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EXHIBIT 10.23
EAGLE GEOPHYSICAL, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of __________, 1997
(this "Agreement"), by and among EAGLE GEOPHYSICAL, INC., a Delaware
corporation (the "Company"), and EHI HOLDINGS, INC. a Delaware corporation (the
"Stockholder").
W I T N E S S E T H:
WHEREAS, the Company has undertaken the completion of an initial
public offering (the "IPO") of 4,000,000 newly-issued shares of its common
stock, $0.01 par value per share (the "Common Stock"), as well as shares of the
Common Stock held by certain selling stockholders;
WHEREAS, Stockholder currently owns 3,400,000 shares of the Common
Stock;
WHEREAS, as part of the IPO, Stockholder will sell 1,880,000 shares of
the Common Stock as a selling stockholder ("Stockholder's Distribution");
WHEREAS, in connection with the IPO, the underwriters have
overallotment options with respect to a maximum of 882,000 shares of the Common
Stock (the "Overallotment Options");
WHEREAS, up to 100,000 shares of the Common Stock that may be
purchased by the underwriters upon exercise of the Overallotment Options
("Stockholder's Share of the Overallotment") may be purchased from the
Stockholder, which shall be in addition to the Stockholder's Distribution;
WHEREAS, the Company has agreed to provide to the Stockholder the
limited registration rights set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms have the meanings specified as follows:
(a) The term "Commission" means the Securities and
Exchange Commission.
(b) The term "Common Stock" has the meaning specified in
the preamble to this Agreement.
(c) The term "Company" has the meaning specified in the
preamble to this Agreement.
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(d) The term "Exchange Act" means the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
(e) The term "Overallotment Options" has the meaning
specified in the preamble to this Agreement.
(f) The term "Person" means an individual, partnership,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
(g) The terms "register," "registered" and "registration"
refer to a registration of securities effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act (as defined below), and the declaration or ordering of effectiveness of
such registration statement or document.
(h) The term "Registrable Securities" means (i) the
1,520,000 shares of Common Stock held by the Stockholder after the
Stockholder's Distribution, less Stockholder's Share of the Overallotment to
the extent actually exercised by the underwriters, and (ii) any other shares of
Common Stock issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such shares of Common Stock; provided,
however, that any such shares of Common Stock shall cease to be Registrable
Securities when such shares have been effectively registered under the
Securities Act and disposed of in accordance with a registration statement or
such shares are sold pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act.
(i) The term "Securities Act" means the Securities Act of
1933, as amended, and the rules and regulations of the Commission issued under
such Act, as they each may, from time to time, be in effect.
(j) The term "Stockholder" means the person defined as
such in the preamble to this Agreement to whom registration rights are hereby
granted, and any transferee to whom the rights granted under this Agreement are
assigned in accordance with Section 13 hereof.
(k) The term "Stockholder's Distribution" has the meaning
specified in the preamble to this Agreement.
(l) The term "Stockholder's Share of the Overallotment"
has the meaning specified in the preamble to this Agreement.
2. Securities Subject to this Agreement. The securities entitled
to the benefits of this Agreement are the Registrable Securities.
Notwithstanding any provision contained herein, Stockholder hereby agrees that,
prior to the date two (2) years after the date of this Agreement, it will not
sell under any registration statement filed by the Company pursuant hereto more
than fifty percent (50%) of the Registrable Securities held by Stockholder
immediately following the completion of the IPO or, if applicable, any exercise
of the Overallotment Options by the underwriters.
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3. Shelf Registration. The Company shall file a "shelf"
registration statement covering the Registrable Securities on any appropriate
form pursuant to Rule 415 (or any similar rule that may be adopted by the
Commission) under the Securities Act no later than 370 days after the date of
this Agreement. The Company agrees to use its best efforts to cause such shelf
registration statement to become effective as promptly as practicable after the
filing thereof and to keep it continuously effective thereafter for a period of
two years from the effective date of such registration statement.
Notwithstanding anything herein to the contrary, the period during which the
Company is obligated to maintain the effectiveness of a registration statement
hereunder will terminate when all the Registrable Securities covered by the
shelf registration statement have been sold.
4. Piggyback Registration.
(a) If, at any time before the expiration of three years
after the date of this Agreement, the Company proposes to file a registration
statement relating to any of its equity securities under the Securities Act
other than (i) a registration statement on Form S-4 or Form S-8 or successor
forms thereto or a registration on any other form which does not include
substantially the same information as would be required to be included in a
registration statement covering the Registrable Securities; or (ii) a
registration statement filed in connection with an exchange offer or an
offering of securities solely to the Company's existing stockholders or its
employees, the Company will give written notice no less than 30 days prior to
such filing to the Stockholder offering the opportunity to register on such
registration statement such number of Registrable Securities as Stockholder may
request (such notice to specify, among other things, the proposed offering
price, the kind and number of securities proposed to be registered and the
distribution arrangements, including identification of the managing
underwriter(s)). The Company will use all reasonable efforts to include in
such registration all Registrable Securities with respect to which the Company
has received written request for inclusion within 15 days after the Company's
notice has been so given.
(b) If any registration statement is an underwritten
public offering, the right of the Stockholder to registration pursuant to this
Section 4 shall be conditioned upon such Stockholder's participation in such
reasonable underwriting arrangements as the Company shall make regarding the
offering, and the inclusion of Registrable Securities in the underwriting shall
be limited to the extent provided herein. The Stockholder shall (together with
the Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 4(b), if the managing
underwriter concludes in its reasonable judgment that the number of shares to
be registered for selling stockholders (including the Stockholder) would
materially adversely effect such offering, the number of shares of the Common
Stock to be registered, together with the number of shares of Common Stock or
other securities held by other stockholders proposed to be registered in such
offering, shall be reduced on a pro rata basis based on the number of shares
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of the Common Stock proposed to be sold by the Stockholder as compared to the
number of shares proposed to be sold by all stockholders. If the Stockholder
disapproves of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to the Company and the managing underwriter,
delivered not less than ten days before the effective date. The Registrable
Securities excluded by the managing underwriter or withdrawn from such
underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 120 days after the effective date
of the registration statement relating thereto, or such other shorter period of
time as the underwriters may require.
5. Registration Procedures. In connection with the Company's
shelf registration obligations pursuant to Section 3 and piggyback registration
obligations pursuant to Section 4 hereof, the Company shall as expeditiously as
reasonably practicable:
(a) Prepare and file with the Commission a registration
statement on an appropriate form under the Securities Act and use its best
efforts to cause such registration statement to become effective; provided,
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the Stockholder and the
underwriters, if any, as soon as practicable, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
Stockholder and the underwriters, and the Company will not file any
registration statement or amendment thereto, or any prospectus or any
supplement thereto, to which Stockholder or the underwriters shall reasonably
object in light of the requirements of the Securities Act and any other
applicable laws and regulations.
(b) Prepare and file with the Commission such amendments
and post-effective amendments to a registration statement as may be necessary
to keep such registration statement effective for the applicable period; cause
the related prospectus to be filed pursuant to Rule 424(b) under the Securities
Act; cause such prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424(b) under
the Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during the applicable period in accordance with the intended methods
of disposition set forth in such registration statement or supplement to such
prospectus.
(c) Notify the Stockholder and the managing underwriters,
if any, promptly, and (if requested by any such Person) confirm such advice in
writing, (i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to a registration statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to a registration
statement or related prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of a
registration statement or the initiation of any proceeding for that purpose,
(iv) if at any time the representations and warranties of the Company
contemplated by Section 5(m) cease to be true and correct, (v) of the receipt
by the Company of any notification with respect to the suspension or
qualification of any of the Registrable Securities for sale in any jurisdiction
or the initiation of any proceeding for such purpose, (vi) of the happening of
any event which requires the making of any changes in a registration statement
or
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related prospectus so that such documents will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and (vii)
of the Company's reasonable determination that a post-effective amendment to a
registration statement would be appropriate or that there exist circumstances
not yet disclosed to the public which make further sales under such
registration statement inadvisable pending such disclosures and post-effective
amendment.
(d) Exercise its best efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement, or the
lifting of any suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible moment.
(e) If requested by Stockholder or the managing
underwriters in connection with an underwritten offering, promptly incorporate
in a prospectus supplement or post-effective amendment such information as
Stockholder or the managing underwriters agree should be included therein
relating to such sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of shares of
Registrable Securities being sold to such underwriters and the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; make all required filings of such
prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; and supplement or make amendments to any registration statement if
requested by Stockholder or any underwriter of such Registrable Securities.
(f) Furnish to the Stockholder and each managing
underwriter, if any, without charge, at least one signed copy of the
registration statement, any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference).
(g) Deliver without charge to the Stockholder and the
underwriters, if any, as many copies of the prospectus or prospectuses
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; and the Company consents to the use of
such prospectus or any amendment or supplement thereto by the Stockholder and
the underwriters, if any, in connection with the offer and sale of the
Registrable Securities covered by such prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable
Securities, register or qualify or cooperate with the Stockholder, the
underwriters, if any, and respective counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as the Stockholder
or an underwriter reasonably requests in writing; keep each such registration
or qualification effective during the period such registration statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable registration statement; provided, however,
that the Company will not be required in connection therewith or as a condition
thereto to qualify generally to do business or subject itself to general
service of process in any such jurisdiction where it is not then so subject.
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(i) Cooperate with the Stockholder and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters.
(j) Use its best efforts to cause the Registrable
Securities to be listed on each national securities exchange on which similar
securities issued by the Company are then listed.
(k) Use its best efforts to cause the Registrable
Securities covered by the applicable registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary, if any, to consummate the disposition of such Registrable
Securities.
(l) Upon the occurrence of any event contemplated by
Section 5(c)(ii) - (vii) above, prepare a supplement or post-effective
amendment to the applicable registration statement or related prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchaser of the Registrable Securities
being sold thereunder, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading.
(m) Enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the Registrable Securities to be covered by such registration
are to be offered in an underwritten offering: (i) make such representations
and warranties to the Stockholder with respect to the registration statement,
prospectus and documents incorporated by reference, if any, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof with respect to the registration
statement and the prospectus in the form, scope and substance which are
customarily delivered in underwritten offerings; (iii) in the case of an
underwritten offering, enter into an underwriting agreement in form, scope and
substance as is customary in underwritten offerings and obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions in form,
scope and substance shall be reasonably satisfactory to the managing
underwriters and not reasonably objected to by Stockholder) addressed to the
Stockholder and the underwriters, if any, covering the matters customarily
covered in opinions delivered in underwritten offerings and such other matters
as may be reasonably requested by Stockholder and such underwriters; (iv)
obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the Stockholder and the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters by accountants in
connection with underwritten offerings; (v) if any underwriting agreement is
entered into, set
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forth in full in such underwriting agreement the indemnification provisions and
procedures customarily included in underwriting agreements in underwritten
offerings; and (vi) deliver such documents and certificates as may be requested
by the managing underwriters, if any, and Stockholder to evidence compliance
with clause (k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
(n) Make available for inspection by a representative of
the Stockholder, any underwriter participating in any disposition pursuant to
such registration, and any attorney or accountant retained by the Stockholder
or such underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with
such registration; provided that any records, information or documents that are
designated by the Company in writing as confidential shall be kept confidential
by such Persons unless disclosure of such records, information or documents is
required by applicable law or court or administrative order.
(o) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make generally available
to its security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder.
6. Contents of Registration Statement. In connection with any
registration of Registrable Securities, the Company may require Stockholder to
furnish to the Company such information regarding itself and the distribution
of such securities as the Company may from time to time reasonably request in
writing. If the Company, in the exercise of its reasonable judgment, objects to
any information relating to the Company requested by the Stockholder or the
underwriters, if any, to be included in any registration statement or
prospectus or any amendments or supplements thereto, the Company shall not be
obligated to include such objectionable information, and the Stockholder may
withdraw the Registrable Securities from such registration, in which event the
shelf registration statement or an amendment thereto shall be filed as soon as
agreement with respect to any proposed change shall be reached among the
Company, the Stockholder and the managing underwriter, if any.
7. Stand-off Agreement. Stockholder agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 5(c)(ii)-(vii) hereof, Stockholder will forthwith discontinue
disposition of Registrable Securities covered by such registration statement or
prospectus until the Stockholder's receipt of copies of the supplemented or
amended prospectus contemplated by Section 5(l) hereof, or until it is advised
in writing by the Company that the use of the applicable prospectus may be
resumed, and has received copies of any additional or supplemental filings
which are incorporated by reference in such prospectus, and, if so directed by
the Company, Stockholder will deliver to the Company all copies, other than
permanent file copies then in Stockholder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time period
regarding maintaining the effectiveness of such registration statement set
forth in Section 3 shall be extended by the number of days during the time
period
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from and including the date of the giving of such notice pursuant to Section
5(c) hereof to and including the date when the Stockholder shall have (i)
received the copies of the supplemented or amended prospectus contemplated by
Section 5(l) hereof, or (ii) been advised in writing by the Company that use of
the prospectus may be resumed.
8. Hold-back Agreement. In the event that (i) the Company
pursues an underwritten public offering on its own behalf of its Common Stock
during the period during which the Company is obligated to use its best efforts
to obtain and maintain the effectiveness of the registration statement set
forth in Section 3 (the "Effective Period"), and (ii) the managing underwriter
or underwriters of such offering determine, in their discretion, that the total
amount of Common Stock included in the distribution pursuant to the shelf
registration contemplated hereby would materially adversely affect the success
of such public offering by the Company, then Stockholder agrees not to sell any
Registrable Securities under the shelf registration statement described in
Section 3 without the prior written consent of the Company and such
underwriters, during the 14-day period prior to, and during the 120-day period
beginning on, the effective date of such registration statement (to the extent
timely notified in writing by the Company or the managing underwriters);
provided, however, that, in the event of any such offering, (1) Stockholder
shall be provided the opportunity to sell pursuant to the terms of Section 4 of
this Agreement, if it so desires, not less than twenty-five percent (25%) of
the number of Registrable Securities held by the Stockholder immediately
following the completion of the IPO or, if applicable, any exercise of the
Overallotment Options by the underwriters, and (2) the Effective Period shall
be extended by the number of days during the time period from and including the
date 14 days prior to the effective date of such registration statement and
ending 120 days after the effective date of such registration statement.
Notwithstanding the foregoing, Stockholder shall be subject to the hold-back
restrictions of this Section 8 not more than once during the Effective Period.
9. Expenses of Registration. All expenses incurred in connection
with a registration, filing or qualification pursuant to Sections 3 or 4 hereof
(other than fees and expenses of counsel for the Stockholder), including,
without limitation, registration, filing and qualification fees, printers' and
accounting fees, and the fees and disbursements of counsel for the Company,
shall be borne and paid by the Company; provided, however, that the Stockholder
shall bear and pay all underwriting discounts and selling commissions
attributable to sales of Registrable Securities.
10. Underwritten Registrations. If any of the Registrable
Securities covered by any registration under Section 3 are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering may be selected by the
Stockholder; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
11. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless Stockholder, the officers and directors of
Stockholder, each underwriter of Registrable
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Securities and each other Person, if any, who controls Stockholder or such
underwriter within the meaning of Section 16 of the Securities Act, against any
losses, claims, damages, liabilities or expenses, joint or several, to which
any such Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act pursuant hereto, or any post-effective amendment thereof, or any
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, if used prior to the effective date of the
registration statement and not corrected in the final prospectus, or contained
in the final prospectus (as amended or supplemented, if the Company shall have
filed with the Commission any amendment thereof or supplement thereto), or any
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; and will
reimburse any such Person for any legal or other expenses reasonably incurred
by such Person in connection with investigating or defending any such loss,
claim, damage, liability or expense; provided, however, that the indemnity
agreement contained in this Section 11(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld); and provided further that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon (x) any such untrue
statement or omission or alleged untrue statement or omission which has been
made in said registration statement, preliminary prospectus, prospectus or
amendment or supplement or omitted therefrom in reliance upon and in conformity
with information furnished in writing to the Company by the Stockholder or such
underwriter specifically for use in the preparation thereof, (y) the fact that
Stockholder sold Registrable Securities to a Person to whom there was not sent
or given, at or before written confirmation of such sale, a copy of the
prospectus (excluding documents incorporated by reference), or of the
prospectus as then amended or supplemented (excluding documents incorporated by
reference) if the Company has previously furnished copies thereof to
Stockholder in compliance with the Agreement and the loss, claim, damage,
liability or expense of Stockholder results from an untrue statement of
material fact contained in such preliminary prospectus which was corrected in
the prospectus (or the prospectus as amended or supplemented); and (z) any
violation by the Stockholder of its obligations under Section 7 hereof.
(b) To the extent permitted by law, Stockholder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
each underwriter and each Person who controls any underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages, liabilities or expenses, joint or several, to which the Company or any
such Person may become subject under the Securities Act or otherwise, and will
reimburse the Company or any such Person for any legal or other expenses
reasonably incurred by the Company or such Person in connection with
investigating or defending any such loss, claim, damage, liability or expense,
but only insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or
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are based upon (x) any untrue statement or omission or alleged untrue statement
or omission of a material fact referred to in clause (i) or (ii) of Section
11(a) hereof, in each case to the extent (and only to the extent) that such
untrue statement or omission or alleged untrue statement or omission was made
in reliance upon and in conformity with information furnished in writing by or
on behalf of Stockholder specifically for use in connection with such
registration; (y) with respect to any preliminary prospectus, the fact that the
Stockholder sold Registrable Securities to a person to whom there was not sent
or given, at or before written confirmation of such sale, a copy of the
prospectus (excluding the documents incorporated by reference) or of the
prospectus as then amended or supplemented (excluding documents incorporated by
reference) if the Company has previously furnished copies thereof to
Stockholder in compliance with this Agreement and the loss, claim, damage,
liability or expense of the Company or such Person result from an untrue
statement or omission of a material fact contained in such preliminary
prospectus which was corrected in the prospectus (or the prospectus as amended
or supplemented); and (z) with respect to any sales made during any period in
which the Company had notified the Stockholder pursuant to Section 7 hereof to
suspend sales; provided, however, that the indemnity agreement contained in
this Section 11(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if such settlement is effected
without the consent of Stockholder, which consent shall not be unreasonably
withheld; and provided further that the obligations of Stockholder under this
Section 11(b) shall be limited to an amount equal to the proceeds from the sale
by Stockholder of Registrable Securities included in a registration statement
under this Agreement.
(c) Promptly after receipt by an indemnified party under
this Section 11 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying pay under this Section 11, notify
the indemnifying party in writing of the commencement thereof; provided,
however, that the failure to so notify the indemnifying party shall not relieve
the indemnifying party from any liability hereunder except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice.
The indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding.
(d) If the indemnification provided for in this Section
11 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party and the indemnified parties, the relative fault of the
indemnifying party and indemnified parties in connection with the actions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and
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indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 11(c) hereof, any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding. The parties hereto agree that it would
not be just and equitable if contribution pursuant to this Section 11(d) were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in this
paragraph. 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.
12. Reports Under Exchange Act. With a view to making available
to the Stockholder the benefits of Rule 144 under the Securities Act and any
other rule or regulation of the Commission that may at any time permit the
Stockholder to sell securities of the Company to the public without
registration, the Company agrees, for so long as Stockholder holds the
Registrable Securities, to:
(a) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act
and the Exchange Act, and the rules and regulations adopted by the Commission
thereunder; and
(b) furnish to the Stockholder forthwith upon request (i)
a written statement by the Company as to whether it has complied with the
reporting requirements of Rule 144, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents filed by
the Company pursuant to the Exchange Act, and (iii) such other information as
may be reasonably requested in availing the Stockholder of any rule or
regulation of the Commission which permits the sale of any securities without
registration.
13. Assignment of Registration Rights. The right to cause the
Company to register Registrable Securities pursuant to this Agreement may not
be transferred or assigned, in whole or in part, by Stockholder without the
prior written consent of the Company.
14. Miscellaneous.
(a) Successors and Assigns: No Third Party Benefit.
This Agreement shall be binding upon and inure to the benefit of the parties
and their respective permitted successors and assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto and their respective permitted successors and assigns any
rights or remedies under or by reason of this Agreement, except as expressly
provided in this Agreement.
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(b) Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the substantive laws of the
State of Texas, without giving effect to the principles of conflicts of law
thereof.
(c) Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed by
all, the parties hereto.
(d) Titles and Subtitles. The titles and subtitles used
in this Agreement are inserted for convenience only and are not to be
considered in construing or interpreting this Agreement.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and shall be
delivered by (i) personal delivery, (ii) expedited delivery service, (iii)
certified or registered mail, postage prepaid, or (iv) confirmed facsimile
transmission. Any such notice shall be deemed given upon its receipt at the
following address (or such other address as may be specified by such party upon
written notice to the others in accordance with this Section 14(f)):
If to the Company: Eagle Geophysical, Inc.
00 Xxxxx Xxxxxx Xxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxxxx, President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
If to Stockholder: EHI Holdings, Inc.
00 Xxxxx Xxxxxx Xxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Frame, President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(f) Amendments and Waivers. The terms and provisions of
this Agreement may not be modified or amended, or any of the provisions hereof
waived, temporarily or permanently, except pursuant to a writing executed by
the Company and the Stockholder. A waiver by any party of a breach of any term
or provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
(g) Severability. If any provision or any portion of any
provision of this Agreement or the application of such provision or any portion
thereof to any Person or circumstance shall be held invalid or unenforceable,
the remaining portion of such provision, as it applies to other Persons or
circumstances and the remaining provisions, shall not be affected or impaired
thereby.
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(h) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter herein contained. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
EAGLE GEOPHYSICAL, INC.
By:
-------------------------------------
Xxx X. Xxxxxxxxx, President
EHI HOLDINGS, INC.
By:
-------------------------------------
Xxxx X. Frame, President
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