<PAGE> 1
As filed with the Securities and Exchange Commission on August 3, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
EAGLE GEOPHYSICAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0522659
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
50 BRIAR HOLLOW LANE
6TH FLOOR, WEST BLDG.
HOUSTON, TEXAS 77027
(Address of registrant's principal executive offices, including zip code)
EAGLE GEOPHYSICAL, INC.
1997 STOCK OPTION PLAN
and
EAGLE GEOPHYSICAL, INC.
INDEPENDENT DIRECTORS STOCK OPTION PLAN
(Full Title of Plan)
----------------
JAY N. SILVERMAN
President and Chief Executive Officer
Eagle Geophysical, Inc.
50 Briar Hollow Lane, 6th Floor, West Bldg.
Houston, Texas 77027
(713) 881-2800
(Name and address, including zip code, and telephone number,
including area code, of registrant's agent for service)
Copy to:
William Mark Young
Gardere Wynne Sewell & Riggs, LLP
333 Clay, Suite 800
Houston, Texas 77002
Phone (713) 308-5500, Fax: (713) 308-5555
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE* PRICE* REGISTRATION FEE*
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 1,200,000 shares $10.8125 $12,975,000 $3,765
=====================================================================================================================
* Calculated pursuant to Rule 457(h), based on the average of the high and
low prices for Common Stock on July 31, 1998, as reported on The Nasdaq
Stock Market.
=====================================================================================================================
</TABLE>
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended, and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, and all documents subsequently filed by Eagle
Geophysical, Inc. (the "Company") pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
prior to the filing of a post-effective amendment to the Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and shall be deemed to be a part hereof
from the date of the filing of such documents:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1997.
2. The Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998.
3. All other reports filed by the Company pursuant to sections
13(a) or 15(d) of the Exchange Act since January 1, 1998.
In addition, all documents subsequently filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. The audited financial statements of the Company incorporated by
reference in this Registration Statement have been audited by the independent
public accountants, Arthur Andersen LLP, as indicated in their report, and are
included herein in reliance upon the authority of said firm as experts in
giving said report. Future financial statements of the Corporation and the
reports thereon of Arthur Andersen LLP or such other independent public
accountant as appointed by the Corporation, also will be incorporated by
reference in this Registration Statement in reliance upon the authority of that
firm as experts in giving those reports to the extent said firm has audited
those financial statements and consented to the use of their reports thereon.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of Delaware. Section 145 of
the Delaware General Corporation Law provides that a Delaware corporation may
indemnify any person against expenses, fines and settlements actually and
reasonably incurred by any such person in connection with a threatened, pending
or completed action, suit or proceeding in which he is involved by reason of the
fact that he is or was a director, officer, employee or agent of such
corporation, provided that (i) he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and (ii) with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. If the action or suit
is by or in the name of the corporation, the corporation may indemnify any such
person against expenses actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification may be made in
respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the corporation, unless and only to the extent that the Delaware Court
of Chancery or the court in which the action or suit is brought determines upon
application that, despite the adjudication of liability but in light of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
As permitted by the Delaware General Corporation Law, the Company's
Certificate of Incorporation provides that the directors and officers of the
Company shall be indemnified by the Company against certain liabilities that
those persons may incur in their capacities as directors or officers. The
Certificate of Incorporation eliminates the liability of directors of the
Company, under certain circumstances, to the maximum extent permitted by the
Delaware General Corporation Law. Specifically, directors will not be held
liable to the Company or its stockholders for an act or omission in such
capacity as a director, except for liability as a result of (i) a breach of the
duty of loyalty to the Company or its stockholders, (ii) actions or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law, (iii) payment of an improper dividend or improper repurchase of the
Company's stock under Section 174 of the Delaware General Corporation Law, or
(iv) actions or omissions pursuant to which the director will receive an
improper personal benefit.
The Certificate of Incorporation and By-laws provide that the Company
is generally required to indemnify its directors and officers for all judgments,
fines, settlements, legal fees and other expenses incurred in connection with
pending or threatened legal proceedings because of the director's or officer's
position with the Company or another entity that the director or officer serves
at the Company's request, subject to certain conditions, and to advance funds to
its directors and officers to enable them to defend against such proceedings. To
receive indemnification, the director or officer must have been successful in
the legal proceeding or acted in good faith and in what was reasonably believed
to be a lawful manner and in the Company's best interest.
Additionally, pursuant to an employment agreement between Mr. Silverman
and the Company and an employment agreement between Mr. McNairy and the Company,
the Company shall, to the maximum extent not prohibited by law, indemnify Mr.
Silverman and Mr. McNairy if Mr. Silverman or Mr. McNairy is made, or threatened
to be made, a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
an action by or in the right of the Company to procure a judgment in its favor
(collectively, a "Proceeding"), by reason of the fact that Mr. Silverman or Mr.
McNairy is or was a director or officer of the Company, or is or was serving in
any capacity at the request of the Company for any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against judgments, fines, penalties, excise taxes, amounts paid in settlement
and costs, charges and expenses (including attorneys' fees and disbursements)
paid or incurred in connection with any such Proceeding.
Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers of persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and therefore is unenforceable.
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ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 The Company's 1997 Stock Option Plan
4.2 The Company's Independent Directors' Stock Option Plan
5.1 Opinion of Gardere Wynne Sewell & Riggs
23.1 Consent of Gardere Wynne Sewell & Riggs (included in its
opinion filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP, independent public accountants
23.3 Consent of KPMG, independent public accountants
24.1 Power of Attorney (set forth on the signature pages of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made of the securities registered hereby, a post- effective
amendment to this Registration Statement to include any
material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any
material change to such information in this Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby further undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 31st day of July.
1998.
EAGLE GEOPHYSICAL, INC.
(Registrant)
By: /s/ JAY N. SILVERMAN
---------------------------------------
Jay N. Silverman
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jay
N. Silverman and Richard W. McNairy true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and re-substitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full powers and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below in the City of Houston, State of Texas on the 31st
day of July, 1998.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ JAY N. SILVERMAN President, Chief Executive Officer
---------------------------------- and Director (Principal Executive
Jay N. Silverman Officer) July 31, 1998
/s/ RICHARD W. MCNAIRY
---------------------------------- Vice President - Chief Financial
Richard W. McNairy Officer (Principal Financial Officer) July 31, 1998
/s/ DAVID SAINDON
---------------------------------- Controller
David Saindon (Chief Accounting Officer) July 31, 1998
/s/ WILLIAM L. LURIE
---------------------------------- Chairman of the Board and Director
William L. Lurie July 31, 1998
/s/ GERALD M. HARRISON
---------------------------------- Executive Vice President and Director
Gerald M. Harrison July 31, 1998
/s/ GEORGE PURDIE
---------------------------------- Senior Vice President - Offshore
George Purdie Operations and Director July 31, 1998
/s/ PAUL A. FRAME
---------------------------------- Director
Paul A. Frame July 31, 1998
/s/ PAUL G. SOMERVILLE
---------------------------------- Director
Paul G. Somerville July 31, 1998
</TABLE>
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<PAGE> 6
INDEX TO EXHIBITS
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Sequentially
Exhibit Numbered
Number Exhibit Page
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4.1 The Company's 1997 Stock Option Plan
4.2 The Company's 1997 Independent Directors' Stock Option Plan
5.1 Opinion of Gardere Wynne Sewell & Riggs
23.1 Consent of Gardere Wynne Sewell & Riggs (included in its opinion
filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP, independent public accountants
23.3 Consent of KPMG, independent public accountants
24.01 Power of Attorney (set forth on the signature pages of this
Registration Statement)
</TABLE>
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<PAGE> 1
Exhibit 4.1
1997 STOCK OPTION PLAN
EAGLE GEOPHYSICAL, INC.
Eagle Geophysical, Inc., a Delaware corporation (the "Company"), hereby
establishes and adopts the following 1997 Stock Option Plan (the "Plan"):
I. PURPOSE
The Plan is intended as an employment incentive, to retain in the
employment of the Company and its subsidiaries persons of experience and
ability, to attract new employees whose services are considered unusually
valuable, to encourage the sense of proprietorship of such persons, and to
stimulate the active interest of such persons in the development and financial
success of the Company.
II. DEFINITIONS
As used in this Plan, the following words and phrases shall have the
following meanings:
(1) Board of Directors or "Board" shall mean the Board of
Directors of the Company.
(2) Code shall mean the Internal Revenue Code of 1986, as
amended.
(3) Committee shall mean the Compensation Committee of the
Board or such other committee of the Board designated by the Board to
administer the Plan as provided herein.
(4) Company means Eagle Geophysical, Inc. and any successor
thereto by merger, consolidation, liquidation or other reorganization
which has made provision for adoption of the Plan and the assumption of
the Company's obligations hereunder.
(5) Eligible Employee shall mean any person who is employed by
the Company or a Subsidiary, including, but not limited to, any
employee who is also an officer and director of the Company or a
Subsidiary, but not including any director who serves on the Committee.
(6) Fair Market Value of a share of Common Stock of the
Company shall mean the closing sales price per share of such stock as
reported in the Wall Street Journal (or any other nationally recognized
newspaper or other source should such price not be published in the
Wall Street Journal) as of the applicable date.
(7) Options shall mean the Incentive Stock Options and the
Non-Qualified Stock Options granted from time to time under the Plan.
If Options are not designated as Incentive Stock Options or
Non-Qualified Stock Options at the time of grant, the number of Options
granted which qualify for treatment as Incentive Stock Options under
the Code will be Incentive Stock Options, and the remainder of such
Options, if any, will be Non-Qualified Stock Options.
(8) Participant shall mean an Eligible Employee who has been
designated by the Committee to participate in the Plan.
(9) Subsidiary shall mean any corporation to which the Company
is a "parent corporation" as defined in Section 424(e) of the Code.
(10) Incentive Stock Option shall mean a stock option granted
under the Plan that is intended to be an incentive stock option within
the meaning of Section 422 of the Code.
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(11) Non-Qualified Stock Option shall mean a stock option
granted under the Plan that is not an incentive stock option within the
meaning of Section 422 of the Code.
III. DURATION
The Plan will be effective upon consummation of the initial public
offering of the Company's Common Stock (the "Effective Date"), subject to
approval of the Plan by the Company's shareholders within twelve months after
the Effective Date. No Option shall be granted pursuant to the Plan more than
ten years after the Effective Date.
IV. ADMINISTRATION
The Plan will be administered as follows:
Committee
The Plan shall be administered by the Committee as it may be
constituted by the Board from time to time. The Committee shall consist solely
of two or more members of the Board who are outside directors within the meaning
of Section 162(m) of the Code.
Committee Powers
The Committee shall be deemed to have and to be exercising all of the
powers of the Board in the performance of any of the powers and duties delegated
to it under the Plan, including, without limitation, the selection of
Participants, the determination of the number of shares for which each
Participant shall be granted an Option, and all other terms and conditions of
each Option to the extent not inconsistent with the Plan. The Committee may from
time to time establish eligibility requirements for participation in the Plan
and rules for the administration of the Plan that are not inconsistent with the
provisions and purposes of the Plan. The Committee shall have the authority,
exercisable in its sole discretion, to grant various forms of Options containing
such terms and conditions, consistent with the provisions of this Plan, as the
Committee shall determine.
Committee Action
A majority of the members of the Committee shall constitute a quorum.
All action taken by the Committee at a meeting shall be by the vote of a
majority of those present at such meeting, but any action may be taken by the
Committee without a meeting upon written consent signed by all of the members of
the Committee. Members of the Committee may participate in a meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. The Committee shall
appoint a secretary and shall keep minutes of its meetings, including those
conducted by telephone conference.
Committee Determination Conclusive
The determination of the Committee as to any disputed question arising
under the Plan, including questions of construction and interpretation, shall be
final, binding, and conclusive upon all persons. Without limiting the generality
of the foregoing, the determination of the Committee as to whether a Participant
has terminated his employment and the date thereof, or the cause to which
termination of employment is attributable, shall be final, binding, and
conclusive upon all persons.
Committee Liability
No member of the Committee or of the Board as a whole shall be liable
to any person for any action taken or omitted in connection with the
interpretation or administration of the Plan unless attributable to such
member's own willful misconduct or lack of good faith.
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Expenses of Administration
All expenses of administration of the Plan shall be borne by the
Company, and no part thereof shall be directly charged against the Participants.
V. SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Section VIII hereof, a total of
One Million One Hundred Thousand (1,100,000) shares of Common Stock of the
Company (the "Shares") shall be subject to the Plan. The Shares shall consist of
unissued shares or previously issued shares reacquired and held by the Company,
and such number of shares shall be and is hereby reserved for sale for such
purpose. Any of the Shares which remain unsold and which are not subject to
outstanding Options at the termination of the Plan shall cease to be reserved
for the purpose of the Plan, but until termination of the Plan, the Company
shall at all times reserve a sufficient number of Shares to meet the
requirements of the Plan. Should any Option expire or be canceled prior to its
exercise, the Shares theretofore subject to such Option may again by subjected
to an Option under the Plan.
VI. PARTICIPATION
Participation in the Plan will be subject to the following:
Eligibility
Employees of the Company or a Subsidiary who are in a position to
materially contribute to the Company's or such Subsidiary's success shall be
eligible for participation under the Plan. Eligible Employees shall include, but
shall not necessarily be limited to, officers and directors of the Company or a
Subsidiary. Members of the Board of Directors or the board of directors of a
Subsidiary shall not be Eligible Employees solely by virtue of their being
directors of the Company or such Subsidiary, but directors otherwise qualified
shall be eligible to participate.
Participants
The Committee shall determine and designate from time to time those
management, professional and key employees of the Company and its Subsidiaries,
including officers and directors active in capacities other than as directors
only, to whom Options are to be granted and who thereby become Participants in
the Plan. A designation of an Eligible Employee to participate shall not
automatically entitle such Participant to participate with respect to future
Options.
VII. PLAN OPERATION
The Plan shall operate according to the following general guidelines:
Time of Granting Options
Neither anything contained in the Plan or in any resolution adopted or
to be adopted by the Board of Directors or the stockholders of the Company nor
any action taken by the Committee shall constitute the granting of any Option.
The granting of an Option shall take place only when a written option agreement
shall have been duly executed and delivered by or on behalf of the Company and
the Participant to whom such Option has been granted. No Option shall be granted
following the expiration of ten (10) years from the earlier of (i) the Effective
Date of this Plan as stated in Article III, or (ii) approval of this Plan by the
shareholders of the Company.
Option Price
The purchase price of each Share placed under an Incentive Stock Option
shall be determined by the Committee, but shall in no event be less than one
hundred percent (100%) of the Fair Market Value of such Share on
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the date the Incentive Stock Option is granted. However, the purchase price of
each Share placed under an Incentive Stock Option to a Participant who owns
stock possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any Subsidiary at the time of the
grant shall be a least one hundred and ten percent (110%) of the Fair Market
Value of such Share on the date the Option is granted. The purchase price of
each Share placed under a Non-Qualified Stock Option shall be determined by the
Committee, and may be less than, equal to, or greater than the Fair Market Value
of such Share on the date the Non-Qualified Stock Option is granted.
Option Period and Terms
No Option shall be exercisable after the expiration of ten (10) years
from the date such Option is granted. However, if the Participant to whom an
Incentive Stock Option is granted owns stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any Subsidiary at the time such Incentive Stock Option is granted, such
Incentive Stock Option shall not be exercisable after the expiration of five (5)
years from the date such Incentive Stock Option is granted. Subject to the
provisions of the Plan, the Committee shall determine the terms and conditions
of each Option granted under the Plan, including the number of Shares covered by
the Option, and the time or times of exercise of the Option (which may be for a
term of up to ten (10) years from the date the Option is granted, or, in the
discretion of the Committee, may be for a shorter term designated by the
Committee). The Committee may provide that an Option shall not be exercisable
for a designated period of time after grant. The Committee may provide that
failure to exercise an Option as to the exercisable portion of the Option during
a specific time shall constitute a forfeiture of the right to exercise such
Option after termination of that time period. So long as consistent with the
provisions of the Plan, the terms and conditions of any Option need not be the
same as the terms and conditions of any other Option.
Maximum Annual Amount Per Employee
The aggregate fair market value (determined as of the time the
Incentive Stock Option is granted) of the stock with respect to which Incentive
Stock Options are exercisable for the first time by any Participant during any
calendar year (under this and any other plans of the Company or any Subsidiary)
shall not exceed $100,000. In no event shall any Participant be granted under
the Plan in any calendar year Options to purchase more than 250,000 Shares,
subject to adjustment as provided in Section VIII hereof.
Exercise of Options
No Incentive Stock Option may be exercised unless the Participant shall
have been an employee of the Company or a Subsidiary at all times during the
period beginning on the date of grant of the Option and ending on the day three
(3) months before the date of such exercise. However, if a Participant becomes
disabled (within the meaning of Section 22(e)(3) of the Code) or dies, no
Incentive Stock Option may be exercised by such Participant after such
disability, or by the estate of such Participant or a person who acquired the
right to exercise such Option by bequest or inheritance or by reason of the
death of such Participant, unless the Participant shall have been an employee of
the Company or a Subsidiary at all times during the period beginning on the date
of grant of the Incentive Stock Option and ending on the date one (l) year
before the date of such exercise. Options may be exercised solely by the
Participant during his lifetime, or after his disability by his legal
representative on his behalf, or after his death by the personal representative
of the Participant's estate or the person or persons entitled thereto under his
will or under the laws of descent and distribution.
The purchase price of the Shares as to which an Option is exercised
shall be paid in full in cash and/or other property, including stock of the
Company, as deemed acceptable by the Committee, at the time of the exercise.
Without limiting the generality of the foregoing, the Committee shall have the
power to establish procedures from time to time for Participants: (1) to pay the
exercise price of an Option by withholding from the total number of Shares to be
acquired upon exercise of an Option that number of Shares having a Fair Market
Value equal to the aggregate exercise price; (2) to have withheld from the total
number of Shares to be acquired, in the same manner as (1) above, the
withholding obligation for federal and state income and other taxes; and (3) to
exercise a portion of the Option by delivering already-owned shares of Common
Stock of the Company in payment of the exercise price. A
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<PAGE> 5
Participant shall not be or have any of the rights or privileges of a
shareholder of the Company in respect of any Shares purchasable upon the
exercise of any part of an Option unless and until certificates representing
such Shares shall have been issued by the Company to such Participant.
Use of Proceeds
The proceeds received by the Company from the sale of stock pursuant to
this Plan will be used for general corporate purposes.
VIII. CAPITAL CHANGES OF THE COMPANY
In the event there is any change in the Common Stock of the Company
through the declaration of stock dividends, or through recapitalization
resulting in stock splits, or combinations or exchanges of shares, or any
similar transactions, the number of Shares subject to Options previously granted
and the number of Shares remaining available for Options and the price per Share
of such Shares shall be appropriately adjusted by the Committee.
In the event the Company shall be a party to any merger, consolidation
or corporate reorganization, as the result of which the Company shall be the
surviving corporation, the rights and duties of the Participants and the Company
shall not be affected in any manner. In the event the Company shall sell all or
substantially all of its assets or shall be a party to any merger, consolidation
or corporate reorganization, as the result of which the Company shall not be the
surviving organization, or in the event any other corporation may make a tender
or exchange offer for stock of the Company (the surviving corporation,
purchaser, or tendering corporation being hereinafter collectively referred to
as the "purchaser," and the transaction being hereinafter referred to as the
"purchase"), then the Board of Directors may, at its election, (i) reach an
agreement with the purchaser that the purchaser will assume the obligations of
the Company as to all outstanding Options; (ii) reach an agreement with the
purchaser that the purchaser will convert each outstanding Option into an option
of at least equal value as to stock of the purchaser; or (iii) not later than
thirty (30) days prior to the effective date of the purchase, notify all
Participants that their Options are accelerated and afford to each Participant a
right for ten (10) days after the date of such notice to exercise any then
unexercised portion of all Options held by him whether or not such Options shall
then be exercisable under the terms of the Plan or his option agreement; and
within such ten day period, each such Participant may exercise any portion of
any Option as he may desire.
IX. LIMITATION OF RIGHTS
Participation in this Plan is subject to certain limitations:
Limitations
Nothing in this Plan shall be construed to:
(1) give any employee of the Company or a Subsidiary any right
to be designated a Participant herein, other than in the sole
discretion of the Committee;
(2) give a Participant any rights whatsoever with respect to
Shares until Options are exercised and Shares are issued to the
Participant;
(3) give a Participant or any person any interest in any fund
or in any specific asset or assets of the Company;
(4) limit in any way the right of the Company or a Subsidiary
to terminate a Participant's employment with the Company or a
Subsidiary at any time; or
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(5) be evidence of any agreement or understanding, express or
implied, that the Company or a Subsidiary will employ a Participant in
any particular position or at any particular rate of remuneration.
Nonassignability of Options
Options shall not be transferable other than by will or by the laws of
descent and distribution, and during a Participant's lifetime shall be
exercisable only by him (unless he becomes disabled, in which event they may be
exercised by his legal representative).
Power of the Company
The existence of outstanding Options shall not affect in any way the
right or power of the Company or its subsidiaries or their stockholders to make
or authorize any or all adjustments, recapitalization, reorganization or other
changes in the capital structure of the Company or its Subsidiaries or their
businesses, or any merger or consolidation of the Company or its Subsidiaries or
any issue of bonds, debentures, preferred stock or the right to acquire any
thereof, or the dissolution or liquidation of the Company or its Subsidiaries,
or any sale or transfer of all or any part of their assets or business, or any
other corporate act or proceeding whether of a similar character or otherwise.
X. TERMINATION AND AMENDMENT OF THE PLAN
The Plan shall terminate upon the expiration of ten years after the
Effective Date and no Options shall be granted after that date. The Board of
Directors may amend, alter, or discontinue the Plan, but no amendment or
alteration shall be made which would impair the rights of any Participant under
any Option theretofore granted, without his consent, unless his Option Agreement
so provides. The Board of Directors may at any time and from time to time modify
or amend the Plan in such respects as it shall deem advisable in order that the
Options intended to be Incentive Stock Options satisfy the applicable provisions
of the Code.
XI. GOVERNMENT REGULATIONS
The Plan, and the granting and exercise of Options thereunder, and the
obligation of the Company to sell and deliver Shares under such Options, shall
be subject to all applicable laws, rules and regulations, and to such approvals
by any governmental agencies or national securities exchanges as may be
required.
Purchase for Investment
Whether or not the Options and Shares covered by the Plan have been
registered under the Securities Act of 1933, as amended, each Participant
exercising an Option may be required by the Company to give a representation in
writing that he is acquiring such Shares for his own account for investment and
not with a view to, or for sale in connection with, the distribution of any part
thereof.
Governing Law
The place of administration of the Plan shall be conclusively deemed to
be within the State of Texas; and the validity, construction, interpretation and
effect of the Plan and all rights of any of the persons having or claiming to
have any interest in the Plan shall be governed by the laws of the State of
Texas.
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Exhibit 4.2
EAGLE GEOPHYSICAL, INC.
INDEPENDENT DIRECTORS'
STOCK OPTION PLAN
1. Purpose. The purpose of this Independent Directors' Stock
Option Plan (the "Plan") of Eagle Geophysical, Inc. (the "Company") is to
promote ownership by Independent Directors of a greater proprietary interest in
the Company, thereby aligning such Directors' interests more closely with the
interests of stockholders of the Company, and to assist the Company in
attracting and retaining qualified persons to serve as independent Directors.
2. Definitions. In addition to terms defined elsewhere in the
Plan, the following are defined terms under the Plan:
(a) "Code" means the Internal Revenue Code of 1986, as
amended. References to any provision of the Code include regulations
thereunder and successor provisions and regulations.
(b) "Exchange Act" means the Securities Exchange Act of 1934,
as amended. References to any provision of the Exchange Act include
rules thereunder and successor provisions and rules.
(c) "Fair Market Value" of Stock means the closing price of
the Stock on the date on which such value is to be determined, as
reported for such day by the Nasdaq Stock Market's National Market or
such other stock exchange on which the Stock is listed; provided that
the Fair Market Value of Stock on the effective date of the Plan will
be the initial public offering price of the Stock.
(d) "Independent Director" means a Director of the Company who
is not, and has not been during the preceding three months, an employee
of the Company or any parent or subsidiary of the Company, and who is
not entitled to receive any compensation from the Company or any of its
subsidiaries other than (i) directors' fees, (ii) meeting fees, (iii)
reimbursement of expenses incurred in connection with such director
position, and (iv) Options under this Plan.
(e) "Option" means the right, granted to a Participant under
Sections 6 or 7, to purchase Stock at the specified exercise price for
a specified period of time under the Plan.
(f) "Participant" means a Director who is eligible to receive
and is granted Options under the Plan.
(g) "Stock" means the Common Stock, $.01 par value, of the
Company and such other securities as may be substituted for Stock or
such other securities pursuant to Section 8.
3. Shares Available Under the Plan. The total number of shares of
Stock reserved and available for delivery under the Plan is 100,000, subject to
adjustment as provided in Section 8 below. Such shares may be authorized but
unissued shares or treasury shares. If any Option expires or terminates for any
reason without having been exercised in full, the shares remaining subject to
such Option will again be available for delivery under the Plan.
4. Administration of the Plan. The Plan will be administered by
the Board of Directors of the Company; provided, however, that any action by the
Board of Directors relating to the Plan will be taken only if, in addition to
any other required vote, such action is approved by the affirmative vote of a
majority of the Directors who are not then eligible to participate under the
Plan.
5. Eligibility. Each Director of the Company who, on any date on
which an Option is to be granted hereunder, is an Independent Director will be
eligible to receive a grant of an Option at such date. No person other than
those specified in this Section 5 will participate in the Plan.
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6. Stock Options. An option to purchase 5,000 shares of Stock
will be granted under the Plan to each person who is an existing Independent
Director of the Company on the effective date of the Plan. Additionally, an
option to purchase 5,000 shares of Stock will be granted under the Plan to each
person who, after the effective date of the Plan, is first elected or appointed
to serve as a Director of the Company, such grant to be effective at the date of
such first selection or appointment, if such Director is then eligible to
receive an Option grant. Also, an Option to purchase 5,000 shares of Stock will
be granted each year to each Director of the Company who is then eligible to
receive an Option grant at the close of business on the day of the Company's
annual meeting of stockholders at which Directors (or a class of Directors if
the Company then has a classified Board of Directors) are elected or reelected
by the Company's stockholders. The foregoing notwithstanding, no Director may be
granted an Option more than once during any one calendar year under the Plan. No
further Options will be granted under the Plan when the remaining number of
shares of Stock reserved for issuance under the Plan upon the exercise of
Options granted under the Plan becomes insufficient to grant Options as
otherwise required by the Plan. Options granted under the Plan will be
non-qualified stock options which will be subject to the following terms and
conditions:
(a) Exercise Price. The exercise price per share of Stock
purchasable under an Option will be equal to 100% of the Fair Market
Value of Stock on the date of grant of the Option.
(b) Option Term. Each Option will expire at the earlier of (i)
five years after the date of grant, (ii) twelve months after the
Participant ceases to serve as a Director of the Company due to death,
disability, or retirement at or after age 65, or (iii) sixty days after
the Participant ceases to serve as a Director of the Company for any
reason other than death, disability, or retirement at or after age 65.
(c) Exercisability. Each Option will become fully exercisable
beginning one year after the date of grant, and will thereafter remain
exercisable until the Option expires; provided, however, that an Option
previously granted to a Participant will be exercisable after the
Participant ceases to serve as a Director of the Company for any reason
other than death, disability, or retirement at or after age 65 only if
the Option was exercisable at the date of such cessation of service.
(d) Method of Exercise. Each Option may be exercised, in whole
or in part, at such time as it is exercisable and prior to its
expiration by giving written notice of exercise to the Company
specifying the Option to be exercised and the number of shares to be
purchased, and accompanied by payment in full of the exercise price in
cash (including by check) or by surrender of shares of Stock of the
Company acquired by the Participant prior to the exercise date and
having a Fair Market Value at the time of exercise equal to the
exercise price, or a combination of a cash payment and surrender of
such Stock.
7. Initial Grant to Chairman. Notwithstanding anything herein to
the contrary, William L. Lurie, Chairman of the Board of Directors of the
Company, will be granted upon the effective date of the Plan an initial grant of
options to purchase 25,000 shares of Stock in lieu of the automatic grant of
options to purchase 5,000 shares upon the effective date of the Plan. Such
options shall vest in cumulative installments of one-third of the number of
shares subject thereto on each of the first, second and third anniversaries of
the effective date of the Plan and will expire on the tenth anniversary of the
date of grant, subject to earlier expiration 12 months after Mr. Lurie ceases to
be a director for any reason. The exercise price and method of exercise of such
Options shall be as set forth in paragraphs 6(a) and (d) above.
8. Adjustment Provisions. In the event any recapitalization,
reorganization, merger, consolidation, spin-off, combination, repurchase,
exchange of shares or other securities of the Company, stock split or reverse
split, extraordinary dividend having a value in excess of 150% of the quarterly
dividends paid during the preceding twelve-month period, liquidation,
dissolution, or other similar corporate transaction or event affects Stock such
that an adjustment is determined by the Board of Directors to be appropriate in
order to prevent dilution or enlargement of Participants' rights under the Plan,
then the Board of Directors will, in a manner that is proportionate to the
change to the Stock and is otherwise equitable, adjust (i) any or all of the
number or kind of shares of Stock reserved for issuance and delivery under the
Plan, (ii) the number or kind of shares of Stock to be subject to each automatic
grant of Options under Section 6, and (iii) the number and kind of shares of
Stock issuable or deliverable upon exercise of outstanding Options, and/or the
exercise price per share thereof (provided that no fractional shares will be
issued upon exercise of any Option). The foregoing notwithstanding, no
adjustment may be made hereunder except as shall be
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<PAGE> 3
necessary to preserve, without exceeding, the value of outstanding Options and
potential grants of Options. If at any date an insufficient number of shares are
available for the automatic grant of Options at that date, Options will be
automatically granted under Section 6 proportionately to Participants to the
extent shares are available.
9. Changes to the Plan. The Board of Directors may amend, alter,
suspend, discontinue, or terminate the Plan or authority to grant Options under
the Plan without the consent of stockholders or Participants, except that any
such action will be subject to the approval of the Company's stockholders at the
next annual meeting of stockholders having a record date after the date such
action was taken if such stockholder approval is required by any federal or
state law or regulation or the rules of any automated quotation system or stock
exchange on which the Stock may then be quoted or listed, or if the Board of
Directors determines in its discretion to seek such stockholder approval;
provided, however, that, without the consent of an affected Participant, no such
action may materially impair the rights of such Participant with respect to any
previously granted Option.
10. General Provisions.
(a) Consideration for Grants; Agreements. Options will be
granted under the Plan in consideration of the services of the
Participants and, except for the payment of the Option exercise price
upon exercise of the options, no other consideration shall be required
therefor. Grants of Options will be evidenced by agreements executed by
the Company and the Participant containing the terms and conditions set
forth in the Plan together with such other terms and conditions not
inconsistent with the Plan as the Board of Directors may from time to
time approve.
(b) Compliance with Laws and Obligations. The Company will not
be obligated to issue or deliver Stock in connection with any Option in
a transaction subject to the registration requirements of the
Securities Act of 1933, as amended, or any state securities law, any
requirement under any listing agreement between the Company and any
automated quotation system or national securities exchange, or any
other law, regulation or contractual obligation, until the Company is
satisfied that such laws, regulations, and other obligations of the
Company have been complied with in full. Certificates representing
shares of Stock delivered under the Plan will be subject to such
stop-transfer orders and other restrictions as may be applicable under
such laws, regulations, and other obligations of the Company, including
any requirement that a legend or legends be placed thereon.
(c) Non-transferability. Options and any other right under the
Plan that may constitute a "derivative security" as generally defined
in Rule 16a-1(c) under the Exchange Act will not be transferable by a
Participant except by will or the laws of descent and distribution (or
to a designated beneficiary in the event of a Participant's death), and
will be exercisable during the lifetime of a Participant only by such
Participant or his or her guardian or legal representative.
(d) Compliance with Rule 16b-3. It is the intent of the
Company that this Plan comply in all respects with applicable
provisions of Rule 16b-3 under the Exchange Act in connection with any
grant of Options to a Participant. Accordingly, this Plan and the
grants to be made hereunder shall be made under a formula plan as
referred to in Note (3) to Rule 16b-3. If any provision of this Plan or
any agreement hereunder does not comply with the requirements of Rule
16b-3 as then applicable to any such grant to a Participant, such
provision will be construed or deemed amended to the extent necessary
to conform to such requirements with respect to such Participant. In
addition, the Board of Directors shall have no authority to make any
amendment, alteration, suspension, discontinuation, or termination of
the Plan or any agreement hereunder, to make any adjustment under
Section 8, or take other action if and to the extent such authority
would cause a Participant's transactions under the Plan not to be
exempt under Rule 16b-3 under the Exchange Act.
(e) Continued Service as an Employee. If a Participant ceases
to serve as a Director and, immediately thereafter, is employed by the
Company or any subsidiary of the Company, then solely for purposes of
Sections 6(b) and (c) of the Plan, such Participant will not be deemed
to have ceased service as a Director at that time, and his or her
continued employment by the Company or any subsidiary will be
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<PAGE> 4
deemed to be continued service as a Director; provided, however, that
such former Director will not be eligible for additional grants of
Options under the Plan.
(f) No Right to Continue as a Director. Nothing contained in
the Plan or any agreement hereunder will confer upon any Participant
any rights to continue to serve as a Director of the Company or to be
nominated for re-election as a Director.
(g) No Stockholder Rights Conferred. Nothing contained in the
Plan or any agreement hereunder will confer upon any Participant any
rights of a stockholder of the Company unless and until an Option is
duly exercised hereunder.
(h) Governing Law. The validity, construction, interpretation
and effect of the Plan and all rights of any of the persons having or
claiming to have any interest in the Plan shall be governed by the laws
of the State of Delaware.
11. Effective Date and Duration of Plan. The Plan will be
effective upon consummation of the initial public offering of the Company's
Stock. Unless earlier terminated by action of the Board of Directors, the Plan
will remain in effect until such time as no Stock remains available for issuance
or delivery under the Plan and the Company has no further rights or obligations
with respect to outstanding Options under the Plan.
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Exhibit 5.1
[GARDERE WYNNE SEWELL & RIGGS LETTERHEAD]
July 31, 1998
Eagle Geophysical, Inc.
50 Briar Hollow Lane
6th Floor, West Bldg.
Houston, Texas 77027
Gentlemen:
We have acted as counsel for Eagle Geophysical, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement"), filed with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of 1,100,000 shares of the Company's Common Stock, $0.01 par value
(the "Common Stock"), to be issued upon exercise of stock options granted by the
Company to certain of its employees (the "Employee Options") pursuant to the
Company's 1997 Stock Option Plan (the "Stock Option Plan") and of 100,000 shares
of the Common Stock to be issued upon exercise of stock options granted by the
Company to certain of its directors (the "Directors Options") pursuant to the
Company's Independent Directors Stock Option Plan (the "Directors Option Plan").
With respect to the foregoing, we have examined such documents and
questions of law as we have deemed necessary to render the opinions expressed
below. Based upon the foregoing, we are of the opinion that the Common Stock,
when issued, sold and delivered in the manner and for the consideration stated
in the form of the Stock Option Plan pursuant to the exercise of Employee
Options, and when issued, sold and delivered in the manner and for the
consideration stated in the form of the Directors Option Plan pursuant to the
exercise of Directors Options, will be duly and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement.
This opinion letter is as of the date hereof, and we undertake no
obligation, and expressly disclaim any obligation, to advise you of any change
in the matters set forth herein. Please note that the opinions expressed herein
relate only to the matters specifically set forth, and no opinion is implied or
should be inferred as to any other matters.
Very truly yours,
GARDERE WYNNE SEWELL & RIGGS, L.L.P.
By: /s/ WILLIAM MARK YOUNG
---------------------------------
William Mark Young, Partner
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 6, 1998
included in Eagle Geophysical Inc.'s annual report on Form 10-K for the year
ended December 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
July 31, 1998
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 26, 1998
included in the annual report on Form 10-K of Eagle Geophysical, Inc., for the
year ended December 31, 1997 and to all references to our Firm included in this
registration statement.
KPMG
Plymouth, England
July 30, 1998
