EXHIBIT 10.1
DEALER MANAGER AND SOLICITATION AGENT AGREEMENT
March 23, 1998
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. The Tender Offer. Falcon Drilling Company, Inc., a Delaware
corporation ("Purchaser"), is making tender offers (hereinafter referred
to, together with any amendments, supplements or extensions thereof, as the
"Tender Offers") to purchase for cash any and all of its outstanding (i) 9
1/2% Series B Senior Notes due 2001, (ii) 12 1/2% Series B Senior
Subordinated Notes due 2005 and (iii) 8 7/8% Series B Senior Notes due 2003
(collectively, the "Notes"). Purchaser is also soliciting (the
"Solicitations") consents (the "Consents") of the holders of the Notes to
certain amendments to (i) the indenture dated as of January 15, 1994
between Purchaser, and certain subsidiaries of Purchaser (the "Falcon
Guarantors") and Texas Commerce Bank National Association, as Trustee (the
"1994 Trustee"), (ii) the indenture dated as of March 15, 1995 between
Purchaser and Texas Commerce Bank National Association, as Trustee (the
"1995 Trustee"), and (iii) the indenture dated as of March 1, 1996 between
Purchaser and Bank One, Texas, N.A., as Trustee (the "1996 Trustee"), each
of the 1994 Trustee, the 1995 Trustee and the 1996 Trustee, a "Trustee"),
pursuant to which the Notes were issued (together, the "Indentures").
Subject to the consummation of the applicable Tender Offers and Consent
Solicitations, Purchaser will execute supplemental indentures to the
Indentures (the "Supplemental Indentures") which will give effect to the
amendments as provided in the Tender Offer and Consent Solicitation
Material (as defined herein). Each of the Tender Offers and the
Solicitations will be on the terms and subject to the conditions set forth
in the Offer to Purchase and Consent Solicitation Statement (the "Offer to
Purchase") and the Consent and Letter of Transmittal (the "Consent and
Letter of Transmittal") attached hereto as Exhibits A and B, respectively.
2. Appointment as Dealer Manager. Purchaser hereby appoints you as
Dealer Manager and Solicitation Agent (the "Dealer Manager and Solicitation
Agent") and authorizes you to act as such in connection with the Tender
Offers. As Dealer Manager and Solicitation Agent, you agree, in accordance
with your customary practice, to perform those services in connection with
the Tender Offers and Solicitations as are customarily performed by
investment banks in connection with tender offers and consent solicitations
of a like nature, including, but not limited to, using reasonable efforts
to solicit tenders of Notes and delivery of Consents pursuant to the Tender
Offers and Solicitations and communicating generally regarding the Tender
Offers and Solicitations with brokers, dealers, commercial banks and trust
companies and other holders of Notes. In such capacity, you shall act as
an independent contractor, and each of your duties arising out of your
engagement pursuant to this Agreement shall be owed solely to Purchaser.
Purchaser further authorizes you to communicate with Chase Bank of
Texas, National Association, in its capacity as depositary (the
"Depositary"), and with MacKenzie Partners, Inc., in its capacity as
information agent (the "Information Agent"), with respect to matters
relating to the Tender Offers and Solicitations. Purchaser has
instructed the Depositary to advise you at least daily as to the
number of Notes which have been tendered pursuant to the Tender
Offers, the number of Consents which have been delivered pursuant to
the Solicitations and as to such other matters in connection with
the Tender Offers and Solicitations as you may request.
3. No Liability for Acts of Dealers, Banks and Trust Companies. You
shall have no liability to Purchaser or any other person for any losses,
claims, damages, liabilities and expenses (each a "Loss" and collectively,
the "Losses") arising from any act or omission on the part of any broker or
dealer in securities (a "Dealer") (other than you, to the extent set forth
herein), bank or trust company, or any other person, and neither you nor
any of your affiliates shall be liable for any Losses arising from your own
acts or omissions in performing your obligations as Dealer Manager and
Solicitation Agent or as a Dealer hereunder or otherwise in connection with
the Tender Offers and the Solicitations, except to the extent any such
Losses are finally judicially determined to have resulted from your bad
faith, willful misconduct or gross negligence. In soliciting or obtaining
tenders of Notes and delivery of Consents, no Dealer, bank or trust company
is to be deemed to be acting as your agent or the agent of Purchaser or any
of its affiliates, and you, as Dealer Manager and Solicitation Agent, are
not to be deemed the agent of any Dealer, bank or trust company or the
agent or fiduciary of Purchaser or any of its affiliates, equity holders,
creditors or of any other person. In soliciting or obtaining tenders of
Notes and delivery of Consents, you shall not be and shall not be deemed
for any purpose to act as a partner or joint venturer of or a member of a
syndicate or group with Purchaser or any of its affiliates in connection
with the Tender Offers and the Solicitation, any purchase of the Notes, any
payment for Consents, or otherwise, and neither Purchaser nor any of its
affiliates shall be deemed to act as your agent. Purchaser shall have sole
authority for the acceptance or rejection of any and all tenders of Notes
or Consents.
4. The Tender Offer and Consent Solicitation Material. Purchaser
agrees to furnish you, at its expense, with as many copies as you may
reasonably request of the Offer to Purchase, the Consent and Letter of
Transmittal, all statements and other documents filed or to be filed with
the Securities and Exchange Commission (the "Commission") or any other
federal, state, local or foreign governmental or regulatory authorities or
any court (each an "Other Agency" and collectively, the "Other Agencies")
and any amendments or supplements to any such statements and documents (the
definitive forms of all of the foregoing materials are hereinafter
collectively referred to as the "Tender Offer and Consent Solicitation
Material") to be used by Purchaser in connection with the Tender Offers and
Solicitations, and you are authorized to use copies of the Tender Offer and
Consent Solicitation Material in connection with the Tender Offers and
Solicitations. The Tender Offer and Consent Solicitation Material has been
or will be prepared and approved by, and is the sole responsibility of,
Purchaser.
You hereby agree, as Dealer Manager and Solicitation Agent, that you
will not disseminate any written material for or in connection with
the solicitation of tenders of Notes and delivery of Consents
pursuant to the Tender Offers and Solicitations other than the
Tender Offer and Consent Solicitation Material, and you agree that
you will not make any statements in connection with such
solicitation, other than the statements that are set forth in the
Tender Offer and Consent Solicitation Material or as otherwise
authorized by Purchaser.
Purchaser agrees that no Tender Offer and Consent Solicitation
Material will be used in connection with the Tender Offers and
Solicitations or filed with the Commission or any Other Agency with
respect to the Tender Offers and Solicitations without first
submitting copies thereof to you, giving you reasonable opportunity
to comment thereon and giving reasonable consideration to your
comments, if any, with respect thereto. In the event that Purchaser
uses or permits the use of any Tender Offer and Consent Solicitation
Material in connection with the Tender Offers and Solicitations or
files any such material with the Commission or any Other Agency
without your prior approval, which shall not be unreasonably
withheld, then you shall be entitled to withdraw as Dealer Manager
and Solicitation Agent in connection with the Tender Offers and
Solicitations without any liability or penalty to you or any
Indemnified Person (as hereinafter defined), and you shall remain
entitled to the indemnification provided in Section 12 hereof and to
receive the payment of all fees and expenses payable under this
Agreement which have accrued to the date of such withdrawal or would
otherwise be due to you on such date. If you withdraw as Dealer
Manager and Solicitation Agent, as a result of the foregoing, the
fees accrued and reimbursement for your expenses through the date of
such withdrawal shall be paid to you promptly after such date. If
you withdraw, prior to the consent date, as Dealer Manager and
Solicitation Agent for any reason other than those described above,
you will be entitled to reimbursement for your expenses through the
date of such withdrawal or termination, but shall not be entitled to
receive any fee for services performed hereunder.
5. Compensation. Purchaser agrees to pay you, as compensation for
your services as Dealer Manager and Solicitation Agent in connection with
the Tender Offers and Solicitations, a fee of $3.125 for each $1,000
principal amount of Notes validly tendered pursuant to the Tender Offers
and Solicitations whether or not any Notes are purchased by Purchaser upon
the expiration or termination of the Tender Offer.
6. Expenses of Dealer Manager and Solicitation Agent and Others. In
addition to your compensation for your services hereunder pursuant to
Section 5 hereof, Purchaser agrees to pay directly, or reimburse you, as
the case may be, for (i) all reasonable expenses incurred by you relating
to the preparation, printing, filing, mailing and publishing of all Tender
Offer and Consent Solicitation Material, (ii) all fees and expenses of the
Depositary and Information Agent referred to in the Offer to Purchase,
(iii) all advertising charges in connection with the Tender Offers and
Solicitations, including those of any public relations firm or other person
or entity rendering services in connection therewith, (iv) all fees, if
any, payable to Dealers (including you), and banks and trust companies as
reimbursement for their customary mailing and handling expenses incurred in
forwarding the Tender Offer and Consent Solicitation Material to their
customers and (v) all other reasonable fees and expenses incurred by you in
connection with the Tender Offers and Solicitations or otherwise in
connection with the performance of your services hereunder (including fees
and disbursements of your legal counsel). All payments to be made by
Purchaser pursuant to this Section 6 shall be made promptly against deliv
ery to Purchaser of statements therefor which are itemized in reasonable
detail. Purchaser shall be liable for the foregoing payments whether or
not the Tender Offers and Solicitations are commenced, withdrawn,
terminated or canceled prior to the purchase of any Notes and the payment
for any Consents or whether Purchaser or any of its affiliates acquires any
Notes or Consents pursuant to the Tender Offers and Solicitations or
whether you withdraw pursuant to Section 4 hereof. The provisions of this
Section 6 are intended to govern the payment of expenses and fees described
in this Section 6 and Purchaser's obligation to indemnify an Indemnified
Person (as defined herein) are set forth in Section 12 hereof.
7. Securityholder Lists. Purchaser will cause you to be provided
with cards or lists or other records in such form as you may reasonably
request showing the names and addresses of, and the number of Notes held
by, the holders of Notes as of a recent date, and will cause you to be
advised from day to day during the period of the Tender Offers and
Solicitations as to any transfers of record of Notes.
8. Sufficient Funds. Subject to the execution of a definitive
purchase agreement relating to the sale of senior notes of R & B Falcon
Corporation, a Delaware Corporation and the parent corporation of Purchaser
("R & B Falcon") among R & B Falcon, you, Chase Securities, Inc., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co., Incorporated and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation,] Purchaser represents and warrants to you that it has or, at
the time Purchaser becomes obligated to purchase Notes under the Tender
Offers and pay for Consents under the Solicitations, will have, sufficient
funds to enable Purchaser to pay, and Purchaser hereby agrees that it will
pay promptly, in accordance with the terms and conditions of the Tender
Offers and Solicitations and Sections 5 and 6 hereof, the consideration
(and related costs) for Notes and Consents which Purchaser has offered, and
which Purchaser may be required, to pay under the Tender Offers and
Solicitations, and the fees and expenses payable hereunder.
9. Additional Representations and Warranties of Purchaser. Purchaser
represents and warrants to you that:
(1) Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its businesses or the ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or to be in good standing, considering all
such cases in the aggregate, would not have a material adverse effect on
the business, properties, financial position or results of operations of
Purchaser and all of its subsidiaries and affiliates taken as a whole.
(2) Each of Purchaser and, as applicable, the Falcon Guarantors that
is incorporated in one of the United States of America, has full corporate
power and authority to take and has duly taken all necessary corporate
action to authorize (i) the Tender Offers and Solicitations, (ii) the
purchase by Purchaser of Notes pursuant to the Tender Offers and the
payment by Purchaser for Consents pursuant to the Solicitations and (iii)
the execution, delivery and performance of each of the Supplemental
Indentures and this Agreement has been, and when executed and delivered by
Purchaser and the Falcon Guarantors, if applicable, and the relevant
Trustee, each of the Supplemental Indentures will be, duly executed and
delivered on behalf of Purchaser and, if applicable, the Falcon Guarantors,
and, assuming due authorization, execution and delivery of each of the
Indentures, the Supplemental Indentures and this Agreement by each of the
other parties thereto is, or in the case of the Supplemental Indentures
will be, a legal, valid and binding obligation of Purchaser and, if
applicable, Falcon Guarantors, enforceable against Purchaser and, if
applicable, the Falcon Guarantors, in accordance with its terms, except
that the enforceability hereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium and other laws now or hereafter in
effect relating to creditors' rights generally and (y) general principles
of equity. As of the Consent Date (as defined in the offer to Purchase), R
& B Falcon will have full corporate power and authority to take and will
have duly taken all necessary corporate action to authorize any borrowings
or financings related to the Tender Offers and Solicitations.
(3) The Tender Offer and Consent Solicitation Material complies or
will comply in all material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission thereunder (collectively, the "Exchange Act").
The Tender Offer and Consent Solicitation Material does not and will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they are made, not mis-
leading; provided, however, that no representation is made with respect to
any statements contained in, or any matter omitted from the Tender Offer
and Consent Solicitation Material in reliance upon and in conformity with
information furnished or confirmed in writing by you to Purchaser expressly
for use therein. In connection with the Tender Offers and Solicitations,
Purchaser has complied, and will continue to comply, with the applicable
provisions of the Exchange Act, including without limitation, Sections 10
and 14 and Rules 10b-5, 14e-1 and 14e-3 thereunder.
(4) Purchaser will file, if required, any and all necessary
amendments or supplements to the documents, if any, filed with the
Commission or Other Agency relating to the Tender Offers and Solicitations
and will promptly furnish to you true and complete copies of each such
amendment and supplement upon the filing thereof.
(5) The Tender Offers and Solicitations (including any related
borrowings or financings by Purchaser or any of its subsidiaries or
affiliates), the purchase by Purchaser of Notes pursuant to the Tender
Offers, the payment for Consents pursuant to the Solicitations, and the
execution, delivery and performance of each of the Supplemental Indentures
and this Agreement by Purchaser, and, if applicable, the Falcon Guarantors,
comply and will comply in all material respects with all applicable
requirements of federal, state, local and foreign law, including, without
limitation, any applicable regulations of the Commission and Other
Agencies, and all applicable judgments, orders or decrees; and no consent,
authorization, approval, order, exemption, registration, qualification or
other action of, or filing with or notice to, the Commission or any Other
Agency is required in connection with the execution, delivery and
performance of each of the Supplemental Indentures and this Agreement by
Purchaser and, if applicable, the Falcon Guarantors, the making or
consummation by Purchaser of the Tender Offers and Solicitations or the
consummation of the other transactions contemplated by this Agreement or
the Offer to Purchase, except where the failure to obtain or make such
consent, authorization, approval, order, exemption, registration,
qualification or other action or filing or notification would not
materially adversely affect the ability of Purchaser and, if applicable,
the Falcon Guarantors, to execute, deliver and perform each of the
Supplemental Indentures and this Agreement or to commence and consummate
the Tender Offers and Solicitations in accordance with their terms. All
such required consents, authorizations, approvals, orders, exemptions,
registrations, qualifications and other actions of and filings with and
notices to the Commission and the Other Agencies will have been obtained,
taken or made, as the case may be, and all statutory or regulatory waiting
periods will have elapsed, prior to the purchase of the Notes pursuant to
the Tender Offers and the payment for Consents pursuant to the
Solicitations.
(6) The Tender Offers and Solicitations (including any related
borrowings or financings by Purchaser or any of its subsidiaries or
affiliates), the purchase of Notes by Purchaser pursuant to the Tender
Offers and the payment for Consents pursuant to the Solicitations, and the
execution, delivery and performance of each of the Supplemental Indentures
and this Agreement by Purchaser, and, if applicable, the Falcon Guarantors,
do not and will not (i) conflict with or result in a violation of any of
the provisions of the certificate of incorporation or by-laws (or similar
organizational documents) of Purchaser and the Falcon Guarantors, (ii)
conflict with or violate in any material respect any law, rule, regulation,
order, judgment or decree applicable to Purchaser or any of its
subsidiaries or by which any property or asset of Purchaser or any of its
subsidiaries is or may be bound or (iii) result in a breach of any of the
material terms or provisions of, or constitute a default (with or without
due notice and/or lapse of time) under, any loan or credit agreement,
indenture, mortgage, note or other agreement or instrument to which
Purchaser or any of its subsidiaries is a party or by which any of them or
any of their respective properties or assets is or may be bound.
(7) Except as expressly disclosed in the Tender Offer and Consent
Solicitation Material, no stop order, restraining order or denial of an
application for approval has been issued and no investigation, proceeding
or litigation has been commenced or, to the best of Purchaser's knowledge,
threatened before the Commission or any Other Agency with respect to the
making or consummation of the Tender Offers and Solicitations (including
the obtaining or use of funds to purchase Notes or to pay for Consents
pursuant thereto) or the consummation of the other transactions
contemplated by this Agreement or the Offer to Purchase or with respect to
the ownership of Notes by Purchaser or any of its subsidiaries or
affiliates.
(8) Purchaser has no knowledge of any material fact or information
concerning Purchaser or any of its subsidiaries, or the operations, assets,
condition (financial or otherwise) or prospects of Purchaser or any of its
subsidiaries, which is required to be made generally available to the
public and which has not been, or is not being, or will not be, made
generally available to the public through the Tender Offer and Consent
Solicitation Material or otherwise.
(9) Purchaser is not, nor will it be as a result of the purchase by
Purchaser of Notes that it may become obligated to purchase pursuant to the
terms of the Tender Offers, an "investment company" under the Investment
Company Act of 1940, as amended, and the rules and regulations promulgated
by the Commission thereunder.
(10) Each of the representations and warranties set forth in this
Agreement will be true and correct on and as of the date on which the
Tender Offers and Solicitations are commenced on and as of the date any
Tender Offer and Consent Solicitation Material is first distributed to
holders of Notes and on and as of the date on which any Notes are purchased
and payments for Consents are made pursuant to the Tender Offers and
Solicitations.
10. Opinions of Purchaser's Counsel. Purchaser shall deliver to you
addressed to you and dated the date hereof opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.,
Co-Counsel of Purchaser, and Gardere & ▇▇▇▇▇, L.L.P., special counsel to
Purchaser, with respect to the matters set forth in Exhibits C-1 and C-2,
respectively.
11. Notification of Certain Events. Purchaser shall advise you
promptly of (i) the occurrence of any event which could cause Purchaser
to withdraw, rescind or terminate the Tender Offers and Solicitations or
would permit Purchaser to exercise any right not to purchase Notes or pay
for Consents tendered or obtained under the Tender Offers and Solicitations,
(ii) the occurrence of any event, or the discovery of any fact, the
occurrence or existence of which it believes would require the making of
any change in any of the Tender Offer and Consent Solicitation Material
then being used or would cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect, (iii)
any proposal or requirement to make, amend or supplement any filing
required by the Exchange Act in connection with the Tender Offers and
Solicitations or to make any filing in connection with the Tender Offers
and Solicitations pursuant to any other applicable law, rule or regulation,
(iv) the issuance by the Commission or any Other Agency of any comment or
order or the taking of any other action concerning the Tender Offers and
Solicitations (and, if in writing, will furnish you with a copy thereof),
(v) any material developments in connection with the Tender Offers and
Solicitations or the financing thereof, including, without limitation, the
commencement of any lawsuit concerning the Tender Offers and Solicitations
and (vi) any other information relating to the Tender Offers and
Solicitations, the Tender Offer and Consent Solicitation Material or this
Agreement which you may from time to time reasonably request.
12. Indemnification. (a) Purchaser agrees to hold harmless and
indemnify you (including any affiliated companies) and any officer,
director, partner, employee or agent of you or any of such affiliated
companies and any entity or person controlling (within the meaning of
Section 20(a) of the Exchange Act) you, including any affiliated companies
(collectively, the "Indemnified Persons"), from and against any and all
Losses whatsoever (including, but not limited to, any and all expenses
incurred in investigating, preparing or defending against any litigation or
proceeding, commenced or threatened, or any claims whatsoever whether or
not resulting in any liability) (i) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Tender Offer and Consent Solicitation Material or in any other material
used by Purchaser, or authorized by Purchaser for use in connection with
the Tender Offers and Solicitations or the transactions contemplated
thereby, or arising out of or based upon the omission or alleged omission
to state in any such document 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 (other than statements or
omissions made in reliance upon information furnished by you to Purchaser
expressly for use therein), (ii) arising out of or based upon any
withdrawal by Purchaser of, or failure by Purchaser to make or consummate,
the Tender Offers and Solicitations or the transactions contemplated
thereby or any other failure to comply with the terms and conditions
specified in the Tender Offer and Consent Solicitation Material, (iii)
arising out of the breach or alleged breach by Purchaser of any
representation, warranty or covenant set forth in this Agreement or (iv)
arising out of, relating to or in connection with any other action taken or
omitted to be taken by an Indemnified Person in connection with the Tender
Offers and Solicitations or (v) otherwise arising out of, relating to or in
connection with the Tender Offers and Solicitations, the other transactions
described in the Tender Offer and Consent Solicitation Material or your
services as Dealer Manager and Solicitation Agent hereunder. Purchaser
shall not, however, be responsible for any Loss pursuant to clauses (iv) or
(v) of the preceding sentence of this Section 12 which has been finally
judicially determined to have resulted from the bad faith, willful
misconduct or gross negligence on the part of any Indemnified Person, other
than any Loss arising out of or resulting from actions performed at the
specific request of, with the specific consent of, or in conformity in all
material respects with actions taken or omitted to be taken by, Purchaser.
(1) Purchaser and you agree that if any indemnification sought by any
Indemnified Person pursuant to this Section 12 is unavailable for any
reason or insufficient to hold you harmless, then Purchaser and you shall
contribute to the Losses for which such indemnification is held unavailable
or insufficient in such proportion as is appropriate to reflect the
relative benefits received (or anticipated to be received) by Purchaser, on
the one hand, and actually received by you, on the other hand, in
connection with the transactions contemplated by this Agreement or, if such
allocation is not permitted by applicable law, not only such relative
benefits but also the relative faults of Purchaser, on the one hand, and
you, on the other hand, as well as any other equitable considerations,
subject to the limitation that in any event the aggregate contribution by
you to all Losses with respect to which contribution is available hereunder
shall not exceed the fees actually received by you in connection with your
engagement hereunder. It is hereby agreed that the relative benefits to
Purchaser, on the one hand, and you, on the other hand, with respect to the
Tender Offers and Solicitations and the transactions contemplated thereby
shall be deemed to be in the same proportion as (i) the total value paid or
proposed to be paid to holders of Notes pursuant to the Tender Offers and
Solicitations (whether or not the Tender Offers and Solicitations or such
transactions are consummated) bears to (ii) the fees actually received by
you from Purchaser in connection with your engagement hereunder.
(2) The foregoing rights to indemnity and contribution shall be in
addition to any other right which you and the other Indemnified Persons may
have against Purchaser at common law or otherwise. If any litigation or
proceeding is brought against any Indemnified Person in respect of which
indemnification may be sought against Purchaser pursuant to this Section
12, such Indemnified Person shall promptly notify Purchaser in writing of
the commencement of such litigation or proceeding, but the failure so to
notify Purchaser shall relieve Purchaser from any liability which it may
have hereunder only if, and to the extent that, such failure results in the
forfeiture by Purchaser of substantial rights and defenses, and will not in
any event relieve Purchaser from any other obligation or liability that it
may have to any Indemnified Person other than under this Agreement. In
case any such litigation or proceeding shall be brought against any
Indemnified Person and such Indemnified Person shall notify Purchaser in
writing of the commencement of such litigation or proceeding, Purchaser
shall be entitled to participate in such litigation or proceeding, and,
after written notice from Purchaser to such Indemnified Person, to assume
the defense of such litigation or proceeding with counsel of its choice at
its expense; provided, however, that such counsel shall be satisfactory to
the Indemnified Person in the exercise of its reasonable judgment.
Notwithstanding the election of Purchaser to assume the defense of such
litigation or proceeding, such Indemnified Person shall have the right to
employ separate counsel and to participate in the defense of such litiga
tion or proceeding, and Purchaser shall bear the reasonable fees, costs and
expenses of such separate counsel and shall pay such fees, costs and
expenses at least quarterly (provided that with respect to any single
litigation or proceeding or with respect to several litigations or
proceedings involving substantially similar legal claims, Purchaser shall
not be required to bear the fees, costs and expenses of more than one such
counsel) if (i) in the reasonable judgment of such Indemnified Person the
use of counsel chosen by Purchaser to represent such Indemnified Person
would present such counsel with a conflict of interest, (ii) the defendants
in, or targets of, any such litigation or proceeding include both an
Indemnified Person and Purchaser, and such Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it or to
other Indemnified Persons which are different from or additional to those
available to Purchaser (in which case Purchaser shall not have the right to
direct the defense of such action on behalf of the Indemnified Person),
(iii) Purchaser shall not have employed counsel satisfactory to such
Indemnified Person, in the exercise of the Indemnified Person's reasonable
judgment, to represent such Indemnified Person within a reasonable time
after notice of the institution of such litigation or proceeding or (iv)
Purchaser shall authorize in writing such Indemnified Person to employ
separate counsel at the expense of Purchaser. In any action or proceeding
the defense of which Purchaser assumes, the Indemnified Person shall have
the right to participate in such litigation and retain its own counsel at
such Indemnified Person's own expense. Purchaser and you agree to notify
the other promptly of the assertion of any claim against it, any of its
officers or directors or any entity or person who controls it within the
meaning of Section 20(a) of the Exchange Act in connection with the Tender
Offers and Solicitations. The foregoing indemnification commitments shall
apply whether or not the Indemnified Person is a formal party to such
litigation or proceeding.
(3) Purchaser also agrees to reimburse each Indemnified Person for
all reasonable expenses (including fees and disbursements of counsel) as
they are incurred by such Indemnified Person in connection with
investigating, preparing for, defending or providing evidence (including
appearing as a witness) with respect to any action, claim, investigation,
inquiry, arbitration or other proceeding referred to in this Section 12 or
enforcing this Agreement, whether or not in connection with pending or
threatened litigation in which any Indemnified Person is a party.
(4) Purchaser shall not be liable for any settlement, compromise or
consent to the entry of any judgement without its prior written consent,
which consent shall not be unreasonably withheld. Purchaser agrees that it
will not, without your prior written consent (which will not be
unreasonably withheld) settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in
respect of which indemnification may be sought hereunder (whether or not
you, any other Indemnified Person or Purchaser is an actual or potential
party), unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Person from all liability arising
out of such claim, action or proceeding.
13. Conditions to Obligations of the Dealer Manager. Your obligations
hereunder shall at all times be subject to the conditions that (a) all
representations, warranties and other statements of Purchaser contained
herein are now, and at all times during the period of the Tender Offers and
Solicitations shall be, true and correct in all material respects and (b)
Purchaser at all times shall have performed in all material respects all of
its obligations hereunder theretofore to be performed.
14. Termination. This Agreement shall terminate upon the expiration,
termination or withdrawal of the Tender Offers and Solicitations or upon
withdrawal by you as Dealer Manager and Solicitation Agent pursuant to
Section 4 hereof, it being understood that Sections 3, 5, 6, 8, 9, 12, 14,
15, 16, 17, 20, 21, 22 and 23 hereof shall survive any termination of this
Agreement.
15. Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
given (and shall be deemed to have been given upon receipt) by delivery in
person, by cable, by telecopy, by telegram, by telex or by registered or
certified mail (postage prepaid, return receipt requested) to the
applicable party at the addresses indicated below:
(1) if to you:
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:Transaction Advisory Group
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Purchaser:
R&B Falcon Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Gardere & ▇▇▇▇▇, L.L.P.
3000 Thanksgiving Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
16. Consent to Jurisdiction; Service of Process. Purchaser hereby (a)
submits to the jurisdiction of any New York State or Federal court sitting
in the City of New York with respect to any actions and proceedings arising
out of or relating to this Agreement, (b) agrees that all claims with
respect to such actions or proceedings may be heard and determined in such
New York State or Federal court, (c) waives the defense of an inconvenient
forum, (d) agrees not to commence any action or proceeding relating to this
Agreement other than in a New York State or Federal court sitting in the
City of New York and (e) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
17. Joint and Several Obligations, Etc. In the event that Purchaser
makes the Tender Offers and Solicitations through one or more of its
affiliates, each reference in this Agreement to Purchaser shall be deemed
to be a reference to Purchaser and any such affiliates, and the
representations, warranties, covenants and agreements of Purchaser and any
such affiliates hereunder shall be joint and several.
18. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject
matter hereof.
19. Amendment. This Agreement may not be amended except in writing
signed by each party to be bound thereby.
20. Governing Law. The validity and interpretation of this Agreement
shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York, without regard to conflicts of law
principles thereof.
21. Waiver of Jury Trial. PURCHASER HEREBY AGREES ON ITS OWN BEHALF
AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY
HOLDERS, TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
COUNTER-CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE
TENDER OFFERS AND SOLICITATIONS).
22. Counterparts; Severability. This Agreement may be executed in two
or more separate counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Any term or provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction.
23. Parties in Interest. This Agreement, including rights to
indemnity and contribution hereunder, shall be binding upon and inure
solely to the benefit of each party hereto, the Indemnified Persons and
their respective successors, heirs and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement.
Please indicate your willingness to act as Dealer Manager and
Solicitation Agent and your acceptance of the foregoing by providing
to us a copy of this Agreement so signed, whereupon this Agreement and
your acceptance shall constitute a binding agreement between us.
FALCON DRILLING COMPANY, INC.
By:
Name:
Title:
Accepted as of the
date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
Name:
Title:
Exhibit A
Offer to Purchase
Exhibit B
Consent and Letter of Transmittal
Exhibit C-1
Matters to be Addressed in the Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
(1) Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation and is duly qualified (to the best of such counsel's
knowledge with respect to certain foreign operations) to transact
business and is in good standing in each jurisdiction in which the
conduct of its businesses or the ownership or leasing of property
requires such qualification, except to the extent that the failure
to be so qualified or to be in good standing, considering all such
cases in the aggregate, would not have a material adverse effect
on the business, properties, financial position or results of
operations of Purchaser and all of its subsidiaries and
affiliates, taken as a whole.
(2) Each of Purchaser and, as applicable, the Falcon Guarantors, has
full corporate power and authority to take and has duly taken all
necessary corporate action to authorize (i) the Tender Offers and
Solicitations (including any related borrowings or financings by
Purchaser or any of its subsidiaries or affiliates), (ii) the
purchase by Purchaser of Notes and the payment for Consents
pursuant to the Tender Offers and Solicitations and (iii) the
execution, delivery and performance of each of the Supplemental
Indentures and this Agreement, and each of the Indentures and this
Agreement has been, and, when executed and delivered by Purchaser,
and, as applicable, the Falcon Guarantors and the relevant
Trustee, each of the Supplemental Indentures will be, duly
executed and delivered on behalf of Purchaser and, if applicable,
the Falcon Guarantors and, assuming due authorization, execution
and delivery of this Agreement by Credit Suisse First Boston
Corporation and each of the Supplemental Indentures by the
relevant Trustee, is a legal, valid and binding obligation of
Purchaser and, if applicable, the Falcon Guarantors enforceable
against Purchaser and, if applicable, the Falcon Guarantors in
accordance with its terms, except that the enforceability thereof
may be limited by (x) bankruptcy, insolvency, reorganization,
moratorium and other laws now or hereafter in effect relating to
creditors' rights generally and (y) general principles of equity.
(3) The Tender Offers and Solicitations (including any related
borrowings or financings by Purchaser or any of its subsidiaries
or affiliates), the purchase of Notes by Purchaser and the payment
for Consents pursuant to the Tender Offers and Solicitations, and
the execution, delivery and performance of each of this Agreement,
and the Supplemental Indentures by Purchaser and, if applicable,
the Falcon Guarantors, do not and will not (i) conflict with or
result in a violation of any of the provisions of the certificate
of incorporation or by-laws (or similar organizational documents)
of Purchaser or the Falcon Guarantors, (ii) conflict with or
violate in any material respect any law, rule, regulation, order,
judgment or decree applicable to Purchaser or any of its
subsidiaries or by which any property or asset of Purchaser or any
of its subsidiaries is or may be bound or (iii) to the best of
such counsel's knowledge, result in a breach of any of the
material terms or provisions of, or constitute a default (with or
without due notice and/or lapse of time) under, any loan or credit
agreement, indenture, mortgage, note or other agreement or
instrument to which Purchaser or any of its subsidiaries is a
party or by which any of them or any of its properties or assets
is or may be bound.
(4) No consent, authorization, approval, order, exemption,
registration, qualification or other action of, or filing with or
notice to, the Commission or any Other Agency is required in
connection with the execution, delivery and performance of each of
the Supplemental Indentures and this Agreement by Purchaser and,
if applicable, the Falcon Guarantors, the making or consummation
by Purchaser of the Tender Offers and Solicitations or the
consummation of the other transactions contemplated by this
Agreement or the Offer to Purchase, except where the failure to
obtain or make such consent, authorization, approval, order,
exemption, registration, qualification or other action or filing
or notification would not materially adversely affect the ability
of Purchaser and, if applicable, the Falcon Guarantors, to
execute, deliver and perform each of the Supplemental Indentures
and this Agreement or to commence and consummate the Tender Offers
and Solicitations in accordance with their terms.
(5) Except as expressly disclosed in the Offer to Purchase, to the
best of such counsel's knowledge, no stop order, restraining order
or denial of an application for approval has been issued and no
investigation, proceeding or litigation has been commenced or
threatened before the Commission or any Other Agency with respect
to the making or consummation of the Tender Offers and
Solicitations (including the obtaining or use of funds to purchase
Notes or pay for Consents pursuant thereto) or the consummation of
the other transactions contemplated by this Agreement or the Offer
to Purchase or with respect to the ownership of the Notes by
Purchaser.
(6) To the best of such counsel's knowledge, Purchaser has no
knowledge of any material fact or information concerning Purchaser
or any of its subsidiaries, or the operations, assets, condition
(financial or otherwise) or prospects of Purchaser or any of its
subsidiaries, which is required to be made generally available to
the public and which has not been, or is not being, or will not
be, made generally available to the public through the Tender
Offer and Consent Solicitation Material or otherwise.
Such counsel shall also advise that no facts have come to its
attention which has caused him to believe that the Offer to Purchase
(apart from the financial and market data and statistical information
contained or incorporated by reference therein, as to which such
counsel need express no opinion) contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading.
Exhibit C-2
Matters to be Addressed in the Opinion of Gardere & ▇▇▇▇▇, L.L.P.
(a) The Tender Offers and Solicitations (including any related
borrowings or financings by Purchaser or any of its subsidiaries or
affiliates), the purchase by Purchaser of Notes and the payment for
Consents pursuant to the Tender Offers and Solicitations, and the
execution, delivery and performance of each of the Supplemental
Indentures and this Agreement by Purchaser and, if applicable, the
Falcon Guarantors, comply and will comply in all material respects
with all applicable requirements of applicable law, including,
without limitation, any applicable regulations of the Commission and
Other Agencies, and all applicable judgments, orders or decrees of
which such counsel has knowledge, and no consent, authorization,
approval, order, exemption, registration, qualification or other
action of, or filing with, the Commission or any Other Agency is
required in connection with the execution, delivery and performance
of each of the Supplemental Indentures and this Agreement by
Purchaser and, if applicable, the Falcon Guarantors, the making or
consummation by Purchaser of the Tender Offers and Solicitations or
the consummation of the other transactions contemplated by this
Agreement or the Offer to Purchase, except where the failure to
obtain or make such consent, authorization, approval, order,
exemption, registration, qualification or other action or filing or
notification would not materially adversely affect the ability of
Purchaser and, if applicable, the Falcon Guarantors, to execute,
deliver and perform each of the Supplemental Indentures and this
Agreement or to commence and consummate the Tender Offers and
Solicitations in accordance with their terms.
(b) Except as expressly disclosed in the Offer to Purchase, to the best
of such counsel's knowledge, no stop order, restraining order or
denial of an application for approval has been issued and no
investigation, proceeding or litigation has been commenced or
threatened before the Commission or any Other Agency with respect to
the making or consummation of the Tender Offers and Solicitations
(including the obtaining or use of funds to purchase Notes and to
pay for Consents pursuant thereto) or the consummation of the other
transactions contemplated by this Agreement or the Offer to Purchase
or with respect to the ownership of the Notes by Purchaser.
(c) Purchaser is not, nor will be as a result of the purchase by
Purchaser of Notes that it may become obligated to purchase pursuant
to the terms of the Tender Offers, an "investment company" under the
Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder.
Such counsel shall also advise that no facts have come to its attention
which has caused it to believe that the Offer to Purchase (apart from the
financial and market data and statistical information contained or
incorporated by reference therein, as to which such counsel need express no
opinion) contains any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they
were made, not misleading.
