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EXHIBIT 10.2
DEEPTECH INTERNATIONAL INC.
NOTE PURCHASE AND EXCHANGE AGREEMENT
January 17, 1997
BT SECURITIES CORPORATION
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
DeepTech International Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with you (the "Initial Purchaser"), as set forth
below.
1. The Notes. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the Initial Purchaser $15,350,000
aggregate principal amount of its 11% Senior Subordinated Notes due 2000 (the
"Notes"). The Notes will have the terms set forth on Exhibit A hereto and will
otherwise be in form and substance reasonably satisfactory to the Initial
Purchaser.
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
The Initial Purchaser and its direct and indirect transferees of the
Notes will be entitled to the benefits of a Registration Rights Agreement
containing the terms set forth on Exhibit A hereto and other customary terms
for private placements made pursuant to Rule 144A under the Act (the
"Registration Rights Agreement"), pursuant to which the Company will agree,
among other things, to file, under certain circumstances, a registration
statement (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") registering under the Act the Notes or exchange
notes with substantially identical terms to the Notes which will be issued in
exchange for the Notes (the "Exchange Notes"). The Exchange Notes will be
issued pursuant to an indenture (the "Indenture") which will contain terms and
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covenants substantially similar to those set forth in Article Four (except
Sections 4.10 and 4.18 thereof), Article Five and Article Six (appropriately
modified to reflect the priority of the Notes and the lack of security
therefor) in the indenture governing the Company's 12% Senior Secured Notes due
2000. The Registration Rights Agreement, the form of the Exchange Notes and the
Indenture will be in form and substance reasonably satisfactory to the Initial
Purchaser and, along with the form of the Notes, will be prepared by ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchaser.
The purchase and sale of the Notes are being made in connection
with the concurrent purchase by the Initial Purchaser from the respective
holders of (i) a $1,650,000 Promissory Note dated November 8, 1994 issued by
FPS II, Inc., as Maker, in favor of Wilrig AS, as Payee, which is now held by
Transocean AS (the "$1.65 Million Promissory Note"), (ii) a $9,350,000
Promissory Note dated November 8, 1994 issued by the Company, as Maker, in
favor of Wilrig AS, as Payee, which is now owned by Transocean AS (the "$9.35
Million Promissory Note", and together with the $1.65 Million Promissory Note,
the "Wilrig Notes"), (iii) 1,100,000 warrants issued by the Company to Wilrig
AS pursuant to the Warrant Agreement dated as of November 8, 1994 between the
Company and Wilrig AS (the "Warrants") and (iv) two $3,000,000 Promissory
Notes, each dated January 15, 1997 issued by the Company, as Maker, in favor of
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "▇▇▇▇▇▇ Notes").
2. Purchase of the Notes, the Wilrig Notes, the Warrants and the
▇▇▇▇▇▇ Notes. On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, (i) the Initial Purchaser agrees to sell to the Company, and the Company
agrees to purchase from the Initial Purchaser, the $1.65 Million Promissory
Note and the Warrants for an aggregate purchase price in cash of $1,650,000
plus an amount equal to accrued interest on the $1.65 Million Promissory Note
to the Closing Date and (ii) in order to refinance the indebtedness evidenced
by the $9.35 Million Promissory Note and the ▇▇▇▇▇▇ Notes, the Company agrees
to issue and sell to the Initial Purchaser the Notes and, in exchange therefor,
the Initial Purchaser agrees to surrender to the Company the $9.35 Million
Promissory Note and the ▇▇▇▇▇▇ Notes. The Initial Purchaser agrees that it will
not seek to enforce or collect any prepayment penalty due under the ▇▇▇▇▇▇
Notes. One or more certificates in definitive form for the Notes that the
Initial Purchaser has agreed to purchase hereunder, and in such
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denomination or denominations and registered in such name or names as the
Initial Purchaser requests, shall be delivered by or on behalf of the Company
to the Initial Purchaser. Such delivery and payment shall be made at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00
A.M., New York time, on January 23, 1997, or such earlier time and place agreed
upon by the Initial Purchaser and the Company, such time and date of delivery
and payment being herein referred to as the "Closing Date."
3. Representations and Warranties. The Company represents and
warrants to and agrees with the Initial Purchaser that:
(a) Neither the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996 or Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1996 (collectively, the "Disclosure Documents")
filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the "Exchange
Act") at the time they were filed with the Commission, as of the date hereof
and at all times subsequent hereto up to the Closing Date contained, contains
or will contain any untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
Disclosure Documents, when they were filed with the Commission under the
Exchange Act, complied in all material respects with the requirements of the
Exchange Act. The Company acknowledges that the Disclosure Documents will be
used by the Initial Purchaser in connection with resales of the Notes to
subsequent purchasers thereof and consents to such use.
(b) Each of the Company and the subsidiaries of the Company (the
"Subsidiaries") is duly incorporated, validly existing and in good standing
under the laws of its respective jurisdiction of incorporation; each of the
Company and the Subsidiaries is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, condition (financial or otherwise) or results
of operations of the Company and the Subsidiaries, taken as a whole (any such
event, a "Material Adverse Effect").
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(c) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes, the
Exchange Notes, the Registration Rights Agreement and the Indenture. The Notes
and the Exchange Notes have each been duly and validly authorized by the
Company and, when issued, sold and delivered by the Company and paid for by the
Initial Purchaser in accordance with the terms of this Agreement and the
Registration Rights Agreement, as the case may be, will constitute valid and
legally binding obligations of the Company and will be enforceable against the
Company in accordance with their terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and
remedies generally, and (ii) general principles of equity (regardless of
whether such enforcement may be sought in a proceeding in equity or law) and
the discretion of the court before which any proceeding therefor may be
brought.
(d) The Indenture has been duly and validly authorized by the
Company and, when executed and delivered by the Company (assuming the due
authorization, execution and delivery by the Trustee), will constitute a valid
and legally binding agreement of the Company, enforceable against the Company
in accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and
remedies generally and (ii) general principles of equity (regardless of whether
such enforcement may be sought in a proceeding in equity or law) and the
discretion of the court before which any proceeding therefor may be brought.
(e) The Registration Rights Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the Company
(assuming the due authorization, execution and delivery by the Initial
Purchaser), will constitute a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms, except
that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and remedies generally and (ii) general
principles of equity (regardless of whether such enforcement may be sought in a
proceeding in equity or law) and the discretion of the court before which any
proceeding therefor may be brought and (B) any rights to indemnification or
contribution thereunder may be
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limited by federal and state securities laws and public policy considerations.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by the Company of the transactions contemplated hereby have been
duly and validly authorized by the Company. This Agreement has been duly
executed and delivered by the Company.
(g) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the issuance and
sale by the Company of the Notes to the Initial Purchaser or the consummation
by the Company of the other transactions contemplated hereby, except such as
have been obtained and such as may be required under state securities or "Blue
Sky" laws in connection with the purchase and resale of the Notes by the
Initial Purchaser. None of the Company or the Subsidiaries is (i) in violation
of its certificate of incorporation or bylaws (or similar organizational
document), (ii) in breach or violation of any statute, judgment, decree, order,
rule or regulation applicable to any of them or any of their respective
properties or assets, except for any such breach or violation which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, or (iii) in breach of or default under (nor, to the best
knowledge of the Company, has any event occurred which, with notice or passage
of time or both, would constitute a default under) or in violation of any of
the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit, certificate,
contract or other agreement or instrument to which any of them is a party or to
which any of them or their respective properties or assets is subject
(collectively, "Contracts"), except for any such breach, default, violation or
event which would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(h) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Notes to the
Initial Purchaser) will not conflict with or constitute or result in a breach
of or a default under (or an event which
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with notice or passage of time or both would constitute a default under) or
violation of any of (i) the terms or provisions of any Contract, except for any
such conflict, breach, violation, default or event which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (ii) the certificate of incorporation or bylaws (or similar
organizational document) of the Company or any of the Subsidiaries, or (iii)
(assuming compliance with all applicable state securities or "Blue Sky" laws
and assuming the accuracy of the representations and warranties of the Initial
Purchaser in Section 7 hereof and except for any required filings with the
National Association of Securities Dealers, Inc., the filing of a registration
statement under the Act and qualification of the Indenture under the Trust
Indenture Act of 1939, as amended (the "TIA") in connection with the
Registration Rights Agreement) any statute, judgment, decree, order, rule or
regulation applicable to the Company or any of the Subsidiaries or any of their
respective properties or assets, except for any such conflict, breach or
violation which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(i) The consolidated financial statements of the Company and the
Subsidiaries included in the Disclosure Documents present fairly in all
material respects the financial position, results of operations and cash flows
of the Company and the Subsidiaries at the dates and for the periods to which
they relate and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as otherwise stated
therein. Price Waterhouse LLP (the "Independent Accountants") is an independent
public accounting firm within the meaning of the Act and the rules and
regulations promulgated thereunder.
(j) There is not pending or, to the knowledge of the Company,
threatened any action, suit, proceeding, inquiry or investigation to which the
Company or any of the Subsidiaries is a party, or to which the property or
assets of the Company or any of the Subsidiaries are subject, before or brought
by any court, arbitrator or governmental agency or body which, if determined
adversely to the Company or any of the Subsidiaries, would, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect or
which seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of the Notes to be sold hereunder or the
consummation of the other transactions contemplated herein.
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(k) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, presently required or
necessary to own or lease, as the case may be, and to operate its respective
properties and to carry on its respective businesses as now conducted
("Permits"), except where the failure to obtain such Permits would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; each of the Company and the Subsidiaries has fulfilled and
performed all of its material obligations with respect to such Permits and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment
of the rights of the holder of any such Permit; and none of the Company or the
Subsidiaries has received any notice of any proceeding relating to revocation
or modification of any such Permit, except where such revocation or
modification would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(l) Since the date of the most recent financial statements
appearing in the Disclosure Documents, except as described therein, (i) none of
the Company or the Subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into or agreed to enter into any transactions
or contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, be material to the business, condition (financial or otherwise)
or results of operations of the Company and the Subsidiaries, taken as a whole,
(ii) none of the Company or the Subsidiaries has purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock (other than with respect to any
of such Subsidiaries, the purchase of, or dividend or distribution on, capital
stock owned by the Company) and (iii) there has not been any material change in
the capital stock or long-term indebtedness of the Company or the Subsidiaries.
(m) None of the Company, the Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this Agreement
or the sale of the Notes to violate Regulation G, T, U or X of the Board of
Governors of
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the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(n) Each of the Company and the Subsidiaries has good and
marketable title to all real property and good title to all personal property
described in the Disclosure Documents as being owned by it and good and
marketable title to a leasehold estate in the real and personal property
described in the Disclosure Documents as being leased by it free and clear of
all liens, charges, encumbrances or restrictions, except as disclosed in the
Disclosure Documents and to the extent the failure to have such title or the
existence of such liens, charges, encumbrances or restrictions would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. All leases, contracts and agreements to which the Company or
any of the Subsidiaries is a party or by which any of them is bound are valid
and enforceable against the Company or such Subsidiary, and are valid and
enforceable against the other party or parties thereto and are in full force
and effect with only such exceptions as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(o) There is no significant strike, labor dispute, slowdown or work
stoppage with the employees of the Company or any of the Subsidiaries which is
pending or, to the knowledge of the Company or any of the Subsidiaries,
threatened against any of them.
(p) No claims have been filed against the Company or any of the
Subsidiaries alleging violation of any provision of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), except as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(q) None of the Company or the Subsidiaries will be an "investment
company" or a company "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder.
(r) No holder of debt securities of the Company or any Subsidiary
will be entitled to have such securities registered under the registration
statement required to be filed by the Company pursuant to the Registration
Rights Agreement.
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(s) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the Act)
has directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any "security" (as defined
in the Act) which is or could be integrated with the sale of the Notes in a
manner that would require the registration under the Act of the Notes or (ii)
engaged in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering
of the Notes or in any manner involving a public offering within the meaning of
Section 4(2) of the Act. Assuming the accuracy of the representations and
warranties of the Initial Purchaser in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchaser in the manner contemplated by this Agreement to register any of the
Notes under the Act.
(t) No securities of the Company or any Subsidiary are of the same
class (within the meaning of Rule 144A under the Act) as the Notes and listed
on a national securities exchange registered under Section 6 of the Exchange
Act, or quoted in a U.S. automated inter-dealer quotation system.
4. Covenants of the Company. The Company covenants and agrees
with the Initial Purchaser that:
(a) The Company will cooperate with the Initial Purchaser in
arranging for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Initial Purchaser
may designate and will continue such qualifications in effect for as long as
may be necessary to complete the resale of the Notes; provided, however, that
in connection therewith, the Company shall not be required to qualify as a
foreign corporation or to execute a general consent to service of process in
any jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(b) For the period of two years following the Closing Date, the
Company will furnish to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by the Company to the trustee
for the Indenture or to the holders of the Notes or Exchange Notes and, as soon
as available, copies of any reports or financial statements furnished to or
filed by the Company with the
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Commission or any national securities exchange on which any class of securities
of the Company may be listed.
(c) Prior to the Closing Date, the Company will furnish to the
Initial Purchaser, as soon as they have been prepared, a copy of any unaudited
interim financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements appearing in the
Disclosure Documents.
(d) None of the Company or any of its Affiliates will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the sale of
the Notes in a manner which would require the registration under the Act of the
Notes.
(e) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Act.
5. Fees and Expenses. The Company agrees to pay to the Initial
Purchaser the following non-refundable fees:
(a) an underwriting fee of 2.0% of the aggregate principal amount
of the Notes, payable on the Closing Date; and
(b) reasonable legal fees and expenses (not to exceed $125,000) of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchaser, incurred by the
Initial Purchaser in connection with the transactions contemplated hereby,
whether or not the transactions are consummated.
6. Conditions of the Initial Purchaser's
Obligations. The obligation of the Initial Purchaser to
purchase and pay for the Notes shall, in its sole discretion,
be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the
Company, in form and
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substance satisfactory to counsel for the Initial Purchaser, to
the effect that:
(i) The Company is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation. The
Company, based solely on good standing certificates, is qualified to do
business as a foreign corporation in the jurisdictions listed on a
schedule to such opinion.
(ii) The Company has the corporate power and authority to execute,
deliver and perform each of its obligations under the Indenture, the
Notes and the Exchange Notes; the Indenture has been duly authorized by
the Company and, when duly executed and delivered by the Company
(assuming the due authorization, execution and delivery thereof by the
Trustee), will constitute the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and remedies generally
and (ii) general principles of equity (regardless of whether such
enforcement may be sought in a proceeding in equity or law) and the
discretion of the court before which any proceeding therefor may be
brought.
(iii) The Notes have each been duly authorized, executed and
delivered by the Company and when paid for by the Initial Purchaser in
accordance with the terms of this Agreement will constitute the valid and
legally binding obligations of the Company and enforceable against the
Company in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally and (ii) general principles of
equity (regardless of whether such enforcement may be sought in a
proceeding in equity or law) and the discretion of the court before which
any proceeding therefor may be brought.
(iv) The Exchange Notes have been duly authorized by the Company,
and when they are duly executed and delivered by the Company in
accordance with the terms of the Registration Rights Agreement and the
Indenture (assuming
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the due authorization, execution and delivery of the Indenture by the
Trustee and due authentication and delivery of the Exchange Notes by the
Trustee in accordance with the Indenture), will constitute the valid and
legally binding obligations of the Company, entitled to the benefits of
the Indenture, and enforceable against the Company in accordance with
their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and remedies
generally and (ii) general principles of equity (regardless of whether
such enforcement may be sought in a proceeding in equity or law) and the
discretion of the court before which any proceeding therefor may be
brought.
(v) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights
Agreement; the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and (assuming due authorization,
execution and delivery thereof by the Initial Purchaser) constitutes the
valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, except that (A) the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally and (ii) general principles of
equity (regardless of whether such enforcement may be sought in a
proceeding in equity or law) and the discretion of the court before which
any proceeding therefor may be brought and (B) any rights to
indemnification or contribution thereunder may be limited by federal and
state securities laws and public policy considerations.
(vi) The Company has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; this Agreement and the
consummation by the Company of the transactions contemplated hereby have
been duly and validly authorized, executed and delivered by the Company.
(vii) The execution, delivery and performance of this Agreement, the
Notes, the Indenture, the Registration Rights Agreement and the
consummation of the transactions
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contemplated hereby and thereby (including the transfer of ownership to
the Initial Purchaser of the Wilrig Notes, the Warrants and the ▇▇▇▇▇▇
Notes and the redemption of the Wilrig Notes and the ▇▇▇▇▇▇ Notes on the
Closing Date) will not conflict with or constitute or result in a breach
or a default under (or an event which with notice or passage of time or
both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract known to such counsel, except for any
such conflict, breach, violation, default or event which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (ii) the certificate of incorporation or bylaws
(or similar organizational document) of the Company or any of the
Subsidiaries, or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 7
hereof) any statute, judgment, decree, order, rule or regulation known to
such counsel to be applicable to the Company or any of the Subsidiaries
or any of their respective properties or assets, except for any such
conflict, breach or violation which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(viii) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by the
Company of the Notes to the Initial Purchaser or the consummation by the
Company of the other transactions contemplated hereby, except such as may
be required under Blue Sky laws, as to which such counsel need express no
opinion, and those which have previously been obtained and except for the
filing of a registration statement under the Act and qualification of the
Indenture under the TIA in connection with the Registration Rights
Agreement.
(ix) None of the Company or the Subsidiaries is, or immediately
after the sale of the Notes to be sold hereunder will be subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended.
(x) Prior to the issuance of the Exchange Notes, the offer,
issuance, sale and delivery of the Notes in the manner contemplated
herein do not require registration
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under the Act or qualification of the Indenture under the TIA.
(b) The representations and warranties of the Company contained in
this Agreement shall be true and correct on and as of the date hereof and on
and as of the Closing Date as if made on and as of the Closing Date; the
Company shall have performed all covenants and agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date; and, subsequent to the date of the most recent financial
statements in the Disclosure Documents, there shall have been no event or
development, and no information shall have become known, that, individually or
in the aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(c) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(d) The Initial Purchaser shall have received a certificate of the
Company, dated the Closing Date, signed on behalf of the Company by its
Chairman of the Board, President or any Senior Vice President and the Chief
Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in
this Agreement are true and correct on and as of the date hereof and on
and as of the Closing Date, and the Company has performed all covenants
and agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of
the most recent financial statements in the Disclosure Documents, no
event or development has occurred, and no information has become known,
that, individually or in the aggregate, has or would be reasonably likely
to have a Material Adverse Effect; and
(e) On or prior to the Closing Date, the Initial Purchaser shall
have purchased the Wilrig Notes, the Warrants and the ▇▇▇▇▇▇ Notes, and
received physical delivery thereof; provided, that this condition shall be
deemed waived in the event that such transactions are not consummated solely by
reason of a default by BTSC of its obligations under its agreements with
Transocean AS and ▇▇. ▇▇▇▇▇▇ relating thereto.
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(f) On the Closing Date, the Initial Purchaser shall have received
the Registration Rights Agreement (together with the form of Indenture and
Exchange Note attached thereto as an Exhibit) executed by the Company and such
agreement shall be in full force and effect at all times from and after the
Closing Date.
(g) On the Closing Date and concurrently with the issuance of the
Notes, the Company shall have purchased the Wilrig Notes, the Warrants and the
▇▇▇▇▇▇ Notes in accordance with Section 2 hereof.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchaser and counsel for the Initial Purchaser.
7. Offering of Notes; Restrictions on Transfer. The Initial
Purchaser hereby represent and warrants that it has entered into an agreement
with Transocean AS to purchase the Wilrig Notes and the Warrants and has
furnished a true, correct and complete copy of such agreement to the Company.
The Initial Purchaser hereby covenants and agrees that it will fully perform
its obligations under such agreement and that it will not amend, modify,
supplement, or terminate, or consent to or permit any such amendment,
modification, supplement or termination of, such agreement, without the prior
written consent of the Company. The Initial Purchaser hereby represents and
warrants that it is a QIB, with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and risks of
an investment in the Notes. The Initial Purchaser agrees with the Company that
(i) it has not and will not solicit offers for, or offer or sell, the Notes by
any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Act; and (ii) it has
solicited, and will solicit, offers for the Notes only from, and will offer the
Notes only to (A) in the case of offers inside the United States, (x) persons
whom the Initial Purchaser reasonably believes to be QIBs or, if any such
person is buying for one or more institutional accounts for which such person
is acting as fiduciary or agent, only when such person has represented to the
Initial Purchaser that each such account is a QIB, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A, and,
in each
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case, in transactions under Rule 144A or (y) a limited number of other
institutional investors reasonably believed by the Initial Purchaser to be
Accredited Investors and (B) in the case of offers outside the United States in
a transaction meeting the requirements of Rule 904 under the Act, to persons
other than U.S. persons ("foreign purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)).
The Initial Purchaser understands that the Company and, for
purposes of the opinion to be delivered to the Initial Purchaser pursuant to
Section 6 hereof, counsel to the Company will rely upon the accuracy and truth
of the foregoing representations and hereby consents to such reliance.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchaser, its affiliates and their
respective directors, officers, partners, agents, employees, representatives
and control persons (collectively, the "Indemnified Persons") from and against
any losses, claims, damages or liabilities to which such Indemnified Person may
become subject under the Act, the Exchange Act or otherwise, insofar as any
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Disclosure Document or the omission or
alleged omission to state in any Disclosure Document a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or any of the transactions contemplated hereby and will reimburse,
as incurred, the Indemnified Person for any legal or other expenses incurred by
Indemnified Person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, that this indemnity shall not be
available for any loss, claim, damages, liability or action to the extent they
are determined by a court of competent jurisdiction in a final and
nonappealable judgment to have resulted from the intentional misconduct or
gross negligence of the Initial Purchaser. This indemnity agreement will be in
addition to any liability that the Company may otherwise have to the
indemnified parties. The Company shall not be liable under this Section 8 for
any settlement of any claim or action effected without its prior written
consent, which shall not be unreasonably withheld.
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(b) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such
Indemnified Person is entitled to indemnification under this Section 8, such
Indemnified Person will, if a claim in respect thereof is to be made against
the Company under this Section 8, notify the Company of the commencement
thereof in writing; but the omission to so notify the Company (i) will not
relieve it from any liability under paragraph (a) above unless and to the
extent such failure results in the forfeiture by the Company of substantial
rights and defenses and (ii) will not, in any event, relieve the Company from
any obligations to any Indemnified Person other than the indemnification
obligation provided in paragraphs (a) above. In case any such action is brought
against any Indemnified Person, and it notifies the Company of the commencement
thereof, the Company will be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Person; provided, however, that if (i) the use
of counsel chosen by the Company to represent the Indemnified Person would
present such counsel with a conflict of interest, (ii) the defendants in any
such action include both the Indemnified Person and the Company and the
Indemnified Person shall have been advised by counsel that there may be one or
more legal defenses available to it and/or other Indemnified Persons that are
different from or additional to those available to the Company, or (iii) the
Company shall not have employed counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person within a reasonable time
after receipt by the Company of notice of the institution of such action, then,
in each such case, the Company shall not have the right to direct the defense
of such action on behalf of such Indemnified Person and such Indemnified Person
shall have the right to select separate counsel to defend such action on behalf
of such Indemnified Person. After notice from the Company to such Indemnified
Person of its election so to assume the defense thereof and approval by such
Indemnified Person of counsel appointed to defend such action, the Company will
not be liable to such Indemnified Person under this Section 8 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such Indemnified Person in connection with the defense thereof,
unless (i) the Indemnified Person shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the Company shall not
be liable for the expenses of more than one
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separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Indemnified
Person), as the case may be, who are parties to such action or actions) or (ii)
the Company has authorized in writing the employment of counsel for the
Indemnified Person at the expense of the Company.
(c) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), the Company, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the Company on the one hand from the transactions contemplated hereby and the
Indemnified Person on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the Company
on the one hand and the Indemnified Person on the other in connection with the
statements or omissions or alleged statements or omissions or other actions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative benefits received by the Company on the one hand
and the Initial Purchaser on the other shall be deemed to be in the same
proportion as the aggregate principal amount of the Notes bear to the total
commissions received hereunder by the Initial Purchaser. The relative fault of
the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in
the circumstances. The Company and the Initial Purchaser agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the first
sentence of this paragraph (d). Notwithstanding any other provision of this
paragraph (d), the Initial Purchaser
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shall not be obligated to make contributions hereunder that in the aggregate
exceed the total commissions received by the Initial Purchaser under this
Agreement, less the aggregate amount of any damages that the Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
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 paragraph
(d), each person, if any, who controls the Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser.
9. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers and the Initial Purchaser set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the
Company, any of its officers or directors, the Initial Purchaser or any
controlling person referred to in Section 8 hereof and (ii) delivery of and
payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 5, 8 and 13 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
10. Termination. (a) This Agreement may be terminated by the
Initial Purchaser upon written notice to the Company given prior to the Closing
Date in the event that the Company shall have failed, refused or been unable to
perform all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder at or prior thereto or, if at or prior to the Closing
Date and since the date of the most recent financial statement in the
Disclosure Documents there shall have been any event or development that,
individually or in the aggregate, has or could reasonably be expected to have a
Material Adverse Effect.
(b) Termination of this Agreement pursuant to this Section 10 shall
be without liability of any party to any other party.
11. Notices. All communications hereunder shall be in writing
and, if sent to the Initial Purchaser, shall be
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mailed or delivered to (i) BT Securities Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance Department; if sent to the
Company, shall be mailed or delivered to the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇; with a copy to
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., 1900 Pennzoil Place - South Tower,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of
such persons and for the benefit of no other person except that the indemnities
of the Company contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and. No
purchaser of Notes from the Initial Purchaser will be deemed a successor
because of such purchase.
13. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO
ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchaser.
Very truly yours,
DEEPTECH INTERNATIONAL INC.
By:
----------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first
above written.
BT SECURITIES CORPORATION
By:
----------------------
Name:
Title:
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EXHIBIT A
SUMMARY TERMS OF THE NOTES
The Issuer: DeepTech International Inc.
Issue: $15,350,000 aggregate principal amount of
11% senior subordinated notes due 2000 (the
"Notes").
Maturity: May 31, 2000
Interest Rate: 11% per annum payable in cash quarterly in
arrears calculated on a 30-day month,
360-day year.
Ranking: The Notes will rank senior to all
Subordinated Indebtedness of the Company,
subordinated to the existing 12% Senior
Secured Notes due 2000 (the "Senior Notes")
and pari passu to all other unsecured
Indebtedness.
Security: None.
Mandatory Redemption: No sinking fund requirements.
Optional Redemption: The Notes will not be redeemable before
June 15, 1999, and thereafter may be
redeemed at 101% of the principal amount
thereof, plus accrued interest.
Change of Control and
Asset Sale Proceeds
Offers: In the event of a Change of Control, the
Company shall be obligated to make an offer
to purchase all outstanding Notes at a
repurchase price of 101% of the principal
amount thereof plus accrued interest to the
date of repurchase. In addition, if the
Company is required to make a repurchase
offer with respect to the Senior Notes, it
will be obligated to make an offer to
purchase the Notes at a repurchase price of
100% of the principal amount thereof plus
accrued interest to the date of repurchase,
to the extent permitted by the Indenture
governing the Senior Notes.
Exchange Offer; Registration
Rights The Company will agree, pursuant to a
registration rights agreement (the
"Registration Rights Agreement") between
the Company and the Initial Purchaser, (i)
to file a registration statement with
respect to an offer to exchange the Notes
(the "Exchange Offer") for exchange notes
of the Company with substantially identical
terms to the Notes (the "Exchange Notes")
within 30 days after receipt of demand
(which demand shall not be made prior to
the 30-day period following the date of the
Note Purchase and Exchange Agreement) from
holders of at least 75% of the principal
amount of the Notes and (ii) to use its
best efforts to cause such registration
statement to become effective under the
Securities Act within 90 days after such
issue date. In the event that applicable
interpretations of the staff of the
Commission do not permit the Company to
effect the Exchange Offer, or if for any
other reason the Exchange Offer is not
consummated, the Company will use its best
efforts to cause to become effective a
shelf registration statement with respect
to the resale of the Exchange Notes and to
keep such shelf registration statement
effective until the earlier of three years
after the date of original issue of the
Exchange Notes and such time as all of the
Exchange Notes have been sold thereunder.
If the Company is in default under the
Registration Rights Agreement, then the
Company shall promptly notify the holders
of the Notes of such noncompliance and
shall commence an offer to repurchase all
outstanding Notes at a price equal to 100%
of the principal amount thereof plus
accrued interest to the repurchase date.
Such offer shall remain open for not less
than 45 days after receipt thereof by the
holders. All expenses of registration shall
be for the Company's account, except for
underwriting discounts and commissions, if
any.
Covenants: Mirror the existing 12% Senior Notes due
2000 (as applicable).
Warrants: The Warrants (1,100,000 warrants issued to
Wilrig) will be surrendered to the Company
at closing.
Transaction Documentation: Issuance of the Exchange Notes will be made
pursuant to a Note Purchase Agreement with
the form of Exchange Note, Registration
Rights Agreement and Indenture for New
Exchange Notes attached as exhibits.