UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. ______________*
COMPAGNIE GENERALE DE GEOPHYSIQUE
- ------------------------------------------------------------------------------
(Name of Issuer)
ORDINARY SHARES OF NOMINAL VALUE FF 10 EACH
- ------------------------------------------------------------------------------
(Title of Class of Securities)
[NONE]**
--------------------------------------------------------------------
(CUSIP Number)
CHARLES M. NATHAN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
- ------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
DECEMBER 13, 1999
--------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of ss. ss. 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See ss.240.13d-7 for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
- ------------------------------------
** The CUSIP Number for the American Depositary Shares, each representing
one fifth of one Ordinary Share of nominal value FF 10 each, is 204386106.
<PAGE>
13D
CUSIP No. None Page 2 of 11 Pages
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
ENERGY FUND II GP, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,777,071
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 1,777,071
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,777,071
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.17%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
13D
CUSIP No. None Page 3 of 11 Pages
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
BEACON ENERGY INVESTORS II, LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,777,071
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 1,777,071
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,777,071
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.17%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
13D
CUSIP No. None Page 4 of 11 Pages
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
THE BEACON GROUP ENERGY INVESTMENT FUND II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,748,620
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 1,748,620
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,748,620
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.86%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
13D
CUSIP No. None Page 5 of 11 Pages
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
CGG INVESTORS LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,748,620
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 1,748,620
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,748,620
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.86%
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
13D
CUSIP No. None Page 6 of 11 Pages
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
GF LTD. TRANSACTION PARTNERSHIP, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 28,451
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 28,451
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
28,451
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.31%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the Ordinary Shares of nominal value FF
10 each (the "Ordinary Shares") of Compagnie Generale de Geophysique, a
company organized under the laws of the Republic of France (the "Issuer").
The principal executive offices of the Issuer are located at 1, rue Leon
Migaux, 91341 Massy, France.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed by Energy Fund II GP, LLC, Beacon Energy
Investors II, LP, The Beacon Group Energy Investment Fund II, L.P., CGG
Investors LLC and GF Ltd. Transaction Partnership, L.P. (collectively the
"Reporting Persons").
(a) -- (b)The information required to be filed in response to
paragraphs (a) and (b) of Item 2 with respect to the Reporting Persons is
set forth on Schedule I.
(c) The information required to be filed in response to paragraph (c)
of Item 2 with respect to the Reporting Persons is as follows:
1. Energy Fund II GP, LLC is the general partner of Beacon
Energy Investors II, LP The principal business of Energy
Fund II GP, LLC is to serve as general partner of Beacon
Energy Investors II, LP. The Beacon Group, LLC is the sole
member of Energy Fund II GP, LLC.
2. Beacon Energy Investors II, LP is the general partner of GF
Ltd. Transaction Partnership, L.P. and the general partner
of The Beacon Group Energy Investment Fund II, L.P. The
principal business of Beacon Energy Investors II, LP is to
serve as general partner of GF Ltd. Transaction Partnership,
L.P. and general partner of The Beacon Group Energy
Investment Fund II, L.P.
3. The Beacon Group Energy Investment Fund II, L.P. is the
managing member of CGG Investors LLC and is principally
engaged in making investments.
4. CGG Investors LLC is principally engaged in holding an
investment interest in the Issuer.
5. GF Ltd. Transaction Partnership, L.P. is principally engaged
in making investments.
(d) During the last five years, none of the Reporting Persons have
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) During the last five years, none of the Reporting Persons have
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which any of such person was or is
subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws of finding any violation with respect to such laws.
(f) The information required to be filed in response to paragraph (f)
of Item 2 with respect to the Reporting Persons is set forth on Schedule I.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Reporting Persons acquired beneficial ownership of an aggregate of
1,777,071 Ordinary Shares for an aggregate amount of $81,780,000. All the
funds required for the purchases came from capital contributions from the
investors in The Beacon Group Energy Investment Fund II, L.P. and GF Ltd.
Transaction Partnership, L.P.
ITEM 4. PURPOSE OF THE TRANSACTION.
The Reporting Persons acquired the Ordinary Shares reported herein
solely for the purpose of investment. The Reporting Persons may make
additional purchases or dispositions of Ordinary Shares either in the open
market or in private transactions depending on the Issuer's business,
prospects and financial condition, the market for the Ordinary Shares,
general economic conditions, money and stock market conditions and other
future developments.
The Subscription Agreement, dated as of October 23, 1999, between The
Beacon Group Energy Investment Fund II, L.P. and the Company, pursuant to
which The Beacon Group Energy Investment Fund II, L.P. agreed to purchase
from the Company, and the Company agreed to sell to The Beacon Group Energy
Investment Fund II, L.P., the Ordinary Shares, requires the Company to use
its best efforts to cause two individuals that have been previously agreed
upon by The Beacon Group Energy Investment Fund II, L.P. and the Company to
be nominated by the board of directors of the Company for purposes of
election by the shareholders to the Company board of directors. [Such
individuals have been elected to the Company's board of directors.]
The foregoing description of the Subscription Agreement is not
intended to be complete and is qualified in its entirety by the complete
text of such Subscription Agreement, all of which is incorporated herein by
reference. The Subscription Agreement is filed as Exhibit 1 hereto.
Except as disclosed in this Item 4, none of the Reporting Persons have
any plans or proposals which relate to or would result in the transactions
listed in paragraphs (a) - (i) of Item 4.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The aggregate number and percentage of the Ordinary Shares
beneficially owned by each of the Reporting Persons are set forth on the
cover pages of this Statement on Schedule 13D, and such information is
incorporated herein by reference.
(b) The number of Ordinary Shares as to which there is sole power to
vote or to direct the vote, sole power to dispose or to direct the
disposition, or shared power to dispose or direct the disposition for the
Reporting Persons is set forth on the cover pages of this Statement on
Schedule 13D, and such information is incorporated herein by reference.
(c) There have been no reportable transactions with respect to the
Ordinary Shares within the last 60 days by each of the Reporting Persons
except for the acquisition of beneficial ownership of Ordinary Shares being
reported on this Schedule 13D.
(d) The investors in The Beacon Group Energy Investment Fund II, L.P.
and GF Ltd. Transaction Partnership, L.P. have the right to receive
dividends from, and the proceeds from the sale of, the respective Ordinary
Shares reported by such persons on the cover pages of this Statement on
Schedule 13D. No such investor has such right with respect to more than 5%
of the Ordinary Shares.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Concurrently with the purchase of the securities reported hereunder,
the Issuer and The Beacon Group Energy Investment Fund II, L.P. entered
into a Registration Rights Agreement, dated December 13, 1999 (the
"Registration Rights Agreement"). Pursuant to the Registration Rights
Agreement, among other things, the Issuer has granted to The Beacon Group
Energy Investment Fund II, L.P. demand rights to cause the Issuer to
register under the Securities Act of 1933, as amended, the Ordinary Shares
held by The Beacon Group Energy Investment Fund II, L.P. and its
affiliates, and unlimited "piggyback" registration rights (in each case
subject to certain limitations).
The foregoing description of the Registration Rights Agreement is not
intended to be complete and is qualified in its entirety by the complete
text of such Registration Rights Agreement, all of which is incorporated
herein by reference. The Registration Rights Agreement is filed as Exhibit
2 hereto.
The Reporting Persons have entered into an Agreement of Joint Filing
(the "Agreement of Joint Filing"), dated as of the date hereof, pursuant to
which the parties thereto have agreed to file jointly this Schedule 13D.
The foregoing description of the Agreement of Joint Filing is not
intended to be complete and is qualified in its entirety by the complete
text of such Agreement of Joint Filing, all of which is incorporated herein
by reference. The Agreement of Joint Filing is filed as Exhibit 3 hereto.
Except as disclosed in this Item 6, none of the Reporting Persons,
nor, to the best of their knowledge, any of their directors or executive
officers, are parties to any contract, arrangement, understanding or
relationship (legal or otherwise) with respect to the securities of the
Issuer.
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
1 Subscription Agreement, dated as of October 23, 1999 by and
between Compagnie Generale de Geophysique and The Beacon Group
Energy Investment Fund II, L.P.
2 Registration Rights Agreement, dated December 13, 1999 by and
between Compagnie Generale de Geophysique and The Beacon Group
Energy Investment Fund II, L.P.
3 Agreement of Joint Filing
4 Power of Attorney
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: February 4, 2000
ENERGY FUND II GP, LLC
By: /s/ John J. MacWilliams
----------------------------------------
Authorized Signatory*
BEACON ENERGY INVESTORS II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
-------------------------------------
Authorized Signatory*
THE BEACON GROUP ENERGY INVESTMENT FUND II, L.P.
By: Beacon Energy Investors II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
----------------------------
Authorized Signatory*
CGG INVESTORS LLC
By: The Beacon Group Energy Investment Fund II, L.P.
By: Beacon Energy Investors II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
---------------------------
Authorized Signatory*
GF LTD. TRANSACTION PARTNERSHIP, L.P.
By: Beacon Energy Investors II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
-----------------------------
Authorized Signatory*
- -----------------------
* A Power of Attorney authorizing John MacWilliams to act on behalf of Energy
Fund II GP, LLC is filed herewith as Exhibit 4.
<PAGE>
SCHEDULE I
STATE OF
NAME INCORPORATION BUSINESS ADDRESS
---- ------------- ----------------
The Beacon Group, LLC Delaware 399 Park Avenue
New York, New York 10022
Beacon Energy Investors Delaware 399 Park Avenue
II GP, LLC New York, New York 10022
Beacon Energy Delaware 399 Park Avenue
Investors II, LP New York, New York 10022
The Beacon Group Energy Delaware 399 Park Avenue
Investment Fund II, L.P. New York, New York 10022
CGG Investors LLC Delaware 1717 South Boulder Avenue
Tulsa, Oklahoma 74119
GF Ltd. Transaction Delaware 1717 South Boulder Avenue
Partnership, L.P. Tulsa, Oklahoma 74119
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
1 Subscription Agreement, dated as of October 23, 1999 by and
between Compagnie Generale de Geophysique and The Beacon Group
Energy Investment Fund II, L.P.
2 Registration Rights Agreement, dated December 13, 1999 by and
between Compagnie Generale de Geophysique and The Beacon Group
Energy Investment Fund II, L.P.
3 Agreement of Joint Filing
4 Power of Attorney
EXHIBIT 1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made as of October 23,
1999, by and between Compagnie Generale de Geophysique, a French societe
anonyme (the "Company"), and The Beacon Group Energy Investment Fund II,
L.P., a Delaware limited partnership (the "Purchaser").
WITNESSETH:
WHEREAS, the Company wishes to sell to the Purchaser and the Purchaser
wishes to purchase from the Company newly issued ordinary shares of the
Company upon the terms and conditions set forth herein.
ACCORDINGLY, the parties hereto hereby agree as follows:
ARTICLE 1
---------
SUBSCRIPTION FOR ORDINARY SHARES
1.1 Issuance and Sale of Shares
---------------------------
Subject to the terms and conditions set forth herein, the Company agrees to
issue to the Purchaser on the Closing Date (as hereinafter defined) a
number of its ordinary shares, par value FRF 10 per share (the "Shares"),
determined by multiplying (x) the amount (rounded to the fourth decimal
point) determined by dividing the euro equivalent of USD 87,000,000 (the
"Initial Subscription Amount") calculated at the noon buying rate as quoted
by the Federal Reserve Bank of New York on the Business Day immediately
preceding the Closing Date by the arithmetic average of the Market Price
per share of the Company's ordinary shares on each of the 20 Trading Days
immediately prior to the date hereof by (y) the amount determined by
dividing (i) the sum of the arithmetic average of the Market Price per
share of the Company's ordinary shares, ex-droit preferentiel de
souscription ("DPS"), and the arithmetic average of the Market Price per
DPS of the Company's DPSs, in each case on each of the Trading Days
included within the subscription period for the Rights Offering (as defined
in Article 5.4) during which the ordinary shares, ex-DPS, and the DPSs are
simultaneously listed (the "Subscription Period") by (ii) the arithmetic
average of the Market Price per share of the Company's ordinary shares,
ex-DPS, on each of the Trading Days included within the Subscription
Period, rounded up to the nearest whole share. The subscription price per
Share including the issuance premium (prime d'emission) thereof (the
"Subscription Price") shall be determined by dividing the Initial
Subscription Amount by the number of Shares to be issued by the Company
pursuant to the previous sentence, rounded to the nearest euro cent. For
purposes of this Article 1.1, "Market Price" means the closing price (cours
de cloture) of the Company's ordinary shares or droits preferentiels de
souscription ("DPSs"), as applicable, on the Trading Day concerned as
published by ParisBourseSBF S.A. (the "Paris Bourse") in La Cote
Officielle, and "Trading Day" means a day on which the Paris Bourse is open
for the general trading of securities.
Issuance and Sale of Additional Shares
--------------------------------------
Subject to the terms and conditions set forth herein, at the option of the
Purchaser as notified to the Company in writing at least two Business Days
prior to the Closing Date, the Purchaser may purchase on the Closing Date
up to an additional number of the Company's ordinary shares, par value FRF
10 per share, determined by dividing the difference, if positive, between
90,000,000 euros and the gross proceeds before underwriters' fees and
commissions received by the Company pursuant to the Rights Offering, up to
a maximum of 15,000,000 euros (the "Additional Subscription Amount"), by
the Subscription Price (the "Additional Shares"). The notice provided by
the Purchaser to the Company pursuant to this Article 1.2 shall set forth
the number of Additional Shares the Purchaser shall so purchase. The
definition of "Shares" shall include the Additional Shares for all purposes
of this Agreement, other than Article 1.1 hereof; it being understood that
the total number of Shares issued pursuant to Sections 1.1 and 1.2 shall
not exceed 1,875,000.
1.3 Closing Date
------------
The closing of the subscription for the Shares (the "Closing") shall take
place at 10:00 a.m. Paris time on the Business Day following the date on
which the last condition precedent set forth in Articles 4.1 and 4.2 shall
have been satisfied or waived, at the offices of Fried, Frank, Harris,
Shriver & Jacobson, 7 rue Royale, 75008 Paris, France, or at such other
time and place as the parties hereto shall agree in writing. The date of
the Closing is hereinafter referred to as the "Closing Date".
1.4 Closing Deliveries
------------------
On the Closing Date, the Purchaser shall execute a subscription form
(bulletin de souscription) in the form attached as Exhibit A hereto and
shall pay by way of wire transfer to the account of the Company notified to
the Purchaser in writing at least three Business Days prior to the Closing
(the "Company Bank Account") at the bank, acting as depositary with respect
to the issuance of the Shares (the "Bank"), the subscription price for the
Shares. Upon evidence of such wire transfer and issuance by the Bank of the
corresponding "certificat du depositaire des fonds", the Company will
register the Shares in book-entry form in the name of the Purchaser or will
cause Banque Neuflize, Schlumberger, Mallet to register the Shares in the
name of the Purchaser in order to comply with the registration formalities
required to obtain double voting rights pursuant to the Company's statuts.
The Shares issued to the Purchaser hereunder will, at the time of their
issuance, be registered for trading on the Paris Bourse. Accordingly, the
Company shall comply with applicable regulations, including Regulation No.
98-01 of the French Commission des Operations de Bourse (the "COB"), and
the rules and instructions of the Paris Bourse, related to such
registration. On the Closing Date, each of the parties hereto shall duly
execute and deliver a registration rights agreement (the "Registration
Rights Agreement") substantially in the form of Exhibit B hereto.
1.5 Allocation of the Shares
------------------------
The Company and the Purchaser agree that the Purchaser may cause the
following entities (the "Purchaser Entities"), of which the Purchaser is
the general partner or managing member, to subscribe for and purchase the
Shares on the Closing Date in the place of the Purchaser. The Purchaser
anticipates that the Purchaser Entities will subscribe for and purchase the
Shares in the percentages indicated below:
GF Ltd. Transaction Partnership, L.P. 1.59%
CDPQ Transaction Partnership, L.P. 10.59%
CGG Investors, LLC 87.82%.
The Purchaser may change such allocation by written notice to the Company
at least two Business Days prior to the Closing Date. Upon the purchase by
any Purchaser Entity of Shares, such Purchase Entity shall have all the
rights and obligations with respect thereto as the Purchaser hereunder. The
Purchaser shall remain liable, subject to the terms and conditions of this
Agreement, to purchase any Shares not purchased by the Purchaser Entities
pursuant to this Article 1.5.
ARTICLE 2
---------
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date as follows:
that the Company and the subsidiaries of the Company, of which the Company
holds directly or indirectly, more than 51% of the voting rights and/or
share capital or which are under the common control of the Company and
another Person (individually a "Subsidiary", and collectively, the
"Subsidiaries"), are duly organized and validly existing under the laws of
their jurisdictions of incorporation and are in good standing (to the
extent such concept exists) under such laws, and conduct their activities
in compliance with all laws applicable to them; that they have all rights,
power and authority to own their assets and conduct their activities as
described in the Information Documents (as defined below); that the members
of their boards of directors (or equivalent governing bodies), and their
presidents or managers, as the case may be, have been regularly appointed
and carry out their respective functions in compliance with all applicable
laws;
that it has all rights, powers and authority to enter into this Agreement
and the Registration Rights Agreement and, subject to the Shareholders
Meeting Approval and the Acknowledgment (each as defined below), to
consummate the transactions contemplated hereby and thereby. As of the date
hereof, all corporate actions on the part of the Company, its directors and
shareholders necessary for the authorization, execution, delivery and
performance of this Agreement and the Registration Rights Agreement by the
Company, the authorization, issuance and delivery of the Shares and the
performance of the Company's obligations hereunder and thereunder have been
taken other than (i) the authorization to increase the Company's share
capital and to waive the shareholders' preemptive rights (droits
preferentiels de souscription) in favor of the Purchaser and consequently
to issue the Shares, which authorization and waiver must be granted at an
extraordinary general meeting of the Company's shareholders (the
"Shareholders Meeting Approval"); (ii) the acknowledgment of the final
subscription price for the Shares by the Company's board of directors (the
"Acknowledgment") and (iii) receipt of the Antitrust Approvals (as defined
in clause (d) below). Following receipt of the Shareholders Meeting
Approval, the Acknowledgment and the "certificat du depositaire des fonds",
the Shares will be validly issued and fully paid and the Purchaser will
have valid and negotiable title thereto free and clear of any liens,
encumbrances or defects other than any liens, encumbrances or defects
created by the Purchaser. Upon receipt of the Shareholders Meeting Approval
and the Acknowledgment, the issuance of the Shares to the Purchaser will
not violate or give rise to any preemptive rights or rights of first
refusal on behalf of any Person;
that this Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms. Upon its due execution and
delivery by the Company in accordance with Article 1.4, the Registration
Rights Agreement will constitute a legal, valid and binding obligation of
the Company, enforceable in accordance with its terms;
(d) that no consent, approval, authorization or order of, or designation,
declaration or filing with, any governmental authority or court is required
for the valid execution and delivery by the Company of this Agreement and
the Registration Rights Agreement, the issuance of the Shares, or the
consummation of any other transactions contemplated hereby or thereby
except (i) where the failure to obtain any such consent, approval or
authorization or to make such filing would not have a Material Adverse
Effect (as defined in clause (f) below) and (ii) for any notification or
filing requirement under the Hart-Scott-Rodino Antitrust Improvement Act of
1976, as amended, and any filing with the European Commission or any member
of the European Union (collectively, the "Antitrust Approvals");
(e) that there are no legal, administrative or arbitration proceedings or
any claims pending against it or any of the Subsidiaries or, to its
knowledge, any threat of any legal, administrative or arbitration
proceedings or claims which could result in a substantial deterioration in
its financial condition or in that of its Subsidiaries taken as a whole, or
which could affect the performance by the Company of this Agreement or the
issuance of the Shares; that the outstanding legal, administrative or
arbitration proceedings to which the Company or any of the Subsidiaries is
a party or which might affect their assets or property which are not
disclosed in the Information Documents, including disputes arising in the
normal course of business, are not likely, taken as a whole, to have a
Material Adverse Effect as defined in clause (f) below;
(f) that the consolidated financial statements of the Company and its
Subsidiaries included in the Information Documents faithfully and
accurately present and give a true and fair view of the financial condition
of the Company and its consolidated Subsidiaries and of their operating
results as at the dates and for the periods indicated therein and that they
were prepared in conformity with French law and U.S. generally accepted
accounting principles; that the information contained in the sections
entitled "Summary Financial Information" and "Selected Consolidated
Financial Information" in the U.S. Prospectus (as defined below) is
presented therein in a fair and sincere manner and was prepared on a
compatible basis with the preparation of the financial statements included
in the Registration Statement and the U.S. Prospectus (as defined below);
and that since 30 June 1999, with the exception of any matter which is
specifically disclosed in the Information Documents, (1) no material
adverse change has occurred, nor has any circumstance occurred which has or
might have a material adverse effect on the legal, financial or economic
position, operating results, business or the financial condition of the
Company and its Subsidiaries taken together as a whole (a "Material Adverse
Effect"); and (2) neither the Company nor any of its Subsidiaries has
conducted any transactions outside of the ordinary course of business which
individually or in the aggregate would be exceptional for the Company or
its Subsidiaries taken as a whole by reason of their size or nature;
(g) that each of the Information Documents is or will be at the date on
which it is prepared, true and accurate, and contains or will contain on
such date, all important information relevant to the Company and its
Subsidiaries; that all such information is or will be true and accurate and
does not or will not at such date omit any fact that might alter the
significance of such information and that all of the estimates, forecasts
and statements of intent contained in the Information Documents were,
remain and will be at such date, true and accurate and that the Company has
carried out all investigations necessary to verify the information
contained in the Information Documents;
(h) that the Company and the Subsidiaries are in compliance with the terms
of their by-laws (statuts) or equivalent governing documents and that
neither the Company nor any of its Subsidiaries is in default of any
contractual obligation, which default might have a Material Adverse Effect
or unfavorably affect in a significant way the capacity of the Company to
perform its obligations under this Agreement or issue the Shares;
(i) that all of the shares comprising the share capital of the Company have
been validly issued and subscribed for and are fully paid, completely
unencumbered and freely negotiable and there is no statutory restriction
affecting their transfer, other than 28,970 ordinary shares of the Company
that were not fully paid as of October 15, 1999 and which have been
subscribed for by employees of the Company and the Subsidiaries pursuant to
the Company's employee savings plan instituted in 1997; that the shares of
the Company are listed for trading on the Premier Marche of the Paris
Bourse and the shares of the Company represented by American Depositary
Shares are listed and traded in that form on the NYSE and that the Company
will take all necessary steps to maintain those listings; that the listing
of the Shares for trading on the Premier Marche of Paris Bourse has been
requested and will take effect as soon as possible after the Shares are
issued in accordance with this Agreement;
(j) that all of the shares comprising the share capital of the Company are
identical in all material respects and conform to the descriptions thereof
set forth in the Information Documents;
(k) that all presently exercisable options to acquire shares of the Company
can result in the issuance of a maximum of 28,970 shares;
(l) that all other securities representing the capital of the Subsidiaries
have been validly issued and subscribed to and are fully paid and
completely unencumbered, subject to any matter which is disclosed in the
Information Documents; that the shares of the Subsidiaries held directly or
indirectly by the Company are free from any pledge, security or other
charge or third party right;
(m) that the issuance of the Shares is and will continue to be validly
authorized on the Closing Date, and that the Shares upon their issuance to
the Purchaser in accordance with the terms of this Agreement will be
validly issued and subscribed to, fully paid, completely unencumbered and
freely negotiable and there will be no statutory restriction affecting
their transfer and that no security, preference or other charge, or any
third party right will exist over the Shares; that neither the issuance of
the Shares nor the execution or performance of this Agreement by the
Company will contravene any legal or regulatory provision or the by-laws
(statuts) of the Company or of any of the Subsidiaries or any undertaking
made by the Company or any of the Subsidiaries, nor will they constitute a
breach of any contractual obligation to which the Company or any of the
Subsidiaries is a party or an event of default permitting a creditor to
demand early payment of any contractual debt or guarantee granted by the
Company or any of the Subsidiaries;
(n) that the Company is not aware of any information, other than that
contained in the Information Documents, which might have a significant and
lasting effect on the value or price of its listed shares or the shares of
any of its listed Subsidiaries;
(o) that from January 1, 1999 to the signature of this Agreement, the
Company has not traded directly or indirectly in its shares on any stock
exchange;
(p) that the signature of this Agreement and the completion of the capital
increase in connection with the Shares contemplated herein do not give
rise, pursuant to laws currently in force, to liability in France for any
direct or indirect taxes (other than fixed registration taxes and stamp
taxes, the non-payment of which shall not affect the validity of this
Agreement, or the Shares), duties or imposts of any kind;
(q) that there are no labor disputes pending with the employees of the
Company or of any of its Subsidiaries, and to the knowledge of the Company,
no such dispute is foreseeable; that the the Company is not aware of any
pending or imminent labor disputes concerning the employees of its main
suppliers, clients or subcontractors, or the employees of any of its
Subsidiaries, which may have a Material Adverse Effect;
(r) that the Company and each of its Subsidiaries possess, both in France
and abroad, all permits, approvals and other authorizations necessary for
the conduct of their businesses (the "Permits"); that, except to the extent
that the violation, expiration, withdrawal or modification of the Permits
is not likely to have a Material Adverse Effect (1) the businesses of the
Company and the Subsidiaries are conducted in compliance with the Permits,
(2) the Permits are in full force and effect, and (3) no proceeding of any
kind has been instituted which may lead to the withdrawal or modification
of the Permits;
(s) that the Company and the Subsidiaries own or have an exclusive right to
use all of the patents, trademarks, trade names or other industrial
property rights (including know how) or intellectual property rights used
in or necessary for the conduct of their businesses (the "Intellectual and
Industrial Property Rights"); that neither the Company nor any of the
Subsidiaries is aware that the Intellectual and Industrial Property Rights
infringe or violate intellectual or industrial property rights belonging to
any third party, or of facts or circumstances likely to challenge the
validity of such rights or their enforceability against third parties,
except to the extent that such actions or challenges are not likely to have
a Material Adverse Effect;
(t) that, except as set forth in the Information Documents, and except to
the extent that such non-compliance or such proceedings are not likely to
have a Material Adverse Effect, (A) the Company and each of the
Subsidiaries are in compliance with all laws, regulations and
administrative, judicial or other decisions applicable to them regarding
pollution, the protection of health and the environment, or toxic or
dangerous substances or waste (together, "Environmental Laws"); (B) all
approvals, permits, consents and authorizations necessary for the conduct
of the businesses of the Company and each of the Subsidiaries in compliance
with Environmental Laws have been obtained and are in full force and
effect, and the businesses of the Company and each of the Subsidiaries are
performed in conformity with such consents, permits, approvals and
authorizations; (C) no administrative, judicial or other proceeding,
inquiry or complaint of any kind regarding an alleged violation of any
Environmental Laws has been instituted or filed against the Company or any
of the Subsidiaries, and to the knowledge of the Company, no such
proceeding is threatened;
(u) that, except as may be set forth in the Information Documents, the
Company and its Subsidiaries have regular and valid title to their real
property, which is not subject to any mortgage, security, easement or other
third party right which may, individually or collectively, affect the value
or use thereof; that the lease and sublease agreements under which the
Company or any of the Subsidiaries are the lessee of real property
described in the Information Documents are in full force and effect, and no
claim has been asserted by any third party which challenges the rights of
the Company or any of the Subsidiaries under such leases or subleases, or
the use of such real property;
(v) that the Company has conducted a study evaluating its activities, and
those of the Subsidiaries and their suppliers or services providers with
which the Company or any of the Subsidiaries has a material relationship,
and of the products manufactured or sold by Sercel, in order to assess to
what extent the activities of the Company or of any of the Subsidiaries, or
the products manufactured or sold by Sercel are likely to be affected by
the transition to the year 2000; that following the completion of this
evaluation, the Company has no reason to believe, and does not believe,
that the transition to the year 2000 is likely to have a Material Adverse
Effect or to result in material inadequacies or disruptions in the business
or operations of the Company;
(w) that the information set forth in the Information Documents which sets
forth certain provisions of laws applicable to the Company, the Company's
by-laws, the litigation or administrative proceedings involving the Company
and the contracts or any other document related to the Company, is correct
in all material respects; and
(x) that it is not a "controlled foreign corporation" within the meaning of
section 957 of the United States Internal Revenue Code of 1986, as amended
(the "Code") or a "passive foreign investment company" within the meaning
of section 1297 of the Code.
For purposes of this Agreement, "Information Documents" shall mean the
"Documents d'Information" as such term is defined in the Contrat Global de
Garantie to be entered into among the Company and the Garants named therein
pursuant to the Rights Offering or the equivalent term used therein to
define the filings and other documents related thereto to be made in the
United States and France in connection with the Rights Offering and the
prospectus filed with the COB in accordance with COB Regulation No. 98-01
with respect to the issuance of the Shares, and "Registration Statement"
and "U.S. Prospectus" shall have the meanings assigned to the terms
"registration statement" and "Prospectus U.S.", respectively, in the
Contrat Global de Garantie or the equivalent terms used therein to define
the filings and documents related thereto to be made in the United States
in connection with the Rights Offering.
ARTICLE 3
---------
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
3.1 Restricted Shares
-----------------
The Purchaser understands that the Shares have not been registered under
the U.S. Securities and Exchange Act of 1934, as amended (the "Exchange
Act") or any United States state securities laws, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements thereof, and may not be sold unless such disposition is
registered under the Securities Act and applicable United States state
securities laws or is exempt from registration thereunder.
3.2 Organization
------------
The Purchaser is duly organized and validly existing under the laws of the
jurisdiction of its organization, with all rights, power and authority to
enter into and perform this Agreement.
3.3 Authority
---------
The execution and delivery of this Agreement by the Purchaser and the
consummation by the Purchaser of the transactions contemplated hereby have
been duly authorized by all necessary action on behalf of the Purchaser.
This Agreement has been duly executed and delivered by the Purchaser and
constitutes a valid and binding obligation of the Purchaser, enforceable in
accordance with its terms, subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable
remedies.
3.4 No Conflict
-----------
The execution and delivery of this Agreement by the Purchaser does not, and
the consummation of the transactions contemplated hereby will not (a)
violate any provision of law, statute, rule or regulation, or any ruling,
writ, injunction, order, judgment or decree of any court, administrative
agency or other governmental body applicable to it, or any of its
properties or assets or (b) violate its organizational documents.
3.5 Governmental Consents
---------------------
No consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Purchaser is
required in connection with the valid execution and delivery of this
Agreement or the consummation of any other transaction contemplated hereby,
other than the Antitrust Approvals.
ARTICLE 4
---------
CONDITIONS PRECEDENT TO CLOSING
4.1 Conditions Precedent for the Benefit of the Purchaser
-----------------------------------------------------
Notwithstanding any other provision contained in this Agreement, the
obligations of the Purchaser to subscribe for the Shares and consummate any
other transactions to be performed by it in connection with the Closing are
expressly conditioned upon, and subject to, the fulfillment on or prior to
the Closing Date of each of the conditions set forth in this Article 4.1.
The conditions set forth in this Article 4.1 are stipulated for the sole
benefit of the Purchaser and the Purchaser may waive any or all of such
conditions in its sole discretion in writing at or prior to the Closing.
(a) Each of the representations and warranties made by the Company in
Article 2 hereof shall be true and correct in all material respects when
made and shall be true and correct in all material respects on the Closing
Date with the same force and effect as if they had been made on and as of
such date.
(b) The Company shall have performed all obligations and complied with all
covenants and agreements to be performed or complied with by it on or prior
to the Closing Date.
(c) The Company shall have consummated the Rights Offering and shall have
received gross proceeds before underwriters' fees and commission therefrom
of at least 75,000,000 euros.
(d) The Purchaser shall have received from Jones, Day, Reavis & Pogue,
counsel to the Company, an opinion addressed to it, dated the Closing Date,
in the form of Exhibit C hereto.
(e) The entry by the Company into the Expense Reimbursement Agreement in
the form attached as Exhibit D hereto shall have been authorized by the
Company's board of directors for purposes of Article 101 of French law No.
66-537 of July 24, 1966 and the Company shall have duly executed and
delivered to the Purchaser a copy thereof.
(f) The Company shall have completed all actions necessary to cause the
Shares to be listed for trading on the Paris Bourse other than providing
the Paris Bourse and SICOVAM S.A. with a notice of the number of Shares to
be issued to the Purchaser hereunder and listed for trading and copies of
the Acknowledgment and the certificat de depositaire du fonds with respect
to the Shares (the "Final Listing Formalities").
(g) There shall not be in effect any order enjoining or restraining the
transactions contemplated by this Agreement and no proceeding shall be
pending before any Authority to restrain or prohibit the transactions
contemplated by this Agreement and there shall not be in effect any law,
rule or regulation prohibiting or restricting the subscription for the
Shares or requiring any consent or approval of any Person, which shall not
have been obtained, to issue, purchase or deliver the Shares.
(h) The Company shall have delivered to the Purchaser a certificate, dated
the Closing Date and duly executed by an authorized officer of the Company,
certifying that each of the conditions specified in Articles 4.1(a) through
4.1(c) has been satisfied.
(i) The Shareholders Meeting Approval shall have been obtained from the
Company's shareholders and the Acknowledgment shall have been obtained from
the Company's board of directors pursuant to the statuts of the Company and
in accordance with French law, and the Purchaser shall have received a
certified copy of each of the following documents: (1) the minutes of the
meeting of the Company's board of directors which decided to submit to the
Company's shareholders the proposed capital increase with respect to the
Shares and call an extraordinary meeting of the shareholders, (2) the
report of the Company's board of directors to the shareholders, (3) the
report of the statutory auditors to the shareholders, (4) the minutes of
the extraordinary meeting of the shareholders containing the Shareholders
Meeting Approval, and (5) the minutes of the meeting of the Company's board
of directors held to acknowledge the final subscription price for the
Shares in euros.
(j) The Target Tender Offer (as defined in Section 5.3) shall have expired
and at least 80% of the outstanding shares of capital stock of GeoScience
Corporation "GeoScience", shall have been validly tendered pursuant thereto
and all other conditions to the Company's and the Offering Entity's (as
defined below) obligations to purchase all such shares set forth in Annex A
to the Agreement and Plan of Merger, dated as of October 23, 1999, by and
among GeoScience, the Company, and Sercel Acquisition Corp., a Nevada
corporation (the "Offering Entity") and a wholly owned subsidiary of the
Company (the "Merger Agreement") shall have been satisfied or waived, other
than the condition listed in paragraph (K) of such Annex A.
(k) The Company shall have paid to the Purchaser or an Affiliate of the
Purchaser 6% of the sum of the Initial Subscription Amount and the
Additional Subscription Amount, if any, pursuant to a financial advisory
fee agreement (the "Engagement Letter") to be executed by such parties
prior to or at the Closing.
(l) The Beacon Nominees shall have been elected at the Ordinary
Shareholders' Meeting (as defined in Article 5.2) to the Company's board of
directors, each with a term of office expiring on the date of the ordinary
general shareholders' meeting of the Company held to approve the Company's
financial statements for the 2004 fiscal year subject to the completion of
the subscription for the Shares contemplated herein, and the Purchaser
shall have received a certificate or other written evidence reasonably
satisfactory to the Purchaser and its counsel from the Company's insurers
indicating that the Beacon Nominees are covered by D+O insurance in
accordance with Article 5.15.
(m) The Company shall not have amended or waived or agreed to amend or
waive any of the material terms and conditions of its USD 130,000,000
multicurrency syndicated credit facility or its FRF 100,000,000 bridge loan
facility, including any events of default with respect thereto, in any
manner adverse to the Company, and completion of the Rights Offering shall
have rendered the event of default set forth in the Company's syndicated
credit facility regarding a failure by the Company to complete a FRF
300,000,000 capital increase incapable of occurring.
4.2 Conditions Precedent for the Benefit of the Company
---------------------------------------------------
Notwithstanding any other provision contained in this Agreement, the
Company's obligations to issue the Shares and consummate any other
transactions to be performed by it in connection with the Closing are
expressly conditioned upon, and subject to, the fulfillment on or prior to
the Closing Date of each of the conditions set forth in this Article 4.2.
The conditions set forth in this Article 4.2 are stipulated for the sole
benefit of the Company and the Company may waive any or all of such
conditions in its sole discretion in writing at or prior to the Closing.
(a) The representations and warranties made by the Purchaser in Article 3
hereof shall be true and correct in all respects when made, and shall be
true and correct in all respects on the Closing Date with the same force
and effect as if they had been made on and as of such date.
(b) The Purchaser shall have performed all obligations and complied with
all covenants and agreements to be performed or complied with by it on or
before the Closing Date.
(c) The Company shall have received from Fried, Frank, Harris, Shriver &
Jacobson, counsel to the Purchaser, an opinion dated the Closing Date in
the form of Exhibit E hereto.
(d) There shall not be in effect any order enjoining or restraining, and
there shall be no proceeding pending before any Authority to restrain or
prohibit, the transactions contemplated by this Agreement and there shall
not be in effect any law, rule or regulation prohibiting or restricting the
subscription for the Shares or requiring any consent or approval of any
Person which shall not have been obtained to issue, purchase or deliver the
Shares.
(e) The Purchaser shall have delivered to the Company a certificate,
executed on behalf of the Purchaser by an officer of the Purchaser, dated
the Closing Date, and certifying to the fulfillment of the conditions
specified in Articles 4.2(a) and 4.2(b) of this Agreement.
(f) The Shareholders Meeting Approval shall have been obtained from the
Company's shareholders at a meeting of the Company's shareholders pursuant
to the statuts of the Company and in accordance with French law. The
Acknowledgment shall have been obtained from the Company's board of
directors pursuant to the statuts of the Company and in accordance with
French law.
(g) The Target Tender Offer shall have expired and at least 80% of the
outstanding shares of capital stock of GeoScience shall have been validly
tendered pursuant thereto and all other conditions to the Company's
obligation to purchase such shares set forth in Annex A to the Merger
Agreement shall have been waived or satisfied.
ARTICLE 5
---------
COVENANTS OF THE PARTIES
5.1 Shareholder Meeting Approval
----------------------------
Promptly following execution of this Agreement, the Company shall take all
steps necessary to hold an extraordinary general shareholders' meeting (the
"Extraordinary Shareholders' Meeting") as promptly as practicable and in no
event later than December 15, 1999 for the purposes of taking all requisite
actions in order to permit the consummation of the subscription for Shares
contained herein, including authorizing the increase of the Company's share
capital, obtaining the waiver of the preemptive rights (droits
preferentiels de souscription) of the shareholders for the benefit of the
Purchaser and the Purchaser Entities, and consequently authorizing the
Company's board of directors to issue the Shares on behalf of the Company
and to hold a meeting of the Company's board of directors for the purpose
of acknowledging the final subscription price in euros of the Shares to be
subscribed for by the Purchaser.
5.2 Beacon Nominees
---------------
Promptly following the execution of this Agreement, the Company shall take
all steps necessary to hold an ordinary general shareholders' meeting (the
"Ordinary Shareholders' Meeting"), on the same date as and immediately
following the Extraordinary Shareholders' Meeting, for the purpose of
electing two additional members to the Company's board of directors subject
to the completion of the subscription for the Shares contemplated hereby.
The Company shall use its best efforts to cause the two individuals that
have been previously agreed upon by the parties (the "Beacon Nominees") to
be nominated by the board of directors of the Company for the purposes of
such election. The minutes of the Extraordinary Shareholders' Meeting and
the Ordinary Shareholders' Meeting shall be in a form reasonably acceptable
to the Purchaser and its counsel.
5.3 Target Tender Offer
-------------------
Within 5 Business Days following the public announcement thereof, the
Company, through the Offering Entity, shall commence, within the meaning of
Section 14d-2 under the Exchange Act, an offer (the "Target Tender Offer")
to purchase all of the outstanding shares of capital stock of GeoScience
(the "Target Shares") pursuant to the Merger Agreement. The Company shall
not and shall cause the Offering Entity not to raise the price to be paid
per Target Share pursuant to the Target Tender Offer as set forth in the
Merger Agreement without the prior written consent of the Purchaser.
5.4 Rights Offering
---------------
As soon as possible following the date hereof, the Company shall, subject
to market conditions and the effectiveness of the U.S. and French
prospectuses related thereto, take all steps necessary to commence a rights
offering for its ordinary shares (augmentation de capital avec maintien de
droit preferentiel de souscription) in the United States and Europe (the
"Rights Offering"). The Company shall use its best efforts to obtain
pursuant to the Rights Offering gross proceeds before underwriters' fees
and commissions of at least 90,000,000 euros.
5.5 Conduct of Business
-------------------
From the date hereof until the Closing Date, unless the Purchaser shall
have consented in writing thereto, the Company shall, and shall cause each
of its subsidiaries to, (i) conduct its operations according to its usual,
regular and ordinary course of business consistent with past practice; (ii)
preserve intact its business organization in all material respects; (iii)
not amend its statuts or equivalent governing document except to reflect
the increase in the Company's capital resulting from the Rights Offering;
(iv) not issue, sell, pledge, redeem, purchase or otherwise acquire, grant
or register for issuance or sale any shares of its capital stock or other
ownership interests (other than issuances of the Company's ordinary shares
pursuant to the Rights Offering or existing stock option plans), or any
securities convertible into or exchangeable for any such shares or
ownership interest, or any rights, warrants or options to acquire any of
the foregoing other than options to acquire shares of capital stock granted
to employees pursuant to existing employee stock option plans in the
ordinary course of business consistent with past practice; or accelerate
any right to convert or exchange or acquire any of its securities for any
such shares or ownership interest; (v) not change its capitalization as it
exists on the date hereof, other than pursuant to the Rights Offering on
existing stock option plans; (vi) not declare, set aside or pay any
dividend or make any other distribution or payment with respect to any
shares of its capital stock or other ownership interests (other than such
payments by a wholly owned subsidiary); (vii) not acquire by merger,
purchase or any other manner, any business or entity (other than
GeoScience) or otherwise acquire any assets for consideration in excess of
FRF 10,000,000, individually or in the aggregate, except for purchases of
inventory, supplies or capital equipment in the ordinary course of business
consistent with past practice; and (viii) not incur or assume any
additional material long-term debt other than debt of GeoScience assumed as
a result of the acquisition of GeoScience pursuant to the Target Tender
Offer.
5.6 Required Notices and Deliveries
-------------------------------
(a) From the date hereof until the Closing Date, the Company shall
give prompt written notice to the Purchaser of (a) any facts or
circumstances or the occurrence of any event or the failure of any event to
occur, which has or is reasonably likely to have a Material Adverse Effect
or a material adverse effect on the ability of the Company to issue the
Shares or consummate any other transactions contemplated hereby or to
satisfy its obligation hereunder, (b) the institution or threat of
institution of any litigation or similar action with respect to the Company
or the consummation of the transactions contemplated hereby, and (c) the
breach of any representation or warranty of the Company contained herein or
the occurrence of any event or the discovery of any facts or circumstances
which results or is reasonably likely to result in the failure (i) of any
representation or warranty of the Company set forth herein to continue
being true and correct or (ii) of any condition precedent set forth in
Article 4 to be fulfilled. From the date hereof until the Closing Date, the
Company shall promptly deliver to the Purchaser true and correct copies of
any registration statement, report, prospectus or other document filed by
it with the U.S. Securities and Exchange Commission or the COB.
(b) From the date hereof until the Closing Date, the Purchaser shall
give prompt written notice to the Company of (a) any facts or circumstances
or the occurrence of any event or the failure of any event to occur, which
has or is reasonably likely to have a material adverse effect on the
ability of the Purchaser to consummate any transaction contemplated hereby
or to satisfy its obligations hereunder, (b) the institution or threat of
institution of any litigation or similar action with respect to the
Purchaser or the consummation of the transactions contemplated hereby, and
(c) the breach of any representation or warranty of the Purchaser contained
herein or the occurrence of any event or the discovery of any facts or
circumstances which results or is reasonably likely to result in the
failure (i) of any representation or warranty of the Purchaser set forth
herein to continue being true or (ii) of any condition precedent set forth
in Article 4 to be fulfilled.
5.7 No Shop
-------
From the date hereof until the Closing Date, the Company will not, and will
not authorize or permit any of its officers or directors or any other
Person on its behalf to, solicit, encourage, negotiate or accept any offer
from any party concerning (i) the financing of the purchase of any Target
Shares whether through the issuance by the Company or one of its
Subsidiaries of equity securities or the incurrence by the Company or any
of its Subsidiaries of indebtedness or (ii) any other agreement or
arrangement that would be inconsistent with the consummation of the
transactions contemplated hereby (each a "Prohibited Transaction"), nor
will they participate in any discussions or negotiations regarding, or
furnish any information with respect to, or facilitate in any other manner,
any Prohibited Transaction. The Company will immediately terminate any
existing discussion with a third Person regarding a possible Prohibited
Transaction. The Company will promptly notify the Purchaser in writing of
any inquiries or proposals from any third Person regarding a possible
Prohibited Transaction.
5.8 Other Investors
---------------
So long as the Purchaser or its Affiliates hold at least 5% of the
Company's ordinary shares directly or through American depository shares
("ADSs"), in the event that the Company desires to issue shares or ADSs or
securities convertible or exercisable into shares or ADSs for cash under
circumstances where the shareholders of the Company would be requested to
waive their preemptive rights (droits preferentiels de souscription) with
respect to such issuance, such that such third Person or a group including
such third Person would own upon the acquisition of such shares or ADSs or
the conversion of such securities or exercise of such rights, directly or
indirectly, shares constituting 5% or more of the then outstanding shares
or ADSs of the Company (a "Proposed Transaction"), the Company shall
promptly as practicable inform the members of the Company's board of
directors of the material terms of the Proposed Transaction and negotiate
in good faith with any shareholder or group of shareholders represented on
the Company's board of directors with respect to any good faith competing
proposal that such shareholder or group may determine to make to the
Company.
5.9 Use of Proceeds
---------------
The Company shall use the proceeds from the issuance and sale of the Shares
hereunder in the following order (i) to fund the acquisition of Target
Shares pursuant to the Target Tender Offer, (ii) to fund the Merger
Consideration (as defined in the Merger Agreement) to be paid to the
holders of Target Shares not tendered and purchased by the Offering Entity
pursuant to the Target Tender Offer pursuant to the Merger (as defined in
the Merger Agreement) on the terms and subject to the conditions of the
Merger Agreement, (iii) to satisfy any valid claims for appraisal made by
any of GeoScience's shareholders dissenting from the Merger, and (iv) to
pay the fees and expenses of the Company relating to any of the foregoing,
and thereafter for any good and valid corporate purpose of the Company.
5.10 ADR Facility
------------
So long as the Purchaser or its Affiliates hold in the aggregate at least
5% of the Company's ordinary shares, the Company shall maintain in full
force and effect its current Deposit Agreement between the Company and The
Bank of New York as depositary with respect to its ADR facility, and shall
ensure that the Purchaser and its Affiliates shall have the right to
exchange their ordinary shares for ADSs in accordance therewith or shall,
at the Purchaser's request, enter into an alternate agreement with another
depositary on terms and conditions reasonably satisfactory to the Purchaser
and the Company to permit such conversion, in each case at the Company's
expense. During such time period, the Company shall use its best efforts to
maintain the listing of the Company's ADRs on the New York Stock Exchange
(the "NYSE") and maintain the listing of its ordinary shares on the Premier
Marche of the Paris Bourse and shall file with the NYSE and the Paris
Bourse all documents and notices required by either the NYSE or the Paris
Bourse of companies whose securities are traded thereon.
5.11 Publicity
---------
The Company and the Purchaser agree not to issue any press release or
otherwise make any public statements with respect to this Agreement or the
other transactions contemplated hereby without the consent of the other,
except as may be required by law so long as it has used all reasonable
efforts to consult with the Company or the Purchaser, as the case may be,
and to obtain the consent of such party but has been unable to do so in a
timely manner.
5.12 Parity Right of Access
----------------------
From the date of this Agreement until the Closing, the Company shall (i)
subject to the requirements of French law, give the Purchaser and its
authorized representatives reasonable access at reasonable times to the
president and other officers of the Company, (ii) furnish the Purchaser
with such documents and other information with respect to the business and
properties of the Company as provided to the U.S. and European underwriters
participating in the Rights Offering, and (iii) provide the Purchaser with
reasonable advance notice of, and permit the Purchaser to participate in,
any meetings held between the Company and any such underwriters for due
diligence purposes whether such meetings are held in person or by
telephone, video or internet conference.
5.13 Failure to Fund
---------------
If the Company breaches its obligation under the Merger Agreement to
purchase the Target Shares due solely to a breach of the Purchaser's
obligation hereunder to purchase the Shares (and not as the result of any
breach by the Company of its obligations hereunder or the failure of any
condition set forth in Article 4.1 to be fulfilled) and, as a result of
such breach, the Company becomes obligated to pay a termination fee to
GeoScience pursuant to the Merger Agreement, then the Purchaser shall
promptly pay to the Company according to the Company's instructions the
lesser of the amount of such termination fee and USD 1,500,000 as
liquidated damages promptly following the Company's payment of such amount
to GeoScience upon presentation to the Purchaser of reasonable evidence
that such amount has been paid. Payment by the Purchaser of such amount
shall be the exclusive remedy of the Company for any breach by the
Purchaser of its obligation to purchase the Shares hereunder.
5.14 Completion of Listing Formalities
---------------------------------
The Company shall complete the Final Listing Formalities as soon as
possible after the Closing Date and shall otherwise ensure that the Shares
are listed for trading on the Paris Bourse.
5.15 D+O Insurance Coverage
----------------------
The Company shall extend and maintain at all times coverage under its
directors' and officers' liability insurance policy for the benefit of all
Beacon Nominees elected to serve on the Company's board of directors or
obtain equivalent coverage for the benefit of such Beacon Nominees with
insurers and on terms reasonably acceptable to the Purchaser.
ARTICLE 6
---------
INDEMNIFICATION
Consideration for Purchase
- --------------------------
The Purchaser has agreed to perform its obligations hereunder, including
its obligation to purchase the Shares, in consideration of the
representations, warranties, agreements and covenants of the Company set
forth herein.
6.2 General Indemnification
-----------------------
The Company shall indemnify, defend and hold each Purchaser, its
affiliates, and each of their respective officers, directors, partners,
managing directors, affiliates, employees, agents, consultants,
representatives, successors and assigns (each an "Purchaser Entity")
harmless from and against all Losses (as defined in Article 6.3) incurred
or suffered by a Purchaser Entity (whether incurred or suffered directly or
indirectly through the ownership of Shares) arising out of, relating to, or
resulting from any material breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement
or in any certificate or other instrument delivered pursuant hereto
including, without limitation, the Registration Rights Agreement.
6.3 Indemnification Principles
--------------------------
For purposes of this Article 6, "Losses" shall mean each and all of the
following items: losses, prejudice, liabilities, damages, fees or expenses,
including reasonable fees, expenses and disbursements of counsel in light
of the customs and practices in existence in the country involved.
6.4 Survival
--------
The representations, warranties, covenants, agreements and other
obligations of the Company hereunder shall remain in effect after
completion of the issuance of the Shares or, if applicable, the termination
of this Agreement for any reason.
ARTICLE 7
---------
MISCELLANEOUS
7.1 Termination
-----------
The obligations of the parties to effect the sale and purchase of the
Shares hereunder may be terminated (i) by the mutual written consent of the
Company and the Purchaser, (ii) by the Purchaser in writing without
liability to the Purchaser on account of such termination if the Merger
Agreement is terminated without the Company having acquired at least 80% of
the outstanding capital stock of GeoScience pursuant thereto, or if any of
the conditions precedent to the Closing set forth in Article 4.1 shall
become by its terms impossible to fulfill, or (iii) by any party in
writing, without liability to the other party on account of such
termination (provided that the terminating party is not otherwise in breach
or default under this Agreement), if the Closing shall not have occurred on
or before April 30, 2000.
7.2 Governing Law
-------------
This Agreement shall be governed in all respects by and construed in
accordance with the laws of the Republic of France without giving effect to
its conflicts of law principles, except that the provisions herein relating
to the securities laws of the United States shall be governed by the laws
of the United States. Any dispute, controversy or claim arising out of or
relating to this Agreement shall be submitted to the exclusive jurisdiction
of the Tribunal de Commerce of Paris.
7.3 Successors and Assigns
----------------------
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. This Agreement
may not be assigned by the Company without the prior written consent of the
Purchaser. The parties acknowledge that, subject to compliance with
applicable securities laws, the Purchaser may transfer and assign any or
all of the Shares and all or any part of its rights and obligations under
this Agreement to one or more other partnerships, corporations, trusts or
other organizations which have been created by, or are controlled by,
control or are under common control with the Purchaser, without the consent
of the Company; provided, however, that such transfer or assignment shall
not relieve the Purchaser of its obligations under this Agreement.
7.4 Entire Agreement; Amendment
---------------------------
This Agreement and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with
regard to the subject matter hereof and thereof and supersede all prior
agreements and understandings among the parties relating to the subject
matter hereof. Neither this Agreement not any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed
by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
7.5 Notice and Dates
----------------
Any notice or other communication given under this Agreement shall be
sufficient if in writing and delivered by hand, by messenger or by courier,
or transmitted by confirmed facsimile, to a party at its address set forth
below (or at such other address as shall be designated for such purpose by
such party in a written notice to the other party hereto):
(a) If to the Company, at:
Compagnie Generale de Geophysique
1 rue Leon Migaux
91341 Massy Cedex, France
Attention: Robert Brunck
Facsimile: 33 1 64 47 39 70
(b) If to the Purchaser, at:
The Beacon Group Energy Investment Fund II, L.P.
399 Park Avenue
New York, NY 10022
Attention: Robert F. Semmens
Facsimile: 1-212-339-9109
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or as having been given when delivered if
delivered personally, by messenger or by courier, or, if sent by facsimile,
upon confirmation of receipt by return facsimile.
7.6 Further Assurances
------------------
The parties hereto shall do and perform or cause to be done and performed
all such further acts and things and shall execute and deliver all such
other agreements, certificates, instruments or documents as any other party
may reasonably request from time to time in order to carry out the intent
and purposes of this Agreement and the consummation of the transactions
contemplated hereby. Neither the Company nor the Purchaser shall
voluntarily undertake any course of action inconsistent with the
satisfaction of the requirements applicable to them set forth in this
Agreement and each shall promptly do all such acts and take all such
measures as may be appropriate to enable them to perform as early as
practicable the obligations herein required to be performed by them.
7.7 Originals
---------
This Agreement is executed in New York in two (2) original copies and shall
become effective on the date hereof.
7.8 Severability
------------
In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void,
this Agreement shall continue in full force and effect without said
provision which shall be replaced with an enforceable provision closest in
intent and economic effect as the severed provision.
7.9 Captions
--------
Headings of the various Articles of this Agreement have been inserted for
convenience of reference only and shall not be relied upon in construing
this Agreement. Use of any gender herein to refer to any person shall be
deemed to comprehend masculine, feminine and neuter unless the context
clearly requires otherwise.
7.10 Brokers
-------
(a) Except as set forth in the Engagement Letter, the Company has not
engaged, consented to, or authorized any bank, broker, finder or
intermediary, to act on its behalf, directly or indirectly, as a bank,
broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Company hereby agrees to indemnify and
hold harmless the Purchaser from and against all fees, commissions or other
payments owing to any person or firm acting on behalf of the Company
hereunder.
(b) Except as set forth in the Engagement Letter, the Purchaser has
not engaged, consented to or authorized any broker, finder or intermediary,
to act on its behalf directly or indirectly, as a broker, finder or
intermediary in connection with the transactions contemplated by this
Agreement. Except as set forth in the Engagement Letter, the Purchaser
hereby agrees to indemnify and hold harmless the Company from and against
all fees, commissions or other payments owning to any such person or firm
acting on behalf of the Purchaser hereunder.
7.11 Certain Definitions
-------------------
As used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "Authority" means any court, arbitral panel, or governmental or
administrative body or agency whether supra-national, French or foreign,
national or local;
(b) "Business Day" means any day on which banks are open for business
in Paris and New York;
(c) "FRF" means the lawful currency of the Republic of France; and
(d) "Person" means an individual, partnership, corporation or other
entity, business, enterprise or association.
7.12 Attorney's Fees
---------------
The prevailing party in any litigation between the Purchaser, on the one
hand, and the Company, on the other hand, involving this Agreement shall be
entitled to recover from the other party its reasonable attorney's fees and
costs.
7.13 Costs and Expenses
------------------
Except as otherwise provided in the Engagement Letter, each party hereto
shall pay its own costs and expenses incurred in connection herewith,
including the fees of its counsel, auditors and other representatives,
whether or not the transactions contemplated herein are consummated.
7.14 No Third Party Rights
---------------------
Nothing in this Agreement shall create or be deemed to create any rights in
any person or entity not a party to this Agreement.
7.15 Competing Business Interests
----------------------------
The Company hereby acknowledges that the Purchaser, its affiliates and
certain companies and other entities in which the Purchaser and its
affiliates currently have ownership interests or may invest in, acquire or
otherwise enter into strategic relationships with, may presently or in the
future have businesses or otherwise undertake activities that may directly
or indirectly compete with or provide a strategic fit with the business of
the Company as such business is presently conducted or may be conducted in
the future and may presently or in the future independently develop or sell
products or services which may directly or indirectly compete with products
or services developed or sold by the Company. The Purchaser shall adopt and
maintain confidentiality, chinese wall and other procedures appropriate in
its reasonable judgment to ensure that confidential information regarding
the Company is not disclosed to third Persons as a result of any such
interests, relationships or activities and shall cause any Beacon Nominee
to resign from the Company's board of directors if such resignation is, in
the opinion of French counsel mutually acceptable to the Purchaser and the
Company, required by the fiduciary duties under French law of such Beacon
Nominee to the Company as a result of such interests, relationships or
activities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date first above
written.
COMPAGNIE GENERALE DE GEOPHYSIQUE
By: /s/ Robert Brunk
------------------------
Name: R. Brunk
----------------------
Title: Chairman and CEO
---------------------
THE BEACON GROUP ENERGY INVESTMENT FUND II, L.P.
By: BEACON ENERGY INVESTORS II, L.P., its general partner
By: /s/ John MacWilliams
----------------------------
Authorized Signatory
<PAGE>
LIST OF EXHIBITS
Exhibit A Bulletin de souscription
Exhibit B Registration Rights Agreement
Exhibit C Form of Jones, Day, Reavis & Pogue Legal Opinion
Exhibit D Expense Reimbursement Agreement
Exhibit E Form of Fried, Frank, Harris, Shriver & Jacobson Legal Opinion
EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT, dated as of December 10, 1999, by and among,
THE BEACON GROUP ENERGY INVESTMENT FUND II, L.P., a Delaware limited
partnership, (the "Investor"), and COMPANGIE GENERALE DE GEOPHYSIQUE, a
societe anonyme organized under French law (the "Company").
W I T N E S S E T H:
WHEREAS, the Company and the Investor are parties to a Subscription
Agreement, dated as of October 23, 1999 (as amended from time to time, the
"Subscription Agreement"), pursuant to which the Company has issued to the
Investor, and the Investor have purchased Ordinary Shares (as defined
below) from the Company (the "Shares");
WHEREAS, in connection with the entry by the Company and the Investor into
the Subscription Agreement, the Company has agreed to provide registration
rights to the Investor with respect to the Shares and the ADRs set forth in
this Agreement.
ACCORDINGLY, the parties hereto hereby agree as follows:
1. Certain Definitions
-------------------
(a) In addition to the terms defined in the preamble hereto, as used
in this Agreement, the following terms shall have the meanings assigned to
them below:
1.1 "Additional Piggyback Rights" has the meaning set forth in Section
2.1(e).
1.2 "Affiliate" shall mean with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person.
1.3 "American Depositary Receipts" or "ADRs" shall mean the American
depositary receipts evidencing the ADSs issued by the Depositary pursuant
to the Deposit Agreement, dated as of _____________________ between the
Company and the Bank of New York as Depositary, as amended (the "Deposit
Agreement").
1.4 "American Depositary Shares" or "ADSs" shall mean the American
depositary shares of the Company which each represent a one-fifth interest
in an Ordinary Share deposited with the Depositary.
1.5 "Authorized Agent" has the meaning set forth in Section 4.6(i).
1.6 "Claims" has the meaning set forth in Section 2.9(a).
1.7 "Commission" or "SEC" shall mean the United States Securities and
Exchange Commission.
1.8 "Company Securities" has the meaning set forth in Section
2.3(b)(ii).
1.9 "Demand Exercise Notice" has the meaning set forth in Section
2.1(a).
1.10 "Demand Registrations" has the meaning set forth in Section
2.1(a).
1.11 "Demand Registration Requests" has the meaning set forth in
Section 2.1(a).
1.12 "Deposit Agreement" shall mean the Deposit Agreement, as amended,
between the Depositary and the Company pursuant to which certain Ordinary
Shares have been and may be deposited with the Depositary in exchange for
the delivery of ADSs.
1.13 "Depositary" shall mean The Bank of New York or such successor
depositary appointed pursuant to the Deposit Agreement.
1.14 "Dollars"and the symbols "$" or "US$" shall mean, unless
otherwise indicated, U.S. dollars.
1.15 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, of the United States of America.
1.16 "Excluded Registration" has the meaning set forth in Section
2.2(a).
1.17 "Expenses" has the meaning set forth in Section 2.5(a).
1.18 "Holder" or "Holders" shall mean the Investor and any Person who
shall hereafter acquire and hold Registrable Securities; provided that such
party has become a signatory to this Agreement and agreed to be bound by
the terms of this Agreement applicable to a "Holder".
1.19 Investor Securities" has the meaning set forth in Section
2.3(b)(iii).
1.20 Litigation" has the meaning set forth in Section 4.6(i).
1.21 Major Holder" has the meaning set forth in Section 2.4(a).
1.22 Manager" has the meaning set forth in Section 2.3(a).
1.23 "NASD" shall mean the National Association of Securities Dealers,
Inc.
1.24 "New York Court" has the meaning set forth in Section 4.6(i).
1.25 "Ordinary Shares" shall mean the ordinary shares par value of FRF
10 per ordinary share of the Company which may be represented by ADSs
evidenced by ADRs, or, in the case of a conversion, reclassification or
exchange of such Ordinary Shares, shares of the stock into or for which
such shares of Ordinary Shares shall be converted, reclassified or
exchanged, and all provisions of this Agreement shall be applied
appropriately thereto and to any stock resulting from any subsequent
conversion, reclassification or exchange therefor.
1.26 "Ordinary Share Equivalents" shall mean all options, warrants and
other securities convertible into, or exchangeable or exercisable for, at
any time or upon the occurrence of any event or contingency and without
regard to any vesting or other conditions to which such securities may be
subject, Ordinary Shares and/or ADSs.
1.27 "Other Demand Holders" has the meaning set forth in Section
2.3(b).
1.28 "Other Demand Holders Securities" has the meaning set forth in
Section 2.3(b)(i).
1.29 "Person" shall mean an individual, corporation, partnership,
limited liability company, firm, association, trust, government,
governmental agency or other entity, whether acting in an individual,
fiduciary or other capacity.
1.30 "Postponement Period" has the meaning set forth in Section
2.1(d).
1.31 "Qualified Independent Underwriter" shall mean a "qualified
independent underwriter" within the meaning of the rules of the NASD.
1.32 "Register", "Registered" and "Registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the U.S. Securities Act and the declaration or ordering of
the effectiveness of such registration statement.
1.33 "Registrable Securities" shall mean (i) any Ordinary Shares held
as of the date hereof by the Investor or hereafter acquired by the
Investor; or (ii) any ADSs evidenced by ADRs hereafter acquired by the
Investor; (iii) any Ordinary Shares or any ADSs evidenced by ADRs acquired
by any Person after the date hereof from the Investor; or (iv) any stock
issued or issuable, directly or indirectly, upon any subdivision,
combination or reclassification of such stock or stock dividend in respect
of the Ordinary Shares or ADSs referenced in clauses (i), (ii) and (iii)
above; provided, however, that with respect to a registration statement
pursuant to Section 2.1 or Section 2.2, Registrable Securities shall
include all Ordinary Shares or ADSs (including shares obtainable upon the
exercise, exchange or conversion of any Ordinary Share Equivalents) owned
by each of the parties to this Agreement (other than the Company). As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to
the sale of such securities shall have been declared effective under the
applicable securities laws and such securities shall have been disposed of
in accordance with such registration statement or (ii) such securities
shall have been sold (other than in a privately negotiated sale) pursuant
to Rule 144 (or any successor or comparable provision) under the U.S.
Securities Act and in compliance with the requirements of Rule 144, or
(iii) such securities are saleable by the holder thereof pursuant ot Rule
144 (k) without any volume limitation applicable thereto.
1.34 "Section 2.1 Sale Number" has the meaning set forth in Section
2.3(a).
1.35 "Section 2.2 Sale Number" has the meaning set forth in Section
2.3(b).
1.36 "Securities Act" shall mean the Securitites Act of 1933, as
amended, of the United States of America.
1.37 "Valid Business Reason" has the meaning set forth in Section
2.1(d).
(b) Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Subscription Agreement.
2. Registration Rights
-------------------
2.1 Demand Registrations
--------------------
(a) Subject to Sections 2.1(d) and 2.3 below, at any time and
from time to time any Holder shall have the right to require the Company to
file a registration statement under the Securities Act and the rules and
regulations promulgated thereunder covering all or part of their respective
Registrable Securities, by delivering a written request therefor to the
Company specifying the number of Registrable Securities to be included in
such registration by such Holder and the intended method of distribution
thereof. All requests pursuant to this Section 2.1 are referred to herein
as "Demand Registration Requests," and the registrations requested are
referred to herein as "Demand Registrations". As promptly as practicable,
but no later than ten days after receipt of a Demand Registration Request,
the Company shall give written notice (the "Demand Exercise Notice") of
such Demand Registration Request to all Holders of record of Registrable
Securities.
(b) The Company, subject to Sections 2.3 and 2.7, shall include
in a Demand Registration (i) the number of Registrable Securities requested
by such Holder and (ii) the Registrable Securities of any other Holder who
shall have made a written request to the Company for inclusion in such
Demand Registration (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder) within 30
days after the receipt of the Demand Exercise Notice.
(c) The Company shall, as expeditiously as possible following a
Demand Registration Request, use its best efforts to (i) effect such
registration under the Securities Act and the rules and regulations
promulgated thereunder of the Registrable Securities which the Company has
been so requested to register, for distribution in accordance with such
intended method of distribution and (ii) if requested by the Holders,
obtain acceleration of the effective date of the registration statement
relating to such registration.
(d) The Demand Registration rights granted under Section 2.1 are
subject to the following limitations: (i) the Company shall not be required
to cause a registration pursuant to Section 2.1 to be declared effective
within a period of 180 days after the effective date of any registration
statement of the Company filed pursuant to a Demand Registration Request or
within a period of 180 days after the date such Holder was given the
opportunity to register its Registrable Securities pursuant to Section 2.2
(provided that in connection with such registration pursuant to Section
2.2, the number of Registrable Securities requested to be included by such
Holder was not reduced pursuant to Section 2.3); (ii) if the Board, in its
good faith judgment, determines that any registration of Registrable
Securities should not be made or continued because it would materially
interfere with any material financing, acquisition, corporate
reorganization or merger involving the Company or would require disclosure
of information, the premature disclosure of which would materially
adversely affect the Company (a "Valid Business Reason"), (A) the Company
may postpone filing a registration statement relating to a Demand
Registration Request until such Valid Business Reason no longer exists, but
in no event for more than 120 days, and (B) in case a registration
statement has been filed relating to a Demand Registration Request, the
Company may cause such registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
registration statement until such Valid Business Reason no longer exists,
but in no event for more than 120 days (such period of postponement or
withdrawal under subclauses (A) or (B) of this paragraph (d), (the
"Postponement Period"); and the Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the
fact that the Valid Business Reason for such postponement, withdrawal or
premature termination no longer exists, in each case, promptly after the
occurrence thereof; provided, however, that the Company shall not be
permitted to postpone, withdraw or prematurely terminate a registration
statement previously subject to any Postponement Period ; and (iii) the
Company shall not be required to effect a registration pursuant to this
Section 2.1 with respect to a Demand Registration Request by any Holder, if
the anticipated aggregate offering price of the Registrable Securities to
be sold is less than $20 million.
If the Company shall give any notice of postponement or
withdrawal of any registration statement, the Company shall not, during the
Postponement Period, register any Ordinary Shares or ADSs for the account
of any other Person (other than in connection with an Excluded
Registration). Each Holder of Registrable Securities agrees that, upon
receipt of any notice from the Company that the Company has determined to
withdraw any registration statement pursuant to clause (ii) above, such
party will discontinue its disposition of Registrable Securities pursuant
to such registration statement and, if so directed by the Company, will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such party's possession, of the prospectus
covering such Registrable Securities that was in effect at the time of
receipt of such notice. If the Company shall have withdrawn or prematurely
terminated a registration statement filed under Section 2.1 (whether
pursuant to this paragraph (d) or as a result of any stop order, injunction
or other order or requirement of the Commission or any other governmental
agency or court), the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement until the Company
shall have filed a new registration statement covering the Registrable
Securities covered by the withdrawn or prematurely terminated registration
statement and such subsequent registration statement shall have been
declared effective and shall not have been withdrawn or prematurely
terminated. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, at such time
as the Valid Business Reason that caused such withdrawal or postponement no
longer exists (but in no event later than 120 days after the date of the
withdrawal or postponement), use its best efforts to effect the
registration under the securities laws of the Registrable Securities
covered by the withdrawn or postponed registration statement in accordance
with this Section 2.1 (unless the Holders shall have withdrawn such
request, in which case the Company shall not be considered to have effected
an effective registration for the purposes of this Agreement).
(e) The Company, subject to Sections 2.3 and 2.7, may elect to
include in any registration statement and offering made pursuant to Section
2.1, any Ordinary Shares or ADSs which are requested to be included in such
registration pursuant to the exercise of piggyback registration rights
granted by the Company after the date hereof in accordance with the terms
of this Agreement ("Additional Piggyback Rights"); provided, however, that
such inclusion shall be permitted only to the extent that it is pursuant
to, and subject to, the terms of any applicable underwriting agreement or
arrangements entered into by the Holders.
2.2 Piggyback Registrations
-----------------------
(a) If at any time, the Company proposes or is required to
register any of its equity securities under the securities laws (other than
a registration statement (i) on Form F-4 or S-8 or any successor form
thereto or (ii) filed in connection with an offering made solely to
employees of the Company or its subsidiaries (each, an "Excluded
Registration")), whether or not for its own account, the Company shall give
prompt written notice of its intention to do so to each of the Holders of
record of Registrable Securities. Upon the written request of any Holder,
made within 20 days following the receipt of any such written notice (which
request shall specify the maximum number of Registrable Securities intended
to be disposed of by such Holder and the intended method of distribution
thereof), the Company shall, subject to Sections 2.2(b), 2.3 and 2.7, use
its best efforts to cause all such Registrable Securities, the Holders of
which have so requested the registration thereof, to be registered under
the securities laws (with the securities which the Company at the time
proposes to register) to permit the sale or other disposition by the
Holders (in accordance with the intended method of distribution thereof) of
the Registrable Securities to be so registered. No registration effected
under this Section 2.2(a) shall relieve the Company of its obligations to
effect Demand Registrations under Section 2.1, except as set forth in
Section 2.1(d).
(b) If at any time after giving written notice of its intention
to register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its election,
give written notice of such determination to all Holders of Registrable
Securities, and (i) in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Securities in
connection with such abandoned registration, without prejudice, however, to
the rights of Holders of Registrable Securities under Section 2.1 and (ii)
in the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw; provided, however, that (A) such request must be made
in writing prior to the execution of the underwriting agreement (or such
other similar agreement) with respect to such registration and (B) such
withdrawal shall be irrevocable and, after making such withdrawal, a Holder
shall no longer have any right to include such Registrable Securities in
the registration as to which such withdrawal was made.
2.3 Allocation of Securities Included in Registration Statement
-----------------------------------------------------------
(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and if the lead managing underwriter (the
"Manager") shall advise the Company that, in its view, the number of
securities requested to be included in such registration (including those
securities requested by the Company to be included in such registration)
exceeds the largest number (the "Section 2.1 Sale Number") that can be sold
in an orderly manner in such offering within a price range acceptable to
the Holders, the Company shall include in such registration:
(i) first, all Registrable Securities requested to be
included pursuant to Section 2.1(b)(i) in such registration by the
Investor;
(ii) second, to the extent that the number of Registrable
Securities to be included pursuant to Section 2.3(a)(i) is less than the
Section 2.1 Sale Number, all Registrable Securities requested to be
included pursuant to Section 2.1(b)(i) in such registration by all other
Holders; provided, however, that if the number of such Registrable
Securities and the number of Registrable Securities to be included pursuant
to Section 2.3(a) exceeds the Section 2.1 Sale Number, then the number of
Registrable Securities (not to exceed the Section 2.1 Sale Number) to be
included in such registration shall be reduced on a pro rata basis among
all such Holders, based on the number of Registrable Securities owned by
each such Holder requesting inclusion pursuant to Section 2.1(b)(i) out of
the total outstanding number of Ordinary Shares of the Company; provided,
however, that such allocation shall not operate to reduce the aggregate
number of Registrable Securities to be included in such registration below
the Section 2.1 Sale Number, and if any Holder does not request inclusion
of the maximum number of shares of Registrable Securities allocated to such
Holder pursuant to the above-described procedure, the remaining portion of
such Holder's allocation shall be reallocated among those requesting
Holders whose allocations did not satisfy their requests pro rata on the
basis of the number of shares of Registrable Securities which would be held
by such Holders, and this procedure shall be repeated until all of the
shares of Registrable Securities which may be included in the registration
on behalf of the Holders have been so allocated;
(iii) third, to the extent that the number of Registrable
Securities to be included pursuant to Sections 2.3(a)(i) and 2.3(a)(ii) is
less than the Section 2.1 Sale Number, securities that the Company proposes
to register; and
(iv) fourth, to the extent that the number of Registrable
Securities to be included by all Holders pursuant to Sections 2.3(a)(i) and
2.3(a)(ii) and the number of securities to be included by the Company
pursuant to Section 2.3(a)(iii) is less than the Section 2.1 Sale Number,
any other securities that the Holders thereof propose to register pursuant
to the exercise of Additional Piggyback Rights.
If, as a result of the proration provisions of this Section
2.3(a), any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested be included,
such Holder may elect to withdraw his request to include Registrable
Securities in such registration or may reduce the number requested to be
included; provided, however, that (A) such request must be made in writing
prior to the execution of the underwriting agreement with respect to such
registration and (B) such withdrawal shall be irrevocable and, after making
such withdrawal, a Holder shall no longer have any right to include such
Registrable Securities in the registration as to which such withdrawal was
made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Manager shall advise the Company that, in its
view, the number of securities requested to be included in such
registration exceeds the number (the "Section 2.2 Sale Number") that can be
sold in an orderly manner in such registration within a price range
acceptable to the Company or, in the event such underwritten offering is
being made pursuant to the request of the holders of equity securities
(other than the Holders) exercising their demand registration rights
("Other Demand Holders"), within a price range acceptable to the holders of
a majority of the securities requested to be registered by the Other Demand
Holders, the Company shall include in such registration:
(i) first, in event such underwritten offering is being made
at the request of Other Demand Holders, all Ordinary Shares or ADSs
requested to be included by such Other Demand Holders (the "Other Demand
Holders Securities"); provided, however, that if the number of Other Demand
Holders Securities exceeds the Section 2.2 Sale Number, then the number of
Other Demand Holders Securities included in such registration shall be
reduced by such difference;
(ii) second, all Ordinary Shares or ADSs that the Company
proposes to register for its own account ("Company Securities");
(iii) third, to the extent that the number of Company
Securities and other Demand Holders Securities is less than the Section 2.2
Sale Number, all Registrable Securities requested to be included by the
Investor pursuant to Section 2.2(a) ("Investor Securities"); provided,
however, that, if the number of such Investor Securities exceeds the
Section 2.2 Sale Number less the number of Company Securities and Other
Demand Holders Securities, then the number of Investor Securities included
in such registration shall be reduced by such difference; and
(iv) fourth, to the extent the number of Company Securities,
Investor Securities and Other Demand Holders Securities is less than the
Section 2.2 Sale Number, all Registrable Securities requested to be
included by all other holders of equity securities of the Company with
"piggyback registration rights"; provided, however, if the number of such
securities exceeds the Section 2.2 Sale Number less the sum of the number
of (A) Company Securities, (B) Investor Securities and (C) Other Demand
Holders Securities, then the number of such securities included in such
registration shall be reduced on a pro rata basis, based on the number of
securities owned by each holder of equity securities of the Company with
"piggyback registration rights" (including all Holders other than the
Investor) requesting inclusion to the number of securities owned by all
holders of equity securities of the Company with "piggyback registration
rights" (including all Holders other than the Investor) requesting
inclusion; provided, however, that such allocation shall not operate to
reduce the aggregate number of securities to be included in such
registration below the Section 2.2 Sale Number, and if any holder of equity
securities of the Company with "piggyback registration rights" does not
request inclusion of the maximum number of shares allocated to such holder
pursuant to the above-described procedure, the remaining portion of such
holder's allocation shall be reallocated among those requesting holders
whose allocations did not satisfy their requests pro rata on the basis of
the number of shares of securities held by such holders, and this procedure
shall be repeated until all of the shares of securities which may be
included in the registration on behalf of the holders have been so
allocated.
2.4 Registration Procedures
-----------------------
If and whenever the Company is required by the provisions of this Agreement
to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this
Agreement, the Company shall, as expeditiously as possible (but in any
event, within 120 days after a Demand Registration Request in the case of
Section 2.4(a)):
(a) prepare and file with the Commission a registration statement
on an appropriate registration form of the Commission for the disposition
of such Registrable Securities in accordance with the intended method of
disposition thereof, which form shall, in the case of a shelf registration,
be available for the sale of the Registrable Securities by the Holders
thereof and such registration statement shall comply with the requirements
of the applicable form and include all financial statements required by the
Commission to be filed therewith, and the Company shall use its best
efforts to cause such registration statement to become and, subject to
Sections 2.1(d) and 2.4(b), remain effective (provided, however, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, or comparable statements under securities or "blue
sky" laws of any United States jurisdiction, the Company will furnish to
counsel (in the case of a registration pursuant to Section 2.1, selected by
the Investor, and, in the case of a registration pursuant to Section 2.2,
the Holder that, together with its Affiliates, includes the largest number
of Registrable Securities in such registration (the "Major Holder")) for
the Holders of Registrable Securities participating in the planned offering
and the underwriters, if any, copies of all such documents proposed to be
filed (including all exhibits thereto), which documents will be subject to
the review and comment of such counsel, provided that the Company shall not
be required to include any such comment to which the Company shall
reasonably object);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for such period (which shall not be required to exceed
120 days in the case of a registration pursuant to Section 2.1 or 90 days
in the case of a registration pursuant to Section 2.2 and shall terminate
when all Registrable Securities covered by such registration statement have
been sold pursuant to such registration statement) as any seller of
Registrable Securities pursuant to such registration statement may
reasonably request and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Securities
covered by such registration statement in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement;
(c) furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including
all exhibits), and the prospectus included in such registration statement
(including each preliminary prospectus) in conformity with the requirements
of the Securities Act and other documents, as such seller and underwriter
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such seller (the Company
hereby consenting to the use in accordance with all applicable laws of each
such registration statement (or amendment or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or supplement
thereto) by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such registration statement or
prospectus);
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions within the United
States as any sellers of Registrable Securities or any managing
underwriter, if any, shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such sellers or underwriter, if any, to consummate the disposition of the
Registrable Securities in such jurisdictions, except that in no event shall
the Company be required to qualify to do business as a foreign corporation
in any jurisdiction where it would not, but for the requirements of this
paragraph (d), be required to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) promptly notify each seller of Registrable Securities covered
by such registration statement and each managing underwriter, if any: (i)
when the registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed and, with respect to
the registration statement or any post-effective amendment, when the same
has become effective, (ii) of any request by the Commission or any United
States state securities authority for amendments or supplements to the
registration statement or the prospectus related thereto or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities
or "blue sky" laws of any jurisdiction or the initiation of any proceeding
for such purpose, (v) of the existence of any fact of which the Company
becomes aware which results in the registration statement, the prospectus
related thereto or any document incorporated therein by reference
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any
statement therein not misleading, and (vi) if at any time the
representations and warranties contemplated by any underwriting agreement,
securities sales agreement, or other similar agreement relating to the
offering shall cease to be true and correct in all material respects; and,
if the notification relates to an event described in clause (v), the
Company shall promptly prepare and furnish to each such seller and each
underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon
as reasonably practicable after the effective date of the registration
statement (and in any event within 15 months thereafter), an earnings
statement (which need not be audited) covering the period of at least
twelve consecutive months beginning with the first day of the Company's
first calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(g) if requested by any Holder, to cause any Ordinary Shares held
by such Holder to be deposited at its expense with the Depositary or any
substitute Depositary reasonably satisfactory to such Holder in exchange
for ADSs evidenced by ADRs, in order to permit the registration and sale of
such ADRs in accordance with the terms and conditions hereof;
(h) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal U.S. securities
exchange on which similar securities issued by the Company are then listed
(if any), if the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) if no similar securities are then
so listed, cause all such Registrable Securities to be listed on a United
States national securities exchange or secure designation of each such
Registrable Security as a Nasdaq National Market "national market system
security" within the meaning of Rule 11Aa2-1 of the Commission or secure
National Association of Securities Dealers Automated Quotation
authorization for such stock and, without limiting the generality of the
foregoing, take all actions that may be required by the Company as the
issuer of such Registrable Securities in order to facilitate the arranging
for the registration of at least two market makers as such with respect to
such stock with the NASD;
(i) provide and cause to be maintained a transfer agent,
registrar and depositary agent for all such Registrable Securities covered
by such registration statement not later than the effective date of such
registration statement;
(j) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the
Major Holder (or the Holders in the case of a Section 2.1 Demand
Registration) shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(k) obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants in
customary form and covering such matters as are customarily covered by such
opinions and "cold comfort" letters delivered to underwriters in
underwritten public offerings, which opinion and letter shall be reasonably
satisfactory to the underwriter, if any, and to the Major Holders
participating in such offering, and furnish to each Holder participating in
the offering and to each underwriter, if any, a copy of such opinion and
letter addressed to such Holder or underwriter;
(l) deliver promptly to each Holder participating in the offering
and each underwriter, if any, copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda
relating to discussions with the Commission, its staff, other than those
portions of any such correspondence and memoranda which contain information
subject to attorney-client privilege with respect to the Company, and, upon
receipt of such confidentiality agreements as the Company may reasonably
request, make reasonably available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter, if any, participating in any disposition to be effected
pursuant to such registration statement and by any attorney, accountant or
other agent retained by any such seller or any such underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers,
directors and employees to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement;
(m) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(n) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(o) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters in the
marketing of Registrable Securities in any underwritten offering;
(p) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) provide copies of
such document to counsel to the sellers of Registrable Securities and to
the managing underwriter, if any, and make the Company's representatives
reasonably available for discussion of such document and make such changes
in such document concerning such sellers prior to the filing thereof as
counsel for such sellers or underwriters may reasonably request;
(q) furnish to each Holder participating in the offering and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(r) cooperate with the sellers of Registrable Securities and the
managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates not bearing any restrictive legends representing
the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names
in accordance with the underwriting agreement prior to any sale of
Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the sellers of Registrable
Securities at least three business days prior to any sale of Registrable
Securities; and
(s) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition
of such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable
Securities as to which any registration is being effected furnish the
Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request,
provided that such information shall be used only in connection with such
registration.
Each Holder of Registrable Securities agrees that upon receipt of
any notice from the Company of the happening of any event of the kind
described in clause (iii), (iv) or (v) of paragraph (e) of this Section
2.4, such Holder will discontinue such Holder's disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by paragraph (e) of this Section 2.4 and,
if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the prospectus covering such Registrable
Securities that was in effect at the time of receipt of such notice. In the
event the Company shall give any such notice, the applicable period
mentioned in paragraph (b) of this Section 2.4 shall be extended by the
number of days during such period from and including the date of the giving
of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated
by paragraph (e) of this Section 2.4.
2.5 Registration Expenses
---------------------
(a) "Expenses" shall mean any and all fees and expenses incident
to the Company's performance of or compliance with this Article 2,
including, without limitation: (i) Commission, United States stock exchange
or NASD registration and filing fees and all listing fees and fees with
respect to the inclusion of securities in the Nasdaq National Market; (ii)
fees and expenses of compliance with securities laws or United States "blue
sky" laws and in connection with the preparation of a "blue sky" survey,
including, without limitation, fees and expenses of blue sky counsel; (iii)
printing and copying expenses; (iv) messenger and delivery expenses; (v)
expenses incurred in connection with any road show; (vi) fees and
disbursements of counsel for the Company; (vii) with respect to each
registration, the reasonable fees and disbursements of one counsel in the
United States, as required, for the sellers of Registrable Securities as
well as of local counsel in France (selected by the Holders in the case of
a registration pursuant to Section 2.1, and selected by the Major Holder in
the case of a registration pursuant to Section 2.2); (viii) fees and
disbursements of all independent public accountants (including the expenses
of any audit and/or "cold comfort" letter) and fees and expenses of other
persons, including special experts, retained by the Company and (ix) any
other reasonable fees and disbursements of underwriters, if any,
customarily paid by issuers.
(b) The Company shall pay all Expenses with respect to any Demand
Registration pursuant to Section 2.1 whether or not such Demand
Registration becomes effective or does not remain effective for the period
contemplated by Section 2.4(b), provided that the Holder(s) making any
Demand Registration Request shall be responsible for all Expenses with
respect to any Demand Registrtion in which such Holder(s) has withdrawn
such Demand Registration Request. The Company shall pay all Expenses of
each Holder with respect to any registration effected under Section 2.2.
Each holder of Registrable Securities (other than the Holders) shall pay
the expenses incurred by that holder with respect to any registration
effected pursuant to Section 2.2.
(c) Notwithstanding the foregoing, (i) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with United States "blue sky" laws of each
state or the securities laws of any other jurisdiction in which the
offering is made and (ii) in connection with any registration hereunder,
each Holder of Registrable Securities being registered shall pay all
underwriting discounts and commissions and any transfer taxes, if any,
attributable to the Registrable Securities, pro rata with respect to
payments of discounts and commissions in accordance with the number of
shares included in the offering by such Holder, and (iii) the Company shall
be responsible for all of its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties).
2.6 Certain Limitations on Registration Rights
------------------------------------------
In the case of any registration under Section 2.1 pursuant to an
underwritten offering, or in the case of a registration under Section 2.2
if the Company has determined to enter into an underwriting agreement in
connection therewith, all securities to be included in such registration
shall be subject to an underwriting agreement and no Person may participate
in such registration unless such Person agrees to sell such Person's
securities on the basis provided therein and completes and/or executes all
questionnaires and other documents which must be executed in connection
therewith, and provides such other information to the Company or the
underwriter as may be necessary to register such Person's securities.
2.7 Limitations on Sale or Distribution of Other Securities
-------------------------------------------------------
(a) If requested in writing by the managing underwriter(s), if
any, of any registration effected pursuant to Section 2.1 or 2.2, each
Holder agrees, and if requested will confirm such agreement in writing, not
to effect any public sale or distribution, including, without limitation,
any sale pursuant to Rule 144 under the Securities Act, of any Registrable
Securities, or of any other equity security of the Company or of any
security convertible into or exchangeable or exercisable for any equity
security of the Company (other than as part of such underwritten public
offering) during the ten day period prior to, and during the 90 day period
beginning on, the closing date of each such underwritten offering.
(b) The Company hereby agrees, and if requested will confirm such
agreement in writing, that, if (i) it shall previously have received a
request for registration pursuant to Section 2.1 or 2.2, and if such
previous registration shall not have been withdrawn or abandoned, and (ii)
the managing underwriter(s), if any, of such registration has requested in
writing, then the Company shall not sell, transfer, or otherwise dispose
of, any Ordinary Shares or ADSs, or any other equity security of the
Company or any security convertible into or exchangeable or exercisable for
any equity security of the Company (other than as part of such underwritten
public offering, or upon the conversion, exchange or exercise of any then
outstanding Ordinary Share Equivalent), during the ten-day period prior to,
and during the 90-day period beginning on, the closing date of such
previous registration; and the Company shall so provide in any registration
rights agreements hereafter entered into with respect to any of its
securities.
2.8 No Required Sale
----------------
Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any Holder to sell any Registrable Securities
pursuant to any effective registration statement.
2.9 Indemnification for Registrations.
---------------------------------
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Article 2, the Company
shall, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, the seller of any Registrable Securities, its directors,
officers, fiduciaries, employees and stockholders or general and limited
partners (and the directors, officers, employees and stockholders thereof),
each other Person who participates as an underwriter or a Qualified
Independent Underwriter, if any, in the offering or sale of such
securities, each officer, director, employee, stockholder or partner of
such underwriter or Qualified Independent Underwriter, and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, actions or proceedings (whether commenced
or threatened) in respect thereof and expenses (including fees of counsel
and any amounts paid in any settlement effected with the Company's consent
) to which each such indemnified party may become subject under the
Securities Act or otherwise ("Claims"), insofar as such Claims arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement under which such
securities were registered under the Securities Act or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus or any amendment
or supplement thereto, together with the documents incorporated by
reference therein, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or (iii) any violation by the Company of any
federal, state, or common law rule or regulation applicable to the Company
and relating to action required or inaction of the Company in connection
with any such registration, and the Company will reimburse any such
indemnified party for any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
such Claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such indemnified party in any such case
to the extent such Claim arises solely out of any untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
of a material fact made in such registration statement or amendment thereof
or supplement thereto or in any such prospectus or any preliminary, final
or summary prospectus in reliance upon, and in conformity with, written
information furnished to the Company by, or on behalf of, such indemnified
party specifically for use therein. Such indemnity and reimbursement of
expenses shall remain in full force and effect regardless of any
investigation made by, or on behalf of, such indemnified party and shall
survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is
being effected (and, if required by the Company as a condition to including
any Registrable Securities in any registration statement filed in
accordance with Section 2.1 or Section 2.2, any underwriter or Qualified
Independent Underwriter, if any), shall, severally and not jointly,
indemnify and hold harmless (in the same manner and to the same extent as
set forth in paragraph (a) of this Section 2.9) to the extent permitted by
law, the Company, its officers, directors, fiduciaries, employees and
stockholders or general and limited partners (and the directors, officers,
employees, and stockholders thereof), each Person controlling the Company
within the meaning of the Securities Act with respect to any untrue
statement or alleged untrue statement of any material fact in, or omission
or alleged omission of any material fact from, such registration statement,
any preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon, and in conformity
with, written information furnished to the Company or its representatives
by, or on behalf of, such Holder or underwriter or Qualified Independent
Underwriter, if any, specifically for use therein and shall reimburse such
indemnified party for any legal or other expenses reasonably incurred in
connection with investigating or defending any such Claim as such expenses
are incurred; provided, however, that the aggregate amount which any such
Holder shall be required to pay pursuant to this Section 2.9(b) and
Sections 2.9(c) and (e) shall in no case be greater than the amount of the
net proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the registration statement giving rise to such
Claim. Such indemnity and reimbursement of expenses shall remain in full
force and effect regardless of any investigation made by, or on behalf of,
such indemnified party and shall survive the transfer of such securities by
such Holder.
(c) Indemnification similar to that specified in the preceding
paragraph (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company with respect to any required registration or
other qualification of securities under any state securities and "blue sky"
laws.
(d) Any person entitled to indemnification under this Agreement
shall promptly notify the indemnifying party in writing of the commencement
of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure
of any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of
this Section 2.9, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
this Article 2. In case any action or proceeding is brought against an
indemnified party, it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such Claim, to
assume the defense thereof jointly with any other indemnifying party
similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnifying party fails
to take reasonable steps necessary to defend diligently the action or
proceeding within 20 days after receiving notice from such indemnified
party that the indemnified party believes it has failed to do so, (ii) if
such indemnified party who is a defendant in any action or proceeding which
is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party and
that would cause representation by the same counsel to be inappropriate
under applicable standards of professional conduct, or (iii) if
representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, then, in
any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm
of counsel for all indemnified parties in each jurisdiction, except to the
extent any indemnified party or parties reasonably shall have concluded
that there may be legal defenses available to such party or parties which
are not available to the other indemnified parties and that would cause
representation by the same counsel to be inappropriate under applicable
standards of professional conduct or to the extent representation of all
indemnified parties by the same counsel is otherwise inappropriate under
applicable standards of professional conduct) and the indemnifying party
shall be liable for any expenses therefor (including, without limitation,
any such counsel's fees). No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or
threatened action or Claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (A) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (B) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by, or on behalf of, any
indemnified party. No indemnifying party shall be liable for any settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or Claim entered into by any indemnified
party without such indemnifying party's prior written consent during any
period in which the indemnifying party is not in material breach of its
obligations under this Section 2.9.
(e) If for any reason the foregoing indemnity is unavailable or
is insufficient to hold harmless an indemnified party under Sections
2.9(a), (b) or (c), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any Claim
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the
other hand, with respect to such offering of securities. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. If, however, the allocation
provided in the second preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults, but also the relative benefits of
the indemnifying party and the indemnified party, as well as any other
relevant equitable considerations. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 2.9(e)
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in the preceding sentences of this Section 2.9(e). The amount
paid or payable in respect of any Claim shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Notwithstanding anything
in this Section 2.9(e) to the contrary, no indemnifying party (other than
the Company) shall be required pursuant to this Section 2.9(e) to
contribute any amount in excess of the net proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering
to which the losses, claims, damages or liabilities of the indemnified
parties relate, less the amount of any indemnification payment made
pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
or omitted by, or on behalf of, any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section
2.9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
3. Underwritten Offerings
----------------------
3.1 Requested Underwritten Offerings
--------------------------------
If requested by the underwriters for any underwritten offering by the
Holders pursuant to a registration requested under Section 2.1, the Company
shall enter into a customary underwriting agreement with the underwriters.
Such underwriting agreement shall be satisfactory in form and substance to
the Holders acting reasonably and in such underwriting agreement, the
Company shall, make to, and for the benefit of, such Holders the
representations, warranties and covenants of the Company which are being
made to, and for the benefit of, such underwriters and which are of the
type customarily provided to institutional investors in secondary
offerings. Any Holder participating in the offering shall be a party to
such underwriting agreement and may, at its option, require that any or all
of the representations and warranties made by, and the other agreements on
the part of, the Company to, and for the benefit of, such underwriters
shall also be made to, and for the benefit of, such Holder and that any or
all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the
obligations of such Holder; provided, however, that the Company shall not
be required to make any representations or warranties with respect to
information specifically provided by a selling Holder of Registrable
Securities for inclusion in the registration statement. Such underwriting
agreement shall also contain such representations and warranties by the
participating Holders as are customary in agreements of that type.
3.2 Piggyback Underwritten Offerings
--------------------------------
In the case of a registration pursuant to Section 2.2 hereof, if the
Company shall have determined to enter into any underwriting agreements in
connection therewith, all of the Holders' Registrable Securities to be
included in such registration shall be subject to such underwriting
agreements. Any Holder participating in such registration may, at its
option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to, and for the
benefit of, such underwriters shall also be made to, and for the benefit
of, such Holder and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holder. Such underwriting
agreement shall also contain such representations and warranties by the
participating Holders as are customary in agreements of that type.
3.3 Underwriting Services
---------------------
If a Demand Registration pursuant to Section 2.1 involves an underwritten
offering, then the Company shall select the underwriter from underwriting
firms of national reputation in the United States, subject to the approval
of the Holders, such approval not to be unreasonably withheld.
4. General
-------
4.1 Rule 144
--------
The Company covenants that (a) so long as it remains subject to the
reporting provisions of the Exchange Act, it will timely file the reports
required to be filed by it under the Securities Act or the Exchange Act
(including, without limitation, the reports under Sections 13 and 15(d) of
the Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the
Securities Act), and (b) will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable Securities
without registration under the U.S. Securities Act within the limitation of
the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any
Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
4.2 Nominees for Beneficial Owners
------------------------------
If Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its option, be treated as the
Holder of such Registrable Securities for purposes of any request or other
action by any Holder or Holders of Registrable Securities pursuant to this
Agreement (or any determination of any number or percentage of shares
constituting Registrable Securities held by any Holder or Holders of
Registrable Securities contemplated by this Agreement); provided, however,
that the Company shall have received written assurances reasonably
satisfactory to it of such beneficial ownership.
4.3 Amendments
----------
The terms and provisions of this Agreement may be modified or amended, or
any of the provisions hereof waived, temporarily or permanently, pursuant
to the prior written consent of the Company and the Holders of at least 50%
of Registrable Securities
4.4 Notices
-------
All notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or sent by telecopy, or nationally recognized overnight
courier, postage prepaid, addressed to such party at the address set forth
below or such other address as may hereafter be designated in writing by
such party to the other parties:
(i) if to the Company, to:
Compangie Generale De Geophysique
1 rue Leon Migaux
91341 Massy Sedex
France
Telecopy: 011 331 64 47 39 70
Attention: Michel Ponthus
with a copy to:
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
Attention: Jere R. Thomson
(ii) if to the Investor, to:
The Beacon Group Energy Investment Fund II, L.P.
399 Park Avenue
New York, New York 10022
Telecopy: (212) 339-9109
Attention: Robert F. Semmens
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Telecopy: (212) 859-8587
Attention: Charles M. Nathan
Each Holder, by written notice given to the Company in accordance
with this Section 4.5, may change the address to which such notice or other
communications are to be sent to such Holder. Holders who acquire Ordinary
Shares or ADSs after the date hereof shall give the Company notice of their
address in accordance with this Section 4.5. All such notices, requests,
consents and other communications shall be deemed to have been given when
received.
4.6 Miscellaneous
-------------
(a) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and the respective successors,
personal representatives and assigns of the parties hereto, whether so
expressed or not. No Person other than a Holder shall be entitled to any
benefits under this Agreement, except as otherwise expressly provided
herein. This Agreement and the rights of the parties hereunder may be
assigned by any of the parties hereto to any transferee of Registrable
Securities provided that upon the consummation of, and as a condition to,
any such assignment the transferee assumes the obligations of the assignor
under, and agrees to be bound by the terms of, this Agreement.
(b) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemplated arrangements and understandings with
respect thereto.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
the principles of conflicts of law thereof.
(d) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
(e) This Agreement may be executed in any number of counterparts,
and each such counterpart hereof shall be deemed an original instrument,
but all such counterparts together shall constitute but one instrument.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid, but if any
provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
(g) It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them
and that in the event of any such failure, an aggrieved person will be
irreparably damaged and will not have an adequate remedy at law. Any such
person, therefore, shall be entitled to injunctive relief, including
specific performance, to enforce such obligations, without the posting of
any bond, and, if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise
the defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents
as any other party hereto reasonably may request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
(i) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA, IN
EACH CASE LOCATED IN THE COUNTY OF NEW YORK (AS APPLICABLE, A "NEW YORK
COURT"), FOR ANY SUIT, ACTION, PROCEEDING OR INVESTIGATION IN ANY COURT OR
BEFORE ANY GOVERNMENTAL AUTHORITY ("LITIGATION") ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RESULTING FROM SUCH LITIGATION
(AND AGREES NOT TO COMMENCE ANY LITIGATION RELATING THERETO EXCEPT IN SUCH
COURTS). The Company has appointed CT Corporation System, New York NY, as
its authorized agent, (the "Authorized Agent") to receive on its behalf
service of copies of the summons and complaints and any other process which
may be served in any legal suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby which
may be instituted in a New York Court, and waives any other requirements of
or objections to personal jurisdiction with respect thereto. Such service
may be made by delivering a copy of such process to the Company in care of
the Authorized Agent at the addresses specified above for the Authorized
Agent and obtaining a receipt therefor, and the Company hereby irrevocably
authorizes and direct such Authorized Agent to accept such service on its
behalf. The Company represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and agrees that service
of process in such manner upon the Authorized Agent shall be deemed in
every respect effective service of process upon the Company in any such
suit, action or proceeding. The Company further agrees to take any and all
actions as may be necessary to maintain such designation and appointment of
such Authorized Agent in full force and effect. If the Authorized Agent
shall cease to act as the Company's agent in the County of New York for
service of process, the Company shall appoint without delay another such
agent. In the event that the Company shall fail to designate such new
designee, appointee and agent, service of process in any such action or
proceeding may be effected upon the Company by the mailing of copies
thereof by first-class mail (postage prepaid) to the Company at its
addresses set forth herein, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of any party hereto to
serve process in any other manner permitted by law. No party may move to
(i) transfer any Litigation from a New York Court to another jurisdiction,
(ii) consolidate any Litigation brought in a New York Court with a suit,
action or proceeding in another jurisdiction, or (iii) dismiss any
Litigation brought in a New York Court for the purpose of bringing the same
in another jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any
Litigation arising out of this Agreement or the transactions contemplated
hereby in the New York Court, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such Litigation brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
4.7 Prior Agreements
----------------
Each of the Holders and the Company hereby agrees that any agreement
previously entered into by it pursuant to which the Company granted to it
any registration rights shall be superseded by this Agreement and each such
agreement (and any rights such Holder has pursuant to such agreement) shall
be terminated, null and void and no longer in effect.
4.8 No Inconsistent Agreements
--------------------------
Without the prior written consent of the Investor, neither the Company nor
any Holder will, on or after the date of this Agreement, enter into any
agreement with respect to its securities which conflicts with the
provisions hereof, other than any lock-up agreement with the underwriters
in connection with any registered offering effected hereunder, pursuant to
which the Company shall agree not to register for sale, and the Company
shall agree not to sell or otherwise dispose of, Ordinary Shares or ADSs or
any securities convertible into or exercisable or exchangeable for Ordinary
Shares or ADSs, for a specified period following the registered offering.
For the avoidance of doubt, this Section 4.8 shall not prohibit the Company
from granting demand registration rights to other holders of its equity
securities that have priority over persons exercising "piggyback"
registration rights pursuant to Section 2.2.
4.9 English Language
----------------
This Agreement shall be in the English language except as required by
French law (in which event a certified English translation thereof shall be
provided by the Company to each Holder). All documents, certificates,
reports or notices to be delivered or communications to be given or made by
any party hereto pursuant to the terms of this Agreement shall be in the
English language unless otherwise expressly provided herein or, if
originally written in another language, shall be accompanied by an accurate
English translation upon which the Holders hereto shall have the right to
rely for all purposes of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
THE BEACON GROUP ENERGY INVESTMENT
FUND II, L.P.
By: /s/ Mary J. Guilfoile
-----------------------------
Name:
Title:
COMPANGIE GENERALE DE GEOPHYSIQUE
By: /s/ Robert Brunk
-----------------------------
Name: Robert Brunk
Title: Chairman of the Board
and Chief Executive Officer
(Signature Page to Registration
Rights Agreement)
EXHIBIT 3
AGREEMENT OF JOINT FILING
The undersigned hereby agree that they are filing jointly pursuant to Rule
13d-1(k)(l) of the Exchange Act the statement dated January __, 1999,
containing the information required by Schedule 13D, for the Ordinary
Shares of Compagnie Generale de Geophysique held by CGG Investors, LLC, a
Delaware limited liability company, and GF Ltd. Transaction Partnership,
L.P.
Dated: February 4, 2000
ENERGY FUND II GP, LLC
By: /s/ John J. MacWilliams
----------------------------------------
Authorized Signatory*
BEACON ENERGY INVESTORS II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
-------------------------------------
Authorized Signatory*
THE BEACON GROUP ENERGY INVESTMENT FUND II, L.P.
By: Beacon Energy Investors II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
----------------------------
Authorized Signatory*
CGG INVESTORS LLC
By: The Beacon Group Energy Investment Fund II, L.P.
By: Beacon Energy Investors II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
---------------------------
Authorized Signatory*
GF LTD. TRANSACTION PARTNERSHIP, L.P.
By: Beacon Energy Investors II, LP
By: Energy Fund II GP, LLC
By: /s/ John J. MacWilliams
-----------------------------
Authorized Signatory*
- -----------------------
* A Power of Attorney authorizing John MacWilliams to act on behalf of Energy
Fund II GP, LLC is filed herewith as Exhibit 4.
EXHIBIT 4
POWER OF ATTORNEY
ENERGY FUND II GP, LLC hereby authorizes any of GEOFFREY T. BOISI, MARY J.
GUILFOILE, JOHN J. MACWILLIAMS OR PRESTON R. MILLER, acting alone, to sign
and file with the Securities and Exchange Commission on its behalf a
Schedule 13D and any amendments thereto relating to its actual and deemed
beneficial ownership of shares of COMPAGNIE GENERALE DE GEOPHYSIQUE. This
Power of Attorney is valid for twelve (12) months from the date set forth
below.
Dated: February 4, 2000
ENERGY FUND II GP, LLC
By: /s/ Preston R. Miller
----------------------------------
Authorized Signatory
