COMPAGNIE GÉNÉRALE DE GÉOPHYSIQUE AND THE GUARANTORS PARTY HERETO 71/2% Senior Notes due 2015 REGISTRATION RIGHTS AGREEMENT Dated as of February 3, 2006 CREDIT SUISSE SECURITIES (EUROPE) LIMITED BNP PARIBAS SECURITIES CORP.
EXECUTION VERSION
Exhibit 4.21
COMPAGNIE GÉNÉRALE DE GÉOPHYSIQUE
AND
THE GUARANTORS PARTY HERETO
$165,000,000
71/2% Senior Notes due 2015
Dated as of February 3, 2006
CREDIT SUISSE SECURITIES (EUROPE) LIMITED
BNP PARIBAS SECURITIES CORP.
BNP PARIBAS SECURITIES CORP.
This Registration Rights Agreement (this “Agreement”) is made and entered into as
of February 3, 2006 by and among Compagnie Générale de Géophysique, a corporation organized under
the laws of the Republic of France (the “Company”), CGG Americas Inc., CGG Canada Services
Ltd, CGG Marine Resources Norge A/S, Sercel Inc., Sercel Australia Pty Ltd, Sercel Canada Ltd and
any subsidiary of the Company that becomes a guarantor of the Notes (as defined below) subsequent
to the date hereof pursuant to the terms of the Indenture (as defined below) (each a
“Guarantor” and, collectively, the “Guarantors”), and Credit Suisse Securities
(Europe) Limited and BNP Paribas Securities Corp (each an “Initial Purchaser” and,
collectively, the “Initial Purchasers”), who have agreed to purchase $165,000,000 aggregate
principal amount of the Company’s 71/2% Senior Notes due 2015 (the “Initial Notes”) pursuant
to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated January 27, 2006 (the
“Purchase Agreement”), by and among the Company and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Initial Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 6(k) of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have the meaning assigned
to them in the Indenture (as defined).
The parties hereby agree as follows:
SECTION 1.
DEFINITIONS
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
Act: The U.S. Securities Act of 1933, as amended.
Advice: As defined in Section 6(d) hereof.
Affiliate: As defined in Rule 144 under the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date hereof.
Commission: The U.S. Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: The Exchange Offer shall be deemed “Consummated” for purposes of
this Agreement upon the occurrence of (i) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange Offer, (ii) the maintenance
of such Registration Statement continuously effective and the keeping of the Exchange Offer
open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the Registrar under
the Indenture of Exchange Notes in the same aggregate principal amount as the aggregate
principal amount of Initial Notes that were validly tendered and not withdrawn by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Initial Notes, each Interest Payment
Date.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The U.S. Securities Exchange Act of 1934, as amended.
Exchange Offer: The offer, registered by the Company under the Act pursuant to
a Registration Statement, of the Exchange Notes to the Holders of all outstanding Transfer
Restricted Securities validly tendered and not withdrawn in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement relating to
the Exchange Offer, including the related Prospectus.
Exchange Notes: The Company’s 71/2% Senior Notes due 2015 to be issued pursuant
to the Indenture (a) in the Exchange Offer and (b) as contemplated by Section 6(c)(xii)
hereof.
Exempt Resales: The transactions in which the Initial Purchasers propose to
sell the Initial Notes (i) to certain “qualified institutional buyers,” as such term is
defined in Rule 144A under the Act and (ii) outside the United States to certain non-U.S.
Persons pursuant to the requirements of Rule 903 under the Act.
Guarantor: As defined in the preamble hereto.
Holder and Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of April 28, 2005, between the Company and
JPMorgan Chase Bank, National Association, as the Trustee, pursuant to which the Notes are
to be issued, as such Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Purchaser and Initial Purchasers: As defined in the preamble
hereto.
Interest Payment Date: Each May 15 and November 15, beginning with May 15,
2006.
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NASD: The National Association of Securities Dealers, Inc.
Notes: The Initial Notes and the Exchange Notes.
Prospectus: The prospectus included in a Registration Statement at the time
such Registration Statement is declared effective, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to Notes,
each Person who is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating to
(a) an offering of Exchange Notes and the Subsidiary Guarantees pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, in each case, which is filed pursuant to the provisions of
this Agreement and including the related Prospectus.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Subsidiary Guarantees: The joint and several guarantees of the Company’s
payment obligations under the Notes by the Guarantors to the extent required by the terms of
the Indenture.
TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
Transfer Restricted Securities: Each (a) Initial Note until (i) the date on
which such Initial Note has been exchanged by a Person other than a Broker-Dealer for an
Exchange Note in the Exchange Offer, (ii) the date on which such Initial Note has been
disposed of in accordance with the Shelf Registration Statement in a transaction registered
thereunder and the purchasers thereof have been issued Exchange Notes or (iii) the date on
which such Initial Note is distributed to the public pursuant to Rule 144 under the Act or
may be distributed to the public pursuant to Rule 144(k) under the Act and (b) Exchange Note
until, following the exchange by a Broker-Dealer in the Exchange Offer of an Initial Note
for an Exchange Note, the date on which such Exchange Note is sold pursuant to the “Plan of
Distribution” contemplated in the Exchange Offer Registration Statement to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement.
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Underwritten Registration or Underwritten Offering: A registration or
an offering in which securities of the Company are sold to an underwriter for reoffering to
the public.
SECTION 2.
SECURITIES SUBJECT TO THIS AGREEMENT
SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “Holder” and, collectively, the “Holders”)
whenever such Person owns Transfer Restricted Securities of record.
SECTION 3.
REGISTERED EXCHANGE OFFER
REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied with), the Company
and the Guarantors shall (i) cause to be filed with the Commission on or before the 120th day after
the Closing Date, a Registration Statement under the Act relating to the Exchange Notes, the
Subsidiary Guarantees and the Exchange Offer, (ii) use their reasonable best efforts to cause such
Registration Statement to become effective on or before the 180th day after the Closing Date, (iii)
in connection with the foregoing, file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to become effective,
(B) if applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Act and (C) subject to the proviso in Section 6(c)(xi) hereof, cause all necessary
filings in connection with the registration and qualification of the Exchange Notes and the
Subsidiary Guarantees to be made under the Blue Sky laws of such jurisdictions as are necessary to
permit the Exchange Offer to be Consummated, and (iv) upon the effectiveness of such Registration
Statement, commence, and within the time periods contemplated by Section 3(b) hereof Consummate,
the Exchange Offer. The Exchange Offer Registration Statement shall be on the appropriate form
under the Act permitting registration of the Exchange Notes to be offered in exchange for the
Initial Notes that are Transfer Restricted Securities and permitting resales of the Exchange Notes
held by Broker-Dealers that tendered into the Exchange Offer Initial Notes that such Broker-Dealers
acquired for their own account as a result of market-making activities or other trading activities
(other than Initial Notes acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange Offer Registration Statement to be
effective continuously and shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less than 20 Business
Days. The Company and the Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the
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Exchange Notes and the Subsidiary Guarantees shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their reasonable best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in any event on or prior to the 210th day after
the Closing Date.
(c) The Company and the Guarantors shall indicate in a “Plan of Distribution” section
contained in the Exchange Offer Registration Statement that any Broker-Dealer who holds Notes that
are Transfer Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer Restricted Securities
acquired directly from the Company or any of its Affiliates) may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an
“underwriter” within the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such “Plan of Distribution” section shall also contain all other information with
respect to such resales by such Broker-Dealers that the Commission may require in order to permit
such resales pursuant thereto, but such “Plan of Distribution” shall not name any such
Broker-Dealer or disclose the amount of Transfer Restricted Securities held by any such
Broker-Dealer except to the extent required by the Commission as a result of a change in policy
after the date of this Agreement.
The Company and the Guarantors shall use their reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as required by and
subject to the provisions of Sections 6(a) and 6(c) below to the extent necessary to ensure that
the related Prospectus is available for resales of Notes acquired by Broker-Dealers for their own
accounts as a result of market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company or any of its Affiliates), and to ensure
that it conforms with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of one year from the
Consummation Date or such shorter period as will terminate when no Transfer Restricted Securities
covered by such Registration Statement are outstanding.
The Company and the Guarantors shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such period in order to
facilitate such resales.
SECTION 4.
SHELF REGISTRATION
SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not required to
file an Exchange Offer Registration Statement or not permitted to Consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied with) or (ii) any Holder of
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Transfer Restricted Securities notifies the Company in writing prior to the 20th Business Day
following the Consummation of the Exchange Offer that (A) such Holder is prohibited by applicable
law or Commission policy from participating in the Exchange Offer, or (B) such Holder may not
resell the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not
available for such resales by such Holder, then the Company and the Guarantors shall use their
reasonable best efforts to:
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Act, which may be an amendment to the Exchange Offer Registration Statement (in either
event, the “Shelf Registration Statement”) relating to all Transfer Restricted
Securities in the case of Section 4(a)(i) or the Transfer Restricted Securities specified in
any notice in the case of Section 4(a)(ii) on or prior to the earliest to occur of (1) the
90th day after the date on which the Company determines that it is not required to file the
Exchange Offer Registration Statement as a result of Section 4(a)(i) hereof and (2) the 90th
day after the date on which the Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by Section 4(a)(ii) above (such earliest date being the
“Shelf Filing Deadline”), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared effective by the Commission
on or before the 180th day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available
for resales of Transfer Restricted Securities by the Holders thereof entitled to the benefit of
this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time to time, until the
earlier of (a) two years following the Closing Date and (b) such earlier date when no Transfer
Restricted Securities covered by such Shelf Registration Statement remain outstanding.
Holders of Transfer Restricted Securities that do not give the written notice within the 20
Business Day period set forth above in this Section 4(a), if required to be given, will no longer
have any registration rights pursuant to this Section 4 and will not be entitled to any Liquidated
Damages pursuant to Section 5 hereof in respect of the Company’s obligations with respect to the
Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 10 Business Days after receipt of a
request therefor, such information as the Company may reasonably request for use in connection with
any Shelf Registration Statement or Prospectus or preliminary Prospectus
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included therein. No Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 5 hereof if such Holder shall have failed to provide all such
reasonably requested information within such period. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished to the Company by
such Holder not materially misleading.
SECTION 5.
LIQUIDATED DAMAGES
LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement to be filed is not filed
with the Commission on or prior to the date specified for such filing in this Agreement, (ii) any
of such Registration Statements has not been declared effective by the Commission on or prior to
the date specified for such effectiveness in this Agreement (the “Effectiveness Target
Date”), whether or not the Company and the Guarantors have breached any obligations to use
their reasonable best efforts to cause any such Registration Statement to be declared effective,
(iii) the Exchange Offer has not been Consummated within 210 days of the Closing Date with respect
to the Exchange Offer Registration Statement or (iv) subject to Section 6(c)(i) hereof, any
Registration Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose without being
succeeded within 10 Business Days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective within 10 Business Days of the date of
filing of such post-effective amendment (each such event referred to in clauses (i) through (iv), a
“Registration Default”), the Company and the Guarantors hereby jointly and severally agree
to pay liquidated damages to each Holder of Transfer Restricted Securities in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted Securities held by such Holder for
each week or portion thereof that the Registration Default continues with respect to the first
90-day period immediately following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.30 per week per $1,000
principal amount of Transfer Restricted Securities provided that the Company shall in no event be
required to pay Liquidated Damages for more than one Registration Default at any given time. All
accrued liquidated damages shall be paid to Record Holders by the Company on each Damages Payment
Date following the accrual thereof, in the same manner as provided in the Indenture and the Notes
for the payment of interest on the Notes. Following the cure of all Registration Defaults relating
to any particular Transfer Restricted Securities, the accrual of liquidated damages with respect to
such Transfer Restricted Securities will cease.
All obligations of the Company and the Guarantors set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
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SECTION 6.
REGISTRATION PROCEDURES
REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Company and the Guarantors shall comply with all of the applicable provisions of Section 6(c)
below, shall use their reasonable best efforts to effect such exchange and to permit the sale of
Transfer Restricted Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, the Company and the Guarantors
hereby agree to seek a no-action letter or other favorable decision from the Commission
allowing the Company and the Guarantors to Consummate the Exchange Offer for such Transfer
Restricted Securities and to permit the resale of Exchange Notes by Broker-Dealers that
tendered in the Exchange Offer Initial Notes that such Broker-Dealers acquired for their own
account as a result of market-making activities or other trading activities (other than
Initial Notes acquired directly from the Company or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof. The Company and the
Guarantors hereby agree to use their reasonable best efforts to pursue the issuance of such
a decision to the Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.
(ii) As a condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a Broker-Dealer)
shall furnish, upon the request of the Company, prior to the Consummation of the Exchange
Offer, a written representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the effect that,
at the time of Consummation of the Exchange Offer, (A) any Exchange Notes received by such
Holder will be acquired in the ordinary course of its business, (B) such Holder will have no
arrangement or understanding with any person to participate in distribution of the Initial
Notes or the Exchange Notes within the meaning of the Act, (C) if the Holder is not a
Broker-Dealer or is a Broker-Dealer but will not receive Exchange Notes for its own account
in exchange for Initial Notes, neither the Holder nor any such other Person is engaged in or
intends to participate in a distribution of the Exchange Notes, and (D) such Holder is not
an Affiliate of the Company. If the Holder is a Broker-Dealer that will receive Exchange
Notes for its own account in exchange for Initial Notes, it will represent that the Initial
Notes to be exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities, and will acknowledge that it will
deliver a prospectus meeting the requirements of the Act in connection with any resale of
such Exchange Notes. It is understood that, by acknowledging that it will deliver, and by
delivering, a prospectus meeting the requirements of the Act in connection with any resale
of such Exchange Notes, the Holder is not admitting that it is an “underwriter” within the
meaning of the Act.
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(iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Company
and the Guarantors shall provide a supplemental letter to the Commission (A) stating that
the Company and the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings Corporation (available May
13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B) including a representation
that neither the Company nor any Guarantor has entered into any arrangement or understanding
with any Person to distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of the Company’s information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the distribution of the
Exchange Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, if required, the Company and the Guarantors shall comply with all the provisions of
Section 6(c) below and shall use their reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the information furnished to the Company
pursuant to Section 4(b) hereof) and, pursuant thereto, the Company and the Guarantors will prepare
and file with the Commission in accordance with Section 4(a) hereof a Shelf Registration Statement
to effect such registration on any appropriate form under the Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in accordance with the
provisions hereof.
(c) General Provisions. In connection with any Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration Statement and the related Prospectus
required to permit resales of Notes by Broker-Dealers as contemplated herein), the Company and the
Guarantors shall during the periods specified in Sections 3 and 4 hereof, as applicable:
(i) use their reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements (including, if required by the Act
or any regulation thereunder, financial statements of the Guarantors, if any) for the period
specified in Section 3 or 4 hereof, as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of 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 (B) not to be effective and usable for the resale of Transfer Restricted
Securities during the period required by this Agreement, the Company and the Guarantors
shall file promptly an appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the case of either clause
(A) or (B), use their reasonable best efforts to cause such amendment to be declared
effective and such Registration
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Statement and the related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter; provided, however, if (A) the full Board of Directors of the
Company determines in good faith that it is in the best interests of the Company not to
disclose the existence of or facts surrounding any proposed or pending material corporate
transaction involving the Company or any of its subsidiaries and (B) the Company notifies
the Holders, pursuant to Section 6(c)(iii)(D) hereof, within two Business Days after such
Board of Directors makes such determination, the Company may allow the Shelf Registration
Statement to fail to be effective and usable as a result of such nondisclosure for up to 120
days during the period of effectiveness required by Section 4 hereof, but in no event for a
period in excess of 45 consecutive days;
(ii) prepare and file with the Commission such amendments and post-effective amendments
to the Registration Statement as may be necessary to keep the Registration Statement
effective for the applicable period set forth in Section 3 or 4 hereof; cause the Prospectus
to be supplemented by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) except in the case of the Exchange Offer Registration Statement, advise the
underwriter(s), if any, and selling Holders promptly and, if requested by any such Person,
to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any Registration Statement or
any post-effective amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, and (D) of the existence of
any fact or the happening of any event that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Company and the Guarantors shall use their reasonable best efforts to
obtain the withdrawal or lifting of such order at the earliest possible time;
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(iv) in the case of a Shelf Registration Statement, furnish to each of the selling
Holders and each of the underwriter(s), if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (but excluding any documents
incorporated by reference as a result of the Company’s periodic reporting requirements under
the Exchange Act), and neither the Company nor any Guarantors shall file any such
Registration Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (excluding all such documents incorporated by reference as a result
of the Company’s periodic reporting requirements under the Exchange Act) to which a selling
Holder of Transfer Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within five Business Days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of material fact or
omits to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(v) in the case of a Shelf Registration Statement, promptly following the filing of any
document that is to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Company’s representatives available for discussion of such
document and other customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) in the case of a Shelf Registration Statement, make available at reasonable times
for inspection by the selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all relevant financial and other records and
pertinent corporate documents and properties of the Company and the Guarantors and cause the
Company’s and the Guarantors’ officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or accountant in connection
with such Registration Statement subsequent to the filing thereof and prior to its
effectiveness; provided, however, that the foregoing inspection and information gathering
(i) shall be coordinated on behalf of the selling Holders, underwriters, or any
representative thereof, by one counsel, who shall be Xxxxxx & Xxxxxx R.L.L.P. or such other
counsel as may be chosen by the Holders of a majority in principal amount of Transfer
Restricted Securities, and (ii) shall not be available for any such Holder who does not
agree in writing to hold such information in confidence.
(vii) in the case of a Shelf Registration Statement, if requested by any selling
Holders or the underwriter(s), if any, promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary, such
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information as such selling Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation, information relating to the “Plan of
Distribution” of the Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) in the case of a Shelf Registration Statement, furnish to each selling Holder
and each of the underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; the Company and the
Guarantors hereby consent, subject to Section 6(d) hereof, to the use of the Prospectus and
any amendment or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
provided that such use of the Prospectus and any amendment or supplement thereto and such
offering and sale conforms to the Plan of Distribution set forth in the Prospectus and
complies with the terms of this Agreement and all applicable laws and regulations
thereunder;
(x) in the event of an Underwritten Registration, enter into such customary agreements
(including an underwriting agreement), make such customary representations and warranties,
deliver such customary documents and certificates, and take all such other customary actions
in connection therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Shelf Registration Statement contemplated by this
Agreement, all to such extent as may be reasonably requested by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale pursuant to any
Shelf Registration Statement contemplated by this Agreement; and, without limiting the
generality of the foregoing, the Company and the Guarantors shall:
(A) furnish to each underwriter upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement, signed on behalf of the Company by two senior
officers, one of whom must be its Senior Executive Vice President,
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Finance and Human Resources, confirming, as of such date, the matters
addressed in the officers’ certificate delivered pursuant to Section 6(e) of
the Purchase Agreement with respect to the transactions contemplated by the
Shelf Registration Statement;
(2) an opinion or opinions, dated the date of effectiveness of the
Shelf Registration Statement, of counsel for the Company and the Guarantors
covering the matters referred to in Section 6(c) and (d) of the Purchase
Agreement with respect to the transactions contemplated by the Shelf
Registration Statement; and
(3) a customary comfort letter, dated as of the date of effectiveness
of the Shelf Registration Statement, from the Company’s independent
accountants if such comfort letter shall be issuable to the underwriters in
accordance with the relevant accounting industry pronouncements, in the
customary form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with primary underwritten
offerings, and substantially in the form of the comfort letters delivered
pursuant to Section 6(a) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by such parties and which are customarily delivered in Underwritten
Offerings.
(xi) prior to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel in connection with
the registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s)
may reasonably request and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however, that neither the
Company nor the Guarantors shall be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would subject it to the service
of process in suits or to taxation, other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where it is not now so subject;
(xii) issue, upon the request of any Holder of Initial Notes covered by the Shelf
Registration Statement, Exchange Notes, having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes being sold by such Holder, such Exchange Notes
to be registered in the name of the purchaser(s) of such Notes, as the case may be; in
return, the Initial Notes held by such Holder shall be surrendered to the Company for
cancellation;
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(xiii) in connection with any sale of Transfer Restricted Securities that will result
in such securities no longer being Transfer Restricted Securities, cooperate with the
selling Holders and the underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such Transfer Restricted Securities to be in
such authorized denominations and registered in such names as the Holders or the
underwriter(s), if any, may reasonably request at least two Business Days prior to any sale
of Transfer Restricted Securities made by such underwriter(s);
(xiv) if any fact or event contemplated by clause (c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the 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 purchasers of Transfer Restricted
Securities, the Prospectus will not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not misleading;
(xv) provide a CUSIP number for all Exchange Notes not later than the effective date of
the Registration Statement and provide the Trustee under the Indenture with one or more
global certificates for the Exchange Notes that are in a form eligible for deposit with The
Depository Trust Company;
(xvi) in the case of a Shelf Registration Statement, cooperate and assist in any
filings required to be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any “qualified independent underwriter”) that is
required to be retained in accordance with the rules and regulations of the NASD;
(xvii) otherwise use their reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security holders with
regard to any applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be audited) for a
twelve-month period commencing after the effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified under the TIA not later than the effective
date of the first Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use their reasonable best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
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(xix) provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 or Section 15 of the Exchange Act.
(d) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of
any notice from the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will keep such notice confidential and forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement
until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xiv) hereof, or until it is advised in writing (the “Advice”) by the Company
that the use of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so directed by the
Company, each Holder will deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies then in such Holder’s possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. If the Company shall
give any such notice, the time period regarding the effectiveness of such Registration Statement
set forth in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during
the period from and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xiv) hereof or shall have received the Advice.
SECTION 7.
REGISTRATION EXPENSES
REGISTRATION EXPENSES
(a) All expenses incident to the Company’s or the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company and the Guarantors regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all registration and
filing fees and expenses (including filings made by the Initial Purchasers or Holders with the NASD
(and, if applicable, the fees and expenses of any “qualified independent underwriter” and its
counsel that may be required by the rules and regulations of the NASD)); (ii) all fees and expenses
of compliance with federal securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and the Guarantors and, subject to Section
7(b) below, counsel for the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing Notes on a national securities exchange or automated
quotation system, if any; and (vi) all fees and disbursements of independent public accountants of
the Company and the Guarantors (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company and the Guarantors will, in any event, bear their internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company or any Guarantor. The Company
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shall not be responsible for any other expenses or costs, including but not limited to commissions,
fees and discounts of underwriters, brokers, dealers and agents.
(b) In connection with any Registration Statement required by this Agreement (excluding the
Exchange Offer Registration Statement), the Company and the Guarantors will reimburse the Holders
of Transfer Restricted Securities being tendered in the Exchange Offer and/or resold pursuant to
the “Plan of Distribution” contained in the Exchange Offer Registration Statement or registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxx & Xxxxxx R.L.L.P. or such other
counsel as may be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being prepared; provided
that, except in the case of an Underwritten Offering, the fees and expenses of such counsel to be
reimbursed by the Company shall not exceed $25,000.
SECTION 8.
INDEMNIFICATION
INDEMNIFICATION
(a) The Company and the Guarantors jointly and severally, agree to indemnify and hold harmless
(i) each Holder, (ii) each Initial Purchaser, (iii) each person, if any, who controls any Holder or
an Initial Purchaser within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act and (iii) the respective officers, directors, partners, employees, representatives and agents
of any Holder or Initial Purchaser or any controlling person (any person referred to in clauses
(i), (ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the
fullest extent lawful, from and against any and all losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to reasonable attorneys’ fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or in any supplement thereto or amendment thereof, 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 the light of the circumstances
under which they were made, not misleading; provided, however, that the Company and the Guarantors
will not be liable in any such case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of the any of the
Holders expressly for use therein. This indemnity agreement will be in addition to any liability
that the Company and the Guarantors may otherwise have, including under this Agreement.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of the Guarantors and each person, if any, who
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controls the Company or any Guarantor within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and each of their respective officers, directors, employers, partners,
representatives and agents to the same extent as the foregoing indemnity from the Company and the
Guarantors to each of the Indemnified Holders, but only with respect to information relating to
such Holder furnished in writing by such Holder for use in any Registration Statement, or in any
amendment thereof or supplement thereto; provided, however, that in no case shall any selling
Holder be liable or responsible for any amount in excess of proceeds received by such Holder upon
the sale of the Notes giving rise to such indemnification obligation. This indemnity will be in
addition to any liability that the Holders may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability that it may have under this
Section 8 or otherwise except to the extent that it has been prejudiced in any material respect by
such failure). In case any such action is brought against any indemnified party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party, to assume and
control the defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless (i) the employment of such counsel shall have
been authorized in writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to take charge of the defense
of such action within a reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be defenses available
to it that are different from or additional to those available to one or all of the indemnifying
parties (in which case the indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which events such fees and
expenses of counsel shall be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of
one counsel (in addition to any local counsel) for all indemnified parties. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its prior written consent; provided that such
consent was not unreasonably withheld.
SECTION 9.
CONTRIBUTION
CONTRIBUTION
In order to provide for contribution in circumstances in which the indemnification provided
for in Section 8 is for any reason held to be unavailable or is insufficient to hold harmless a
party indemnified thereunder, the Company and the Guarantors on the one hand, and
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the Holders on the other hand, shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the Company and the
Guarantors any contribution received by the Company and the Guarantors from Persons, other than a
Holder, who may also be liable for contribution, including persons who control the Company and the
Guarantors within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) to
which the Company, the Guarantors or any Holder may be subject, (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the Guarantors on one hand, and each
Holder, on the other hand, in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative fault referred to in clause (i) above but also other relevant equitable considerations.
The relative fault of the Company and the Guarantors on one hand, and of each Holder, on the other
hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company, the Guarantors or such Holder and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantors and each Holder of Transfer Restricted Securities agree that
it would not be just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of this Section 9, (i)
in no case shall any Holder be required to contribute any amount in excess of the amount by which
the proceeds received by such Holder upon the sale of the Transfer Restricted Securities giving
rise to such obligation exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission or alleged omission
and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, (A) each Person, if any, who controls any of
the Holders within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and
(B) the respective officers, directors, partners, employees, representatives and agents of such
Holder or any controlling Person shall have the same rights to contribution as the Holders, and
each Person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the
Company and the Guarantors subject in each case to clauses (i) and (ii) of this Section 9. Any
party entitled to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for contribution may be
made against another party or parties under this Section 9, notify such party or parties from whom
contribution may be sought, but the failure to so notify such party or parties shall n
ot relieve
the party or parties from whom contribution may be sought from any obligation it or they may have
under this Section 9 or otherwise, except to the extent it or they have been prejudiced in any
material respect by such failure. No party shall be liable for contribution with respect to any
action or
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claim settled without its prior written consent; provided that such written consent was not
unreasonably withheld.
SECTION 10.
RULE 144A
RULE 144A
The Company and the Guarantors hereby agree with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available, upon request, to any Holder of
Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
SECTION 11.
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder’s Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements
and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 12.
SELECTION OF UNDERWRITERS
SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf Registration Statement who
desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Company; provided, however, that such
investment bankers and managers must be reasonably satisfactory to the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in such offering.
SECTION 13.
MISCELLANEOUS
MISCELLANEOUS
(a) No Inconsistent Agreements. The Company and the Guarantors shall not, on or after
the date of this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the Company’s or any Guarantor’s
securities under any agreement in effect on the date hereof.
(b) [Intentionally omitted.]
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(c) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the provisions hereof may
not be given unless the Company has obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities; provided, however, that the Company
may amend this Agreement to include or exclude a Guarantor as a party hereto if, pursuant to the
terms of the Indenture, such Guarantor is required to provide a Subsidiary Guarantee for the Notes
or is released from such obligation. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not affect directly or
indirectly the rights of other Holders whose securities are not being tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered.
(d) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Company or any Guarantor:
Compagnie Générale de Géophysique
0, xxx Xxxx Xxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: 00-0-00-00-00-00
Attention: Chief Financial Officer
0, xxx Xxxx Xxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: 00-0-00-00-00-00
Attention: Chief Financial Officer
with a copy to:
Linklaters & Alliance
00, xxx xx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: 00-0-00-00-00-00
Attention: Xxx X’Xxxxx
00, xxx xx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: 00-0-00-00-00-00
Attention: Xxx X’Xxxxx
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and on the next Business Day,
if timely delivered to an air courier guaranteeing overnight delivery.
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Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, the successors and assigns of subsequent Holders of
Transfer Restricted Securities; provided, however, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that 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.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| Compagnie
Generale de Geophysique |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CGG Americas Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CGG Canada Services Ltd |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CGG Marine Resources Norge A/S |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Sercel Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Sercel Australia Pty Ltd |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Sercel Canada Ltd. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Compagnie Generale de Geophysique
71/2% Senior Notes due 2015
Registration Rights Agreement
71/2% Senior Notes due 2015
Registration Rights Agreement
Accepted and agreed to as of
the date first above written:
the date first above written:
Credit Suisse Securities (Europe) Limited
BNP Paribas Securities Corp.
BNP Paribas Securities Corp.
| By : Credit Suisse Securities (Europe) Limited |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Compagnie Generale de Geophysique
71/2% Senior Notes due 2015
Registration Rights Agreement
71/2% Senior Notes due 2015
Registration Rights Agreement
