EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of December 10, 1999, by and among,
THE BEACON GROUP ENERGY INVESTMENT FUND II, L.P., a Delaware limited
partnership, (the "Investor"), and COMPANGIE GENERALE DE GEOPHYSIQUE, a
societe anonyme organized under French law (the "Company").
W I T N E S S E T H:
WHEREAS, the Company and the Investor are parties to a Subscription
Agreement, dated as of October 23, 1999 (as amended from time to time, the
"Subscription Agreement"), pursuant to which the Company has issued to the
Investor, and the Investor have purchased Ordinary Shares (as defined
below) from the Company (the "Shares");
WHEREAS, in connection with the entry by the Company and the Investor into
the Subscription Agreement, the Company has agreed to provide registration
rights to the Investor with respect to the Shares and the ADRs set forth in
this Agreement.
ACCORDINGLY, the parties hereto hereby agree as follows:
1. Certain Definitions
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(a) In addition to the terms defined in the preamble hereto, as used
in this Agreement, the following terms shall have the meanings assigned to
them below:
1.1 "Additional Piggyback Rights" has the meaning set forth in Section
2.1(e).
1.2 "Affiliate" shall mean with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person.
1.3 "American Depositary Receipts" or "ADRs" shall mean the American
depositary receipts evidencing the ADSs issued by the Depositary pursuant
to the Deposit Agreement, dated as of _____________________ between the
Company and the Bank of New York as Depositary, as amended (the "Deposit
Agreement").
1.4 "American Depositary Shares" or "ADSs" shall mean the American
depositary shares of the Company which each represent a one-fifth interest
in an Ordinary Share deposited with the Depositary.
1.5 "Authorized Agent" has the meaning set forth in Section 4.6(i).
1.6 "Claims" has the meaning set forth in Section 2.9(a).
1.7 "Commission" or "SEC" shall mean the United States Securities and
Exchange Commission.
1.8 "Company Securities" has the meaning set forth in Section
2.3(b)(ii).
1.9 "Demand Exercise Notice" has the meaning set forth in Section
2.1(a).
1.10 "Demand Registrations" has the meaning set forth in Section
2.1(a).
1.11 "Demand Registration Requests" has the meaning set forth in
Section 2.1(a).
1.12 "Deposit Agreement" shall mean the Deposit Agreement, as amended,
between the Depositary and the Company pursuant to which certain Ordinary
Shares have been and may be deposited with the Depositary in exchange for
the delivery of ADSs.
1.13 "Depositary" shall mean The Bank of New York or such successor
depositary appointed pursuant to the Deposit Agreement.
1.14 "Dollars"and the symbols "$" or "US$" shall mean, unless
otherwise indicated, U.S. dollars.
1.15 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, of the United States of America.
1.16 "Excluded Registration" has the meaning set forth in Section
2.2(a).
1.17 "Expenses" has the meaning set forth in Section 2.5(a).
1.18 "Holder" or "Holders" shall mean the Investor and any Person who
shall hereafter acquire and hold Registrable Securities; provided that such
party has become a signatory to this Agreement and agreed to be bound by
the terms of this Agreement applicable to a "Holder".
1.19 Investor Securities" has the meaning set forth in Section
2.3(b)(iii).
1.20 Litigation" has the meaning set forth in Section 4.6(i).
1.21 Major Holder" has the meaning set forth in Section 2.4(a).
1.22 Manager" has the meaning set forth in Section 2.3(a).
1.23 "NASD" shall mean the National Association of Securities Dealers,
Inc.
1.24 "New York Court" has the meaning set forth in Section 4.6(i).
1.25 "Ordinary Shares" shall mean the ordinary shares par value of FRF
10 per ordinary share of the Company which may be represented by ADSs
evidenced by ADRs, or, in the case of a conversion, reclassification or
exchange of such Ordinary Shares, shares of the stock into or for which
such shares of Ordinary Shares shall be converted, reclassified or
exchanged, and all provisions of this Agreement shall be applied
appropriately thereto and to any stock resulting from any subsequent
conversion, reclassification or exchange therefor.
1.26 "Ordinary Share Equivalents" shall mean all options, warrants and
other securities convertible into, or exchangeable or exercisable for, at
any time or upon the occurrence of any event or contingency and without
regard to any vesting or other conditions to which such securities may be
subject, Ordinary Shares and/or ADSs.
1.27 "Other Demand Holders" has the meaning set forth in Section
2.3(b).
1.28 "Other Demand Holders Securities" has the meaning set forth in
Section 2.3(b)(i).
1.29 "Person" shall mean an individual, corporation, partnership,
limited liability company, firm, association, trust, government,
governmental agency or other entity, whether acting in an individual,
fiduciary or other capacity.
1.30 "Postponement Period" has the meaning set forth in Section
2.1(d).
1.31 "Qualified Independent Underwriter" shall mean a "qualified
independent underwriter" within the meaning of the rules of the NASD.
1.32 "Register", "Registered" and "Registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the U.S. Securities Act and the declaration or ordering of
the effectiveness of such registration statement.
1.33 "Registrable Securities" shall mean (i) any Ordinary Shares held
as of the date hereof by the Investor or hereafter acquired by the
Investor; or (ii) any ADSs evidenced by ADRs hereafter acquired by the
Investor; (iii) any Ordinary Shares or any ADSs evidenced by ADRs acquired
by any Person after the date hereof from the Investor; or (iv) any stock
issued or issuable, directly or indirectly, upon any subdivision,
combination or reclassification of such stock or stock dividend in respect
of the Ordinary Shares or ADSs referenced in clauses (i), (ii) and (iii)
above; provided, however, that with respect to a registration statement
pursuant to Section 2.1 or Section 2.2, Registrable Securities shall
include all Ordinary Shares or ADSs (including shares obtainable upon the
exercise, exchange or conversion of any Ordinary Share Equivalents) owned
by each of the parties to this Agreement (other than the Company). As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to
the sale of such securities shall have been declared effective under the
applicable securities laws and such securities shall have been disposed of
in accordance with such registration statement or (ii) such securities
shall have been sold (other than in a privately negotiated sale) pursuant
to Rule 144 (or any successor or comparable provision) under the U.S.
Securities Act and in compliance with the requirements of Rule 144, or
(iii) such securities are saleable by the holder thereof pursuant ot Rule
144 (k) without any volume limitation applicable thereto.
1.34 "Section 2.1 Sale Number" has the meaning set forth in Section
2.3(a).
1.35 "Section 2.2 Sale Number" has the meaning set forth in Section
2.3(b).
1.36 "Securities Act" shall mean the Securitites Act of 1933, as
amended, of the United States of America.
1.37 "Valid Business Reason" has the meaning set forth in Section
2.1(d).
(b) Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Subscription Agreement.
2. Registration Rights
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2.1 Demand Registrations
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(a) Subject to Sections 2.1(d) and 2.3 below, at any time and
from time to time any Holder shall have the right to require the Company to
file a registration statement under the Securities Act and the rules and
regulations promulgated thereunder covering all or part of their respective
Registrable Securities, by delivering a written request therefor to the
Company specifying the number of Registrable Securities to be included in
such registration by such Holder and the intended method of distribution
thereof. All requests pursuant to this Section 2.1 are referred to herein
as "Demand Registration Requests," and the registrations requested are
referred to herein as "Demand Registrations". As promptly as practicable,
but no later than ten days after receipt of a Demand Registration Request,
the Company shall give written notice (the "Demand Exercise Notice") of
such Demand Registration Request to all Holders of record of Registrable
Securities.
(b) The Company, subject to Sections 2.3 and 2.7, shall include
in a Demand Registration (i) the number of Registrable Securities requested
by such Holder and (ii) the Registrable Securities of any other Holder who
shall have made a written request to the Company for inclusion in such
Demand Registration (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder) within 30
days after the receipt of the Demand Exercise Notice.
(c) The Company shall, as expeditiously as possible following a
Demand Registration Request, use its best efforts to (i) effect such
registration under the Securities Act and the rules and regulations
promulgated thereunder of the Registrable Securities which the Company has
been so requested to register, for distribution in accordance with such
intended method of distribution and (ii) if requested by the Holders,
obtain acceleration of the effective date of the registration statement
relating to such registration.
(d) The Demand Registration rights granted under Section 2.1 are
subject to the following limitations: (i) the Company shall not be required
to cause a registration pursuant to Section 2.1 to be declared effective
within a period of 180 days after the effective date of any registration
statement of the Company filed pursuant to a Demand Registration Request or
within a period of 180 days after the date such Holder was given the
opportunity to register its Registrable Securities pursuant to Section 2.2
(provided that in connection with such registration pursuant to Section
2.2, the number of Registrable Securities requested to be included by such
Holder was not reduced pursuant to Section 2.3); (ii) if the Board, in its
good faith judgment, determines that any registration of Registrable
Securities should not be made or continued because it would materially
interfere with any material financing, acquisition, corporate
reorganization or merger involving the Company or would require disclosure
of information, the premature disclosure of which would materially
adversely affect the Company (a "Valid Business Reason"), (A) the Company
may postpone filing a registration statement relating to a Demand
Registration Request until such Valid Business Reason no longer exists, but
in no event for more than 120 days, and (B) in case a registration
statement has been filed relating to a Demand Registration Request, the
Company may cause such registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
registration statement until such Valid Business Reason no longer exists,
but in no event for more than 120 days (such period of postponement or
withdrawal under subclauses (A) or (B) of this paragraph (d), (the
"Postponement Period"); and the Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the
fact that the Valid Business Reason for such postponement, withdrawal or
premature termination no longer exists, in each case, promptly after the
occurrence thereof; provided, however, that the Company shall not be
permitted to postpone, withdraw or prematurely terminate a registration
statement previously subject to any Postponement Period ; and (iii) the
Company shall not be required to effect a registration pursuant to this
Section 2.1 with respect to a Demand Registration Request by any Holder, if
the anticipated aggregate offering price of the Registrable Securities to
be sold is less than $20 million.
If the Company shall give any notice of postponement or
withdrawal of any registration statement, the Company shall not, during the
Postponement Period, register any Ordinary Shares or ADSs for the account
of any other Person (other than in connection with an Excluded
Registration). Each Holder of Registrable Securities agrees that, upon
receipt of any notice from the Company that the Company has determined to
withdraw any registration statement pursuant to clause (ii) above, such
party will discontinue its disposition of Registrable Securities pursuant
to such registration statement and, if so directed by the Company, will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such party's possession, of the prospectus
covering such Registrable Securities that was in effect at the time of
receipt of such notice. If the Company shall have withdrawn or prematurely
terminated a registration statement filed under Section 2.1 (whether
pursuant to this paragraph (d) or as a result of any stop order, injunction
or other order or requirement of the Commission or any other governmental
agency or court), the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement until the Company
shall have filed a new registration statement covering the Registrable
Securities covered by the withdrawn or prematurely terminated registration
statement and such subsequent registration statement shall have been
declared effective and shall not have been withdrawn or prematurely
terminated. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, at such time
as the Valid Business Reason that caused such withdrawal or postponement no
longer exists (but in no event later than 120 days after the date of the
withdrawal or postponement), use its best efforts to effect the
registration under the securities laws of the Registrable Securities
covered by the withdrawn or postponed registration statement in accordance
with this Section 2.1 (unless the Holders shall have withdrawn such
request, in which case the Company shall not be considered to have effected
an effective registration for the purposes of this Agreement).
(e) The Company, subject to Sections 2.3 and 2.7, may elect to
include in any registration statement and offering made pursuant to Section
2.1, any Ordinary Shares or ADSs which are requested to be included in such
registration pursuant to the exercise of piggyback registration rights
granted by the Company after the date hereof in accordance with the terms
of this Agreement ("Additional Piggyback Rights"); provided, however, that
such inclusion shall be permitted only to the extent that it is pursuant
to, and subject to, the terms of any applicable underwriting agreement or
arrangements entered into by the Holders.
2.2 Piggyback Registrations
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(a) If at any time, the Company proposes or is required to
register any of its equity securities under the securities laws (other than
a registration statement (i) on Form F-4 or S-8 or any successor form
thereto or (ii) filed in connection with an offering made solely to
employees of the Company or its subsidiaries (each, an "Excluded
Registration")), whether or not for its own account, the Company shall give
prompt written notice of its intention to do so to each of the Holders of
record of Registrable Securities. Upon the written request of any Holder,
made within 20 days following the receipt of any such written notice (which
request shall specify the maximum number of Registrable Securities intended
to be disposed of by such Holder and the intended method of distribution
thereof), the Company shall, subject to Sections 2.2(b), 2.3 and 2.7, use
its best efforts to cause all such Registrable Securities, the Holders of
which have so requested the registration thereof, to be registered under
the securities laws (with the securities which the Company at the time
proposes to register) to permit the sale or other disposition by the
Holders (in accordance with the intended method of distribution thereof) of
the Registrable Securities to be so registered. No registration effected
under this Section 2.2(a) shall relieve the Company of its obligations to
effect Demand Registrations under Section 2.1, except as set forth in
Section 2.1(d).
(b) If at any time after giving written notice of its intention
to register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its election,
give written notice of such determination to all Holders of Registrable
Securities, and (i) in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Securities in
connection with such abandoned registration, without prejudice, however, to
the rights of Holders of Registrable Securities under Section 2.1 and (ii)
in the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw; provided, however, that (A) such request must be made
in writing prior to the execution of the underwriting agreement (or such
other similar agreement) with respect to such registration and (B) such
withdrawal shall be irrevocable and, after making such withdrawal, a Holder
shall no longer have any right to include such Registrable Securities in
the registration as to which such withdrawal was made.
2.3 Allocation of Securities Included in Registration Statement
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(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and if the lead managing underwriter (the
"Manager") shall advise the Company that, in its view, the number of
securities requested to be included in such registration (including those
securities requested by the Company to be included in such registration)
exceeds the largest number (the "Section 2.1 Sale Number") that can be sold
in an orderly manner in such offering within a price range acceptable to
the Holders, the Company shall include in such registration:
(i) first, all Registrable Securities requested to be
included pursuant to Section 2.1(b)(i) in such registration by the
Investor;
(ii) second, to the extent that the number of Registrable
Securities to be included pursuant to Section 2.3(a)(i) is less than the
Section 2.1 Sale Number, all Registrable Securities requested to be
included pursuant to Section 2.1(b)(i) in such registration by all other
Holders; provided, however, that if the number of such Registrable
Securities and the number of Registrable Securities to be included pursuant
to Section 2.3(a) exceeds the Section 2.1 Sale Number, then the number of
Registrable Securities (not to exceed the Section 2.1 Sale Number) to be
included in such registration shall be reduced on a pro rata basis among
all such Holders, based on the number of Registrable Securities owned by
each such Holder requesting inclusion pursuant to Section 2.1(b)(i) out of
the total outstanding number of Ordinary Shares of the Company; provided,
however, that such allocation shall not operate to reduce the aggregate
number of Registrable Securities to be included in such registration below
the Section 2.1 Sale Number, and if any Holder does not request inclusion
of the maximum number of shares of Registrable Securities allocated to such
Holder pursuant to the above-described procedure, the remaining portion of
such Holder's allocation shall be reallocated among those requesting
Holders whose allocations did not satisfy their requests pro rata on the
basis of the number of shares of Registrable Securities which would be held
by such Holders, and this procedure shall be repeated until all of the
shares of Registrable Securities which may be included in the registration
on behalf of the Holders have been so allocated;
(iii) third, to the extent that the number of Registrable
Securities to be included pursuant to Sections 2.3(a)(i) and 2.3(a)(ii) is
less than the Section 2.1 Sale Number, securities that the Company proposes
to register; and
(iv) fourth, to the extent that the number of Registrable
Securities to be included by all Holders pursuant to Sections 2.3(a)(i) and
2.3(a)(ii) and the number of securities to be included by the Company
pursuant to Section 2.3(a)(iii) is less than the Section 2.1 Sale Number,
any other securities that the Holders thereof propose to register pursuant
to the exercise of Additional Piggyback Rights.
If, as a result of the proration provisions of this Section
2.3(a), any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested be included,
such Holder may elect to withdraw his request to include Registrable
Securities in such registration or may reduce the number requested to be
included; provided, however, that (A) such request must be made in writing
prior to the execution of the underwriting agreement with respect to such
registration and (B) such withdrawal shall be irrevocable and, after making
such withdrawal, a Holder shall no longer have any right to include such
Registrable Securities in the registration as to which such withdrawal was
made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Manager shall advise the Company that, in its
view, the number of securities requested to be included in such
registration exceeds the number (the "Section 2.2 Sale Number") that can be
sold in an orderly manner in such registration within a price range
acceptable to the Company or, in the event such underwritten offering is
being made pursuant to the request of the holders of equity securities
(other than the Holders) exercising their demand registration rights
("Other Demand Holders"), within a price range acceptable to the holders of
a majority of the securities requested to be registered by the Other Demand
Holders, the Company shall include in such registration:
(i) first, in event such underwritten offering is being made
at the request of Other Demand Holders, all Ordinary Shares or ADSs
requested to be included by such Other Demand Holders (the "Other Demand
Holders Securities"); provided, however, that if the number of Other Demand
Holders Securities exceeds the Section 2.2 Sale Number, then the number of
Other Demand Holders Securities included in such registration shall be
reduced by such difference;
(ii) second, all Ordinary Shares or ADSs that the Company
proposes to register for its own account ("Company Securities");
(iii) third, to the extent that the number of Company
Securities and other Demand Holders Securities is less than the Section 2.2
Sale Number, all Registrable Securities requested to be included by the
Investor pursuant to Section 2.2(a) ("Investor Securities"); provided,
however, that, if the number of such Investor Securities exceeds the
Section 2.2 Sale Number less the number of Company Securities and Other
Demand Holders Securities, then the number of Investor Securities included
in such registration shall be reduced by such difference; and
(iv) fourth, to the extent the number of Company Securities,
Investor Securities and Other Demand Holders Securities is less than the
Section 2.2 Sale Number, all Registrable Securities requested to be
included by all other holders of equity securities of the Company with
"piggyback registration rights"; provided, however, if the number of such
securities exceeds the Section 2.2 Sale Number less the sum of the number
of (A) Company Securities, (B) Investor Securities and (C) Other Demand
Holders Securities, then the number of such securities included in such
registration shall be reduced on a pro rata basis, based on the number of
securities owned by each holder of equity securities of the Company with
"piggyback registration rights" (including all Holders other than the
Investor) requesting inclusion to the number of securities owned by all
holders of equity securities of the Company with "piggyback registration
rights" (including all Holders other than the Investor) requesting
inclusion; provided, however, that such allocation shall not operate to
reduce the aggregate number of securities to be included in such
registration below the Section 2.2 Sale Number, and if any holder of equity
securities of the Company with "piggyback registration rights" does not
request inclusion of the maximum number of shares allocated to such holder
pursuant to the above-described procedure, the remaining portion of such
holder's allocation shall be reallocated among those requesting holders
whose allocations did not satisfy their requests pro rata on the basis of
the number of shares of securities held by such holders, and this procedure
shall be repeated until all of the shares of securities which may be
included in the registration on behalf of the holders have been so
allocated.
2.4 Registration Procedures
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If and whenever the Company is required by the provisions of this Agreement
to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this
Agreement, the Company shall, as expeditiously as possible (but in any
event, within 120 days after a Demand Registration Request in the case of
Section 2.4(a)):
(a) prepare and file with the Commission a registration statement
on an appropriate registration form of the Commission for the disposition
of such Registrable Securities in accordance with the intended method of
disposition thereof, which form shall, in the case of a shelf registration,
be available for the sale of the Registrable Securities by the Holders
thereof and such registration statement shall comply with the requirements
of the applicable form and include all financial statements required by the
Commission to be filed therewith, and the Company shall use its best
efforts to cause such registration statement to become and, subject to
Sections 2.1(d) and 2.4(b), remain effective (provided, however, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, or comparable statements under securities or "blue
sky" laws of any United States jurisdiction, the Company will furnish to
counsel (in the case of a registration pursuant to Section 2.1, selected by
the Investor, and, in the case of a registration pursuant to Section 2.2,
the Holder that, together with its Affiliates, includes the largest number
of Registrable Securities in such registration (the "Major Holder")) for
the Holders of Registrable Securities participating in the planned offering
and the underwriters, if any, copies of all such documents proposed to be
filed (including all exhibits thereto), which documents will be subject to
the review and comment of such counsel, provided that the Company shall not
be required to include any such comment to which the Company shall
reasonably object);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for such period (which shall not be required to exceed
120 days in the case of a registration pursuant to Section 2.1 or 90 days
in the case of a registration pursuant to Section 2.2 and shall terminate
when all Registrable Securities covered by such registration statement have
been sold pursuant to such registration statement) as any seller of
Registrable Securities pursuant to such registration statement may
reasonably request and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Securities
covered by such registration statement in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement;
(c) furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including
all exhibits), and the prospectus included in such registration statement
(including each preliminary prospectus) in conformity with the requirements
of the Securities Act and other documents, as such seller and underwriter
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such seller (the Company
hereby consenting to the use in accordance with all applicable laws of each
such registration statement (or amendment or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or supplement
thereto) by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such registration statement or
prospectus);
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions within the United
States as any sellers of Registrable Securities or any managing
underwriter, if any, shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such sellers or underwriter, if any, to consummate the disposition of the
Registrable Securities in such jurisdictions, except that in no event shall
the Company be required to qualify to do business as a foreign corporation
in any jurisdiction where it would not, but for the requirements of this
paragraph (d), be required to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) promptly notify each seller of Registrable Securities covered
by such registration statement and each managing underwriter, if any: (i)
when the registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed and, with respect to
the registration statement or any post-effective amendment, when the same
has become effective, (ii) of any request by the Commission or any United
States state securities authority for amendments or supplements to the
registration statement or the prospectus related thereto or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities
or "blue sky" laws of any jurisdiction or the initiation of any proceeding
for such purpose, (v) of the existence of any fact of which the Company
becomes aware which results in the registration statement, the prospectus
related thereto or any document incorporated therein by reference
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any
statement therein not misleading, and (vi) if at any time the
representations and warranties contemplated by any underwriting agreement,
securities sales agreement, or other similar agreement relating to the
offering shall cease to be true and correct in all material respects; and,
if the notification relates to an event described in clause (v), the
Company shall promptly prepare and furnish to each such seller and each
underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon
as reasonably practicable after the effective date of the registration
statement (and in any event within 15 months thereafter), an earnings
statement (which need not be audited) covering the period of at least
twelve consecutive months beginning with the first day of the Company's
first calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(g) if requested by any Holder, to cause any Ordinary Shares held
by such Holder to be deposited at its expense with the Depositary or any
substitute Depositary reasonably satisfactory to such Holder in exchange
for ADSs evidenced by ADRs, in order to permit the registration and sale of
such ADRs in accordance with the terms and conditions hereof;
(h) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal U.S. securities
exchange on which similar securities issued by the Company are then listed
(if any), if the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) if no similar securities are then
so listed, cause all such Registrable Securities to be listed on a United
States national securities exchange or secure designation of each such
Registrable Security as a Nasdaq National Market "national market system
security" within the meaning of Rule 11Aa2-1 of the Commission or secure
National Association of Securities Dealers Automated Quotation
authorization for such stock and, without limiting the generality of the
foregoing, take all actions that may be required by the Company as the
issuer of such Registrable Securities in order to facilitate the arranging
for the registration of at least two market makers as such with respect to
such stock with the NASD;
(i) provide and cause to be maintained a transfer agent,
registrar and depositary agent for all such Registrable Securities covered
by such registration statement not later than the effective date of such
registration statement;
(j) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the
Major Holder (or the Holders in the case of a Section 2.1 Demand
Registration) shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(k) obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants in
customary form and covering such matters as are customarily covered by such
opinions and "cold comfort" letters delivered to underwriters in
underwritten public offerings, which opinion and letter shall be reasonably
satisfactory to the underwriter, if any, and to the Major Holders
participating in such offering, and furnish to each Holder participating in
the offering and to each underwriter, if any, a copy of such opinion and
letter addressed to such Holder or underwriter;
(l) deliver promptly to each Holder participating in the offering
and each underwriter, if any, copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda
relating to discussions with the Commission, its staff, other than those
portions of any such correspondence and memoranda which contain information
subject to attorney-client privilege with respect to the Company, and, upon
receipt of such confidentiality agreements as the Company may reasonably
request, make reasonably available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter, if any, participating in any disposition to be effected
pursuant to such registration statement and by any attorney, accountant or
other agent retained by any such seller or any such underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers,
directors and employees to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement;
(m) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(n) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(o) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters in the
marketing of Registrable Securities in any underwritten offering;
(p) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) provide copies of
such document to counsel to the sellers of Registrable Securities and to
the managing underwriter, if any, and make the Company's representatives
reasonably available for discussion of such document and make such changes
in such document concerning such sellers prior to the filing thereof as
counsel for such sellers or underwriters may reasonably request;
(q) furnish to each Holder participating in the offering and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(r) cooperate with the sellers of Registrable Securities and the
managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates not bearing any restrictive legends representing
the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names
in accordance with the underwriting agreement prior to any sale of
Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the sellers of Registrable
Securities at least three business days prior to any sale of Registrable
Securities; and
(s) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition
of such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable
Securities as to which any registration is being effected furnish the
Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request,
provided that such information shall be used only in connection with such
registration.
Each Holder of Registrable Securities agrees that upon receipt of
any notice from the Company of the happening of any event of the kind
described in clause (iii), (iv) or (v) of paragraph (e) of this Section
2.4, such Holder will discontinue such Holder's disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by paragraph (e) of this Section 2.4 and,
if so directed by the Company, 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 Registrable
Securities that was in effect at the time of receipt of such notice. In the
event the Company shall give any such notice, the applicable period
mentioned in paragraph (b) of this Section 2.4 shall be extended by the
number of days during such period from and including the date of the giving
of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated
by paragraph (e) of this Section 2.4.
2.5 Registration Expenses
---------------------
(a) "Expenses" shall mean any and all fees and expenses incident
to the Company's performance of or compliance with this Article 2,
including, without limitation: (i) Commission, United States stock exchange
or NASD registration and filing fees and all listing fees and fees with
respect to the inclusion of securities in the Nasdaq National Market; (ii)
fees and expenses of compliance with securities laws or United States "blue
sky" laws and in connection with the preparation of a "blue sky" survey,
including, without limitation, fees and expenses of blue sky counsel; (iii)
printing and copying expenses; (iv) messenger and delivery expenses; (v)
expenses incurred in connection with any road show; (vi) fees and
disbursements of counsel for the Company; (vii) with respect to each
registration, the reasonable fees and disbursements of one counsel in the
United States, as required, for the sellers of Registrable Securities as
well as of local counsel in France (selected by the Holders in the case of
a registration pursuant to Section 2.1, and selected by the Major Holder in
the case of a registration pursuant to Section 2.2); (viii) fees and
disbursements of all independent public accountants (including the expenses
of any audit and/or "cold comfort" letter) and fees and expenses of other
persons, including special experts, retained by the Company and (ix) any
other reasonable fees and disbursements of underwriters, if any,
customarily paid by issuers.
(b) The Company shall pay all Expenses with respect to any Demand
Registration pursuant to Section 2.1 whether or not such Demand
Registration becomes effective or does not remain effective for the period
contemplated by Section 2.4(b), provided that the Holder(s) making any
Demand Registration Request shall be responsible for all Expenses with
respect to any Demand Registrtion in which such Holder(s) has withdrawn
such Demand Registration Request. The Company shall pay all Expenses of
each Holder with respect to any registration effected under Section 2.2.
Each holder of Registrable Securities (other than the Holders) shall pay
the expenses incurred by that holder with respect to any registration
effected pursuant to Section 2.2.
(c) Notwithstanding the foregoing, (i) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with United States "blue sky" laws of each
state or the securities laws of any other jurisdiction in which the
offering is made and (ii) in connection with any registration hereunder,
each Holder of Registrable Securities being registered shall pay all
underwriting discounts and commissions and any transfer taxes, if any,
attributable to the Registrable Securities, pro rata with respect to
payments of discounts and commissions in accordance with the number of
shares included in the offering by such Holder, and (iii) the Company shall
be responsible for all of its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties).
2.6 Certain Limitations on Registration Rights
------------------------------------------
In the case of any registration under Section 2.1 pursuant to an
underwritten offering, or in the case of a registration under Section 2.2
if the Company has determined to enter into an underwriting agreement in
connection therewith, all securities to be included in such registration
shall be subject to an underwriting agreement and no Person may participate
in such registration unless such Person agrees to sell such Person's
securities on the basis provided therein and completes and/or executes all
questionnaires and other documents which must be executed in connection
therewith, and provides such other information to the Company or the
underwriter as may be necessary to register such Person's securities.
2.7 Limitations on Sale or Distribution of Other Securities
-------------------------------------------------------
(a) If requested in writing by the managing underwriter(s), if
any, of any registration effected pursuant to Section 2.1 or 2.2, each
Holder agrees, and if requested will confirm such agreement in writing, not
to effect any public sale or distribution, including, without limitation,
any sale pursuant to Rule 144 under the Securities Act, of any Registrable
Securities, or of any other equity security of the Company or of any
security convertible into or exchangeable or exercisable for any equity
security of the Company (other than as part of such underwritten public
offering) during the ten day period prior to, and during the 90 day period
beginning on, the closing date of each such underwritten offering.
(b) The Company hereby agrees, and if requested will confirm such
agreement in writing, that, if (i) it shall previously have received a
request for registration pursuant to Section 2.1 or 2.2, and if such
previous registration shall not have been withdrawn or abandoned, and (ii)
the managing underwriter(s), if any, of such registration has requested in
writing, then the Company shall not sell, transfer, or otherwise dispose
of, any Ordinary Shares or ADSs, or any other equity security of the
Company or any security convertible into or exchangeable or exercisable for
any equity security of the Company (other than as part of such underwritten
public offering, or upon the conversion, exchange or exercise of any then
outstanding Ordinary Share Equivalent), during the ten-day period prior to,
and during the 90-day period beginning on, the closing date of such
previous registration; and the Company shall so provide in any registration
rights agreements hereafter entered into with respect to any of its
securities.
2.8 No Required Sale
----------------
Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any Holder to sell any Registrable Securities
pursuant to any effective registration statement.
2.9 Indemnification for Registrations.
---------------------------------
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Article 2, the Company
shall, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, the seller of any Registrable Securities, its directors,
officers, fiduciaries, employees and stockholders or general and limited
partners (and the directors, officers, employees and stockholders thereof),
each other Person who participates as an underwriter or a Qualified
Independent Underwriter, if any, in the offering or sale of such
securities, each officer, director, employee, stockholder or partner of
such underwriter or Qualified Independent Underwriter, and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, actions or proceedings (whether commenced
or threatened) in respect thereof and expenses (including fees of counsel
and any amounts paid in any settlement effected with the Company's consent
) to which each such indemnified party may become subject under the
Securities Act or otherwise ("Claims"), insofar as such Claims arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement under which such
securities were registered under the Securities Act or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus or any amendment
or supplement thereto, together with the documents incorporated by
reference therein, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or (iii) any violation by the Company of any
federal, state, or common law rule or regulation applicable to the Company
and relating to action required or inaction of the Company in connection
with any such registration, and the Company will reimburse any such
indemnified party for any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
such Claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such indemnified party in any such case
to the extent such Claim arises solely out of any untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
of a material fact made in such registration statement or amendment thereof
or supplement thereto or in any such prospectus or any preliminary, final
or summary prospectus in reliance upon, and in conformity with, written
information furnished to the Company by, or on behalf of, such indemnified
party specifically for use therein. Such indemnity and reimbursement of
expenses shall remain in full force and effect regardless of any
investigation made by, or on behalf of, such indemnified party and shall
survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is
being effected (and, if required by the Company as a condition to including
any Registrable Securities in any registration statement filed in
accordance with Section 2.1 or Section 2.2, any underwriter or Qualified
Independent Underwriter, if any), shall, severally and not jointly,
indemnify and hold harmless (in the same manner and to the same extent as
set forth in paragraph (a) of this Section 2.9) to the extent permitted by
law, the Company, its officers, directors, fiduciaries, employees and
stockholders or general and limited partners (and the directors, officers,
employees, and stockholders thereof), each Person controlling the Company
within the meaning of the Securities Act with respect to any untrue
statement or alleged untrue statement of any material fact in, or omission
or alleged omission of any material fact from, such registration statement,
any preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon, and in conformity
with, written information furnished to the Company or its representatives
by, or on behalf of, such Holder or underwriter or Qualified Independent
Underwriter, if any, specifically for use therein and shall reimburse such
indemnified party for any legal or other expenses reasonably incurred in
connection with investigating or defending any such Claim as such expenses
are incurred; provided, however, that the aggregate amount which any such
Holder shall be required to pay pursuant to this Section 2.9(b) and
Sections 2.9(c) and (e) shall in no case be greater than the amount of the
net proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the registration statement giving rise to such
Claim. Such indemnity and reimbursement of expenses shall remain in full
force and effect regardless of any investigation made by, or on behalf of,
such indemnified party and shall survive the transfer of such securities by
such Holder.
(c) Indemnification similar to that specified in the preceding
paragraph (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company with respect to any required registration or
other qualification of securities under any state securities and "blue sky"
laws.
(d) Any person entitled to indemnification under this Agreement
shall promptly notify the indemnifying party in writing of the commencement
of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure
of any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of
this Section 2.9, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
this Article 2. In case any action or proceeding is brought against an
indemnified party, it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such Claim, to
assume the defense thereof jointly with any other indemnifying party
similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnifying party fails
to take reasonable steps necessary to defend diligently the action or
proceeding within 20 days after receiving notice from such indemnified
party that the indemnified party believes it has failed to do so, (ii) if
such indemnified party who is a defendant in any action or proceeding which
is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party and
that would cause representation by the same counsel to be inappropriate
under applicable standards of professional conduct, or (iii) if
representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, then, in
any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm
of counsel for all indemnified parties in each jurisdiction, except to the
extent any indemnified party or parties reasonably shall have concluded
that there may be legal defenses available to such party or parties which
are not available to the other indemnified parties and that would cause
representation by the same counsel to be inappropriate under applicable
standards of professional conduct or to the extent representation of all
indemnified parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct) and the indemnifying party
shall be liable for any expenses therefor (including, without limitation,
any such counsel's fees). No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or
threatened action or Claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (A) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (B) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by, or on behalf of, any
indemnified party. No indemnifying party shall be liable for any settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or Claim entered into by any indemnified
party without such indemnifying party's prior written consent during any
period in which the indemnifying party is not in material breach of its
obligations under this Section 2.9.
(e) If for any reason the foregoing indemnity is unavailable or
is insufficient to hold harmless an indemnified party under Sections
2.9(a), (b) or (c), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any Claim
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the
other hand, with respect to such offering of securities. The relative fault
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
indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. If, however, the allocation
provided in the second preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults, but also the relative benefits of
the indemnifying party and the indemnified party, as well as any other
relevant equitable considerations. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 2.9(e)
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in the preceding sentences of this Section 2.9(e). The amount
paid or payable in respect of any Claim shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Notwithstanding anything
in this Section 2.9(e) to the contrary, no indemnifying party (other than
the Company) shall be required pursuant to this Section 2.9(e) to
contribute any amount in excess of the net proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering
to which the losses, claims, damages or liabilities of the indemnified
parties relate, less the amount of any indemnification payment made
pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
or omitted by, or on behalf of, any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section
2.9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
3. Underwritten Offerings
----------------------
3.1 Requested Underwritten Offerings
--------------------------------
If requested by the underwriters for any underwritten offering by the
Holders pursuant to a registration requested under Section 2.1, the Company
shall enter into a customary underwriting agreement with the underwriters.
Such underwriting agreement shall be satisfactory in form and substance to
the Holders acting reasonably and in such underwriting agreement, the
Company shall, make to, and for the benefit of, such Holders the
representations, warranties and covenants of the Company which are being
made to, and for the benefit of, such underwriters and which are of the
type customarily provided to institutional investors in secondary
offerings. Any Holder participating in the offering shall be a party to
such underwriting agreement and may, at its option, require that any or all
of the representations and warranties made by, and the other agreements on
the part of, the Company to, and for the benefit of, such underwriters
shall also be made to, and for the benefit of, such Holder and that any or
all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the
obligations of such Holder; provided, however, that the Company shall not
be required to make any representations or warranties with respect to
information specifically provided by a selling Holder of Registrable
Securities for inclusion in the registration statement. Such underwriting
agreement shall also contain such representations and warranties by the
participating Holders as are customary in agreements of that type.
3.2 Piggyback Underwritten Offerings
--------------------------------
In the case of a registration pursuant to Section 2.2 hereof, if the
Company shall have determined to enter into any underwriting agreements in
connection therewith, all of the Holders' Registrable Securities to be
included in such registration shall be subject to such underwriting
agreements. Any Holder participating in such registration may, at its
option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to, and for the
benefit of, such underwriters shall also be made to, and for the benefit
of, such Holder and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holder. Such underwriting
agreement shall also contain such representations and warranties by the
participating Holders as are customary in agreements of that type.
3.3 Underwriting Services
---------------------
If a Demand Registration pursuant to Section 2.1 involves an underwritten
offering, then the Company shall select the underwriter from underwriting
firms of national reputation in the United States, subject to the approval
of the Holders, such approval not to be unreasonably withheld.
4. General
-------
4.1 Rule 144
--------
The Company covenants that (a) so long as it remains subject to the
reporting provisions of the Exchange Act, it will timely file the reports
required to be filed by it under the Securities Act or the Exchange Act
(including, without limitation, the reports under Sections 13 and 15(d) of
the Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the
Securities Act), and (b) will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable Securities
without registration under the U.S. Securities Act within the limitation of
the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any
Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
4.2 Nominees for Beneficial Owners
------------------------------
If Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its option, be treated as the
Holder of such Registrable Securities for purposes of any request or other
action by any Holder or Holders of Registrable Securities pursuant to this
Agreement (or any determination of any number or percentage of shares
constituting Registrable Securities held by any Holder or Holders of
Registrable Securities contemplated by this Agreement); provided, however,
that the Company shall have received written assurances reasonably
satisfactory to it of such beneficial ownership.
4.3 Amendments
----------
The terms and provisions of this Agreement may be modified or amended, or
any of the provisions hereof waived, temporarily or permanently, pursuant
to the prior written consent of the Company and the Holders of at least 50%
of Registrable Securities
4.4 Notices
-------
All notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or sent by telecopy, or nationally recognized overnight
courier, postage prepaid, addressed to such party at the address set forth
below or such other address as may hereafter be designated in writing by
such party to the other parties:
(i) if to the Company, to:
Compangie Generale De Geophysique
1 xxx Xxxx Migaux
91341 Massy Sedex
France
Telecopy: 011 331 64 47 39 70
Attention: Xxxxxx Xxxxxxx
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
(ii) if to the Investor, to:
The Beacon Group Energy Investment Fund II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Each Holder, by written notice given to the Company in accordance
with this Section 4.5, may change the address to which such notice or other
communications are to be sent to such Holder. Holders who acquire Ordinary
Shares or ADSs after the date hereof shall give the Company notice of their
address in accordance with this Section 4.5. All such notices, requests,
consents and other communications shall be deemed to have been given when
received.
4.6 Miscellaneous
-------------
(a) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and the respective successors,
personal representatives and assigns of the parties hereto, whether so
expressed or not. No Person other than a Holder shall be entitled to any
benefits under this Agreement, except as otherwise expressly provided
herein. This Agreement and the rights of the parties hereunder may be
assigned by any of the parties hereto to any transferee of Registrable
Securities provided that upon the consummation of, and as a condition to,
any such assignment the transferee assumes the obligations of the assignor
under, and agrees to be bound by the terms of, this Agreement.
(b) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemplated arrangements and understandings with
respect thereto.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
the principles of conflicts of law thereof.
(d) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
(e) This Agreement may be executed in any number of counterparts,
and each such counterpart hereof shall be deemed an original instrument,
but all such counterparts together shall constitute but one instrument.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid, but if any
provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
(g) It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them
and that in the event of any such failure, an aggrieved person will be
irreparably damaged and will not have an adequate remedy at law. Any such
person, therefore, shall be entitled to injunctive relief, including
specific performance, to enforce such obligations, without the posting of
any bond, and, if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise
the defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents
as any other party hereto reasonably may request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
(i) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA, IN
EACH CASE LOCATED IN THE COUNTY OF NEW YORK (AS APPLICABLE, A "NEW YORK
COURT"), FOR ANY SUIT, ACTION, PROCEEDING OR INVESTIGATION IN ANY COURT OR
BEFORE ANY GOVERNMENTAL AUTHORITY ("LITIGATION") ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RESULTING FROM SUCH LITIGATION
(AND AGREES NOT TO COMMENCE ANY LITIGATION RELATING THERETO EXCEPT IN SUCH
COURTS). The Company has appointed CT Corporation System, New York NY, as
its authorized agent, (the "Authorized Agent") to receive on its behalf
service of copies of the summons and complaints and any other process which
may be served in any legal suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby which
may be instituted in a New York Court, and waives any other requirements of
or objections to personal jurisdiction with respect thereto. Such service
may be made by delivering a copy of such process to the Company in care of
the Authorized Agent at the addresses specified above for the Authorized
Agent and obtaining a receipt therefor, and the Company hereby irrevocably
authorizes and direct such Authorized Agent to accept such service on its
behalf. The Company represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and agrees that service
of process in such manner upon the Authorized Agent shall be deemed in
every respect effective service of process upon the Company in any such
suit, action or proceeding. The Company further agrees to take any and all
actions as may be necessary to maintain such designation and appointment of
such Authorized Agent in full force and effect. If the Authorized Agent
shall cease to act as the Company's agent in the County of New York for
service of process, the Company shall appoint without delay another such
agent. In the event that the Company shall fail to designate such new
designee, appointee and agent, service of process in any such action or
proceeding may be effected upon the Company by the mailing of copies
thereof by first-class mail (postage prepaid) to the Company at its
addresses set forth herein, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of any party hereto to
serve process in any other manner permitted by law. No party may move to
(i) transfer any Litigation from a New York Court to another jurisdiction,
(ii) consolidate any Litigation brought in a New York Court with a suit,
action or proceeding in another jurisdiction, or (iii) dismiss any
Litigation brought in a New York Court for the purpose of bringing the same
in another jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any
Litigation arising out of this Agreement or the transactions contemplated
hereby in the New York Court, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such Litigation brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
4.7 Prior Agreements
----------------
Each of the Holders and the Company hereby agrees that any agreement
previously entered into by it pursuant to which the Company granted to it
any registration rights shall be superseded by this Agreement and each such
agreement (and any rights such Holder has pursuant to such agreement) shall
be terminated, null and void and no longer in effect.
4.8 No Inconsistent Agreements
--------------------------
Without the prior written consent of the Investor, neither the Company nor
any Holder will, on or after the date of this Agreement, enter into any
agreement with respect to its securities which conflicts with the
provisions hereof, other than any lock-up agreement with the underwriters
in connection with any registered offering effected hereunder, pursuant to
which the Company shall agree not to register for sale, and the Company
shall agree not to sell or otherwise dispose of, Ordinary Shares or ADSs or
any securities convertible into or exercisable or exchangeable for Ordinary
Shares or ADSs, for a specified period following the registered offering.
For the avoidance of doubt, this Section 4.8 shall not prohibit the Company
from granting demand registration rights to other holders of its equity
securities that have priority over persons exercising "piggyback"
registration rights pursuant to Section 2.2.
4.9 English Language
----------------
This Agreement shall be in the English language except as required by
French law (in which event a certified English translation thereof shall be
provided by the Company to each Holder). All documents, certificates,
reports or notices to be delivered or communications to be given or made by
any party hereto pursuant to the terms of this Agreement shall be in the
English language unless otherwise expressly provided herein or, if
originally written in another language, shall be accompanied by an accurate
English translation upon which the Holders hereto shall have the right to
rely for all purposes of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
THE BEACON GROUP ENERGY INVESTMENT
FUND II, L.P.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name:
Title:
COMPANGIE GENERALE DE GEOPHYSIQUE
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Chairman of the Board
and Chief Executive Officer
(Signature Page to Registration
Rights Agreement)