COMPAGNIE GÉNÉRALE DE GÉOPHYSIQUE-VERITAS AND THE GUARANTORS PARTY HERETO 91/2% Senior Notes due 2016 REGISTRATION RIGHTS AGREEMENT Dated as of June 9, 2009 CREDIT SUISSE SECURITIES (EUROPE) LIMITED BNP PARIBAS
Exhibit 4.14
COMPAGNIE GÉNÉRALE DE GÉOPHYSIQUE-VERITAS
AND
THE GUARANTORS PARTY HERETO
$350,000,000
91/2% Senior Notes due 2016
Dated as of June 9, 2009
CREDIT SUISSE SECURITIES (EUROPE) LIMITED
BNP PARIBAS
BNP PARIBAS
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
June 9, 2009 by and among Compagnie Générale de Géophysique-Veritas, a société anonyme organized
under the laws of the Republic of France and registered at the Paris Commercial Registry under
Number B 969 202 241 (69B00224), (the “Company”), CGGVeritas Services Holding B.V.,
CGGVeritas Services Holding (U.S.) Inc., CGGVeritas Land (U.S.) Inc., CGGVeritas Services (U.S.)
Inc., Veritas Investments Inc., Viking Maritime Inc., Veritas Geophysical (Mexico) LLC, Veritas DGC
Asia Pacific Ltd., Alitheia Resources Inc., CGG Americas, Inc., CGG Canada Services Ltd., CGG
Marine Resources Norge A/S, Sercel Inc., Sercel Canada Ltd. and Sercel Australia Pty 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 (each an “Initial Purchaser” and, collectively, the
“Initial Purchasers”), who have agreed to purchase $350,000,000 aggregate principal amount
of the Company’s 91/2% Senior Notes due 2016 (the “Initial Notes”) pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated June 2, 2009 (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 7(j) 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:
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 Registered 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 Registered Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the keeping of the Registered
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 Registered Exchange
Offer.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The U.S. Securities Exchange Act of 1934, as amended.
Exchange Offer Registration Statement: The Registration Statement relating to the
Registered Exchange Offer, including the related Prospectus.
Exchange Notes: The Company’s 91/2% Senior Notes due 2016 to be issued pursuant to the
Indenture (a) in the Registered 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.
FINRA: The Financial Industry Regulatory Authority, Inc.
Freely Tradeable: An Initial Note at any time of determination if at such time of
determination (i) it may be sold to the public pursuant to Rule 144(b)(1)(ii) under the Securities
Act by a person that is not an affiliate (as defined in Rule 144 under the Securities Act) of the
Company and (ii) it does not bear any restrictive legends relating to the Securities 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 June 9, 2009, between the Company and The Bank
of New York Mellon Trust Company, 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.
2
Initial Purchaser and Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: Each May 15 and November 15, beginning with November 15, 2009.
Notes: The Initial Notes and the Exchange Notes.
Prospectus: The prospectus included in a Registration Statement at the time such
Registration Statement is declared or becomes 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 Special Interest 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 Special Interest Payment Date shall occur.
Registered 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
Initial Notes validly tendered and not withdrawn in such exchange offer by such Holders.
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 a Registered 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.
Special Interest Payment Date: With respect to the Initial Notes, each Interest
Payment Date.
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 Registered 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)
3
the date on which such Initial Note is Freely Tradeable and (b) Exchange Note until, following
the exchange by a Broker-Dealer in the Registered 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.
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.
(a) Initial Notes. The securities entitled to the benefits of this Agreement are the
Initial Notes.
(b) Holders of Initial Notes. A Person is deemed to be a holder of Initial Notes
(each, a “Holder” and, collectively, the “Holders”) whenever such Person owns
Initial Notes of record.
(a) Unless the Registered 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 Registered 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 Registered 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 Registered 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 and permitting resales of the Exchange Notes
held by Broker-Dealers that tendered into the Registered 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
4
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 Registered Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities laws to Consummate
the Registered 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 Registered Exchange Offer to
comply with all applicable federal and state securities laws. No securities other than the
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
Registered 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 Initial
Notes that were acquired for its 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) may exchange such Initial Notes pursuant to the Registered 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 Registered 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
Initial 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 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 Initial
Notes 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 Initial Notes covered by such Registration Statement
are outstanding.
5
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.
(a) Shelf Registration. If any of the Initial Notes are not Freely Tradeable by the
180th day after the Closing Date and either (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or not permitted to Consummate the
Registered Exchange Offer because the Registered 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 Transfer Restricted Securities notifies the Company in writing prior to the
20th Business Day following the Consummation of the Registered Exchange Offer that (A) such Holder
is prohibited by applicable law or Commission policy from participating in the Registered Exchange
Offer, or (B) such Holder may not resell the Exchange Notes acquired by it in the Registered
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 become effective 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
6
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 special
interest 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 included therein. No
Holder of Transfer Restricted Securities shall be entitled to special interest 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.
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 or has not become
effective 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, or become, effective, (iii) the Registered 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 has been declared, or has become, 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 or becomes 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 special
interest to each Holder of Initial Notes in an amount equal to $.05 per week per $1,000 principal
amount of Initial Notes 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 special interest shall increase by an additional $.05
per week
7
per $1,000 in principal amount of Initial Notes with respect to each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum amount of special interest of $.30 per
week per $1,000 principal amount of Initial Notes provided that the Company shall in no event be
required to pay special interest for more than one Registration Default at any given time. All
accrued special interest shall be paid to Record Holders by the Company on each Special Interest
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. The accrual of special interest will cease on the
earlier of a) the cure of all Registration Defaults relating to any particular Initial Notes and b)
the later of (1) two years from the Closing Date and (2) two years from the latest date on which
the Company or any of its Affiliates has resold during the two year period commencing on the
Closing Date any of the Initial Notes they had acquired since the Closing Date.
(a) Exchange Offer Registration Statement. In connection with the Registered 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 Initial Notes 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 Registered 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 Registered Exchange
Offer for such Initial Notes and to permit the resale of Exchange Notes by Broker-Dealers
that tendered in the Registered 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 Registered Exchange Offer, each Holder
of Initial Notes (including, without limitation, any Holder who is a Broker-Dealer) shall
furnish, upon the request of the Company, prior to the Consummation of the Registered
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 Registered Exchange Offer, (A) any Exchange
Notes
8
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.
(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 Registered 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
Registered Exchange Offer and that, to the best of the Company’s information and belief,
each Holder participating in the Registered 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 Registered
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.
9
(c) General Provisions. In connection with any Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Initial Notes (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 Initial Notes
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 or become
effective and such Registration 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
10
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 Initial Notes 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 Initial Notes
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;
(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
11
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 Cravath, Swaine & Xxxxx LLP 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
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 Initial Notes
covered by
12
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, 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
13
(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;
(xiii) in connection with any sale of Initial Notes 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 Initial Notes to be sold and not bearing any restrictive
legends; and enable such Initial Notes 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 Initial Notes 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 Initial
Notes, 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;
14
(xvi) in the case of a Shelf Registration Statement, cooperate and assist in any
filings required to be made with the FINRA 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 FINRA;
(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
(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 an Initial Note 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 Initial Notes
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 Initial Notes 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.
15
(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
FINRA (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 FINRA)); (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 Initial Notes; (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 Holders
of Initial Notes being tendered in the Registered 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 Xxxxxxx Xxxxxx & Xxxxx LLP or such other
counsel as may be chosen by the Holders of a majority in principal amount of the Initial Notes 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.
(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
16
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 Initial Notes 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
17
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.
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
18
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 Initial Notes 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 Initial Notes 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, 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 claim settled
without its prior written consent; provided that such written consent was not unreasonably
withheld.
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.
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
19
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.
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.
(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.]
(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 Initial Notes; 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 Registered Exchange Offer and that does not affect directly or
indirectly the rights of other Holders whose securities are not being tendered pursuant to such
Registered Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Initial Notes 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:
20
(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-Veritas
Tour Maine-Montparnasse
00, xxxxxx xx Xxxxx
XX 000
00000 Xxxxx Cedex 15
France
Telecopier No.: 33-1-64-47-34-31
Attention: Chief Financial Officer
Tour Maine-Montparnasse
00, xxxxxx xx Xxxxx
XX 000
00000 Xxxxx Cedex 15
France
Telecopier No.: 33-1-64-47-34-31
Attention: Chief Financial Officer
with a copy to:
Linklaters LLP
00, xxx xx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: 00-0-00-00-00-00
Attention: Xxxx Xxxx
00, xxx xx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Telecopier No.: 00-0-00-00-00-00
Attention: Xxxx Xxxx
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.
(e) 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
Initial Notes; 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 Initial Notes from such Holder.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
21
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(i) 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.
(j) Consent to Jurisdiction; Submission to Process. Each of the Company and the
Guarantors irrevocably submits to the non-exclusive jurisdiction of any New York state or U.S.
Federal court located in the Borough of Manhattan in the City and State of New York over any suit,
action or proceeding arising out of or relating to this Agreement. Each of the Company and the
Guarantors irrevocably waives, to the fullest extent permitted by law, any objection which it may
have, pursuant to articles 14 and 15 of the French Civil Code or otherwise, to the laying of the
venue of any such suit, action or proceeding brought in such a court and any claim that any such
suit, action or proceeding brought in such a court has been brought in any inconvenient forum. In
furtherance of the foregoing, each of the Company and the Guarantors hereby irrevocably designates
and appoints CT Corporation, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as the agent of the
Company and each of the Guarantors to receive service of all process brought against the Company or
any such Guarantor with respect to any such suit, action or proceeding in any such court in the
City and State of New York, such service being hereby acknowledged by the Company and each of the
Guarantors to be effective and binding service in every respect. Copies of any such process so
served shall also be given to the Company in accordance with Section 13(d), but the failure of the
Company or any Guarantor to receive such copies shall not affect in any way the service of such
process as aforesaid. On the Closing Date, the Company and the Guarantors shall furnish to the
Initial Purchasers a consent of CT Corporation agreeing to act hereunder. If for any reason CT
Corporation shall resign or otherwise cease to act as such agent, the Company and each of the
Guarantors hereby irrevocably agrees to (A) immediately designate and appoint a new agent
reasonably acceptable to the Initial Purchasers to serve in such capacity and, in such event, such
new agent shall be deemed to be substituted for CT Corporation for all purposes hereof and (B)
promptly deliver to the Initial Purchasers the written consent (in form and substance reasonably
satisfactory to the Initial Purchasers) of such new agent agreeing to serve in such capacity.
Nothing in this Section shall limit the right of the Initial Purchasers or any Holder to bring
proceedings against the Company or any Guarantor in the courts of any other jurisdiction or to
serve process in any other manner permitted by law.
[Signature page to follow]
22
Very truly yours,
| COMPAGNIE GENERALE DE | ||||||
| GEOPHYSIQUE–VERITAS | ||||||
| By: | /s/ Xxxxxx Xxxxxx
|
|||||
| Name: | Xxxxxx Xxxxxx | |||||
| Title: | Chairman and Chief Executive Officer | |||||
| CGGVERITAS SERVICES HOLDING B.V. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| CGG AMERICAS INC. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| CGG CANADA SERVICES LTD. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| CGG MARINE RESOURCES NORGE A/S | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| SERCEL INC. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
23
| SERCEL AUSTRALIA PTY LTD. | ||||||
| By: | /s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Name: | Stephane-Xxxx Xxxxxxx | |||||
| Title: | Chief Financial Officer CGGVeritas Group |
|||||
| SERCEL CANADA LTD. | ||||||
| By: | /s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Name: | Stephane-Xxxx Xxxxxxx | |||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| CGGVERITAS SERVICES HOLDING (U.S.) INC. | ||||||
| By: | /s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Name: | Stephane-Xxxx Xxxxxxx | |||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| CGGVERITAS SERVICES (U.S.) INC. | ||||||
| By: | /s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Name: | Stephane-Xxxx Xxxxxxx | |||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| VERITAS INVESTMENTS INC. | ||||||
| By: | /s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Name: | Stephane-Xxxx Xxxxxxx | |||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
24
| CGGVERITAS LAND (U.S.) INC. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| VIKING MARITIME INC. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| VERITAS GEOPHYSICAL (MEXICO) LLC | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| ALITHEIA RESOURCES INC. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
| VERITAS DGC ASIA PACIFIC LTD. | ||||||
| By: Name: |
/s/ Stephane-Xxxx Xxxxxxx
|
|||||
| Title: | Chief Financial Officer | |||||
| CGGVeritas Group | ||||||
25
The foregoing Registration Rights Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE SECURITIES (EUROPE) LIMITED
| By: Name: |
/s/ Xxxxx Xxxxxxxxxx
|
|||||
| Title: | Managing Director | |||||
| By: Name: Title: |
/s/ Xxxxxx Xxxxxx
Managing Director |
BNP PARIBAS
| By: Name: |
/s/ Xxxxxx Xxxxxx
|
|||||
| Title: | Authorised Signatory | |||||
| By: Name: |
/s/ Xxxxxxxx de Kerizouet
|
|||||
| Title: | Authorised Signatory |
26