EXHIBIT 1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made as of October 23,
1999, by and between Compagnie Generale de Geophysique, a French societe
anonyme (the "Company"), and The Beacon Group Energy Investment Fund II,
L.P., a Delaware limited partnership (the "Purchaser").
WITNESSETH:
WHEREAS, the Company wishes to sell to the Purchaser and the Purchaser
wishes to purchase from the Company newly issued ordinary shares of the
Company upon the terms and conditions set forth herein.
ACCORDINGLY, the parties hereto hereby agree as follows:
ARTICLE 1
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SUBSCRIPTION FOR ORDINARY SHARES
1.1 Issuance and Sale of Shares
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Subject to the terms and conditions set forth herein, the Company agrees to
issue to the Purchaser on the Closing Date (as hereinafter defined) a
number of its ordinary shares, par value FRF 10 per share (the "Shares"),
determined by multiplying (x) the amount (rounded to the fourth decimal
point) determined by dividing the euro equivalent of USD 87,000,000 (the
"Initial Subscription Amount") calculated at the noon buying rate as quoted
by the Federal Reserve Bank of New York on the Business Day immediately
preceding the Closing Date by the arithmetic average of the Market Price
per share of the Company's ordinary shares on each of the 20 Trading Days
immediately prior to the date hereof by (y) the amount determined by
dividing (i) the sum of the arithmetic average of the Market Price per
share of the Company's ordinary shares, ex-droit preferentiel de
souscription ("DPS"), and the arithmetic average of the Market Price per
DPS of the Company's DPSs, in each case on each of the Trading Days
included within the subscription period for the Rights Offering (as defined
in Article 5.4) during which the ordinary shares, ex-DPS, and the DPSs are
simultaneously listed (the "Subscription Period") by (ii) the arithmetic
average of the Market Price per share of the Company's ordinary shares,
ex-DPS, on each of the Trading Days included within the Subscription
Period, rounded up to the nearest whole share. The subscription price per
Share including the issuance premium (prime d'emission) thereof (the
"Subscription Price") shall be determined by dividing the Initial
Subscription Amount by the number of Shares to be issued by the Company
pursuant to the previous sentence, rounded to the nearest euro cent. For
purposes of this Article 1.1, "Market Price" means the closing price (cours
de cloture) of the Company's ordinary shares or droits preferentiels de
souscription ("DPSs"), as applicable, on the Trading Day concerned as
published by ParisBourseSBF S.A. (the "Paris Bourse") in Xx Xxxx
Officielle, and "Trading Day" means a day on which the Paris Bourse is open
for the general trading of securities.
Issuance and Sale of Additional Shares
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Subject to the terms and conditions set forth herein, at the option of the
Purchaser as notified to the Company in writing at least two Business Days
prior to the Closing Date, the Purchaser may purchase on the Closing Date
up to an additional number of the Company's ordinary shares, par value FRF
10 per share, determined by dividing the difference, if positive, between
90,000,000 euros and the gross proceeds before underwriters' fees and
commissions received by the Company pursuant to the Rights Offering, up to
a maximum of 15,000,000 euros (the "Additional Subscription Amount"), by
the Subscription Price (the "Additional Shares"). The notice provided by
the Purchaser to the Company pursuant to this Article 1.2 shall set forth
the number of Additional Shares the Purchaser shall so purchase. The
definition of "Shares" shall include the Additional Shares for all purposes
of this Agreement, other than Article 1.1 hereof; it being understood that
the total number of Shares issued pursuant to Sections 1.1 and 1.2 shall
not exceed 1,875,000.
1.3 Closing Date
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The closing of the subscription for the Shares (the "Closing") shall take
place at 10:00 a.m. Paris time on the Business Day following the date on
which the last condition precedent set forth in Articles 4.1 and 4.2 shall
have been satisfied or waived, at the offices of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, 0 xxx Xxxxxx, 00000 Xxxxx, Xxxxxx, or at such other
time and place as the parties hereto shall agree in writing. The date of
the Closing is hereinafter referred to as the "Closing Date".
1.4 Closing Deliveries
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On the Closing Date, the Purchaser shall execute a subscription form
(bulletin de souscription) in the form attached as Exhibit A hereto and
shall pay by way of wire transfer to the account of the Company notified to
the Purchaser in writing at least three Business Days prior to the Closing
(the "Company Bank Account") at the bank, acting as depositary with respect
to the issuance of the Shares (the "Bank"), the subscription price for the
Shares. Upon evidence of such wire transfer and issuance by the Bank of the
corresponding "certificat du depositaire des fonds", the Company will
register the Shares in book-entry form in the name of the Purchaser or will
cause Banque Neuflize, Schlumberger, Mallet to register the Shares in the
name of the Purchaser in order to comply with the registration formalities
required to obtain double voting rights pursuant to the Company's statuts.
The Shares issued to the Purchaser hereunder will, at the time of their
issuance, be registered for trading on the Paris Bourse. Accordingly, the
Company shall comply with applicable regulations, including Regulation No.
98-01 of the French Commission des Operations de Bourse (the "COB"), and
the rules and instructions of the Paris Bourse, related to such
registration. On the Closing Date, each of the parties hereto shall duly
execute and deliver a registration rights agreement (the "Registration
Rights Agreement") substantially in the form of Exhibit B hereto.
1.5 Allocation of the Shares
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The Company and the Purchaser agree that the Purchaser may cause the
following entities (the "Purchaser Entities"), of which the Purchaser is
the general partner or managing member, to subscribe for and purchase the
Shares on the Closing Date in the place of the Purchaser. The Purchaser
anticipates that the Purchaser Entities will subscribe for and purchase the
Shares in the percentages indicated below:
GF Ltd. Transaction Partnership, L.P. 1.59%
CDPQ Transaction Partnership, L.P. 10.59%
CGG Investors, LLC 87.82%.
The Purchaser may change such allocation by written notice to the Company
at least two Business Days prior to the Closing Date. Upon the purchase by
any Purchaser Entity of Shares, such Purchase Entity shall have all the
rights and obligations with respect thereto as the Purchaser hereunder. The
Purchaser shall remain liable, subject to the terms and conditions of this
Agreement, to purchase any Shares not purchased by the Purchaser Entities
pursuant to this Article 1.5.
ARTICLE 2
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date as follows:
that the Company and the subsidiaries of the Company, of which the Company
holds directly or indirectly, more than 51% of the voting rights and/or
share capital or which are under the common control of the Company and
another Person (individually a "Subsidiary", and collectively, the
"Subsidiaries"), are duly organized and validly existing under the laws of
their jurisdictions of incorporation and are in good standing (to the
extent such concept exists) under such laws, and conduct their activities
in compliance with all laws applicable to them; that they have all rights,
power and authority to own their assets and conduct their activities as
described in the Information Documents (as defined below); that the members
of their boards of directors (or equivalent governing bodies), and their
presidents or managers, as the case may be, have been regularly appointed
and carry out their respective functions in compliance with all applicable
laws;
that it has all rights, powers and authority to enter into this Agreement
and the Registration Rights Agreement and, subject to the Shareholders
Meeting Approval and the Acknowledgment (each as defined below), to
consummate the transactions contemplated hereby and thereby. As of the date
hereof, all corporate actions on the part of the Company, its directors and
shareholders necessary for the authorization, execution, delivery and
performance of this Agreement and the Registration Rights Agreement by the
Company, the authorization, issuance and delivery of the Shares and the
performance of the Company's obligations hereunder and thereunder have been
taken other than (i) the authorization to increase the Company's share
capital and to waive the shareholders' preemptive rights (droits
preferentiels de souscription) in favor of the Purchaser and consequently
to issue the Shares, which authorization and waiver must be granted at an
extraordinary general meeting of the Company's shareholders (the
"Shareholders Meeting Approval"); (ii) the acknowledgment of the final
subscription price for the Shares by the Company's board of directors (the
"Acknowledgment") and (iii) receipt of the Antitrust Approvals (as defined
in clause (d) below). Following receipt of the Shareholders Meeting
Approval, the Acknowledgment and the "certificat du depositaire des fonds",
the Shares will be validly issued and fully paid and the Purchaser will
have valid and negotiable title thereto free and clear of any liens,
encumbrances or defects other than any liens, encumbrances or defects
created by the Purchaser. Upon receipt of the Shareholders Meeting Approval
and the Acknowledgment, the issuance of the Shares to the Purchaser will
not violate or give rise to any preemptive rights or rights of first
refusal on behalf of any Person;
that this Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms. Upon its due execution and
delivery by the Company in accordance with Article 1.4, the Registration
Rights Agreement will constitute a legal, valid and binding obligation of
the Company, enforceable in accordance with its terms;
(d) that no consent, approval, authorization or order of, or designation,
declaration or filing with, any governmental authority or court is required
for the valid execution and delivery by the Company of this Agreement and
the Registration Rights Agreement, the issuance of the Shares, or the
consummation of any other transactions contemplated hereby or thereby
except (i) where the failure to obtain any such consent, approval or
authorization or to make such filing would not have a Material Adverse
Effect (as defined in clause (f) below) and (ii) for any notification or
filing requirement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976, as amended, and any filing with the European Commission or any member
of the European Union (collectively, the "Antitrust Approvals");
(e) that there are no legal, administrative or arbitration proceedings or
any claims pending against it or any of the Subsidiaries or, to its
knowledge, any threat of any legal, administrative or arbitration
proceedings or claims which could result in a substantial deterioration in
its financial condition or in that of its Subsidiaries taken as a whole, or
which could affect the performance by the Company of this Agreement or the
issuance of the Shares; that the outstanding legal, administrative or
arbitration proceedings to which the Company or any of the Subsidiaries is
a party or which might affect their assets or property which are not
disclosed in the Information Documents, including disputes arising in the
normal course of business, are not likely, taken as a whole, to have a
Material Adverse Effect as defined in clause (f) below;
(f) that the consolidated financial statements of the Company and its
Subsidiaries included in the Information Documents faithfully and
accurately present and give a true and fair view of the financial condition
of the Company and its consolidated Subsidiaries and of their operating
results as at the dates and for the periods indicated therein and that they
were prepared in conformity with French law and U.S. generally accepted
accounting principles; that the information contained in the sections
entitled "Summary Financial Information" and "Selected Consolidated
Financial Information" in the U.S. Prospectus (as defined below) is
presented therein in a fair and sincere manner and was prepared on a
compatible basis with the preparation of the financial statements included
in the Registration Statement and the U.S. Prospectus (as defined below);
and that since 30 June 1999, with the exception of any matter which is
specifically disclosed in the Information Documents, (1) no material
adverse change has occurred, nor has any circumstance occurred which has or
might have a material adverse effect on the legal, financial or economic
position, operating results, business or the financial condition of the
Company and its Subsidiaries taken together as a whole (a "Material Adverse
Effect"); and (2) neither the Company nor any of its Subsidiaries has
conducted any transactions outside of the ordinary course of business which
individually or in the aggregate would be exceptional for the Company or
its Subsidiaries taken as a whole by reason of their size or nature;
(g) that each of the Information Documents is or will be at the date on
which it is prepared, true and accurate, and contains or will contain on
such date, all important information relevant to the Company and its
Subsidiaries; that all such information is or will be true and accurate and
does not or will not at such date omit any fact that might alter the
significance of such information and that all of the estimates, forecasts
and statements of intent contained in the Information Documents were,
remain and will be at such date, true and accurate and that the Company has
carried out all investigations necessary to verify the information
contained in the Information Documents;
(h) that the Company and the Subsidiaries are in compliance with the terms
of their by-laws (statuts) or equivalent governing documents and that
neither the Company nor any of its Subsidiaries is in default of any
contractual obligation, which default might have a Material Adverse Effect
or unfavorably affect in a significant way the capacity of the Company to
perform its obligations under this Agreement or issue the Shares;
(i) that all of the shares comprising the share capital of the Company have
been validly issued and subscribed for and are fully paid, completely
unencumbered and freely negotiable and there is no statutory restriction
affecting their transfer, other than 28,970 ordinary shares of the Company
that were not fully paid as of October 15, 1999 and which have been
subscribed for by employees of the Company and the Subsidiaries pursuant to
the Company's employee savings plan instituted in 1997; that the shares of
the Company are listed for trading on the Premier Marche of the Paris
Bourse and the shares of the Company represented by American Depositary
Shares are listed and traded in that form on the NYSE and that the Company
will take all necessary steps to maintain those listings; that the listing
of the Shares for trading on the Premier Marche of Paris Bourse has been
requested and will take effect as soon as possible after the Shares are
issued in accordance with this Agreement;
(j) that all of the shares comprising the share capital of the Company are
identical in all material respects and conform to the descriptions thereof
set forth in the Information Documents;
(k) that all presently exercisable options to acquire shares of the Company
can result in the issuance of a maximum of 28,970 shares;
(l) that all other securities representing the capital of the Subsidiaries
have been validly issued and subscribed to and are fully paid and
completely unencumbered, subject to any matter which is disclosed in the
Information Documents; that the shares of the Subsidiaries held directly or
indirectly by the Company are free from any pledge, security or other
charge or third party right;
(m) that the issuance of the Shares is and will continue to be validly
authorized on the Closing Date, and that the Shares upon their issuance to
the Purchaser in accordance with the terms of this Agreement will be
validly issued and subscribed to, fully paid, completely unencumbered and
freely negotiable and there will be no statutory restriction affecting
their transfer and that no security, preference or other charge, or any
third party right will exist over the Shares; that neither the issuance of
the Shares nor the execution or performance of this Agreement by the
Company will contravene any legal or regulatory provision or the by-laws
(statuts) of the Company or of any of the Subsidiaries or any undertaking
made by the Company or any of the Subsidiaries, nor will they constitute a
breach of any contractual obligation to which the Company or any of the
Subsidiaries is a party or an event of default permitting a creditor to
demand early payment of any contractual debt or guarantee granted by the
Company or any of the Subsidiaries;
(n) that the Company is not aware of any information, other than that
contained in the Information Documents, which might have a significant and
lasting effect on the value or price of its listed shares or the shares of
any of its listed Subsidiaries;
(o) that from January 1, 1999 to the signature of this Agreement, the
Company has not traded directly or indirectly in its shares on any stock
exchange;
(p) that the signature of this Agreement and the completion of the capital
increase in connection with the Shares contemplated herein do not give
rise, pursuant to laws currently in force, to liability in France for any
direct or indirect taxes (other than fixed registration taxes and stamp
taxes, the non-payment of which shall not affect the validity of this
Agreement, or the Shares), duties or imposts of any kind;
(q) that there are no labor disputes pending with the employees of the
Company or of any of its Subsidiaries, and to the knowledge of the Company,
no such dispute is foreseeable; that the the Company is not aware of any
pending or imminent labor disputes concerning the employees of its main
suppliers, clients or subcontractors, or the employees of any of its
Subsidiaries, which may have a Material Adverse Effect;
(r) that the Company and each of its Subsidiaries possess, both in France
and abroad, all permits, approvals and other authorizations necessary for
the conduct of their businesses (the "Permits"); that, except to the extent
that the violation, expiration, withdrawal or modification of the Permits
is not likely to have a Material Adverse Effect (1) the businesses of the
Company and the Subsidiaries are conducted in compliance with the Permits,
(2) the Permits are in full force and effect, and (3) no proceeding of any
kind has been instituted which may lead to the withdrawal or modification
of the Permits;
(s) that the Company and the Subsidiaries own or have an exclusive right to
use all of the patents, trademarks, trade names or other industrial
property rights (including know how) or intellectual property rights used
in or necessary for the conduct of their businesses (the "Intellectual and
Industrial Property Rights"); that neither the Company nor any of the
Subsidiaries is aware that the Intellectual and Industrial Property Rights
infringe or violate intellectual or industrial property rights belonging to
any third party, or of facts or circumstances likely to challenge the
validity of such rights or their enforceability against third parties,
except to the extent that such actions or challenges are not likely to have
a Material Adverse Effect;
(t) that, except as set forth in the Information Documents, and except to
the extent that such non-compliance or such proceedings are not likely to
have a Material Adverse Effect, (A) the Company and each of the
Subsidiaries are in compliance with all laws, regulations and
administrative, judicial or other decisions applicable to them regarding
pollution, the protection of health and the environment, or toxic or
dangerous substances or waste (together, "Environmental Laws"); (B) all
approvals, permits, consents and authorizations necessary for the conduct
of the businesses of the Company and each of the Subsidiaries in compliance
with Environmental Laws have been obtained and are in full force and
effect, and the businesses of the Company and each of the Subsidiaries are
performed in conformity with such consents, permits, approvals and
authorizations; (C) no administrative, judicial or other proceeding,
inquiry or complaint of any kind regarding an alleged violation of any
Environmental Laws has been instituted or filed against the Company or any
of the Subsidiaries, and to the knowledge of the Company, no such
proceeding is threatened;
(u) that, except as may be set forth in the Information Documents, the
Company and its Subsidiaries have regular and valid title to their real
property, which is not subject to any mortgage, security, easement or other
third party right which may, individually or collectively, affect the value
or use thereof; that the lease and sublease agreements under which the
Company or any of the Subsidiaries are the lessee of real property
described in the Information Documents are in full force and effect, and no
claim has been asserted by any third party which challenges the rights of
the Company or any of the Subsidiaries under such leases or subleases, or
the use of such real property;
(v) that the Company has conducted a study evaluating its activities, and
those of the Subsidiaries and their suppliers or services providers with
which the Company or any of the Subsidiaries has a material relationship,
and of the products manufactured or sold by Sercel, in order to assess to
what extent the activities of the Company or of any of the Subsidiaries, or
the products manufactured or sold by Sercel are likely to be affected by
the transition to the year 2000; that following the completion of this
evaluation, the Company has no reason to believe, and does not believe,
that the transition to the year 2000 is likely to have a Material Adverse
Effect or to result in material inadequacies or disruptions in the business
or operations of the Company;
(w) that the information set forth in the Information Documents which sets
forth certain provisions of laws applicable to the Company, the Company's
by-laws, the litigation or administrative proceedings involving the Company
and the contracts or any other document related to the Company, is correct
in all material respects; and
(x) that it is not a "controlled foreign corporation" within the meaning of
section 957 of the United States Internal Revenue Code of 1986, as amended
(the "Code") or a "passive foreign investment company" within the meaning
of section 1297 of the Code.
For purposes of this Agreement, "Information Documents" shall mean the
"Documents d'Information" as such term is defined in the Contrat Global de
Garantie to be entered into among the Company and the Garants named therein
pursuant to the Rights Offering or the equivalent term used therein to
define the filings and other documents related thereto to be made in the
United States and France in connection with the Rights Offering and the
prospectus filed with the COB in accordance with COB Regulation No. 98-01
with respect to the issuance of the Shares, and "Registration Statement"
and "U.S. Prospectus" shall have the meanings assigned to the terms
"registration statement" and "Prospectus U.S.", respectively, in the
Contrat Global de Garantie or the equivalent terms used therein to define
the filings and documents related thereto to be made in the United States
in connection with the Rights Offering.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
3.1 Restricted Shares
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The Purchaser understands that the Shares have not been registered under
the U.S. Securities and Exchange Act of 1934, as amended (the "Exchange
Act") or any United States state securities laws, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements thereof, and may not be sold unless such disposition is
registered under the Securities Act and applicable United States state
securities laws or is exempt from registration thereunder.
3.2 Organization
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The Purchaser is duly organized and validly existing under the laws of the
jurisdiction of its organization, with all rights, power and authority to
enter into and perform this Agreement.
3.3 Authority
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The execution and delivery of this Agreement by the Purchaser and the
consummation by the Purchaser of the transactions contemplated hereby have
been duly authorized by all necessary action on behalf of the Purchaser.
This Agreement has been duly executed and delivered by the Purchaser and
constitutes a valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable
remedies.
3.4 No Conflict
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The execution and delivery of this Agreement by the Purchaser does not, and
the consummation of the transactions contemplated hereby will not (a)
violate any provision of law, statute, rule or regulation, or any ruling,
writ, injunction, order, judgment or decree of any court, administrative
agency or other governmental body applicable to it, or any of its
properties or assets or (b) violate its organizational documents.
3.5 Governmental Consents
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No consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Purchaser is
required in connection with the valid execution and delivery of this
Agreement or the consummation of any other transaction contemplated hereby,
other than the Antitrust Approvals.
ARTICLE 4
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CONDITIONS PRECEDENT TO CLOSING
4.1 Conditions Precedent for the Benefit of the Purchaser
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Notwithstanding any other provision contained in this Agreement, the
obligations of the Purchaser to subscribe for the Shares and consummate any
other transactions to be performed by it in connection with the Closing are
expressly conditioned upon, and subject to, the fulfillment on or prior to
the Closing Date of each of the conditions set forth in this Article 4.1.
The conditions set forth in this Article 4.1 are stipulated for the sole
benefit of the Purchaser and the Purchaser may waive any or all of such
conditions in its sole discretion in writing at or prior to the Closing.
(a) Each of the representations and warranties made by the Company in
Article 2 hereof shall be true and correct in all material respects when
made and shall be true and correct in all material respects on the Closing
Date with the same force and effect as if they had been made on and as of
such date.
(b) The Company shall have performed all obligations and complied with all
covenants and agreements to be performed or complied with by it on or prior
to the Closing Date.
(c) The Company shall have consummated the Rights Offering and shall have
received gross proceeds before underwriters' fees and commission therefrom
of at least 75,000,000 euros.
(d) The Purchaser shall have received from Xxxxx, Day, Xxxxxx & Xxxxx,
counsel to the Company, an opinion addressed to it, dated the Closing Date,
in the form of Exhibit C hereto.
(e) The entry by the Company into the Expense Reimbursement Agreement in
the form attached as Exhibit D hereto shall have been authorized by the
Company's board of directors for purposes of Article 101 of French law No.
66-537 of July 24, 1966 and the Company shall have duly executed and
delivered to the Purchaser a copy thereof.
(f) The Company shall have completed all actions necessary to cause the
Shares to be listed for trading on the Paris Bourse other than providing
the Paris Bourse and SICOVAM S.A. with a notice of the number of Shares to
be issued to the Purchaser hereunder and listed for trading and copies of
the Acknowledgment and the certificat de depositaire du fonds with respect
to the Shares (the "Final Listing Formalities").
(g) There shall not be in effect any order enjoining or restraining the
transactions contemplated by this Agreement and no proceeding shall be
pending before any Authority to restrain or prohibit the transactions
contemplated by this Agreement and there shall not be in effect any law,
rule or regulation prohibiting or restricting the subscription for the
Shares or requiring any consent or approval of any Person, which shall not
have been obtained, to issue, purchase or deliver the Shares.
(h) The Company shall have delivered to the Purchaser a certificate, dated
the Closing Date and duly executed by an authorized officer of the Company,
certifying that each of the conditions specified in Articles 4.1(a) through
4.1(c) has been satisfied.
(i) The Shareholders Meeting Approval shall have been obtained from the
Company's shareholders and the Acknowledgment shall have been obtained from
the Company's board of directors pursuant to the statuts of the Company and
in accordance with French law, and the Purchaser shall have received a
certified copy of each of the following documents: (1) the minutes of the
meeting of the Company's board of directors which decided to submit to the
Company's shareholders the proposed capital increase with respect to the
Shares and call an extraordinary meeting of the shareholders, (2) the
report of the Company's board of directors to the shareholders, (3) the
report of the statutory auditors to the shareholders, (4) the minutes of
the extraordinary meeting of the shareholders containing the Shareholders
Meeting Approval, and (5) the minutes of the meeting of the Company's board
of directors held to acknowledge the final subscription price for the
Shares in euros.
(j) The Target Tender Offer (as defined in Section 5.3) shall have expired
and at least 80% of the outstanding shares of capital stock of GeoScience
Corporation "GeoScience", shall have been validly tendered pursuant thereto
and all other conditions to the Company's and the Offering Entity's (as
defined below) obligations to purchase all such shares set forth in Annex A
to the Agreement and Plan of Merger, dated as of October 23, 1999, by and
among GeoScience, the Company, and Sercel Acquisition Corp., a Nevada
corporation (the "Offering Entity") and a wholly owned subsidiary of the
Company (the "Merger Agreement") shall have been satisfied or waived, other
than the condition listed in paragraph (K) of such Annex A.
(k) The Company shall have paid to the Purchaser or an Affiliate of the
Purchaser 6% of the sum of the Initial Subscription Amount and the
Additional Subscription Amount, if any, pursuant to a financial advisory
fee agreement (the "Engagement Letter") to be executed by such parties
prior to or at the Closing.
(l) The Beacon Nominees shall have been elected at the Ordinary
Shareholders' Meeting (as defined in Article 5.2) to the Company's board of
directors, each with a term of office expiring on the date of the ordinary
general shareholders' meeting of the Company held to approve the Company's
financial statements for the 2004 fiscal year subject to the completion of
the subscription for the Shares contemplated herein, and the Purchaser
shall have received a certificate or other written evidence reasonably
satisfactory to the Purchaser and its counsel from the Company's insurers
indicating that the Beacon Nominees are covered by D+O insurance in
accordance with Article 5.15.
(m) The Company shall not have amended or waived or agreed to amend or
waive any of the material terms and conditions of its USD 130,000,000
multicurrency syndicated credit facility or its FRF 100,000,000 bridge loan
facility, including any events of default with respect thereto, in any
manner adverse to the Company, and completion of the Rights Offering shall
have rendered the event of default set forth in the Company's syndicated
credit facility regarding a failure by the Company to complete a FRF
300,000,000 capital increase incapable of occurring.
4.2 Conditions Precedent for the Benefit of the Company
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Notwithstanding any other provision contained in this Agreement, the
Company's obligations to issue the Shares and consummate any other
transactions to be performed by it in connection with the Closing are
expressly conditioned upon, and subject to, the fulfillment on or prior to
the Closing Date of each of the conditions set forth in this Article 4.2.
The conditions set forth in this Article 4.2 are stipulated for the sole
benefit of the Company and the Company may waive any or all of such
conditions in its sole discretion in writing at or prior to the Closing.
(a) The representations and warranties made by the Purchaser in Article 3
hereof shall be true and correct in all respects when made, and shall be
true and correct in all respects on the Closing Date with the same force
and effect as if they had been made on and as of such date.
(b) The Purchaser shall have performed all obligations and complied with
all covenants and agreements to be performed or complied with by it on or
before the Closing Date.
(c) The Company shall have received from Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, counsel to the Purchaser, an opinion dated the Closing Date in
the form of Exhibit E hereto.
(d) There shall not be in effect any order enjoining or restraining, and
there shall be no proceeding pending before any Authority to restrain or
prohibit, the transactions contemplated by this Agreement and there shall
not be in effect any law, rule or regulation prohibiting or restricting the
subscription for the Shares or requiring any consent or approval of any
Person which shall not have been obtained to issue, purchase or deliver the
Shares.
(e) The Purchaser shall have delivered to the Company a certificate,
executed on behalf of the Purchaser by an officer of the Purchaser, dated
the Closing Date, and certifying to the fulfillment of the conditions
specified in Articles 4.2(a) and 4.2(b) of this Agreement.
(f) The Shareholders Meeting Approval shall have been obtained from the
Company's shareholders at a meeting of the Company's shareholders pursuant
to the statuts of the Company and in accordance with French law. The
Acknowledgment shall have been obtained from the Company's board of
directors pursuant to the statuts of the Company and in accordance with
French law.
(g) The Target Tender Offer shall have expired and at least 80% of the
outstanding shares of capital stock of GeoScience shall have been validly
tendered pursuant thereto and all other conditions to the Company's
obligation to purchase such shares set forth in Annex A to the Merger
Agreement shall have been waived or satisfied.
ARTICLE 5
---------
COVENANTS OF THE PARTIES
5.1 Shareholder Meeting Approval
----------------------------
Promptly following execution of this Agreement, the Company shall take all
steps necessary to hold an extraordinary general shareholders' meeting (the
"Extraordinary Shareholders' Meeting") as promptly as practicable and in no
event later than December 15, 1999 for the purposes of taking all requisite
actions in order to permit the consummation of the subscription for Shares
contained herein, including authorizing the increase of the Company's share
capital, obtaining the waiver of the preemptive rights (droits
preferentiels de souscription) of the shareholders for the benefit of the
Purchaser and the Purchaser Entities, and consequently authorizing the
Company's board of directors to issue the Shares on behalf of the Company
and to hold a meeting of the Company's board of directors for the purpose
of acknowledging the final subscription price in euros of the Shares to be
subscribed for by the Purchaser.
5.2 Beacon Nominees
---------------
Promptly following the execution of this Agreement, the Company shall take
all steps necessary to hold an ordinary general shareholders' meeting (the
"Ordinary Shareholders' Meeting"), on the same date as and immediately
following the Extraordinary Shareholders' Meeting, for the purpose of
electing two additional members to the Company's board of directors subject
to the completion of the subscription for the Shares contemplated hereby.
The Company shall use its best efforts to cause the two individuals that
have been previously agreed upon by the parties (the "Beacon Nominees") to
be nominated by the board of directors of the Company for the purposes of
such election. The minutes of the Extraordinary Shareholders' Meeting and
the Ordinary Shareholders' Meeting shall be in a form reasonably acceptable
to the Purchaser and its counsel.
5.3 Target Tender Offer
-------------------
Within 5 Business Days following the public announcement thereof, the
Company, through the Offering Entity, shall commence, within the meaning of
Section 14d-2 under the Exchange Act, an offer (the "Target Tender Offer")
to purchase all of the outstanding shares of capital stock of GeoScience
(the "Target Shares") pursuant to the Merger Agreement. The Company shall
not and shall cause the Offering Entity not to raise the price to be paid
per Target Share pursuant to the Target Tender Offer as set forth in the
Merger Agreement without the prior written consent of the Purchaser.
5.4 Rights Offering
---------------
As soon as possible following the date hereof, the Company shall, subject
to market conditions and the effectiveness of the U.S. and French
prospectuses related thereto, take all steps necessary to commence a rights
offering for its ordinary shares (augmentation de capital avec maintien de
droit preferentiel de souscription) in the United States and Europe (the
"Rights Offering"). The Company shall use its best efforts to obtain
pursuant to the Rights Offering gross proceeds before underwriters' fees
and commissions of at least 90,000,000 euros.
5.5 Conduct of Business
-------------------
From the date hereof until the Closing Date, unless the Purchaser shall
have consented in writing thereto, the Company shall, and shall cause each
of its subsidiaries to, (i) conduct its operations according to its usual,
regular and ordinary course of business consistent with past practice; (ii)
preserve intact its business organization in all material respects; (iii)
not amend its statuts or equivalent governing document except to reflect
the increase in the Company's capital resulting from the Rights Offering;
(iv) not issue, sell, pledge, redeem, purchase or otherwise acquire, grant
or register for issuance or sale any shares of its capital stock or other
ownership interests (other than issuances of the Company's ordinary shares
pursuant to the Rights Offering or existing stock option plans), or any
securities convertible into or exchangeable for any such shares or
ownership interest, or any rights, warrants or options to acquire any of
the foregoing other than options to acquire shares of capital stock granted
to employees pursuant to existing employee stock option plans in the
ordinary course of business consistent with past practice; or accelerate
any right to convert or exchange or acquire any of its securities for any
such shares or ownership interest; (v) not change its capitalization as it
exists on the date hereof, other than pursuant to the Rights Offering on
existing stock option plans; (vi) not declare, set aside or pay any
dividend or make any other distribution or payment with respect to any
shares of its capital stock or other ownership interests (other than such
payments by a wholly owned subsidiary); (vii) not acquire by merger,
purchase or any other manner, any business or entity (other than
GeoScience) or otherwise acquire any assets for consideration in excess of
FRF 10,000,000, individually or in the aggregate, except for purchases of
inventory, supplies or capital equipment in the ordinary course of business
consistent with past practice; and (viii) not incur or assume any
additional material long-term debt other than debt of GeoScience assumed as
a result of the acquisition of GeoScience pursuant to the Target Tender
Offer.
5.6 Required Notices and Deliveries
-------------------------------
(a) From the date hereof until the Closing Date, the Company shall
give prompt written notice to the Purchaser of (a) any facts or
circumstances or the occurrence of any event or the failure of any event to
occur, which has or is reasonably likely to have a Material Adverse Effect
or a material adverse effect on the ability of the Company to issue the
Shares or consummate any other transactions contemplated hereby or to
satisfy its obligation hereunder, (b) the institution or threat of
institution of any litigation or similar action with respect to the Company
or the consummation of the transactions contemplated hereby, and (c) the
breach of any representation or warranty of the Company contained herein or
the occurrence of any event or the discovery of any facts or circumstances
which results or is reasonably likely to result in the failure (i) of any
representation or warranty of the Company set forth herein to continue
being true and correct or (ii) of any condition precedent set forth in
Article 4 to be fulfilled. From the date hereof until the Closing Date, the
Company shall promptly deliver to the Purchaser true and correct copies of
any registration statement, report, prospectus or other document filed by
it with the U.S. Securities and Exchange Commission or the COB.
(b) From the date hereof until the Closing Date, the Purchaser shall
give prompt written notice to the Company of (a) any facts or circumstances
or the occurrence of any event or the failure of any event to occur, which
has or is reasonably likely to have a material adverse effect on the
ability of the Purchaser to consummate any transaction contemplated hereby
or to satisfy its obligations hereunder, (b) the institution or threat of
institution of any litigation or similar action with respect to the
Purchaser or the consummation of the transactions contemplated hereby, and
(c) the breach of any representation or warranty of the Purchaser contained
herein or the occurrence of any event or the discovery of any facts or
circumstances which results or is reasonably likely to result in the
failure (i) of any representation or warranty of the Purchaser set forth
herein to continue being true or (ii) of any condition precedent set forth
in Article 4 to be fulfilled.
5.7 No Shop
-------
From the date hereof until the Closing Date, the Company will not, and will
not authorize or permit any of its officers or directors or any other
Person on its behalf to, solicit, encourage, negotiate or accept any offer
from any party concerning (i) the financing of the purchase of any Target
Shares whether through the issuance by the Company or one of its
Subsidiaries of equity securities or the incurrence by the Company or any
of its Subsidiaries of indebtedness or (ii) any other agreement or
arrangement that would be inconsistent with the consummation of the
transactions contemplated hereby (each a "Prohibited Transaction"), nor
will they participate in any discussions or negotiations regarding, or
furnish any information with respect to, or facilitate in any other manner,
any Prohibited Transaction. The Company will immediately terminate any
existing discussion with a third Person regarding a possible Prohibited
Transaction. The Company will promptly notify the Purchaser in writing of
any inquiries or proposals from any third Person regarding a possible
Prohibited Transaction.
5.8 Other Investors
---------------
So long as the Purchaser or its Affiliates hold at least 5% of the
Company's ordinary shares directly or through American depository shares
("ADSs"), in the event that the Company desires to issue shares or ADSs or
securities convertible or exercisable into shares or ADSs for cash under
circumstances where the shareholders of the Company would be requested to
waive their preemptive rights (droits preferentiels de souscription) with
respect to such issuance, such that such third Person or a group including
such third Person would own upon the acquisition of such shares or ADSs or
the conversion of such securities or exercise of such rights, directly or
indirectly, shares constituting 5% or more of the then outstanding shares
or ADSs of the Company (a "Proposed Transaction"), the Company shall
promptly as practicable inform the members of the Company's board of
directors of the material terms of the Proposed Transaction and negotiate
in good faith with any shareholder or group of shareholders represented on
the Company's board of directors with respect to any good faith competing
proposal that such shareholder or group may determine to make to the
Company.
5.9 Use of Proceeds
---------------
The Company shall use the proceeds from the issuance and sale of the Shares
hereunder in the following order (i) to fund the acquisition of Target
Shares pursuant to the Target Tender Offer, (ii) to fund the Merger
Consideration (as defined in the Merger Agreement) to be paid to the
holders of Target Shares not tendered and purchased by the Offering Entity
pursuant to the Target Tender Offer pursuant to the Merger (as defined in
the Merger Agreement) on the terms and subject to the conditions of the
Merger Agreement, (iii) to satisfy any valid claims for appraisal made by
any of GeoScience's shareholders dissenting from the Merger, and (iv) to
pay the fees and expenses of the Company relating to any of the foregoing,
and thereafter for any good and valid corporate purpose of the Company.
5.10 ADR Facility
------------
So long as the Purchaser or its Affiliates hold in the aggregate at least
5% of the Company's ordinary shares, the Company shall maintain in full
force and effect its current Deposit Agreement between the Company and The
Bank of New York as depositary with respect to its ADR facility, and shall
ensure that the Purchaser and its Affiliates shall have the right to
exchange their ordinary shares for ADSs in accordance therewith or shall,
at the Purchaser's request, enter into an alternate agreement with another
depositary on terms and conditions reasonably satisfactory to the Purchaser
and the Company to permit such conversion, in each case at the Company's
expense. During such time period, the Company shall use its best efforts to
maintain the listing of the Company's ADRs on the New York Stock Exchange
(the "NYSE") and maintain the listing of its ordinary shares on the Premier
Marche of the Paris Bourse and shall file with the NYSE and the Paris
Bourse all documents and notices required by either the NYSE or the Paris
Bourse of companies whose securities are traded thereon.
5.11 Publicity
---------
The Company and the Purchaser agree not to issue any press release or
otherwise make any public statements with respect to this Agreement or the
other transactions contemplated hereby without the consent of the other,
except as may be required by law so long as it has used all reasonable
efforts to consult with the Company or the Purchaser, as the case may be,
and to obtain the consent of such party but has been unable to do so in a
timely manner.
5.12 Parity Right of Access
----------------------
From the date of this Agreement until the Closing, the Company shall (i)
subject to the requirements of French law, give the Purchaser and its
authorized representatives reasonable access at reasonable times to the
president and other officers of the Company, (ii) furnish the Purchaser
with such documents and other information with respect to the business and
properties of the Company as provided to the U.S. and European underwriters
participating in the Rights Offering, and (iii) provide the Purchaser with
reasonable advance notice of, and permit the Purchaser to participate in,
any meetings held between the Company and any such underwriters for due
diligence purposes whether such meetings are held in person or by
telephone, video or internet conference.
5.13 Failure to Fund
---------------
If the Company breaches its obligation under the Merger Agreement to
purchase the Target Shares due solely to a breach of the Purchaser's
obligation hereunder to purchase the Shares (and not as the result of any
breach by the Company of its obligations hereunder or the failure of any
condition set forth in Article 4.1 to be fulfilled) and, as a result of
such breach, the Company becomes obligated to pay a termination fee to
GeoScience pursuant to the Merger Agreement, then the Purchaser shall
promptly pay to the Company according to the Company's instructions the
lesser of the amount of such termination fee and USD 1,500,000 as
liquidated damages promptly following the Company's payment of such amount
to GeoScience upon presentation to the Purchaser of reasonable evidence
that such amount has been paid. Payment by the Purchaser of such amount
shall be the exclusive remedy of the Company for any breach by the
Purchaser of its obligation to purchase the Shares hereunder.
5.14 Completion of Listing Formalities
---------------------------------
The Company shall complete the Final Listing Formalities as soon as
possible after the Closing Date and shall otherwise ensure that the Shares
are listed for trading on the Paris Bourse.
5.15 D+O Insurance Coverage
----------------------
The Company shall extend and maintain at all times coverage under its
directors' and officers' liability insurance policy for the benefit of all
Beacon Nominees elected to serve on the Company's board of directors or
obtain equivalent coverage for the benefit of such Beacon Nominees with
insurers and on terms reasonably acceptable to the Purchaser.
ARTICLE 6
---------
INDEMNIFICATION
Consideration for Purchase
--------------------------
The Purchaser has agreed to perform its obligations hereunder, including
its obligation to purchase the Shares, in consideration of the
representations, warranties, agreements and covenants of the Company set
forth herein.
6.2 General Indemnification
-----------------------
The Company shall indemnify, defend and hold each Purchaser, its
affiliates, and each of their respective officers, directors, partners,
managing directors, affiliates, employees, agents, consultants,
representatives, successors and assigns (each an "Purchaser Entity")
harmless from and against all Losses (as defined in Article 6.3) incurred
or suffered by a Purchaser Entity (whether incurred or suffered directly or
indirectly through the ownership of Shares) arising out of, relating to, or
resulting from any material breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement
or in any certificate or other instrument delivered pursuant hereto
including, without limitation, the Registration Rights Agreement.
6.3 Indemnification Principles
--------------------------
For purposes of this Article 6, "Losses" shall mean each and all of the
following items: losses, prejudice, liabilities, damages, fees or expenses,
including reasonable fees, expenses and disbursements of counsel in light
of the customs and practices in existence in the country involved.
6.4 Survival
--------
The representations, warranties, covenants, agreements and other
obligations of the Company hereunder shall remain in effect after
completion of the issuance of the Shares or, if applicable, the termination
of this Agreement for any reason.
ARTICLE 7
---------
MISCELLANEOUS
7.1 Termination
-----------
The obligations of the parties to effect the sale and purchase of the
Shares hereunder may be terminated (i) by the mutual written consent of the
Company and the Purchaser, (ii) by the Purchaser in writing without
liability to the Purchaser on account of such termination if the Merger
Agreement is terminated without the Company having acquired at least 80% of
the outstanding capital stock of GeoScience pursuant thereto, or if any of
the conditions precedent to the Closing set forth in Article 4.1 shall
become by its terms impossible to fulfill, or (iii) by any party in
writing, without liability to the other party on account of such
termination (provided that the terminating party is not otherwise in breach
or default under this Agreement), if the Closing shall not have occurred on
or before April 30, 2000.
7.2 Governing Law
-------------
This Agreement shall be governed in all respects by and construed in
accordance with the laws of the Republic of France without giving effect to
its conflicts of law principles, except that the provisions herein relating
to the securities laws of the United States shall be governed by the laws
of the United States. Any dispute, controversy or claim arising out of or
relating to this Agreement shall be submitted to the exclusive jurisdiction
of the Tribunal de Commerce of Paris.
7.3 Successors and Assigns
----------------------
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. This Agreement
may not be assigned by the Company without the prior written consent of the
Purchaser. The parties acknowledge that, subject to compliance with
applicable securities laws, the Purchaser may transfer and assign any or
all of the Shares and all or any part of its rights and obligations under
this Agreement to one or more other partnerships, corporations, trusts or
other organizations which have been created by, or are controlled by,
control or are under common control with the Purchaser, without the consent
of the Company; provided, however, that such transfer or assignment shall
not relieve the Purchaser of its obligations under this Agreement.
7.4 Entire Agreement; Amendment
---------------------------
This Agreement and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with
regard to the subject matter hereof and thereof and supersede all prior
agreements and understandings among the parties relating to the subject
matter hereof. Neither this Agreement not any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed
by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
7.5 Notice and Dates
----------------
Any notice or other communication given under this Agreement shall be
sufficient if in writing and delivered by hand, by messenger or by courier,
or transmitted by confirmed facsimile, to a party at its address set forth
below (or at such other address as shall be designated for such purpose by
such party in a written notice to the other party hereto):
(a) If to the Company, at:
Compagnie Generale de Geophysique
0 xxx Xxxx Xxxxxx
00000 Xxxxx Xxxxx, Xxxxxx
Attention: Xxxxxx Xxxxxx
Facsimile: 33 1 64 47 39 70
(b) If to the Purchaser, at:
The Beacon Group Energy Investment Fund II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: 0-000-000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or as having been given when delivered if
delivered personally, by messenger or by courier, or, if sent by facsimile,
upon confirmation of receipt by return facsimile.
7.6 Further Assurances
------------------
The parties 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 or documents as any other party
may reasonably request from time to time in order to carry out the intent
and purposes of this Agreement and the consummation of the transactions
contemplated hereby. Neither the Company nor the Purchaser shall
voluntarily undertake any course of action inconsistent with the
satisfaction of the requirements applicable to them set forth in this
Agreement and each shall promptly do all such acts and take all such
measures as may be appropriate to enable them to perform as early as
practicable the obligations herein required to be performed by them.
7.7 Originals
---------
This Agreement is executed in New York in two (2) original copies and shall
become effective on the date hereof.
7.8 Severability
------------
In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void,
this Agreement shall continue in full force and effect without said
provision which shall be replaced with an enforceable provision closest in
intent and economic effect as the severed provision.
7.9 Captions
--------
Headings of the various Articles of this Agreement have been inserted for
convenience of reference only and shall not be relied upon in construing
this Agreement. Use of any gender herein to refer to any person shall be
deemed to comprehend masculine, feminine and neuter unless the context
clearly requires otherwise.
7.10 Brokers
-------
(a) Except as set forth in the Engagement Letter, the Company has not
engaged, consented to, or authorized any bank, broker, finder or
intermediary, to act on its behalf, directly or indirectly, as a bank,
broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Company hereby agrees to indemnify and
hold harmless the Purchaser from and against all fees, commissions or other
payments owing to any person or firm acting on behalf of the Company
hereunder.
(b) Except as set forth in the Engagement Letter, the Purchaser has
not engaged, consented to or authorized any broker, finder or intermediary,
to act on its behalf directly or indirectly, as a broker, finder or
intermediary in connection with the transactions contemplated by this
Agreement. Except as set forth in the Engagement Letter, the Purchaser
hereby agrees to indemnify and hold harmless the Company from and against
all fees, commissions or other payments owning to any such person or firm
acting on behalf of the Purchaser hereunder.
7.11 Certain Definitions
-------------------
As used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "Authority" means any court, arbitral panel, or governmental or
administrative body or agency whether supra-national, French or foreign,
national or local;
(b) "Business Day" means any day on which banks are open for business
in Paris and New York;
(c) "FRF" means the lawful currency of the Republic of France; and
(d) "Person" means an individual, partnership, corporation or other
entity, business, enterprise or association.
7.12 Attorney's Fees
---------------
The prevailing party in any litigation between the Purchaser, on the one
hand, and the Company, on the other hand, involving this Agreement shall be
entitled to recover from the other party its reasonable attorney's fees and
costs.
7.13 Costs and Expenses
------------------
Except as otherwise provided in the Engagement Letter, each party hereto
shall pay its own costs and expenses incurred in connection herewith,
including the fees of its counsel, auditors and other representatives,
whether or not the transactions contemplated herein are consummated.
7.14 No Third Party Rights
---------------------
Nothing in this Agreement shall create or be deemed to create any rights in
any person or entity not a party to this Agreement.
7.15 Competing Business Interests
----------------------------
The Company hereby acknowledges that the Purchaser, its affiliates and
certain companies and other entities in which the Purchaser and its
affiliates currently have ownership interests or may invest in, acquire or
otherwise enter into strategic relationships with, may presently or in the
future have businesses or otherwise undertake activities that may directly
or indirectly compete with or provide a strategic fit with the business of
the Company as such business is presently conducted or may be conducted in
the future and may presently or in the future independently develop or sell
products or services which may directly or indirectly compete with products
or services developed or sold by the Company. The Purchaser shall adopt and
maintain confidentiality, chinese wall and other procedures appropriate in
its reasonable judgment to ensure that confidential information regarding
the Company is not disclosed to third Persons as a result of any such
interests, relationships or activities and shall cause any Beacon Nominee
to resign from the Company's board of directors if such resignation is, in
the opinion of French counsel mutually acceptable to the Purchaser and the
Company, required by the fiduciary duties under French law of such Beacon
Nominee to the Company as a result of such interests, relationships or
activities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date first above
written.
COMPAGNIE GENERALE DE GEOPHYSIQUE
By: /s/ Xxxxxx Xxxxx
------------------------
Name: X. Xxxxx
----------------------
Title: Chairman and CEO
---------------------
THE BEACON GROUP ENERGY INVESTMENT FUND II, L.P.
By: BEACON ENERGY INVESTORS II, L.P., its general partner
By: /s/ Xxxx XxxXxxxxxxx
----------------------------
Authorized Signatory
LIST OF EXHIBITS
Exhibit A Bulletin de souscription
Exhibit B Registration Rights Agreement
Exhibit C Form of Xxxxx, Day, Xxxxxx & Xxxxx Legal Opinion
Exhibit D Expense Reimbursement Agreement
Exhibit E Form of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx Legal Opinion
