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Exhibit 4.5
GRANT GEOPHYSICAL, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
$100,000,000
9 3/4% Senior Notes due 2008, Series A
REGISTRATION RIGHTS AGREEMENT
Dated as of February 18, 1998
XXXXXXXXX & COMPANY, INC.
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GRANT GEOPHYSICAL, INC.
$100,000,000
9 3/4% Senior Notes due 2008, Series A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of February 18, 1998, by and among Grant Geophysical, Inc., a
Delaware corporation (the "COMPANY"), Geophysical Operations, Inc., Grant
Geophysical (Int'l), Inc., Advanced Seismic Technology, Inc., SSGI Acquisition
Corp., PT. Grant Geophysical Indonesia, Recursos Energeticos Ltda., Grant
Geophysical do Brasil Ltda., Solid State Geophysical Inc., Solid State
Internacional Ingenieria, C.A., and Solid State Geophysical Corp. (each a
"GUARANTOR" and, collectively, the "GUARANTORS"), and Xxxxxxxxx & Company, Inc.
(the "INITIAL PURCHASER"), who has agreed to purchase $100,000,000 aggregate
principal amount of the Company's 9 3/4% Senior Notes due 2008, Series A (the
"SERIES A NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
February 10, 1998 (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Series A Notes, the Company and the Guarantors have 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
Purchaser set forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
ADDITIONAL INTEREST: As defined in Section 5(a) hereof.
ADVICE: As defined in Section 6.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
COMMISSION: The Securities and Exchange Commission.
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 Series B Notes to be issued in 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
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required pursuant to Section 3(b) hereof and (iii) the delivery by the
Company to the Registrar under the Indenture of Series B Notes in the
same aggregate principal amount as the aggregate principal amount of
Series A Notes that were validly tendered by Holders thereof pursuant
to the Exchange Offer.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The registration by the Company under the Act
of the Series B Notes pursuant to a Registration Statement pursuant to
which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Notes
in an aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Securities tendered in such exchange
offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
EXEMPT RESALES: The transactions in which the Initial
Purchaser proposes to sell the Series A Notes (i) to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Act, (ii) to certain institutional "accredited investors," as such term
is defined in Rule 501(a)(1), (2), (3) and (7) of Regulation D under
the Act ("ACCREDITED INSTITUTIONS"), and (iii) outside the United
States to certain persons who are not "U.S. persons" in "offshore
transactions" in compliance with Regulation S under the Act, as such
terms are defined in Regulation S under the Act.
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated as of even date herewith,
among the Company, LaSalle National Bank, as trustee (the "Trustee"),
and the Guarantors, 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 PURCHASER: As defined in the preamble hereto.
ISSUE DATE: The date on which the Series A Notes are
originally issued under the Indenture.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Series A Notes and the Series B Notes.
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PERSON: An individual, partnership, corporation, trust,
limited liability company or unincorporated organization, or a
government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration
Statement, 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.
REGISTRATION DEFAULT: As defined in Section 5(a) hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company relating to (a) an offering of Series B 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, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated
by reference therein.
SERIES B NOTES: The Company's 9 3/4% Senior Notes due 2008,
Series B, to be issued pursuant to the Indenture and the Exchange
Offer.
SHELF FILING EVENT: 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.
TIA: The 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 Series A Note until (i)
the date on which such Series A Note has been exchanged by a Person
other than a Broker-Dealer for a Series B Note in the Exchange Offer,
(ii) following the exchange by a Broker-Dealer in the Exchange Offer of
a Series A Note for a Series B Note, the date on which such Series B
Note is sold 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, (iii) the date on which such
Series A Note has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement or (iv)
the date on which such Series A 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.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
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SECTION 2. 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") whenever such
Person owns Transfer Restricted Securities of record.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable law
or Commission policy, the Company and the Guarantors shall (i) file with the
Commission on or prior to 60 days after the Issue Date, a Registration Statement
under the Act relating to the Series B Notes, the Subsidiary Guarantees and the
Exchange Offer, (ii) use their best efforts to have such Registration Statement
declared effective by the Commission under the Act on or prior to 120 days after
the Issue Date, and (iii) commence the Exchange Offer and use their best efforts
to issue, on or prior to 180 days after the Issue Date, Series B Notes in
exchange for all Series A Notes validly tendered prior thereto in the Exchange
Offer. In connection with the foregoing, the Company and the Guarantors shall
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) cause all necessary filings in
connection with the registration and qualification of the Series B 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. The Exchange
Offer Registration Statement shall be on the appropriate form under the Act
permitting registration of the Series B Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of the Series B Notes held
by Broker-Dealers as contemplated by Section 3(c) below. The Exchange Offer
shall not be subject to any condition, other than that the Exchange Offer does
not violate any applicable law or Commission policy.
(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 Series B Notes and the Subsidiary Guarantees shall be included in the
Exchange Offer Registration Statement. The Company and the Guarantors shall use
their 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 180 days after the Issue 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
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directly from the Company) may exchange such Series A Notes 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 any resales of the Series B 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 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 Notes 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 may require each Holder as a
condition to its participation in the Exchange Offer to represent to the Company
and the Guarantors and their counsel in writing (which may be contained in the
applicable letter of transmittal) that at the time of the Consummation of the
Exchange Offer (i) any Series B Notes to be received by such Holder will be
acquired in the ordinary course of its business, (ii) such Holder is not
participating in, and it has no arrangement with any person to participate in,
the distribution (within the meaning of the Act) of the Series B Notes and (iii)
such Holder is neither an affiliate (as defined in Rule 405 of the Act) of the
Company or any Guarantor nor a Broker-Dealer tendering Notes acquired directly
from the Company for its own account.
The Company and the Guarantors shall use their best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it 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, 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 120 days from
the date on which the Exchange Offer is Consummated.
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 120 day period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company and the Guarantors are not
permitted to file an Exchange Offer Registration Statement or to Consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any Holder of Transfer Restricted Securities notifies
the Company prior to the 20th day following the Consummation of the Exchange
Offer (A) that due to a change in law or policy such Holder is not entitled to
participate in the Exchange Offer, (B) that due to a change in law or policy
such Holder may not resell the Series B Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is a Broker-Dealer
and owns Notes acquired directly from the Company or an affiliate of the Company
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(each such event referred to in clauses (i) and (ii), a "SHELF FILING EVENT"),
then the Company and the Guarantors shall (x) file with the Commission 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") on or prior to the later of (1) 120 days after
the Issue Date and (2) 60 days after the occurrence of such Shelf Filing Event,
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) use their best efforts to
cause such Shelf Registration Statement to be declared effective by the
Commission on or before 120 days after the occurrence of such Shelf Filing
Event, PROVIDED that if the Company and the Guarantors have not Consummated the
Exchange Offer within 180 days of the Issue Date, then the Company and the
Guarantors shall file the Shelf Registration Statement with the Commission on or
prior to the 181st day after the Issue Date and shall use their best efforts to
have the Shelf Registration Statement declared effective by the Commission
within 60 days after the date of filing thereof.
The Company and the Guarantors shall use their 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 Notes by the
Holders of Transfer Restricted Securities 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, for a period of two years following the Issue Date
or such shorter period that will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto (the "EFFECTIVENESS PERIOD"); provided, however, that the Effectiveness
Period shall be extended to the extent required to permit dealers to comply with
the applicable prospectus delivery requirements of Rule 174 under the Act and as
otherwise provided herein.
(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 20 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 included therein. No Holder of Transfer Restricted Securities shall
be entitled to Additional Interest pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. 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. ADDITIONAL INTEREST
(a) 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 Sections 3(a) or 4(a) of this Agreement
(the "EFFECTIVENESS TARGET DATE"), whether or not the Company and the Guarantors
have breached any
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obligations to use their best efforts, to cause any such Registration Statement
to be declared effective, (iii) the Company fails to issue, on or before 180
days after the Issue Date, Series B Notes in exchange for all Notes validly
tendered prior thereto in the Exchange Offer or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective on or prior to the
Effectiveness Target Date (each such event referred to in clauses (i) through
(iv), a "REGISTRATION DEFAULT"), then the interest rate on Transfer Restricted
Securities will increase ("ADDITIONAL INTEREST"), with respect to the first
90-day period immediately following the occurrence of such Registration Default,
by 0.50% per annum and will increase by an additional 0.50% per annum with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of 2.0% per annum with respect to all
Registration Defaults. Following the cure of all Registration Defaults, the
accrual of Additional Interest will cease and the interest rate will revert to
the original rate. All obligations of the Company and the Guarantors set forth
in this 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.
(b) The Company shall notify the Trustee and paying agent under the
Indenture (or the trustee and paying agent under such other indenture under
which the Transfer Restricted Securities are issued) immediately upon the
happening of each and every Registration Default. The Company shall pay the
Additional Interest due on the Transfer Restricted Securities by depositing with
the paying agent (which shall not be the Company for these purposes) for the
Transfer Restricted Securi ties, in trust, for the benefit of the holders
thereof, prior to 11:00 A.M. on the next interest payment date specified by the
Indenture (or such other indenture), sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each interest
payment date specified by the Indenture (or such other indenture) to the record
holder entitled to receive the interest payment to be made on such date. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest provided for
in this Section 5 constitutes a reasonable estimate of the damages that will be
suffered by holders of Transfer Restricted Securities by reason of the happening
of any Registration Default.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their respective reasonable best
efforts to effect such exchange 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.
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The Company and the Guarantors hereby agree 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. The Company and the Guarantors hereby agree,
however, to (A) participate in telephonic conferences with the
Commission staff, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that the Exchange Offer
should be permitted and (C) diligently pursue a resolution (which need
not be favorable) by the Commission staff of such submission.
(ii) The Initial Purchaser, for itself and on behalf of the
Holders, hereby acknowledges and agrees, and each Holder by its
purchase of Transfer Restricted Securities shall be deemed to have
acknowledged and agreed, that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable,
of Regulation S-K if the resales are of Series B Notes obtained by such
Holder in exchange for Series A Notes acquired by such Holder directly
from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, if the Commission so requests, 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 Series B 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 Series B Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Series B
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 respective
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 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 relating to the registration on any
appropriate form under the Act, which form shall be available for
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the sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(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), the Company and the Guarantors shall:
(i) use their respective 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) for the
period specified in Section 3(b) or 4(a) of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission 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
respective reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(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(b) or 4(a) hereof, as
applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
sold; 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) 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, (D) of the existence of any fact or the happening
of any event that makes any
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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 respective reasonable
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Shelf Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Shelf Registration Statement
or Prospectus included therein (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 Guarantor shall file any such Shelf Registration Statement or
Prospectus include therein or any amendment or supplement to any such
Shelf 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 Shelf
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 a material misstatement or omission;
(v) promptly following the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus included therein, 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) 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
financial and other records, 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 L.L.P. or such other counsel as may be chosen by the
Holders of a majority in principal
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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) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus included therein, pursuant to a supplement or
post-effective amendment if necessary, such 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) 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 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 case 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
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13
officers, one of whom must be its Chief Financial
Officer, confirming, as of such date, the matters set
forth in paragraphs (a), (c) and (d) of Section 8 of
the Purchase Agreement with respect to the
transactions contemplated by the Shelf Registration
Statement;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement, of
counsel for the Company and the Guarantors, covering
the matters set forth in Section 8(f) of the Purchase
Agreement with respect to the transactions
contemplated by the Shelf Registration Statement, and
in any event including a statement to the effect that
such counsel has participated in conferences with
officers and other representatives of the Company and
the Guarantors, representatives of the independent
accountants of the Company and the Guarantors and
representatives of the Initial Purchaser at which the
contents of the Registration Statement and related
matters were discussed and, although it does not
assume any responsibility for the accuracy,
completeness or fairness of the statements contained
in the Registration Statement during the course of
such participation, no facts came to its attention
that caused such counsel to believe that the
Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto
became effective, contained any untrue statement of a
material fact or omitted to state any fact required
to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement
as of its date contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading (except as to financial
statements and related notes, the financial statement
schedules and other financial and statistical data
included therein); 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 by underwriters in
connection with primary underwritten offerings, and
affirming the matters set forth in the comfort
letters delivered pursuant to Section 8(g) of the
Purchase Agreement, without exception; and
(B) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above.
If at any time the representations and warranties of the Company and
the Guarantors contemplated in clause (A)(1) above cease to be true and
correct, the Company shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by any such Person, shall confirm such advice in writing;
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14
(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 Series A Notes
covered by the Shelf Registration Statement, Series B Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Series A Notes being sold by such Holder; such Series B Notes to be
registered in the name of the purchaser(s) of such Notes, as the case
may be; in return, the Series A Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiii) 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 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 Person(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 Series B 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 Series B Notes that are in a form eligible for deposit with The
Depository Trust Company;
(xvi) 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 best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
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(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter 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
respective 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
(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) RESTRICTIONS ON HOLDERS. 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 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. In the event 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
(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 Purchaser or Holder 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)
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all fees and disbursements of counsel for the Company and the Guarantors and,
subject to Section 7(b) below, 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 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 Initial Purchaser and 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 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.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Holder, (ii) the Initial Purchaser, (iii)
each person, if any, who controls any Holder or the 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 the 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
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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 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.
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SECTION 9. 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 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 not 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. No party shall be liable for
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contribution with respect to any action or claim settled without its prior
written consent; provided that such written consent was not unreasonably
withheld.
SECTION 10. 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
to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, 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
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
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 Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, however, that such investment bankers and managers must
be reasonably satisfactory to the Company.
SECTION 13. MISCELLANEOUS
(a) REMEDIES. The Company and the Guarantors agree that monetary
damages (including the liquidated damages contemplated hereby) would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate; provided that
the Additional Interest contemplated hereby shall be the exclusive monetary
remedy for any such breach of Section 3 or 4 of this agreement.
(b) 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
of the Guarantor's securities under any agreement in effect on the date hereof.
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(c) ADJUSTMENTS AFFECTING THE NOTES. The Company and the Guarantors
shall not take any action with respect to the Notes that would materially and
adversely affect the ability of the Holders to Consummate the Exchange Offer.
(d) 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. 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.
(e) 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:
Grant Geophysical, Inc.
00000 Xxxx Xxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Xx.
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxxxx 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.
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.
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(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 WITHOUT REGARD TO THE CONFLICT
OF LAW RULES THEREOF. THE COMPANY AND EACH GUARANTOR IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
GUARANTEES, AND THE COMPANY AND EACH GUARANTOR IRREVOCABLY AGREE THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED BY ANY SUCH
COURT.
(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.
GRANT GEOPHYSICAL, INC.
By /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive
Officer
GEOPHYSICAL OPERATIONS, INC.
By /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive
Officer
GRANT GEOPHYSICAL (INT'L), INC.
By /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive
Officer
ADVANCED SEISMIC TECHNOLOGY, INC.
By /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive
Officer
SSGI ACQUISITION CORP.
By GRANT GEOPHYSICAL, INC.
By /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Executive Vice President
[Signature Page to Registration Rights Agreement]
23
PT. GRANT GEOPHYSICAL INDONESIA
By /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President Director
RECURSOS ENERGETICOS LTDA.
By /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Alternate General Manager
GRANT GEOPHYSICAL DO BRASIL LTDA.
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Delegated Manager
SOLID STATE GEOPHYSICAL INC.
By /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President & Chief Executive
Officer
SOLID STATE INTERNACIONAL INGENIERIA,
C.A.
By /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Director
SOLID STATE GEOPHYSICAL CORP.
By /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President & Chief Executive
Officer
[Signature Page to Registration Rights Agreement]
24
Accepted and agreed to as of
the date first above written:
XXXXXXXXX & COMPANY, INC.
By /s/ Xxxxxx X. Xxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Managing Director
[Signature Page to Registration Rights Agreement]
