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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of July 20, 1998, among Eagle Geophysical, Inc., a Delaware
corporation (the "Company"), and the subsidiaries of the Company (the
"Subsidiaries") set forth in Schedule I hereto on the one hand, and Prudential
Securities Incorporated and Banc One Capital Markets, Inc. (collectively, the
"Initial Purchasers"), on the other hand.
This Agreement is made pursuant to the Purchase Agreement
dated July 15, 1998 among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $100,000,000 aggregate principal amount of the Company's 10 3/4%
Senior Notes due 2008 (the "Notes"). In order to induce the Initial Purchasers
to enter into the Purchase Agreement, the Company has agreed to provide to the
Initial Purchasers and their direct and indirect transferees and assigns the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble of this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that any such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"Exchange Notes" shall mean 10 3/4% Series B Senior Notes due 2008
issued by the Company under the Indenture containing terms identical
to the Notes (except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Notes or, if no such
interest has been paid, from July 20, 1998, (ii) the transfer
restrictions thereon shall be eliminated and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall
be eliminated) to be offered to Holders of Notes in exchange for Notes
pursuant to the Exchange Offer.
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"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Notes, and each of their successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Notes under the Indenture.
"Indenture" shall mean the Indenture relating to the Notes dated as of
July 20, 1998 among the Company, the subsidiaries of the Company
signatory thereto and Chase Bank of Texas, National Association, a
national banking association, as trustee, as the same may be amended
from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided
that whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable
Notes held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the ▇▇▇▇ ▇▇▇) (other than the Initial
Purchasers or subsequent holders of Registrable Notes if such
subsequent holders are deemed to be such affiliates solely by reason
of their holding of such Registrable Notes) shall be disregarded in
determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Notes covered by a Shelf
Registration Statement, and by all other amendments and supplements to
a prospectus, including post-effective amendments, and in each case
including all material incorporated by reference therein.
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"Purchase Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Registrable Notes" shall mean the Notes; provided, however, that the
Notes shall cease to be Registrable Notes when (i) a Registration
Statement with respect to such Notes shall have been declared
effective under the 1933 Act and such Notes shall have been disposed
of pursuant to such Registration Statement, (ii) such Notes shall
have been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii)
such Notes shall have ceased to be outstanding or (iv) such Notes have
been exchanged for Exchange Notes upon consummation of the Exchange
Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. ("NASD") registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state or other securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with state or other securities or blue sky qualification of any of the
Exchange Notes or Registrable Notes), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto, certificates representing the
Exchange Notes and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Notes on any securities exchange or exchanges,
(vi) all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vii) the reasonable fees
and disbursements of counsel for the Company and the reasonable fees
and disbursements (including the expenses of preparing and
distributing any underwriting or securities sales agreement) of one
counsel (in addition to appropriate local counsel) for the Holders
(which counsel shall be selected in writing by the Majority Holders),
(viii) the fees and expenses of the independent public accountants of
the Company, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, (ix) the fees and expenses of a "qualified independent
underwriter" as defined by Conduct Rule 2720 of the NASD (if required
by the NASD rules) in connection with the offering of the Registrable
Securities, (x) the fees and expenses of the trustee, including its
counsel, and any escrow agent or custodian, and (xi) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Notes by a Holder.
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"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the then Registrable Notes on an
appropriate form under Rule 415 under the 1933 Act, or any similar
rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the Notes and the
Exchange Notes under the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall (A) file on or prior
to the 60th calendar day following the Closing Time an Exchange Offer
Registration Statement covering the offer by the Company to the Holders of
Exchange Notes in exchange for all of the Registrable Notes, (B) use its best
efforts to cause such Exchange Offer Registration Statement to be declared
effective by the SEC on or prior to the 180th calendar day following the
Closing Time, (C) use its best efforts to cause such Exchange Offer
Registration Statement to remain effective until the closing of the Exchange
Offer and (D) use its best efforts to consummate the Exchange Offer on or prior
to the 210th calendar day following the Closing Date. Upon the effectiveness
of the Exchange Offer Registration Statement, the Company shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder (other than Participating Broker-Dealers (as defined in
Section 3(f)) eligible and electing to exchange Registrable Notes for Exchange
Notes (assuming that such Holder is not an affiliate of the Company within the
meaning of Rule 405 under the 1933 Act, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes) to trade such Exchange Notes from
and after their receipt without any limitations or restrictions under the 1933
Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States. The
Exchange Notes will be issued under the Indenture.
In connection with the Exchange Offer, the Company shall:
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(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law);
(iii) use the services of the Depositary for the Exchange
Offer with respect to Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Notes
at any time prior to the close of business, New York City time, on the
last business day on which the Exchange Offer shall remain open, by
sending to the institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Notes delivered for
exchange, and a statement that such Holder is withdrawing his election
to have such Notes exchanged; and
(v) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange Registrable Notes duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and
deliver Exchange Notes to each Holder of Registrable Notes equal in
amount to the Registrable Notes of such Holder so accepted for
exchange.
Interest on each Exchange Note will accrue from the last date
on which interest was paid on the Registrable Notes surrendered in exchange
therefor or, if no interest has been paid on the Registrable Notes, from July
20, 1998. The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of the Staff of the
SEC. Each Holder of Registrable Notes (other than Participating
Broker-Dealers) who wishes to exchange such Registrable Notes for Exchange
Notes in the Exchange Offer shall have represented that (i) any Exchange Notes
to be received by it were acquired in the ordinary course of business, (ii) at
the time of the commencement of the Exchange Offer it has no arrangement with
any person to participate in the distribution (within the meaning of the ▇▇▇▇
▇▇▇) of the Exchange Notes, (iii) it is not an affiliate (as defined in Rule
405 under the ▇▇▇▇ ▇▇▇) of the Company, or if it is an affiliate it will comply
with the registration and prospectus delivery requirements of the 1933 Act to
the extent applicable and (iv) it is not acting on behalf of any person who
could not make the representations in clauses (i) through (iii). The Company
shall inform the Initial Purchasers of
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the names and addresses of the Holders to whom the Exchange Offer is made, and
the Initial Purchasers shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in
law or applicable interpretations thereof by the Staff of the SEC, the Company
is not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, or (ii) if for any other reason the Exchange Offer cannot be
consummated within 210 calendar days following the Closing Time, or (iii) if
any Holder (other than an Initial Purchaser) is not eligible to participate in
the Exchange Offer or (iv) upon the request of any Initial Purchaser (with
respect to any Registrable Notes which it acquired directly from the Company)
following the consummation of the Exchange Offer if any such Initial Purchaser
shall hold Registrable Notes which it acquired directly from the Company and if
such Initial Purchaser is not permitted, in the opinion of counsel to such
Initial Purchaser, pursuant to applicable law or applicable interpretation of
the Staff of the SEC to participate in the Exchange Offer, the Company shall,
at its cost:
(A) as promptly as practicable, and in any event within
60 days after the date on which such filing obligation arises, file
with the SEC a Shelf Registration Statement relating to the offer and
sale of the then outstanding Registrable Notes by the Holders from
time to time in accordance with the methods of distribution elected by
the Majority Holders of such Registrable Notes and set forth in such
Shelf Registration Statement, and use its best efforts to cause such
Shelf Registration Statement to be declared effective by the SEC on or
prior to 45 days after the date on which such filing occurs.
(B) use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
after the Closing Time or such shorter period which will terminate
when all of the Registrable Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
or all of the Registrable Notes become eligible for resale pursuant to
Rule 144 under the 1933 Act without volume restrictions; and
(C) notwithstanding any other provisions hereof, use its
best efforts to ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming a part thereof and
any supplement thereto complies in all material respects with the 1933
Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to
time), does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use all
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reasonable efforts to cause any such amendment to become effective and such
Shelf Registration to become usable as soon as practicable thereafter and to
furnish to the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) and 2(b).
Each Holder shall pay all expenses of its counsel other than as set forth in
the preceding sentence, underwriting discounts and commissions (prior to the
reduction thereof with respect to selling concessions, if any) and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Notes pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company
will be deemed not to have used its best efforts to cause a Registration
Statement to become, or to remain, effective during the requisite period if the
Company voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable Notes
covered thereby not being able to exchange or offer and sell such Registrable
Notes during that period unless (A) such action is required by applicable law
or (B) such action is taken by the Company in good faith and for valid business
reasons (but not including avoidance of the Company's obligations hereunder),
including a material corporate transaction, so long as the Company promptly
complies with the requirements of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable
Notes pursuant to a Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, such Registration Statement will
be deemed not to have been effective during the period of such
interference, until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that either
(i) the Exchange Offer Registration Statement is not filed with the Commission
on or prior to the 60th calendar day following the Closing Time, or (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 180th calendar day following the Closing Time, or (iii) the Exchange Offer
is not consummated on or prior to the 210th calendar day following the Closing
Time or a Shelf Registration Statement with respect to the Registrable Notes is
not declared effective on or prior to the 210th calendar day following the
Closing Time, or (iv) either (A) the Exchange Offer Registration Statement
ceases to be effective at any time prior to the time that the Exchange Offer is
consummated or (B) if applicable, the Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to be effective
at any time prior to the second anniversary of the Closing Time, the interest
rate borne by the Notes shall be increased by 25 basis points per annum
following such 60-day period in the case of clause (i) above, following such
180-day period in the case of clause (ii) above, following such 30-day period
in the case of clause (iii) above, or immediately in the case of clause (iv)
above, which rate will be
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increased by an additional 25 basis points per annum for each 30-day period
that any such additional interest continues to accrue in the case of clauses
(i), (ii) and (iii) above or for each 90-day period that any such additional
interest continues to accrue in the case of clause (iv) above, provided that
the aggregate per annum increase in such interest rate will in no event exceed
150 basis points. Upon (x) the filing of the Exchange Offer Registration
Statement after the 60-day period described in clause (i) above, (y) the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 210-day period described in clause
(iii) above, as the case may be, or (z) the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement following an event
described in clause (iv) above, the interest rate borne by the Notes from the
date of such filing, effectiveness or consummation, as the case may be, will be
reduced to the original interest rate if the Company is otherwise in compliance
with this paragraph; provided, however, that, if after any such reduction in
interest rate, a different event specified in clauses (i), (ii), (iii) or (iv)
above occurs, the interest rate will again be increased and thereafter reduced
pursuant to the foregoing conditions. If the Company issues a notice that the
Shelf Registration Statement is unusable pending the announcement of a material
corporate transaction or otherwise pursuant to Section 3(k) hereof, or such a
notice is required under applicable securities laws to be issued by the
Company, and the aggregate number of days in any consecutive twelve-month
period for which all such notices are issued or required to be issued exceeds
30 days in the aggregate, then the interest rate borne by the Notes will be
increased by 25 basis points per annum following the date that such Shelf
Registration Statement ceases to be usable beyond the 30-day period permitted
above, which rate shall be increased by an additional 25 basis points per annum
for each 90-day period that such additional interest continues to accrue;
provided that the aggregate increase in such annual interest rate may in no
event exceed 150 basis points. Upon the Company declaring that the Shelf
Registration Statement is usable after the interest rate has been increased
pursuant to the preceding sentence, the interest rate borne by the Notes will
be reduced to the original interest rate if the Company is otherwise in
compliance with this paragraph; provided, however, that if after any such
reduction in interest rate the Shelf Registration Statement again ceases to be
usable beyond the period permitted above, the interest rate will again be
increased and thereafter reduced pursuant to the foregoing provisions.
(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by the Company to comply with its respective obligations
under Sections 2(a) and 2(b) hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce
the Company's obligations under Sections 2(a) and 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, with
in the time period specified in Section 2, on the
appropriate form under the 1933 Act,
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which form (i) shall be selected by the Company, (ii)
shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by
the selling Holders thereof and (iii) shall comply as
to form in all material respects with the
requirements of the applicable form and include or
incorporate by reference all financial statements
required by the SEC to be filed therewith, and use
its best efforts to cause such Registration Statement
to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to (i) the Exchange Offer
Registration Statement as may be necessary under
applicable law to keep such Exchange Offer
Registration Statement effective for the period
required to comply with Section 2(a) (except to the
extent the Company is unable to consummate the
Exchange Offer and the Company complies with Section
2(b), subject in all respects to Section 3(f)
hereof), and (ii) the Shelf Registration Statement as
may be necessary under applicable law to keep such
Shelf Registration Statement effective for the period
required pursuant to Section 2(b) hereof; cause each
Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered
by each Registration Statement during the applicable
period in accordance with the intended method or
methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Notes, at least ten days prior
to filing, that a Shelf Registration Statement with
respect to the Registrable Notes is being filed and
advising such Holders that the distribution of
Registrable Notes will be made in accordance with the
method elected by the Majority Holders; and (ii)
furnish to each Holder of Registrable Notes, to
counsel for the Initial Purchasers, to counsel for
the Holders and to each underwriter of an
underwritten offering of Registrable Notes, if any,
without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any
amendment or supplement thereto and such other
documents as such Holder or underwriter may
reasonably request, including financial statements
and schedules and, if the Holder so requests, all
exhibits (including those incorporated by reference)
in order to facilitate the public sale or other
disposition of the Registrable Notes; and (iii)
subject to the last paragraph of Section 3, hereby
consent to the use of the Prospectus, including each
preliminary Prospectus, or any amendment or
supplement thereto by each of the selling Holders of
Registrable Notes in connection with the offering and
sale of the Registrable Notes covered by the
Prospectus or any amendment or supplement thereto;
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(d) use its best efforts to register or qualify the
Registrable Notes under all applicable state
securities or "blue sky" laws of such jurisdictions
as any Holder of Registrable Notes covered by a
Registration Statement and each underwriter of an
underwritten offering of Registrable Notes shall
reasonably request by the time the applicable
Registration Statement is declared effective by the
SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, keep
each such registration or qualification effective
during the period such Registration Statement is
required to be effective and do any and all other
acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such
Registrable Notes owned by such Holder; provided,
however, that the Company shall not be required to
(i) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section
3(d) or (ii) take any action which would subject it
to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Notes and counsel for such
Holders promptly and, if requested by such Holder or
counsel, confirm such advice in writing promptly (i)
when a Registration Statement has become effective
and when any post-effective amendments and
supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority
for post-effective amendments and supplements to a
Registration Statement and Prospectus or for
additional information after the Registration
Statement has become effective, (iii) of the issuance
by the SEC or any state securities authority of any
stop order suspending the effectiveness of a
Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the
closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the
Company contained in any underwriting agreement,
securities sales agreement or other similar
agreement, if any, relating to such offering cease to
be true and correct in all material respects, (v) of
the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf
Registration Statement is effective which makes any
statement made in such Shelf Registration Statement
or the related Prospectus untrue in any material
respect or which requires the making of any changes
in such Shelf Registration Statement or Prospectus in
order to make the statements therein not misleading
and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement
would be appropriate;
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(f) (A) in the case of the Exchange Offer, (i) include in
the Exchange Offer Registration Statement a "Plan of
Distribution" section covering the use of the
Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have
exchanged their Registrable Notes for Exchange Notes
for the resale of such Exchange Notes, (ii) furnish
to each broker-dealer who desires to participate in
the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto,
as such broker-dealer may reasonably request, (iii)
include in the Exchange Offer Registration Statement
a statement that any broker-dealer who holds
Registrable Notes acquired for its own account as a
result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who
receives Exchange Notes for Registrable Notes
pursuant to the Exchange Offer, may be a statutory
underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any
resale of such Exchange Notes, (iv) subject to the
last paragraph of Section 3, hereby consent to the
use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or
supplement thereto, by any broker-dealer in
connection with the sale or transfer of the Exchange
Notes covered by the Prospectus or any amendment or
supplement thereto, and (v) include in the
transmittal letter or similar documentation to be
executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following
provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the
undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Registrable Notes,
it represents that the Registrable Notes to be exchanged for
Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and
acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Notes pursuant to the Exchange Offer; however,
by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act"; and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in subclause (x) and by delivering a Prospectus in connection with
the exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(B) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company shall use its best efforts to cause to
be delivered at the request of an entity representing the
Participating Broker-Dealers (which entity shall be one of the Initial
Purchasers, unless it elects not to act as such representative) only
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one, if any, "cold comfort" letter with respect to the Prospectus in
the form existing on the last date for which exchanges are accepted
pursuant to the Exchange Offer and with respect to each subsequent
amendment or supplement, if any, effected during the period specified
in clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company shall use its best efforts to
maintain the effectiveness of the Exchange Offer Registration
Statement for a period of 180 days following the closing of the
Exchange Offer and make available the Prospectus to any Participating
Broker-Dealer; and
(D) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as
would otherwise be contemplated by Section 3(b), or take any other
action as a result of this Section 3(f), for a period exceeding 180
days after the last date for which exchanges are accepted pursuant to
the Exchange Offer (as such period may be extended by the Company) and
Participating Broker-Dealers shall not be authorized by the Company
to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3.
(g) (A) in the case of an Exchange Offer, furnish
counsel for the Initial Purchasers and (B) in the
case of a Shelf Registration, furnish counsel for the
Holders of Registrable Notes copies of any request by
the SEC or any state securities authority for
amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a
Registration Statement as soon as practicable and
provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Notes, without charge, at least
one conformed copy of each Registration Statement and
any post-effective amendment thereto (without
documents incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Notes to
facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be
sold and not bearing any restrictive legends; and
cause such Registrable Notes to be in such
denominations (consistent with the provisions of the
Indenture) and registered in such names as the
selling Holders or the underwriters, if any, may
reasonably request at least one business day prior to
the closing of any sale of Registrable Notes;
(k) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any
facts, each as contemplated by Section 3(e)(vi)
hereof,
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use its best efforts to prepare a supplement or
post-effective amendment to a Registration Statement
or the related Prospectus or any document
incorporated therein by reference or file any other
required document so that, as thereafter delivered to
the purchasers of the Registrable Notes, such
Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in light of the circumstances
under which they were made, not misleading. The
Company agrees to notify each Holder to suspend use
of the Prospectus as promptly as practicable after
the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until
the Company has amended or supplemented the
Prospectus to correct such misstatement or omission.
At such time as such public disclosure is otherwise
made or the Company determines that such disclosure
is not necessary, in each case to correct any
misstatement of a material fact or to include any
omitted material fact, the Company agrees promptly to
notify each Holder of such determination and to
furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such
Holder may reasonably request;
(l) obtain a CUSIP number for all Exchange Notes, or
Registrable Notes, as the case may be, not later than
the effective date of a Registration Statement, and
provide the Trustee with printed certificates for the
Exchange Notes or the Registrable Notes, as the case
may be, in a form eligible for deposit with the
Depositary;
(m) (i) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"),
in connection with the registration of the Exchange
Notes, or Registrable Notes, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with
the terms of the TIA and (iii) execute, and use its
best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes,
and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and
take all other customary and appropriate actions
(including those reasonably requested by the Majority
Holders) in order to expedite or facilitate the
disposition of such Registrable Notes and in such
connection whether or not an underwriting agreement
is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties to
the Holders of such Registrable Notes and the
underwriters, if any, in form, substance and
scope as are customarily made by issuers to
underwriters in similar underwritten
offerings as may be reasonably requested by
them;
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(ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions
(in form, scope and substance) shall be
reasonably satisfactory to the managing
underwriters, if any, and the holders of a
majority in principal amount of the
Registrable Notes being sold) addressed to
each selling Holder and the underwriters, if
any, covering the matters customarily covered
in opinions requested in sales of securities
or underwritten offerings;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent
certified public accountants addressed to the
underwriters, if any, and use best efforts to
have such letters addressed to the selling
Holders of Registrable Notes, such letters to
be in customary form and covering matters of
the type customarily covered in "cold
comfort" letters to underwriters in
connection with similar underwritten
offerings;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders
providing for, among other things, the
appointment of such agent for the selling
Holders for the purpose of soliciting
purchases of Registrable Notes, which
agreement shall be in form, substance and
scope customary for similar offerings; and
(v) deliver such documents and certificates as
may be reasonably requested and as are
customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Shelf
Registration Statement (and, if appropriate, each post-effective
amendment thereto) and (ii) each closing under any underwriting or
similar agreement as and to the extent required thereunder. In the
case of any underwritten offering, the Company shall provide written
notice to the Holders of all Registrable Notes of such underwritten
offering at least 30 days (or such shorter, reasonable time period as
is practicable) prior to the filing of a prospectus supplement for
such underwritten offering. Such notice shall (x) if satisfactory to
the investment banker or manager of such underwritten offering, offer
each such Holder the right to participate in such underwritten
offering, (y) specify a date, which shall be no earlier than 10 days
following the date of such notice, by which such Holder must inform
the Company of its intent to participate in such underwritten offering
and (z) include the instructions such Holder must follow in order to
participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available
for inspection by representatives of the Holders of
the Registrable Notes and any underwriters
participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant
retained by such Holders or underwriters, at
reasonable times and in a reasonable manner,
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all financial and other records, pertinent corporate
documents and properties of the Company reasonably
requested by any such persons, and cause the
respective officers, directors, employees, and any
other agents of the Company to supply all information
reasonably requested by any such representative,
underwriter, special counsel or accountant in
connection with such Shelf Registration Statement,
provided, however, that such Persons shall first
agree in writing with the Company that any
information that is reasonably and in good faith
designated by the Company in writing as confidential
at the time of delivery of such information shall be
kept confidential by such Persons, unless (i)
disclosure of such information is required by court
or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any
disclosure requirements pursuant to Federal
securities laws in connection with the filing of such
Shelf Registration Statement or the use of any
Prospectus), (iii) such information becomes generally
available to the public other than as a result of a
disclosure or failure to safeguard such information
by such Person or (iv) such information becomes
available to such Person from a source other than the
Company and its subsidiaries and such source is not
bound by a confidentiality agreement; provided,
further, that the foregoing investigation shall be
coordinated on behalf of the Holders by one
representative designated by and on behalf of such
Holders and any such confidential information shall
be available from such representative to such Holders
so long as any Holder agrees to be bound by such
confidentiality agreement;
(p) (i) a reasonable time prior to the filing of any
Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange
Offer Registration Statement or amendment or
supplement to a Prospectus, provide copies of such
document to the Initial Purchasers, and make such
changes in any such document prior to the filing
thereof as any of the Initial Purchasers or their
counsel may reasonably request; (ii) in the case of a
Shelf Registration, a reasonable time prior to filing
any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to
such Prospectus, provide copies of such document to
the Holders of Registrable Notes, to the Initial
Purchasers, to counsel on behalf of the Holders and
to the underwriter or underwriters of an underwritten
offering of Registrable Notes, if any, and make such
changes in any such document prior to the filing
thereof as the Holders of Registrable Notes, the
Initial Purchasers on behalf of such Holders, their
counsel and any underwriter may reasonably request;
and (iii) cause the representatives of the Company to
be available for discussion of such document as shall
be reasonably requested by the Holders of Registrable
Notes, the Initial Purchasers on behalf of such
Holders or any underwriter and shall not at any time
make any filing of
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any such document of which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel
or any underwriter shall not have previously been
advised and furnished a copy or to which such
Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall
reasonably object, each of which actions in this
clause (iii) by the Holders shall be coordinated by
one representative for all the Holders at reasonable
times and in a reasonable manner;
(q) in the case of a Shelf Registration, use its best
efforts to cause all Registrable Securities to be
listed on any securities exchange on which similar
debt securities issued by the Company are then listed
if requested by the Majority Holders or by the
underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;
(r) in the case of a Shelf Registration, unless the
rating in effect for the Notes applies to the
Exchange Notes and the Notes to be sold pursuant to a
Shelf Registration, use its best efforts to cause the
Registrable Notes to be rated with the appropriate
rating agencies, if so requested by the Majority
Holders or by the underwriter or underwriters of an
underwritten offering of Registrable Notes, if any,
unless the Registrable Notes are already so rated;
(s) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make
available to its security holders, as soon as
reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule
158 thereunder; and
(t) cooperate and assist in any filings required to be
made with the NASD.
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Notes to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Notes and make such representations, in each case, as the
Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of
any event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Notes current at the time of receipt of
such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes pursuant to a Shelf Registration Statement as
a result of the happening of any event or the discovery of any facts, each of
the kind described in
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Section 3(e)(vi) hereof, the Company shall be deemed to have used its best
efforts to keep the Shelf Registration Statement effective during such period
of suspension provided that the Company shall use its best efforts to file and
have declared effective (if an amendment) as soon as practicable an amendment
or supplement to the Shelf Registration Statement and shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including
the date of the giving of such notice to and including the date when the
Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions.
4. Underwritten Registrations. If any of the
Registrable Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Majority
Holders of such Registrable Notes included in such offering and shall be
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution. (a) The Company
and each Subsidiary, jointly and severally, agree to indemnify and hold
harmless each Holder and each person, if any, who controls any Holder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any losses, claims, damages or liabilities, joint or several, to which such
Holder or such controlling person may become subject under the 1933 Act, the
1934 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by the Company in Section 1 of the Purchase Agreement,
(ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) any Registration Statement or
Prospectus or any amendment or supplement thereto or (B) any
application or other document, or any amendment or supplement thereto,
executed by the Company or based upon written information furnished by
or on behalf of the Company filed in any jurisdiction in order to
qualify the Registrable Notes or Exchange Notes under the securities
or blue sky laws thereof or filed with the SEC or any securities
association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in any
Registration Statement or Prospectus or any amendment or supplement
thereto, or any Application a material fact required to be stated
therein or necessary to make the statements therein not misleading or
(iv) any untrue statement or alleged untrue statement of
any material fact contained in any audio or visual materials used by
the Company in connection with the
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marketing of the Registrable Notes or Exchange Notes, including
without limitation, slides, videos, films and tape recordings,
and will reimburse, as incurred, each Holder and each such controlling person
for any legal or other expenses reasonably incurred by such Holder or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company and each
Subsidiary, jointly and severally, will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any Registration Statement or Prospectus or any amendment or
supplement thereto or any Application in reliance upon and in conformity with
written information relating to any Holder furnished to the Company by such
Holder specifically for use therein. This indemnity agreement will be in
addition to any liability which the Company and each Subsidiary, jointly and
severally, may otherwise have. The Company will not, without the prior written
consent of each Holder, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
Holder or any person who controls any such Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act is a party to such claim,
action, suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of all of such Holders and such controlling
persons from all liability arising out of such claim, action, suit or
proceeding.
(b) Each Holder, severally and not jointly, agrees, by
acquiring any Notes, to indemnify and hold harmless the Company, each of its
directors, each of its executive officers and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any losses, claims, damages or liabilities to which the
Company, any such director, officer or controlling person may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement or Prospectus or any amendment or supplement
thereto or any Application or (ii) the omission or alleged omission to state
therein a material fact required to be stated in any Registration Statement or
Prospectus or any amendment or supplement thereto, or any Application or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information relating to any Holder furnished to the
Company by such Holder specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating
or defending any such loss, claim, damage, liability or any action in respect
thereof. This indemnity agreement will be in addition to any liability which
such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the
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indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 5. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be one or more legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof and approval by
such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by such Holder in the
case of paragraph (a) of this Section 5, representing the indemnified parties
under such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 5 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
(i) the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party on the other from the offering of the
Securities or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
or alleged statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company and each Subsidiary on the one hand and the Initial Purchasers on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering
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(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Holder. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or such Holder, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in
the circumstances. The Company, each Subsidiary and each Holder agree that it
would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation or by any other method of allocation that
does not take into account the equitable considerations referred to above in
this paragraph (d). Notwithstanding any other provision of this paragraph (d),
no Holder shall be obligated to make contributions hereunder that in the
aggregate exceed the total public offering price of the Securities purchased by
such Holder under this Agreement, less the aggregate amount of any damages
that such Holder has otherwise been required to pay in respect of the same or
any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls a Holder within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as
such Holder, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, shall have the same rights to contribution as the Company.
(e) The parties to this Agreement hereby acknowledge that they
are sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions of this Agreement, including, without
limitation, the provisions of this Section 5, and are fully informed regarding
said provisions. They further acknowledge that the provisions of this Section
5 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Offering Memorandum as required by the ▇▇▇▇ ▇▇▇. The
parties are advised that federal or state policy, as interpreted by the courts
in certain jurisdictions, may be contrary to certain provisions of this Section
5, and the parties hereto hereby expressly waive and relinquish any right or
ability to assert such public policy as a defense to a claim under this Section
5 and further agree not to attempt to assert any such defense.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long
as the Company is subject to the reporting requirements of Section 13 or 15 of
the 1934 Act, the Company covenants that it will file the reports required to
be filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. The Company further covenants that
if it ceases to be so required to file such reports, it will upon the request
of any Holder of Registrable Notes (i) make publicly available such information
as is necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii)
deliver such information to a prospective purchaser as is necessary to permit
sales pursuant to Rule 144A under the 1933 Act and it will take such further
action as any Holder of Registrable Notes may reasonably request, and (iii)
take such further action that is reasonable in the circumstances, in each case,
to the extent required from time to time to enable such Holder to sell its
Registrable Notes without
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registration under the 1933 Act within the limitation of the exemptions
provided by (x) Rule 144 under the 1933 Act, as such Rule may be amended from
time to time, (y) Rule 144A under the 1933 Act, as such Rule may be amended
from time to time, or (z) any similar rules or regulations hereafter adopted by
the SEC. Upon the request of any Holder of Registrable Notes, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
(a) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the Holders
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or departure; provided, however, that no amendment,
modification, supplement or waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder (other than an Initial Purchaser), at the most
current address set forth on the records of the Registrar under the Indenture,
(ii) if to an Initial Purchaser, at the most current address given by such
Initial Purchaser to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement; and (iii) if to the Company, initially at the
Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee,
at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the need for
an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms hereof or of the Purchase
Agreement or the
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Indenture. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this
Agreement and, if applicable, the Purchase Agreement, and such Person shall be
entitled to receive the benefits hereof.
(e) Third Party Beneficiary. Each of the Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PROVISIONS.
(i) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EAGLE GEOPHYSICAL, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
Officer and Secretary
EAGLE GEOPHYSICAL ONSHORE, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EAGLE GEOPHYSICAL GOM, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EAGLE GEOPHYSICAL OFFSHORE, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EAGLE GEOPHYSICAL LEASING, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
Title: Vice President
EAGLE GEOPHYSICAL DE MEXICO, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ SERVICES, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EAGLE GEOPHYSICAL MANAGEMENT, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EAGLE FRONT END SERVICES, LTD.
By: Eagle Geophysical Management, Inc.,
its General Partner
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
AUSTRAL HORIZON, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ATLANTIC HORIZON, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EAGLE GEOPHYSICAL DE COLOMBIA, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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Confirmed and accepted as of
the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Authorized Signatory
BANC ONE CAPITAL MARKETS, INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Authorized Signatory
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SCHEDULE I
Certain Subsidiaries of the Company
Subsidiary: Formed In:
---------- ---------
Eagle Geophysical Onshore, Inc. Delaware
Eagle Geophysical GOM, Inc. Texas
Eagle Geophysical Offshore, Inc Delaware
Eagle Geophysical Leasing, Inc. Delaware
Eagle Geophysical de Mexico, Inc Delaware
Eagle Front End Services, Inc Delaware
Eagle Geophysical Management, Inc. Delaware
Eagle Front End Services, Ltd. Texas
Austral Horizon, Inc. Delaware
Atlantic Horizon, Inc. Delaware
Eagle Geophysical de Colombia, Inc. Delaware
Sch-1