exv10w2



 






Exhibit 10.2




FIRST AMENDMENT TO AGREEMENT




      This First Amendment to Agreement (this “Amendment”), dated as of May 6, 2005, is entered into
by and between Input/Output, Inc., a corporation organized under the laws of Delaware (together
with its successors, the “Company”), and Fletcher International, Ltd., a company organized under
the laws of Bermuda (together with its successors, “Fletcher”).



RECITALS




      WHEREAS, Fletcher and the Company are parties to an Agreement dated as of February 15, 2005
(the “Original Agreement”);



      WHEREAS, Section 20(i) of the Original Agreement provides that the Original Agreement may be
amended, modified or supplemented in any and all respects only by a written instrument signed by
Fletcher and the Company;



      WHEREAS, Fletcher and the Company desire to amend the Original Agreement as set forth herein;



      NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties set
forth herein and upon the terms and subject to the conditions set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:



      1. Amendment. The parties agree that this Amendment is intended to amend and modify
the Original Agreement.



      1.1 The parties agree to delete the second and third sentence of Section 5(a) of the Original
Agreement and replace them with the following:



“Pursuant to the preceding sentence, the Company shall register pursuant to such
Initial Registration Statement not less than the number of shares of Common Stock
equal to seven million, five hundred thousand (7,500,000) (the “Registrable
Number”). Upon the issuance of Additional Preferred Shares or if at any time
the number of Common Shares issuable upon conversion or, if larger, redemption of,
all issued and outstanding Series D Preferred Shares plus the number of shares
potentially issuable as dividends for the following five years exceeds the number of
Common Shares registered at that time pursuant to a Registration Statement (a
“Registration Deficiency”), (I) the Registrable Number shall increase (up to
a maximum of fifteen million, seven hundred twenty-four thousand, three hundred and
six (15,724,306)) to equal (x) in the case of an issuance of Additional Preferred
Shares, the sum of the Registrable Number in effect immediately before such increase
plus a good faith estimate of the maximum number of shares of Common Stock
potentially issuable with respect to such Additional Preferred Shares as payment of
future dividends and pursuant to conversion or redemption assuming (i) a 3-month
LIBOR rate as of a date within five (5) Business Days of such issuance, (ii) the
Prevailing Market Price (as defined in the Certificate of Rights and Preferences and
Subsequent Certificates of Rights and Preferences) as of a date within five (5)
Business Days of such issuance, (iii) seven years of



 








 





dividends, and (iv) Section 6(b) does not apply or (y) in the case of a Registration
Deficiency, the sum of the number of Common Shares registered pursuant to a
Registration Statement plus a good faith estimate of the Registration Deficiency
assuming (i) a 3-month LIBOR rate as of a date within five (5) Business Days of such
Registration Deficiency, (ii) the Prevailing Market Price as of a date within five
(5) Business Days of such Registration Deficiency, (iii) seven years of dividends,
and (iv) Section 6(b) does not apply, and (II) the Company shall, at its own expense
and as promptly as practicable after (and in no event later than fifteen (15)
Business Days after and excluding) each Subsequent Closing Date, file a registration
statement or, if permitted by the rules and regulations of the SEC, file a
supplement to the prospectus contained in the Initial Registration Statement (each
such registration statement or prospectus supplement, together with all amendments
and supplements thereto and any replacement registration statement with respect
thereto or with respect to the Common Shares covered thereby, a “Later Issuance
Registration Statement”)) covering the resale of the new Registrable Number (as
described in subsection (I) above) of shares of Common Stock, containing a
prospectus that includes shares of Common Stock that may have been previously
registered on an earlier Registration Statement pursuant to Rule 429 under the
Securities Act; provided, however, that if the Company is unable to
file a Later Issuance Registration Statement on or before the fifteenth Business Day
after and excluding a Subsequent Closing Date solely due to the Company’s inability
to satisfy the conditions set forth in subsection (c)(2) or (c)(3) of Rule 3-01
under Regulation S-X (which inability is not the result of the Company’s failure to
timely file when due any document or report with the SEC, including any annual
report on Form 10-K or quarterly report on Form 10-Q), then the Company shall be
permitted to file such Later Issuance Registration Statement as promptly as
practicable after the Company is able to comply with the requirements of Rule 3-01
of Regulation S-X (but in no event later than seventy-five (75) days after the end
of the fiscal year of the Company ended most recently before such Subsequent Closing
Date).”



      1.2 The parties agree to delete the introductory language in Section 5(h) of the Original
Agreement and replace them with the following:


“In addition to any other remedies available to Fletcher under this Agreement or at
law or equity, if any Registration Statement has not been declared effective by the
Required Registration Date or such Registration Statement is not available with
respect to all Covered Securities (regardless of whether the Registrable Number is
then registered) at any time on or after the Required Registration Date (except
during a Blackout Period permitted under Section 5(f)) the Company shall cause to be
wire transferred to an account specified by Fletcher on the last Business Day of
each month an amount, in immediately available United States funds, equal to:”



      2. Original Agreement Continues. Other than as amended by this Amendment, the
Original Agreement shall continue in full force and effect.



 








 





      3. Miscellaneous. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York. The parties may execute and deliver this
Amendment as a single document or in any number of counterparts, manually, by facsimile or by other
electronic means, including contemporaneous xerographic or electronic reproduction by each party’s
respective attorneys. Each counterpart shall be an original, but a single document or all
counterparts together shall constitute one instrument that shall be the agreement.



      IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the day
and year first written above.


	 	 	 	 	 
	 	INPUT/OUTPUT, INC.
	 
	 
	 	By:  	/s/ J. MICHAEL KIRKSEY	 
	 	Name:  	J. Michael Kirksey 	 
	 	Title:  	EVP & CFO 	 
	 



	 	 	 	 	 
	 	FLETCHER INTERNATIONAL, LTD.,
	 
	 
	 	By:  	/s/ PETER ZAYFERT
	 
	 	Name:  	Peter Zayfert 	 
	 	Title:  	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ PATRICK HUVANE	 
	 	Name:  	Patrick Huvane 	 
	 	Title:  	Authorized Signatory