terms of the Indenture.
Without the consent of each Holder affected, the Company may not (i)
reduce the amount of Debt Securities whose Holders must consent to an amendment,
supplement or waiver, (ii) reduce the rate of or change the time for payment of
interest, including default interest, on any Security, (iii) reduce the
principal of or premium on, or change the Stated Maturity of, any Security, (iv)
reduce the premium, if any, payable upon the redemption of any Security or
change the time at which any Security may or shall be redeemed, (v) change the
coin or currency in which any Security or any premium or interest with respect
thereto are payable, (vi) impair the right to institute suit for the enforcement
of any payment of principal of or premium (if any) or interest on any Security,
(vii) make any change in the percentage of principal amount of Debt Securities
necessary to waive compliance with certain provisions of the Indenture or (viii)
waive a continuing Default or Event of Default in the payment of principal of or
premium (if any) or interest on the Securities.
A supplemental indenture that changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities under the
Indenture, or which modifies the rights of the Holders of Debt Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under the Indenture of the Holders of Debt Securities
of any other series.
9. Defaults and Remedies. Events of Default are defined in the
Indenture and generally include: (i) default by the Company for 30 days in
payment of any interest on the Securities; (ii) default by the Company in any
payment of principal of (or premium, if any, on) the Securities; (iii) default
by the Company in compliance with any of its other covenants or agreements in,
or provisions of, the Securities or in the Indenture which shall not have been
remedied within 90 days after written notice by the Trustee or by the holders of
at least 25% in principal amount of the
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Securities then outstanding (or, in the event that other Debt Securities issued
under the Indenture are also affected by the default, then 25% in principal
amount of all outstanding Debt Securities so affected); or (iv) certain events
involving bankruptcy, insolvency or reorganization of the Company. If an Event
of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Securities of the series affected by
such default (or, in the case of an Event of Default described in clause (iii)
above, if outstanding Debt Securities of other series are affected by such
Default, then at least 25% in principal amount of the then outstanding Debt
Securities so affected), may declare the principal of and interest on all the
Securities to be immediately due and payable, except that in the case of an
Event of Default arising from certain events of bankruptcy, insolvency or
reorganization of the Company, all outstanding Securities become due and payable
immediately without further action or notice. The amount due and payable upon
the acceleration of any Security is equal to 100% of the principal amount
thereof plus accrued interest to the date of payment. Holders may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
may require indemnity reasonably satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Securities (or affected
Debt Securities) may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish an annual compliance
certificate to the Trustee.
10. Discharge Prior to Maturity. The Indenture with respect to the
Securities shall be discharged and canceled upon the payment of all of the
Securities and shall be discharged except for certain obligations upon the
irrevocable deposit with the Trustee of funds or U.S. Government Obligations
sufficient for such payment.
11. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
12. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Securities.
13. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
14. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed thereon.
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<PAGE>
15. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
16. Restrictions on Transfer. By its acceptance of any Security
bearing a legend restricting transfer, each Holder of such a Security
acknowledges the restrictions on transfer of such Security set forth in the
officers' certificate executed pursuant to Section 2.04 of the Indenture in
respect of the Securities and such legend and agrees that it will transfer such
Security only as provided in such officers' certificate and in the Indenture.
THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUEST MAY BE MADE TO:
GLOBAL MARINE INC.
777 N. ELDRIDGE PARKWAY
HOUSTON, TEXAS 77079-4493
TELEPHONE: (281) 596-5100
ATTENTION: GENERAL COUNSEL
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<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITY
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
<TABLE>
<CAPTION>
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase in Security following authorized officer
Principal Amount Principal Amount such decrease of Trustee or
Date of Exchange of this Global Security of this Global Security (or increase) Security Custodian
- ------------------- ----------------------- ----------------------- ------------------- ------------------
<S> <C> <C> <C> <C>
</TABLE>
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<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: ______________________ Your Signature: _______________________________
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee: ___________________________________________________________
(Participant in a Recognized Signature
Guaranty Medallion Program)
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