Exhibit 3
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REGISTRATION RIGHTS AGREEMENT
GEOKINETICS INC.
Dated as of September 8, 2006
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS.............................................1
1.1 Definitions................................................1
1.2 Other Definitional and Interpretive Matters................4
ARTICLE II - REGISTRATION RIGHTS.....................................4
2.1 Demand Registration........................................4
2.2 Piggyback Registrations....................................8
2.3 Transfer of Registration Rights............................9
2.4 Holdback Agreement........................................10
2.5 Registration Procedures...................................10
2.6 Suspension of Dispositions................................14
2.7 Registration Expenses.....................................14
2.8 Indemnification...........................................15
2.9 Current Public Information................................18
2.10 No Inconsistent Agreements................................19
ARTICLE III - TERMINATION............................................19
3.1 Termination...............................................19
ARTICLE IV - MISCELLANEOUS..........................................19
4.1 Notices...................................................19
4.2 Governing Law.............................................20
4.3 Jurisdiction..............................................21
4.4 Successors and Assigns....................................21
4.5 Duplicate Originals.......................................21
4.6 Severability..............................................21
4.7 No Waivers; Amendments....................................21
4.8 Negotiated Agreement......................................21
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated September
8, 2006, is among Geokinetics Inc., a Delaware corporation (including its
successors, the "COMPANY"), Avista Capital Partners, L.P., a Delaware limited
partnership, Avista Capital Partners (Offshore), L.P. (together with Avista
Capital Partners, L.P., the "AVISTA HOLDERS") and Levant America S.A., a
Liberian corporation (collectively, with the Avista Holders, the "SECURITY
HOLDERS").
RECITALS
WHEREAS, the Company and the Security Holders are parties to the
Securities Purchase Agreement of even date herewith (the "PURCHASE Agreement");
WHEREAS, under the Securities Purchase Agreement, the Security Holders
will purchase shares of Series B Senior Convertible Preferred Stock, par value
$10.00 per share (the "PREFERRED STOCK"), of the Company; and
WHEREAS, the Preferred Stock is convertible into shares of the Company's
Common Stock, par value $0.01 per share (the "COMMON STOCK").
WHEREAS, in order to induce the Security Holders to enter into the
Purchase Agreement, and to purchase the Preferred Stock, the parties desire to
grant to the Security Holders certain rights as provided herein.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I - DEFINITIONS
1.1 DEFINITIONS.
(a) For purposes of this Agreement, defined terms used herein
which are not otherwise defined herein shall have the same respective meanings
as such terms have in the Purchase Agreement, and in addition, the following
terms shall have the meanings specified in this Section 1.1.
"AFFILIATE" means, with respect to any Person, any Person who,
directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with any Person.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other
day on which commercial banks are authorized or required to close under the laws
of the United States or the State of New York.
"COMMON STOCK EQUIVALENTS" means, without duplication with any other
Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or indebtedness,
or other rights, exercisable for or convertible or exchangeable into, directly
or indirectly, Common Stock of the Company and securities convertible or
exchangeable into Common Stock of the Company, whether at the time of issuance
or upon the passage of time or the occurrence of any future event.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations
promulgated by the SEC thereunder.
"EXCLUDED REGISTRATION" means a registration under the Securities
Act of (i) securities registered on Form S-8 or any similar successor form and
(ii) securities registered to effect the acquisition of or combination with
another Person.
"HOLDER" means (i) a Security Holders listed on the signature page
hereof and (ii) any direct or indirect transferee of any such Security Holder,
including any Security Holder that receives shares of Common Stock upon a
distribution or liquidation of a Holder, who has been assigned the rights of the
transferor Holder under this Agreement in accordance with Section 2.3.
"PERSON" or "PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"REGISTRABLE SHARES" means, at any time, the Common Stock (acquired
upon conversion of Preferred Stock of the Company) and Preferred Stock of the
Company owned by the Holders, whether owned on the date hereof or acquired
hereafter; provided, however, to the extent any determination of the number or
percentage of Registrable Shares is made under the terms of this Agreement, all
Preferred Stock shall be included with all Common Stock on as converted basis
for the purpose of any such determination; provided, further, that Registrable
Shares shall not include any shares (i) the sale of which has been registered
pursuant to the Securities Act and which shares have been sold pursuant to such
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registration or (ii) which have been sold pursuant to Rule 144 under the
Securities Act.
"REQUIRED HOLDERS" means Holders who then own beneficially more than
50% of the aggregate number of shares of Registrable Shares subject to this
Agreement.
"SEC" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations promulgated by the
SEC thereunder.
"SUBSIDIARY" means any entity with respect to which a specified
Person (or a Subsidiary thereof) owns or has the power to vote 50% or more of
the equity interests in such entity, having general voting power to participate
in the election of the governing body of such entity.
(b) For purposes of this Agreement, the following terms have the meanings set
forth in the sections indicated:
Term Section
Advice 2.6
Agreement Introductory Paragraph
Avista Holders Recitals
Common Stock Recitals
Company Introductory Paragraph
Company Shelf 2.1(i)
Company Shelf Shares 2.1(i)
Demand Registration 2.1(a)
Demand Request 2.1(a)
Inspectors 2.5(j)
Material Adverse Effect 2.1(e)
NASD 2.5(l)
Preferred Stock Recitals
Purchase Agreement Recitals
Records 2.5(j)
Registration Expenses 2.7
Requesting Holders 2.1(a)
Required Filing Date 2.1(b)
Security Holders Introductory Paragraph
Seller Affiliates 2.8(a)
Shelf Offering 2.1(f)
Suspension Notice 2.6
Underwritten Offering 2.1(d)
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1.2 OTHER DEFINITIONAL AND INTERPRETIVE MATTERS. Unless otherwise
expressly provided or the context otherwise requires, for purposes of this
Agreement the following rules of interpretation apply.
(a) When calculating the period of time before which, within which
or following which any act is to be done or step taken pursuant to this
Agreement, the date that is the reference date in calculating such period is
excluded. If the last day of such period is a non-Business Day, the period in
question ends on the next succeeding Business Day.
(b) Any reference in this Agreement to $ means U.S. dollars.
(c) The Schedules to this Agreement are hereby incorporated and
made a part hereof as if set forth in full in this Agreement and are an integral
part of this Agreement. Any capitalized terms used in any Schedule but not
otherwise defined therein are defined as set forth in this Agreement.
(d) Any reference in this Agreement to gender includes all
genders, and words imparting the singular number also include the plural and
vice versa.
(e) The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and do not affect, and should not
be utilized in, the construction or interpretation of this Agreement.
(f) All references in this Agreement to any "ARTICLE," "SECTION,"
or "SCHEDULE" are to the corresponding Article, Section, Schedule or Exhibit of
this Agreement.
(g) The words "HEREIN," "HEREINAFTER," "HEREOF," and "HEREUNDER"
refer to this Agreement as a whole and not merely to a subdivision in which such
words appear unless the context otherwise requires.
(h) The word "INCLUDING" or any variation thereof means
"INCLUDING, BUT NOT LIMITED TO," and does not limit any general statement that
it follows to the specific or similar items or matters immediately following it.
ARTICLE II - REGISTRATION RIGHTS
2.1 DEMAND REGISTRATION.
(a) At any time after the Closing Date, any Avista Holder may
request, in writing (a "DEMAND REQUEST"), that the Company effect the
registration under the Securities Act of all or part of its or their Registrable
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Shares (a "DEMAND REGISTRATION"). Notwithstanding the foregoing, no Demand
Request will be effective hereunder unless the Registrable Shares proposed to be
sold by the Avista Holders requesting the Demand Registration (the "REQUESTING
HOLDERS," which term shall include parties deemed "Requesting Holders" pursuant
to Section 2.1(f) hereof) represent, in the aggregate, more than 25% of the
total number of Registrable Shares held by all Avista Holders.
(b) Each Demand Request shall specify the number of Registrable
Shares proposed to be sold and the intended method of disposition of the
Registrable Shares (including an Underwritten Offering pursuant to Section
2.1(d) or a Shelf Registration pursuant to Section 2.1(f)). Subject to Section
2.1(h), the Company shall file the Demand Registration within 90 days after
receiving a Demand Request (the "REQUIRED FILING DATE") and shall use all
commercially reasonable efforts to cause the same to be declared effective by
the SEC as promptly as practicable after such filing; provided, however, that
the Company need effect only three (3) Demand Registrations pursuant to Demand
Requests made by Avista Holders of Registrable Shares pursuant to Section
2.1(a); provided, further, that if any Registrable Shares requested to be
registered pursuant to a Demand Request are excluded from the applicable Demand
Registration pursuant to Section 2.1(e) below, the Avista Holders shall have the
right, with respect to each such exclusion, to request one additional Demand
Registration.
(c) A registration will not count as a Demand Registration until
it has become effective (unless the Requesting Holders withdraw all their
Registrable Shares and the Company has performed its obligations hereunder in
all material respects, in which case such demand will count as a Demand
Registration unless the Requesting Holders pay all Registration Expenses, as
hereinafter defined, in connection with such withdrawn registration); provided,
however, that if, after it has become effective, an offering of Registrable
Shares pursuant to a registration is interfered with by any stop order,
injunction or other order or requirement of the SEC or other governmental agency
or court, such registration will be deemed not to have been effected and will
not count as a Demand Registration.
(d) The Requesting Holders may provide in the Demand Request that
the offering of Registrable Shares pursuant to a Demand Registration shall be in
the form of a "firm commitment" underwritten offering (an "UNDERWRITTEN
OFFERING"). The Requesting Holders of a majority of the Registrable Shares to be
registered in a Demand Registration shall select the investment banking firm or
firms to manage the Underwritten Offering, provided that such selection shall be
subject to the consent of the Company, which consent shall not be unreasonably
withheld. No Person may participate in any registration pursuant to Section
2.1(a) unless such Person (i) agrees to sell such Person's Registrable Shares on
the basis provided in any underwriting arrangements described above and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
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underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements; provided, however, that no such Person shall
be required to make any representations or warranties in connection with any
such registration other than representations and warranties as to (A) such
Person's ownership of his or its Registrable Shares to be transferred free and
clear of all liens, claims and encumbrances, (B) such Person's power and
authority to effect such transfer and (C) such matters pertaining to compliance
with securities laws as may be reasonably requested; provided, further, however,
that the obligation of such Person to indemnify pursuant to any such
underwriting arrangements shall be several, not joint and several, among such
Persons selling Registrable Shares, and the liability of each such Person will
be in proportion thereto, and provided, further, that such liability will be
limited to the net amount received by such Person from the sale of his or its
Registrable Shares pursuant to such registration.
(e) No securities to be sold for the account of any Person
(including the Company) other than a Requesting Holder shall be included in a
Demand Registration for an Underwritten Offering unless the managing underwriter
or underwriters shall advise the Company or the Requesting Holders in writing
that the inclusion of such securities will not materially and adversely affect
the price or success of the Underwritten Offering (a "MATERIAL ADVERSE EFFECT").
Furthermore, in the event the managing underwriter or underwriters shall advise
the Company or the Requesting Holders that even after exclusion of all
securities of other Persons pursuant to the immediately preceding sentence, the
amount of Registrable Shares proposed to be included in such Demand Registration
by Requesting Holders is sufficiently large to cause a Material Adverse Effect,
the Registrable Shares of the Requesting Holders to be included in such Demand
Registration shall equal the number of shares which the Company is so advised
can be sold in such offering without a Material Adverse Effect and such shares
shall be allocated pro rata among the Requesting Holders on the basis of the
number of Registrable Shares requested to be included in such registration by
each such Requesting Holder.
(f) The Requesting Holders may provide in the Demand Request that
the offering of Registrable Shares pursuant to a Demand Registration shall be in
the form of a "shelf offering" under the Securities Act to be made on a
continuous basis pursuant to Rule 415 (a "SHELF OFFERING"). The Shelf Offering
shall be on Form S-1 (or on Form S-3, if the Company is eligible to utilize such
Form to register its shares). Subject to the terms of this Agreement, the
Company shall use its best efforts to cause the Shelf Offering to be declared
effective under the Securities Act as promptly as possible after the filing
thereof and shall use its best efforts to keep such Shelf Offering continuously
effective under the Securities Act until all Registrable Securities covered by
such Shelf Offering have been sold or may be sold without volume restrictions
pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to
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a written opinion letter to such effect, addressed and acceptable to the
Company's transfer agent and the affected Avista Holders.
(g) Upon receipt of any Demand Request, the Company shall promptly
(but in any event within 10 days) give written notice of such proposed Demand
Registration to all other Avista Holders, who shall have the right, exercisable
by written notice to the Company within 20 days of their receipt of the
Company's notice, to elect to include in such Demand Registration such portion
of their Registrable Shares as they may request. All Avista Holders requesting
to have their Registrable Shares included in a Demand Registration in accordance
with the preceding sentence shall be deemed to be "REQUESTING HOLDERS" for
purposes of this Section 2.1(g).
(h) The Company may defer the filing (but not the preparation) of
a registration statement required by Section 2.1(a) until a date not later than
90 days after the Required Filing Date (or, if longer, 90 days after the
effective date of the registration statement contemplated by clause (ii) below)
if (i) at the time the Company receives the Demand Request, the Company or any
of its Subsidiaries are engaged in confidential negotiations or other
confidential business activities, disclosure of which would be required in such
registration statement (but would not be required if such registration statement
were not filed), and the Board of Directors of the Company determines in good
faith that such disclosure would be materially detrimental to the Company and
its stockholders or (ii) prior to receiving the Demand Request, the Board of
Directors had determined to effect a registered underwritten public offering of
the Company's securities for the Company's account and the Company had taken
substantial steps (including, but not limited to, selecting a managing
underwriter for such offering) and is proceeding with reasonable diligence to
effect such offering. A deferral of the filing of a registration statement
pursuant to this Section 2.1(h) shall be lifted, and the requested registration
statement shall be filed forthwith, if, in the case of a deferral pursuant to
clause (i) of the preceding sentence, the negotiations or other activities are
disclosed or terminated, or, in the case of a deferral pursuant to clause (ii)
of the preceding sentence, the proposed registration for the Company's account
is abandoned. In order to defer the filing of a registration statement pursuant
to this Section 2.1(h), the Company shall promptly (but in any event within ten
days), upon determining to seek such deferral, deliver to each Requesting Holder
a certificate signed by an executive officer of the Company stating that the
Company is deferring such filing pursuant to this Section 2.1(h) and a general
statement of the reason for such deferral and an approximation of the
anticipated delay. Within 20 days after receiving such certificate, the holders
of a majority of the Registrable Shares held by the Requesting Holders and for
which registration was previously requested may withdraw such Demand Request by
giving notice to the Company; if withdrawn, the Demand Request shall be deemed
not to have been made for all purposes of this Agreement. The Company may defer
the filing of a particular registration statement pursuant to this Section
2.1(h) only once.
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(i) In lieu of any of the three Demand Registrations and if the
Company has established a "shelf offering" of newly issued shares of Common
Stock (the "COMPANY SHELF SHARES") under the Securities Act to be made on a
continuous basis pursuant to Rule 415 on Form S-3 (the "COMPANY SHELF"), the
Avista Holders may issue a Demand Request for the Company to sell Company Shelf
Shares and use the proceeds from such sales to purchase the Registrable Shares
held by the Requesting Holders (the "SHELF FUNDED REPURCHASE") at a price
(determined on a fully diluted basis) equal to the price at which the Company
Shelf Shares were sold less any underwriting discounts and commissions. Subject
to the terms of this Agreement, the Company shall use its best efforts to keep
such Company Shelf continuously effective under the Securities Act until all
Registrable Securities included in the applicable Demand Request have been
purchased by the Company or may be sold without volume restrictions pursuant to
Rule 144(k) as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Company's
transfer agent and the affected Avista Holders. The Company will not be
responsible for any fees or expenses incurred by the Avista Holders in
connection with the Shelf Funded Repurchase other than as provided in Section
2.7 hereto.
2.2 PIGGYBACK REGISTRATIONS.
(a) Each time the Company proposes to register any of its equity
securities (other than pursuant to an Excluded Registration) under the
Securities Act for sale to the public (whether for the account of the Company or
the account of any Security Holders of the Company) and the form of registration
statement to be used permits the registration of Registrable Shares, the Company
shall give prompt written notice to each Holder of Registrable Shares (which
notice shall be given not less than 30 days prior to the effective date of the
Company's registration statement), which notice shall offer each such Holder the
opportunity to include any or all of its or his Registrable Shares in such
registration statement, subject to the limitations contained in Section 2.2(b)
hereof. Each Holder who desires to have its or his Registrable Shares included
in such registration statement shall so advise the Company in writing (stating
the number of shares desired to be registered) within 20 days after the date of
such notice from the Company. Any Holder shall have the right to withdraw such
Holder's request for inclusion of such Holder's Registrable Shares in any
registration statement pursuant to this Section 2.2(a) by giving written notice
to the Company of such withdrawal. Subject to Section 2.2(b) below, the Company
shall include in such registration statement all such Registrable Shares so
requested to be included therein; provided, however, that the Company may at any
time withdraw or cease proceeding with any such registration if it shall at the
same time withdraw or cease proceeding with the registration of all other equity
securities originally proposed to be registered.
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(b) If the managing underwriter advises the Company that the
inclusion of Registrable Shares requested to be included in the registration
statement would cause a Material Adverse Effect, the Company will be obligated
to include in the registration statement, as to each Requesting Holder, only a
portion of the shares such Holder has requested be registered equal to the
product of: (i) the ratio which such Holder's requested shares bears to the
total number of shares requested to be included in such registration statement
by all Persons (including Requesting Holders) who have requested (pursuant to
contractual registration rights) that their shares be included in such
registration statement; and (ii) the maximum number of shares that the managing
underwriter advises may be sold in an offering covered by the registration
statement without a Material Adverse Effect. If as a result of the provisions of
this Section 2.2(b) any Holder shall not be entitled to include all Registrable
Shares in a registration that such Holder has requested to be so included, such
Holder may withdraw such Holder's request to include Registrable Shares in such
registration statement. No Person may participate in any registration statement
hereunder unless such Person (i) agrees to sell such person's Registrable Shares
on the basis provided in any underwriting arrangements approved by the Company
and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents, each in customary
form, reasonably required under the terms of such underwriting arrangements;
provided, however, that no such Person shall be required to make any
representations or warranties in connection with any such registration other
than representations and warranties as to (A) such Person's ownership of his or
its Registrable Shares to be sold or transferred free and clear of all liens,
claims and encumbrances, (B) such Person's power and authority to effect such
transfer and (C) such matters pertaining to compliance with securities laws as
may be reasonably requested; provided, further, however, that the obligation of
such Person to indemnify pursuant to any such underwriting arrangements shall be
several, not joint and several, among such Persons selling Registrable Shares,
and the liability of each such Person will be in proportion to, and provided,
further, that such liability will be limited, to the net amount received by such
Person from the sale of his or its Registrable Shares pursuant to such
registration.
2.3 Transfer of Registration Rights. The rights of each Holder under
this Agreement may be assigned to a transferee or assignee of at least 50,000
shares (on a fully basis as adjusted for stock splits, stock dividends,
recapitalizations and the like) of a Holder's Registrable Shares not sold to the
public; provided, however, that the Company is given: (a) written notice by such
Holder at or within a reasonable time after said transfer, stating the name and
address of such transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or assigned; and
(b) a joinder agreement, in a form reasonably satisfactory to the Company,
executed by such assignee pursuant to which such assignee agrees to be bound by
the terms of this Agreement. Notwithstanding the foregoing, any Holder may
transfer rights to a transferee of fewer than 50,000 shares (on a fully basis as
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adjusted for stock splits, stock dividends, recapitalizations and the like) of a
Holder's Registrable Shares if such transferee is (a) any affiliate, control
person, controlled person, partner or retired partner of any Holder or (b) any
family member or trust for the benefit of any individual Holder.
2.4 Holdback Agreement. Unless the managing underwriter otherwise
agrees, each of the Company and the Holders agrees (and the Company agrees, in
connection with any underwritten registration, to use its commercially
reasonable efforts to cause its Affiliates to agree) not to effect any public
sale or private offer or distribution of any Common Stock or Common Stock
Equivalents during the ten Business Days prior to the effectiveness under the
Securities Act of any underwritten registration and during such time period
after the effectiveness under the Securities Act of any underwritten
registration (not to exceed 90 days) as the Company and the managing underwriter
may agree. Notwithstanding the foregoing, this Section 2.4 shall not apply
unless all then officers and directors of the Company and each holder of
securities representing 1% or more of the outstanding securities of the Company
enter into similar agreements. Any discretionary waiver or termination of the
requirements under the foregoing provisions made by the managing underwriter
shall apply to each seller of Registrable Shares on a pro rata basis in
accordance with the number of Registrable Shares held by each seller.
2.5 Registration Procedures. Whenever any Holder has requested that any
Registrable Shares be registered pursuant to this Agreement, the Company will
use its commercially reasonable efforts to effect the registration and the sale
of such Registrable Shares in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such Registrable
Shares and use its commercially reasonable efforts to cause such registration
statement to become effective;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective until all of the shares subject to such offering have been
sold (or such lesser period as is necessary for the underwriters in an
Underwritten Offering to sell unsold allotments) and comply with the provisions
of the Securities Act with respect to the disposition of all securities covered
by such registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement;
(c) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
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included in such registration statement (including each preliminary prospectus),
any documents incorporated by reference therein and such other documents as such
seller or underwriters may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such seller or the sale of such
securities by such underwriters (it being understood that, subject to Section
2.6 and the requirements of the Securities Act and applicable state securities
laws, the Company consents to the use of the prospectus and any amendment or
supplement thereto by each seller and the underwriters in connection with the
offering and sale of the Registrable Shares covered by the registration
statement of which such prospectus, amendment or supplement is a part);
(d) use its commercially reasonable efforts to register or qualify
the Registrable Shares under the other securities or blue sky laws of the
jurisdictions as the managing underwriter reasonably requests (or, in the event
the registration statement does not relate to an Underwritten Offering, as the
holders of a majority of the Registrable Shares may reasonably request); use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period in which the registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Shares owned by such seller in
such jurisdictions (provided, however, that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (ii) consent to
general service of process in any such jurisdiction);
(e) promptly notify each seller and each underwriter and if
requested by any such Person, confirm such notice in writing (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (ii) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable Shares
under state securities or "blue sky" laws or the initiation of any proceedings
for that purpose and (iii) of the happening of any event which makes any
statement made in a registration statement or related prospectus untrue or which
requires the making of any changes in such registration statement, prospectus or
documents so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and, as promptly as practicable
thereafter, prepare and file with the SEC and furnish a supplement or amendment
to such prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue statement of a
material fact or omit a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
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(f) make generally available to the Company's Security Holders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 30 days after the end of the 12 month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall cover
said 12 month period, and which requirement will be deemed to be satisfied if
the Company timely files complete and accurate information on Forms 10-Q, 10-K
and 8-K under the Exchange Act and otherwise complies with Rule 158 under the
Securities Act;
(g) if requested by the managing underwriter or any seller
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any seller reasonably requests to be
included therein, including, without limitation, with respect to the Registrable
Shares being sold by such seller, the purchase price being paid therefor by the
underwriters and with respect to any other terms of the Underwritten Offering of
the Registrable Shares to be sold in such offering, and promptly make all
required filings of such prospectus supplement or post-effective amendment;
(h) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into a registration statement (in
the form in which it was incorporated), deliver a copy of each such document to
each seller;
(i) cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which shall not
bear any restrictive legends unless required under applicable law) representing
securities sold under any registration statement, and enable such securities to
be in such denominations and registered in such names as the managing
underwriter or such sellers may request and keep available and make available to
the Company's transfer agent prior to the effectiveness of such registration
statement a supply of such certificates;
(j) promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any registration
statement, and any attorney, accountant or other agent or representative
retained by any such seller or underwriter (collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "RECORDS"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information requested
by any such Inspector in connection with such registration statement; provided,
however, that, unless the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in the registration statement or the release
of such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide any
12
information under this subparagraph (j) if (i) the Company believes, after
consultation with counsel for the Company, that to do so would cause the Company
to forfeit an attorney-client privilege that was applicable to such information
or (ii) if either (A) the Company has requested and been granted from the SEC
confidential treatment of such information contained in any filing with the SEC
or documents provided supplementally or otherwise or (B) the Company reasonably
determines in good faith that such Records are confidential and so notifies the
Inspectors in writing unless prior to furnishing any such information with
respect to (i) or (ii) such Holder of Registrable Shares requesting such
information agrees to enter into a confidentiality agreement in customary form
and subject to customary exceptions; and provided, further, that each Holder of
Registrable Shares agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
and to prevent disclosure of the Records deemed confidential;
(k) furnish to each seller and underwriter a signed counterpart of
(i) an opinion or opinions of counsel to the Company and (ii) a comfort letter
or comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
(l) cause the Registrable Shares included in any registration
statement to be (i) listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed or (ii) authorized to be quoted
and/or listed (to the extent applicable) on the National Association of
Securities Dealers, Inc. ("NASD"). Automated Quotation System or the Nasdaq
National Market if the Registrable Shares so qualify;
(m) provide a transfer agent and registrar for all Registrable
Shares registered hereunder and provide a CUSIP number for the Registrable
Shares included in any registration statement not later than the effective date
of such registration statement;
(n) cooperate with each seller and each underwriter participating
in the disposition of such Registrable Shares and their respective counsel in
connection with any filings required to be made with the NASD;
(o) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
(p) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
13
(q) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company or the managing underwriter, is required in
connection with the distribution of the Registrable Shares;
(r) enter into such agreements (including underwriting agreements
in the managing underwriter's customary form) as are customary in connection
with an underwritten registration; and
(s) advise each seller of such Registrable Shares, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be issued.
2.6 Suspension of Dispositions. Each Holder agrees by acquisition of any
Registrable Shares that, upon receipt of any notice (a "SUSPENSION NOTICE") from
the Company of the happening of any event of the kind described in Section
2.5(e)(iii) such Holder will forthwith discontinue disposition of Registrable
Shares until such Holder's receipt of the copies of the supplemented or amended
prospectus, or until it is advised in writing (the "ADVICE") by the Company that
the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, and, if so directed by the Company, such Holder will deliver to the
Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements
set forth in Section 2.5(b) hereof shall be extended by the number of days
during the period from and including the date of the giving of the Suspension
Notice to and including the date when each seller of Registrable Shares covered
by such registration statement shall have received the copies of the
supplemented or amended prospectus or the Advice. The Company shall use its
commercially reasonable efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable.
2.7 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article II including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" as such term is defined in
Schedule E of the By-Laws of the NASD, and of its counsel), as may be required
by the rules and regulations of the NASD, fees and expenses of compliance with
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualifications of the Registrable Shares),
14
rating agency fees, printing expenses (including expenses of printing
certificates for the Registrable Shares in a form eligible for deposit with
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by a holder of Registrable Shares), messenger and
delivery expenses, the Company's internal expenses (including without limitation
all salaries and expenses of its officers and employees performing legal or
accounting duties), the fees and expenses incurred in connection with any
listing of the Registrable Shares, fees and expenses of counsel for the Company
and its independent certified public accountants (including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance), securities acts liability insurance (if the Company elects to
obtain such insurance), the fees and expenses of any special experts retained by
the Company in connection with such registration, and the fees and expenses of
other persons retained by the Company and reasonable fees and expenses of one
firm of counsel for the sellers (which shall be selected by the holders of a
majority of the Registrable Shares being included in any particular registration
statement) (all such expenses being herein called "REGISTRATION EXPENSES") will
be borne by the Company whether or not any registration statement becomes
effective; provided, however, that in no event shall Registration Expenses
include any underwriting discounts, commissions or fees attributable to the sale
of the Registrable Shares or any counsel (except as provided above), accountants
or other persons retained or employed by the Holders.
2.8 Indemnification.
(a) The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each seller of Registrable Shares, and each of its
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "SELLER AFFILIATES") (i) against any and all losses, claims,
damages, liabilities and expenses, joint or several (including, without
limitation, attorneys' fees and disbursements except as limited by Section
2.8(c)) based upon, arising out of, related to or resulting from any untrue or
alleged untrue statement of a material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or investigation or proceeding by any governmental
15
agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from any such untrue statement or
omission or alleged untrue statement or omission, and (iii) against any and all
costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing or defending against any
litigation, investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, or such violation of the Securities Act or
Exchange Act, to the extent that any such expense or cost is not paid under
subparagraph (i) or (ii) above; except insofar as any such statements are made
in reliance upon and in strict conformity with information furnished in writing
to the Company by such seller or any Seller Affiliate for use therein or arise
from such seller's or any Seller Affiliate's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such seller or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 2.8(a) will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
(b) In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 2.8(c)) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus or any preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller Affiliates
specifically for inclusion in the registration statement; provided that the
obligation to indemnify will be several, not joint and several, among such
sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and, provided, further, that such
liability will be limited to, the net amount received by such seller from the
sale of Registrable Shares pursuant to such registration statement; provided,
however, that such seller of Registrable Shares shall not be liable in any such
case to the extent that prior to the filing of any such registration statement
or prospectus or amendment thereof or supplement thereto, such seller has
furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.
16
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person) and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (A) the
indemnifying party has agreed to pay such fees or expenses or (B) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
If such defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (i) such settlement or compromise contains a full and
unconditional release of the indemnified party or (ii) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the
reasonable fees and disbursements of such additional counsel or counsels.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.8(a) or Section 2.8(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the actions which resulted in
the losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
17
equitable if contribution pursuant to this Section 2.8(d) were determined by pro
rata allocation (even if the Holders or any underwriters or all of them were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 2.8(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or, except as provided in Section 2.8(c), defending any such
action or claim. Notwithstanding the provisions of this Section 2.8(d), no
Holder shall be required to contribute an amount greater than the dollar amount
by which the net proceeds received by such Holder with respect to the sale of
any Registrable Shares exceeds the amount of damages which such Holder has
otherwise been required to pay by reason of any and all untrue or alleged untrue
statements of material fact or omissions or alleged omissions of material fact
made in any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto related to such sale of Registrable
Shares. 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. The Holders'
obligations in this Section 2.8(d) to contribute shall be several in proportion
to the amount of Registrable Shares registered by them and not joint.
If indemnification is available under this Section 2.8, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Section 2.8(a) and Section 2.8(b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 2.8(d) subject, in the case of the Holders, to the
limited dollar amounts set forth in Section 2.8(b).
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities.
2.9 Current Public Information. With a view to making available to the
Holders the benefits of certain rules and regulations of the SEC that may at any
time permit the sale of securities to the public without registration, the
Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
defined in Rule 144 under the Securities Act, at all times after the effective
date that the Company becomes subject to the reporting requirements of the
Securities Act or the Exchange Act;
18
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and
(c) furnish to any Holder, so long as such Holder owns any
Registrable Shares, upon request by such Holder, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company and (iii) such other reports and documents of
the Company and other information in the possession of or reasonably obtainable
by the Company as a Holder may reasonably request in availing itself of any rule
or regulation of the SEC allowing a Holder to sell any such securities without
registration.
2.10 No Inconsistent Agreements. Neither the Company nor any of its
Subsidiaries has entered, as of the date hereof, nor shall the Company or any of
its Subsidiaries, on of after the date of this Agreement, enter into any
agreement with respect to its securities, that would have the effect of
impairing the rights granted to the Holders under this Agreement or otherwise
conflicts with provisions thereof. Except as set forth on Schedule 2.10, neither
the Company nor any of its Subsidiaries has previously entered into any
agreement granting any registration rights with respect to any of its securities
to any Person that have not been satisfied in full.
ARTICLE III - TERMINATION
3.1 Termination. The provisions of this Agreement shall terminate on
seventh anniversary hereof.
ARTICLE IV - MISCELLANEOUS
4.1 Notices. Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telex, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or at such other
address as may be substituted by notice given as herein provided):
19
If to the Company:
Geokinetics Inc.
▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Telecopy #: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With copies to (which shall not constitute notice):
Chamberlain, Hrdlicka, White, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy #: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Spring, III
If to any Holder, at its address listed on the signature pages hereof.
Any notice or communication hereunder shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered back,
if telexed; when receipt is acknowledged, if telecopied; and five calendar days
after mailing if sent by registered or certified mail (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
Failure to transmit a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is given or made in the manner provided above, it is duly
given, whether or not the addressee receives it.
4.2 Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, SHALL IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED,
CONSTRUED AND DETERMINED EXCLUSIVELY IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD
REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
20
4.3 Jurisdiction. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF FEDERAL OR STATE COURT OF
COMPETENT JURISDICTION IN THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE
COURT THEREFROM, FOR THE RESOLUTION OF ANY AND ALL DISPUTES, CONTROVERSIES,
CONFLICTS, LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND THE SUBJECT MATTER HEREOF AND AGREES NOT TO COMMENCE ANY LITIGATION OR
ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER
HEREOF IN ANY OTHER COURT.
4.4 Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall be binding upon and benefit the Company, each
Holder and their respective successors and assigns.
4.5 Duplicate Originals. All parties may sign any number of copies of
this Agreement. Each signed copy shall be an original, but all of them together
shall represent the same agreement.
4.6 Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions shall not in any way be affected or impaired thereby.
4.7 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or any Holder
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the Company
and the Required Holders.
4.8 Negotiated Agreement. This Agreement was negotiated by the parties
with the benefit of legal representation, and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or interpreted
against any party shall not apply to the construction or interpretation hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first
written above.
GEOKINETICS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
22
AVISTA CAPITAL PARTNERS, L.P.
BY: AVISTA CAPITAL PARTNERS GP, LLC, ITS
GENERAL PARTNER
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇ ▇▇▇▇▇▇▇
General Counsel
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
AVISTA CAPITAL PARTNERS (OFFSHORE), L.P.
BY: AVISTA CAPITAL PARTNERS GP, LLC, ITS
GENERAL PARTNER
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇ ▇▇▇▇▇▇▇
General Counsel
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
23
Copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
====
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
=====
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.,
24
LEVANT AMERICA S.A.
By: /s/ ▇. ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------
▇. ▇. ▇▇▇▇▇▇, ▇▇.
Attorney in Fact
Colonial Navigation Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Telecopy: ▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇. ▇. ▇▇▇▇▇▇, ▇▇.
25