$600,000,000 AT MATURITY
GLOBAL MARINE INC.
ZERO COUPON CONVERTIBLE DEBENTURES DUE JUNE 23, 2020
REGISTRATION RIGHTS AGREEMENT
June 23, 2000
Credit Suisse First Boston Corporation
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Dear Sirs:
Global Marine Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to Credit Suisse First Boston
Corporation (the "Purchaser"), upon the terms set forth in a
purchase agreement dated June 20, 2000 (the "Purchase Agreement"),
$600,000,000 aggregate principal amount at maturity of its Zero
Coupon Convertible Debentures due June 23, 2020 (the "Debentures").
The Debentures will be issued pursuant to a Supplemental Indenture,
dated as of June 23, 2000, which supplements the Indenture dated
as of September 1, 1997 (taken together, the "Indenture"), by and
between the Company and Wilmington Trust Company (the "Trustee").
Under the terms of the Indenture, the Debentures are convertible,
in whole or in part, into shares of Common Stock, par value $.10
per share (the "Conversion Shares" and, together with the
Debentures, the "Securities"), at the option of the holders thereof
at any time following the date of original issuance thereof at the
Conversion Rate (as defined in the Indenture) set forth in the
Debentures, as adjusted from time to time pursuant to the
Indenture. As an inducement to the Purchaser, the Company agrees
with the Purchaser, for the benefit of the holders of the
Debentures (including, without limitation, the Purchaser) and
Conversion Shares (collectively, the "Holders"), as follows:
1. RESALE SHELF REGISTRATION. (a) The Company shall, at
its cost, use its reasonable best efforts to file as promptly as
practicable (but in no event more than 90 days after the Closing
Date (as defined in the Purchase Agreement)) with the Securities
and Exchange Commission (the "Commission") and thereafter shall use
its reasonable best efforts to cause to be declared effective no
later than 180 days after the Closing Date a registration statement
(the "Resale Shelf Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 5 hereof) by the Holders thereof
from time to time in accordance with the methods of distribution
set forth in the Resale Shelf Registration Statement and Rule 415
under the Securities Act (hereinafter, the "Resale Shelf
Registration"); provided, however, that no Holder (other than the
Purchaser) shall be entitled to have the Securities held by it
covered by such Resale Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to
keep the Resale Shelf Registration Statement continuously effective
in order to permit the prospectus included therein to be lawfully
delivered by the Holders of the relevant Securities, for a period
of two years from the date of its effectiveness or such shorter
period that will terminate when all the Securities covered by the
Resale Shelf Registration Statement (i) have been sold pursuant
thereto or (ii) are no longer Transfer Restricted Securities as
defined in Section 5(d) (in any such case, such period being called
the "Shelf Registration Period"). The Company shall be deemed not
to have used its best efforts to keep the Resale Shelf Registration
Statement effective during the requisite period if it voluntarily
takes any action (other than as contemplated by Section 2(h)) that
would result in Holders of Securities covered thereby not being
able to offer and sell such Securities during that period, unless
such action is required by applicable law.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Resale Shelf
Registration Statement and the related prospectus and any amendment
or supplement thereto, as of the effective date of the Resale Shelf
Registration Statement, amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and
(ii) not to contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Each Holder agrees that if such Holder wishes to
sell such ▇▇▇▇▇▇'s Securities pursuant to a Resale Shelf
Registration Statement and related prospectus, it will do so in
accordance with this Section 1(d). Each Holder wishing to sell
Securities pursuant to a Resale Shelf Registration Statement and
related prospectus agrees to deliver a Notice and Questionnaire
(the form of which is attached as Annex A to the Offering Circular
dated June 20, 2000 used in connection with the offering of the
Debentures) to the Company prior to any intended distribution of
Securities under the Resale Shelf Registration Statement. From and
after the date the Resale Shelf Registration Statement is declared
effective, the Company shall, as promptly as is practicable after
the date a Notice and Questionnaire is delivered, and in any event
within five (5) Business Days after such date, (i) if required by
applicable law, file with the Commission a post-effective amendment
to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related prospectus or a
supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named as a selling
securityholder in the Resale Shelf Registration Statement and the
related prospectus in such a manner as to permit such Holder to
deliver such prospectus to purchasers of the Securities in
accordance with applicable law and, if the Company shall file a
post-effective amendment to the Resale Shelf Registration
Statement, use all reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as
promptly as is practicable, but in any event by the date that is 60
days after the date such post-effective amendment is required by
this clause to be filed; (ii) provide such Holder copies of any
documents filed pursuant to Section 1(d)(i); and (iii) notify such
Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to
Section 1(d)(i); provided, that if such Notice and Questionnaire is
delivered during a period in which the use of the prospectus is
suspended pursuant to Section 2(h), the Company shall so inform the
Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the suspension period. Notwithstanding anything
contained herein to the contrary, the Company shall be under no
obligation to name any Holder that has not supplied the requisite
information required by Section 1(d) as a selling securityholder in
any Registration Statement or related Prospectus; provided,
however, that any Holder that has subsequently supplied the
requisite information required by this Section 1(d) pursuant to the
provisions of this Section (whether or not such Holder has supplied
the requisite information required by this Section 1(d) at the time
the Resale Shelf Registration Statement was declared effective)
shall be named as a selling securityholder in the Resale Shelf
Registration Statement or related prospectus in accordance with the
requirements of this Section 1(d).
2. REGISTRATION PROCEDURES. In connection with the Resale
Shelf Registration contemplated by Section 1 hereof, the following
provisions apply:
(a) The Company shall (i) furnish to the Purchaser,
prior to the filing thereof with the Commission, a copy of the
Resale Shelf Registration Statement and each amendment thereof and
each supplement, if any, to the prospectus included therein and, in
the event that the Purchaser (with respect to any portion of an
unsold allotment from the original offering) is participating in
the Resale Shelf Registration, the Company shall use its best
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Purchaser reasonably may propose;
and (ii) include the names of the Holders, who propose to sell
Securities pursuant to the Resale Shelf Registration Statement, as
selling securityholders.
(b) The Company shall give written notice to the
Purchaser and, except as provided in (v) below, to all Holders of
the Securities (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Resale Shelf Registration Statement or
any amendment thereto has been filed with the Commission and
when the Resale Shelf Registration Statement or any post-
effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Resale Shelf Registration Statement or
the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Resale Shelf
Registration Statement or the initiation of any proceedings
for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the prospectus which forms a part
of the Resale Shelf Registration Statement in order that the
prospectus does not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading, provided, that such notice need only be provided
to the Purchaser and to Holders who are named as selling
stockholders in the prospectus relating to the Resale Shelf
Registration Statement, as then amended or supplemented, or
who have delivered a Notice and Questionnaire pursuant to
Section 1(d) but are not yet so named.
(c) The Company shall make every reasonable effort to
obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of the Resale Shelf Registration
Statement.
(d) The Company shall furnish to each Holder of
Securities included within the coverage of the Resale Shelf
Registration, without charge, at least one copy of the Resale Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall, during the Resale Shelf
Registration Period, deliver to each Holder of Securities included
within the coverage of the Resale Shelf Registration, without
charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Resale Shelf Registration
Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Resale Shelf Registration
Statement in the manner described therein.
(f) Prior to any public offering of the Securities
pursuant to any Resale Shelf Registration Statement, the Company
shall register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities
for offer and sale under the securities or "blue sky" laws of such
states of the United States as any Holder of the Securities
reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Resale Shelf
Registration Statement; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Resale Shelf Registration Statement (to the extent such Securities
are certificated) free of any restrictive legends and in such
denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the
Securities pursuant to such Resale Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(b) above during the Shelf
Registration Period, the Company shall promptly prepare and file a
post-effective amendment to the Resale Shelf Registration Statement
or a supplement to the related prospectus or file any other
required document so that, as thereafter delivered to Holders or
purchasers of Securities, the prospectus will not contain an 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, in light of the circumstances under which they were made,
not misleading; provided however, that the Company may delay
preparing, filing and distributing any such supplement or amendment
(and continue the suspension of the use of the prospectus) if the
Company determines in good faith that such supplement or amendment
would, in the reasonable judgment of the Company, (i) interfere
with or affect the negotiation or completion of a transaction that
is being contemplated by the Company (whether or not a final
decision has been made to undertake such transaction) or (ii)
involve initial or continuing disclosure obligations that are not
in the best interests of the Company's stockholders at such time;
provided further, that such delays and suspensions shall not extend
for a period of more than 30 days in the aggregate in any three
month period; provided, however, that in the case of the happening
of an event under Section 2(b)(v) relating to an acquisition or a
possible acquisition or financing, recapitalization, business
combination or other similar transaction, the Company may, without
incurring any obligation to pay Additional Interest pursuant to
Section 5(a), extend the period of delay or suspension up to an
additional 30 days; provided that the delays and suspensions
pursuant to this Section 2(h) shall not exceed 60 days in the
aggregate, in any three month period, or 90 days, in the aggregate,
in any twelve month period. If the Company notifies the Purchaser
and the Holders of the Securities in accordance with paragraphs
(ii) through (v) of Section 2(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Purchaser and the Holders shall suspend use of such
prospectus.
(i) Not later than the effective date of the Resale
Shelf Registration Statement, the Company will provide CUSIP
numbers for the Debentures and the Conversion Shares registered
under the Resale Shelf Registration Statement and provide the
Trustee with a certificate for the Debentures, in a form eligible
for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they are
applicable to the Resale Shelf Registration and will make generally
available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with
the first month of the Company's first fiscal quarter commencing
after the effective date of the Resale Shelf Registration
Statement, which statement shall cover such 12-month period.
(k) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended, in a
timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under
the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(l) The Company shall enter into such customary
agreements (including, if requested an underwriting agreement in
customary form) and take all such other action, if any, as any
Holder shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Resale Shelf
Registration.
(m) The Company shall (i) make reasonably available for
inspection by the Holders, any underwriter participating in any
disposition pursuant to the Resale Shelf Registration Statement and
any attorney, accountant or other agent retained by the Holders or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees,
accountants and auditors to supply all relevant information
reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with the Resale Shelf
Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the
Purchaser and the other parties, by one firm of counsel, which firm
shall be ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇.▇.▇. until another firm shall be
designated as described in Section 3 hereof; and provided, further
that any information that is designated in writing by the Company,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law,
or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality.
(n) The Company shall cause (i) its counsel to deliver
an opinion and updates thereof relating to the Securities in
customary form addressed to the managing underwriters, if any, or
in the case where there is no underwriter, the Purchaser, thereof
and dated, in the case of the initial opinion, the effective date
of such Resale Shelf Registration Statement (it being agreed that
the matters to be covered by such opinion shall include the matters
covered by opinions under the Purchase Agreement; the due
authorization, execution and delivery of the relevant agreement of
the type referred to in Section 2(l) hereof; the compliance as to
form of such Resale Shelf Registration Statement and of the
Indenture with the requirements of the Securities Act and the Trust
Indenture Act, respectively; and, as of the date of the opinion and
as of the effective date of the Resale Shelf Registration Statement
or most recent post-effective amendment thereto, as the case may
be, the absence from such Resale Shelf Registration Statement and
the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein of an
untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading (in the case of any
such documents, in the light of the circumstances existing at the
time that such documents were filed with the Commission under the
Exchange Act); (ii) its officers to execute and deliver all
customary documents and certificates and updates thereof requested
by any underwriters of the applicable Securities; and (iii) its
independent public accountants and the independent public
accountants, if any with respect to any other entity for which
financial information is provided in the Resale Shelf Registration
Statement to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in
customary form; and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten
offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
(o) In the event that any broker-dealer registered under
the Exchange Act shall underwrite any Securities or participate as
a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the Conduct Rules (the
"Rules") of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company will assist such broker-
dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720,
shall so require, engaging a "qualified independent underwriter"
(as defined in Rule 2720) to participate in the preparation of the
Resale Shelf Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and,
if any portion of the offering contemplated by such Resale Shelf
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 4 hereof and (iii) providing such information
to such broker-dealer as may be required in order for such broker-
dealer to comply with the requirements of the Rules.
(p) The Company shall use its reasonable best efforts to
take all other steps necessary to effect the registration of the
Securities covered by the Resale Shelf Registration Statement
contemplated hereby.
3. REGISTRATION EXPENSES. The Company shall bear all fees
and expenses incurred in connection with the performance of its
obligations under Sections 1 and 2 hereof whether or not a Resale
Shelf Registration is filed or becomes effective, shall bear or
reimburse the Holders of the Securities covered thereby for the
reasonable fees and disbursements of one firm of counsel, which
firm shall be ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. until another firm shall be
designated by the Holders of a majority in principal amount of the
Debentures covered thereby to act as counsel for the Holders in
connection therewith.
4. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Holder of the Securities and each person, if any, who controls
such Holder within the meaning of the Securities Act or the
Exchange Act (each Holder and such controlling persons are referred
to collectively as the "Indemnified Parties") from and against any
losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified
Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Resale
Shelf Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to the
Resale Shelf Registration, 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 in light of the circumstances in which they were made, not
misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action in respect thereof; provided, however,
that (i) the Company shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Resale Shelf Registration
Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Resale Shelf
Registration in reliance upon and in conformity with written
information pertaining to a Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein, and
(ii) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus
relating to the Resale Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the
benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities
concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Holder results from the fact
that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Securities to such person,
a copy of the final prospectus if the Company had previously
furnished copies thereof to such Holder, provided, further,
however, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified
Party. The Company shall also indemnify underwriters, their
officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to
the indemnification of the Holders if requested by such Holders.
(b) Each Holder, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any,
who controls the Company within the meaning of the Securities Act
or the Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company
or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Resale Shelf Registration Statement
or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Resale Shelf Registration,
or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements
therein in light of the circumstances in which they were made, not
misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was
made in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal or
other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending
any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability which
such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under
this Section 4 of notice of the commencement of any action or
proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 4, notify the
indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve
the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in
paragraph (a) or (b) above. In case any such action is brought
against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party
under this Section 4 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes
(i) an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action
and (ii) does not include any statement as to, or an admission of,
culpability or a failure to act by or on behalf of an indemnified
party. An indemnifying party will not be liable for any settlement
of any action or claim effected without its written consent;
provided, however, that such consent will not be reasonably
withheld.
(d) If the indemnification provided for in this Section
4 is unavailable or insufficient to hold harmless an indemnified
party under subsections (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified
party on the other from the sale of the Securities, pursuant to the
Resale Shelf Registration, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. 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 on the one hand or
such Holder or such other indemnified party, as the case may be, on
the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding
any other provision of this Section 4(d), the Holders of the
Securities shall not be required to contribute any amount in excess
of the amount by which the net proceeds received by such Holders
from the sale of the Securities pursuant to a Resale Shelf
Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities 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 such indemnified party within the
meaning of the Securities Act or the Exchange Act shall have the
same rights to contribution as such indemnified party and each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 5 shall
survive the sale of the Securities pursuant to the Resale Shelf
Registration Statement and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any indemnified party.
5. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a)
Additional interest (the "Additional Interest") with respect to the
Debentures and Conversion Shares that in each case are Transfer
Restricted Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through
(iii) below a "Registration Default":
(i) If on or prior to the 90th day after the
Closing Date the Resale Shelf Registration Statement has not
been filed with the Commission;
(ii) If on or prior to the 180th day after the
Closing Date, the Resale Shelf Registration Statement has not
been declared effective by the Commission; or
(iii) If after the Resale Shelf Registration
Statement is declared effective (A) such Resale Shelf
Registration Statement thereafter ceases to be effective or
(B) such Resale Shelf Registration Statement or the related
prospectus ceases to be usable (except in either case as
permitted in paragraph (b)) in connection with resales of
Transfer Restricted Securities during the periods specified
herein because either (1) any event occurs as a result of
which the related prospectus forming part of such Resale Shelf
Registration Statement would include any untrue statement of
a material fact or omit to state any material fact necessary
to make the statements therein in the light of the
circumstances under which they were made not misleading, or
(2) it shall be necessary to amend such Resale Shelf
Registration Statement or supplement the related prospectus,
to comply with the Securities Act or the Exchange Act or the
respective rules thereunder.
Additional Interest shall accrue on the Debentures and
Conversion Shares that are Transfer Restricted Securities from and
including the date on which any such Registration Default shall
occur to but excluding the date on which all such Registration
Defaults have been cured, at a rate of 0.25% per annum for the
first 90-day period from and including the date of the Registration
Default and thereafter at a rate of 0.50% per annum, calculated
based on the aggregate Applicable Principal Amount of such
Debentures and, in the case of the Conversion Shares, the aggregate
Applicable Conversion Price.
(b) A Registration Default referred to in Section
5(a)(iii) hereof shall be deemed not to have occurred and be
continuing in relation to the Resale Shelf Registration Statement
or the related prospectus if (A) (i) such Registration Default has
occurred solely as a result of (x) the filing of a post-effective
amendment to such Resale Shelf Registration Statement to
incorporate annual audited financial information with respect to
the Company or as contemplated by Section 1(d) where such post-
effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related prospectus or (y)
other material events, with respect to the Company that would need
to be described in such Resale Shelf Registration Statement or the
related prospectus and (ii) in the case of clause (y), the Company
is proceeding promptly and in good faith to amend or supplement
such Resale Shelf Registration Statement and related prospectus to
describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 30
days, Additional Interest shall be payable in accordance with the
above paragraph from the day such Registration Default occurs until
such Registration Default is cured or (B) during the period
permitted by Section 2(h) during which use of a prospectus is
suspended.
(c) Any amounts of Additional Interest due pursuant to
clause (i), (ii) or (iii) of Section 5(a) above will be payable in
cash to the Record Holder on the Damages Payment Dates with respect
to the Debentures and Conversion Shares. The amount of Additional
Interest will be determined by multiplying the applicable
Additional Interest rate by, in the case of the Debentures, the
Applicable Principal Amount and, in the case of the Conversion
Shares, the Applicable Conversion Price, multiplied by a fraction,
the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) CERTAIN DEFINITIONS. For purposes of this Section 5:
APPLICABLE CONVERSION PRICE. The Applicable Conversion Price
means the Applicable Principal Amount divided by the Conversion
Rate in effect as of the next succeeding June 23 or December 23
following such Registration Default in the case of the first such
payment of Additional Interest with respect to a Registration
Default (and thereafter at the next succeeding June 23 or December
23 until the cure of such Registration Default) or, if no
Debentures are then outstanding, the last Conversion Rate that was
in effect when the Debentures were last outstanding.
APPLICABLE PRINCIPAL AMOUNT. Applicable Principal Amount with
respect to each $1,000 principal amount at maturity of Debentures
means the sum of the initial issue price of such Debenture
($499.60) plus accrued original issue discount with respect to such
Debenture through the next succeeding June 23 or December 23
following such Registration Default in the case of the first such
payment of Additional Interest with respect to a Registration
Default (and thereafter at the next succeeding June 23 or December
23 until the cure of such Registration Default) or, if no
Debentures are then outstanding, such sum calculated as if such
Debentures were then outstanding.
DAMAGES PAYMENT DATE. Each June 23 and December 23 in the
case of Debentures and the Conversion Shares.
RECORD HOLDER. With respect to any Damages Payment Date
relating to any Debenture or Conversion Shares as to which any
Additional Interest has accrued, the registered holder of such
Debenture or Conversion Shares, as the case may be, 15 days prior
to the next succeeding Damages Payment Date.
TRANSFER RESTRICTED SECURITIES. Each Security until (i) the
date on which such Security has been effectively registered under
the Securities Act and disposed of in accordance with the Resale
Shelf Registration Statement or (ii) the date on which such
Security is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
6. RULES 144 AND 144A. The Company shall use its reasonable
best efforts to file the reports required to be filed by it under
the Securities Act and the Exchange Act in a timely manner and, if
at any time the Company is not required to file such reports, it
will, upon the request of any Holder of Debentures, make publicly
available such other information as is necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of
Debentures may reasonably request, all to the extent required from
time to time to enable such Holder to sell Debentures without
registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy
of this Agreement to prospective purchasers of Debentures
identified to the Company by the Purchaser upon request. Upon the
request of any Holder of Debentures, the Company shall deliver to
such Holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Company to register any of
its securities pursuant to the Exchange Act.
7. UNDERWRITTEN REGISTRATIONS. If any of the Transfer
Restricted Securities covered by any Resale Shelf Registration are
to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer the
offering ("Managing Underwriters") will be selected by the Holders
of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering, provided
however that such Managing Underwriters must be reasonably
satisfactory to the Company. No person may participate in any
underwritten registration hereunder unless such person (i) agrees
to sell such person's Transfer Restricted Securities on the basis
reasonably provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting agreements.
8. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority
of the then outstanding Conversion Shares constituting Transfer
Restricted Securities (with Holders of Debentures deemed to be the
Holders, for purposes of this Section 8, of the number of
outstanding shares of Conversion Shares into which such Debentures
are or would be convertible or exchangeable as of the date on which
such consent is requested). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of
Transfer Restricted Securities whose securities are being sold
pursuant to a Resale Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders of
Transfer Restricted Securities may be given by Holders of at least
a majority of the Transfer Restricted Securities being sold by such
Holders pursuant to such Resale Shelf Registration Statement;
provided, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions
of the immediately preceding sentence. Each Holder of Transfer
Restricted Securities outstanding at the time of any such
amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8,
whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on
the Transfer Restricted Securities or is delivered to such Holder.
Each Holder may waive compliance with respect to any obligation of
the Company under this Agreement as it may apply or be enforced by
such particular Holder
(b) NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, first-class mail, facsimile transmission, or air
courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most
current address given by such Holder to the Company.
(2) if to the Purchaser:
Credit Suisse First Boston Corporation
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇.▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(3) if to the Company, at its address as follows:
Global Marine Inc.
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-4493
Fax No.:
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
One Shell Plaza
910 Louisiana
Houston, TX 77002-4995
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; three business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged by
recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. The Company has not, as
of the date hereof, entered into, nor shall it, on or after the
date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Company and its successors and assigns.
(e) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one
and the same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and
of the remaining provisions contained herein shall not be affected
or impaired thereby.
(i) SECURITIES HELD BY THE COMPANY. Whenever the
consent or approval of Holders of a specified percentage of
principal amount of Securities is required hereunder, Securities
held by the Company or its affiliates (other than subsequent
Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities)
shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement on the Purchaser and the Company in
accordance with its terms.
Very truly yours,
GLOBAL MARINE INC.
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇
Name: ▇. ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Treasurer
The foregoing Registration
Rights Agreement is hereby
confirmed and accepted as
of the date first above
written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:Managing Director