As filed with the Securities and Exchange Commission on October 2, 1998
Registration No. 333-63383
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SEITEL, INC.
(Exact name of registrant as specified in its charter)
Delaware 76-0025431
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
50 Briar Hollow Lane
7th Floor, West Bldg.
Houston, Texas 77027
(Address of registrant's principal executive offices, including zip code)
SEITEL, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
PAUL A. FRAME
President and Chief Executive Officer
Seitel, Inc.
50 Briar Hollow Lane, 7th Floor, West Bldg.
Houston, Texas 77027
(713) 881-8900
(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
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference. The Company incorporates by
reference into this Registration Statement the following documents which
have been or will be filed by the Company with the Securities and Exchange
Commission (the "Commission"):
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, as amended by Form 10-K/A dated April 28, 1998, as filed
with the Commission on April 29, 1998, and as amended by Form 10-K/A dated
June 10, 1998, as filed with the Commission on June 12, 1998.
2. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31 and June 30, 1998.
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
December 31, 1997.
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated March 27, 1991
(Registration Number 0-14488).
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which de-registers 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.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute part of this Prospectus.
Item 4: Description of Securities.
Units
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Each unit consists of one share of Common Stock and one Warrant. The Plan
authorizes the issuance of 2,388,000 shares of Common Stock, of which 1,194,000
are issuable pursuant to the exercise of the 1,194,000 Warrants that may be
issued under the Plan.
Terms of Warrants
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Each Warrant entitles the holder to purchase one share of Common Stock at a
price equal to one hundred twelve and one-half percent (112 1/2%) of the average
of the closing prices of one share of Common Stock on the New York Stock
<PAGE>
Exchange on the 10 trading days before the Closing Date (as such term is defined
in the Plan) rounded up to the next one-quarter of one dollar. The Warrants will
expire on the earlier of (i) the date that is five years after the Closing Date,
(ii) the date that is five business days after termination of employment if the
original purchaser of the Warrant from the Company ceases to be an employee of
the Company or a subsidiary of the Company for any reason (other than for death,
disability or retirement after the age of 65), or (iii) the date that is one
year after the death, disability or retirement after age 65 of the original
purchaser of the Warrant from the Company if he ceases to be an employee of the
Company or a Subsidiary because of death, disability or retirement after age 65.
Exercise of Warrants
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A Warrant may be exercised only by a holder during his lifetime, or after
his disability by his legal representative on his behalf, or after his death by
his personal representative or estate or the person or persons entitled thereto
under his will or under the laws of descent and distribution.
Warrants may be exercised in whole or part at any time, within the period
permitted for exercise thereof. Warrants must be exercised by written notice
with respect to a specified number of shares delivered to the Company at its
principal office, together with payment in full to the Company for the number of
shares of Common Stock to be purchased pursuant to the exercise of the Warrant.
Upon any exercise of a Warrant, the holder must pay the full amount of the
exercise price in cash at the time of the exercise. Holders will not be or have
any of the rights or privileges of a stockholder of the Company in respect of
any Shares purchasable upon the exercise of any part of a Warrant unless and
until certificates representing such Shares shall have been issued by the
Company to such holders after exercise of a Warrant.
A Warrant is exercisable only if the issuance of Common Stock pursuant to
the exercise would be in compliance with applicable securities laws. The
Warrants further provide that the holder exercising a warrant shall pay or make
provisions satisfactory to the Company for the payment of certain taxes which
the Company may be obligated to collect upon exercise.
Adjustments
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The number of shares of Common Stock issuable upon exercise of outstanding
Warrants, and the exercise price of such Warrants, is subject to adjustment by
the Board of Directors of the Company, acting in good faith, to reflect any
stock dividend, stock split, share combination, exchange of shares,
recapitalization, merger, consolidation, separation, reorganization, liquidation
or the like, of or by the Company. If the Company is a party to any merger or
similar transaction and is the surviving corporation, the Warrants will not be
affected. If (i) the Company sells all or substantially all of its assets, (ii)
is a party to a merger or similar transaction and is not the surviving
corporation, or (iii) another company makes a tender offer for stock of the
Company, then the Company may, at its election, (a) reach an agreement with the
purchaser in that transaction that the purchaser will assume the obligations of
<PAGE>
the Company under the Warrants; (b) reach an agreement with the purchaser that
the purchaser will convert the Warrants into warrants of at least equal value as
to stock of the purchaser; or (c) not later than thirty (30) days prior to the
effective date of the transaction, notify the holder of the Warrants of the
proposed transaction and afford the holders of the Warrants the right prior to
such transaction to exercise the Warrants, which exercise may be contingent upon
consummation of the transaction.
Restrictions on Transfer of Warrants
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Warrants are not be transferable other than by will or by the laws of
descent and distribution, except that Warrants may be transferred by the
original purchaser of the Warrant from the Company to members of his immediate
family who are U.S. residents or to trusts or business entities formed for the
benefit of members of his immediate family who are U.S. residents. "Immediate
family" means your parents, children, grandchildren, or spouse. A Warrant may
not be subsequently transferred by such immediate family member other than by
will or by the laws of descent and distribution. If a Warrant is transferred to
an immediate family member, the Company may require investment representations
upon exercise of the Warrant and may impose such conditions upon the exercise of
the Warrant as may be required to comply with federal and state securities laws,
and the Shares of Common Stock issuable upon exercise of a Warrant by such
immediate family member may be "restricted shares" as such term is defined in
Rule 144 under the Securities Act of 1933, as amended, and may contain such
restrictive legends as may be deemed necessary by the Company.
Item 5: Interests of Named Experts and Counsel. Not applicable.
Item 6: Indemnification of Directors and Officers. Section 145(a) of the General
Corporation Law of the State of Delaware (the "General Corporation Law")
provides, in general, that a corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), by reason of the fact that he is or was a director or
officer of the corporation. Such indemnity may be against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding, if the
indemnitee acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, the indemnitee must not have had reasonable cause
to believe his conduct was unlawful.
Section 145(b) of the General Corporation Law provides, in general, that a
corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the
corporation against expenses (including attorneys' fees) 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; provided, however, that
if the person is found to be liable to the corporation, no indemnification shall
be made except to the extent that the court determines that indemnification is
fair and reasonable under the circumstances.
Section 145(g) of the General Corporation Law provides, in general, that a
corporation shall have power to purchase and maintain insurance on behalf of any
<PAGE>
person who is or was a director or officer of the corporation against any
liability asserted against him or incurred by him in any capacity, or arising
out of his status as such, whether or not the corporation would have the power
to indemnify him against such liability under the provisions of the law.
Article Eighth of the Registrant's Certificate of Incorporation and Section
Six of the Registrant's Bylaws give a director or officer the right to be
indemnified by the Registrant to the fullest extent permitted under Delaware
law.
Item 7: Exemption From Registration Claimed. [Not Applicable.]
Item 8: Exhibits:
4.1 Seitel, Inc. 1998 Employee Stock Purchase Plan including Form of
Common Stock Purchase Warrant.**
4.2 Amendment No. 1 to Seitel, Inc. 1998 Employee Stock Purchase Plan.*
5.1 Opinion of Gardere Wynne Sewell & Riggs, L.L.P., legal counsel to the
Company.**
23.1 Consent of Arthur Andersen LLP.**
23.2 Consent of Miller and Lents, Ltd.**
23.3 Consent of Forrest A. Garb & Associates, Inc.**
23.4 Consent of Gardere, Wynne, Sewell & Riggs, L.L.P. (included in Exhibit
5.1).
24.1 Power of Attorney (included on Signature Page).
* filed herewith
** previously filed
Item 9: Undertakings. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
<PAGE>
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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.
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.
<PAGE>
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 this 2nd day of October,
1998. SEITEL, INC.
BY: /s/Paul A. Frame
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PAUL A. FRAME, President, Chief Executive
Officer and Director (principal executive
officer)
BY: /s/ Debra D. Valice
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DEBRA D. VALICE, Executive Vice President of
Finance, Chief Financial Officer and Director
(principal financial and accounting officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following individuals in the
capacities and on the date indicated.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 2, 1998.
Signature Title
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*
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HERBERT M. PEARLMAN Chairman of the Board of Directors
/s/Paul A. Frame
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PAUL A. FRAME President, Chief Executive Officer
and Director
/s/Horace A. Calvert
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HORACE A. CALVERT Executive Vice President,
Chief Operating Officer and Director
/s/Debra D. Valice
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DEBRA D. VALICE Executive Vice President of Finance,
Chief Financial Officer and Director
*
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DAVID S. LAWI Director
*
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WALTER M. CRAIG, JR. Director
*
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FRED S. ZEIDMAN Director
*
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JOHN E. STIEGLITZ Director
*
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WILLIAM LERNER Director
* /s/ Debra D. Valice
---------------------------------
Debra D. Valice, Attorney-in-Fact
<PAGE>
Index of Exhibits
Exhibit Document Page
------- -------- ----
4.1 Seitel, Inc. 1998 Employee Stock Purchase Plan including
Form of Common Stock Purchase Warrant.**
4.2 Amendment No. 1 to Seitel, Inc. 1998 Employee Stock Purchase
Plan
5.1 Opinion of Gardere, Wynne, Sewell & Riggs, L.L.P., legal
counsel to the Company. **
23.1 Consent of Arthur Andersen L.L.P.**
23.2 Consent of Miller and Lents, Ltd.**
23.3 Consent of Forrest A. Garb & Associates, Inc.**
23.4 Consent of Gardere, Wynne, Sewell & Riggs, L.L.P. (included
in Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).
**previously filed
AMENDMENT NO. 1 TO SEITEL, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
Seitel, Inc., a Delaware corporation (the "Company"), hereby amends the
Seitel, Inc. 1998 Employee Stock Purchase Plan (the "Plan") effective as of
October 2, 1998. As amended hereby, all of the terms of the Plan shall remain in
full force and effect.
1. Sections 9 and 10 of Article II of the Plan are hereby amended to read in
their entirety as follows:
(9) Promissory Note shall mean a promissory note in the form of
Exhibit C hereto executed by an Eligible Employee as payment for Common
Stock and Warrants purchased under the Plan.
(10) Purchase Price shall mean, with respect to one share of Common
Stock and one Warrant, the price equal to the closing price of a share of
Common Stock as reported on the New York Stock Exchange on the day
immediately preceding the Closing Date.
2. Article VII of the Plan is hereby amended to read in its entirety as
follows:
VII. PAYMENT TERMS
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The consideration for Shares of Common Stock and Warrants purchased
under the Plan shall be payable pursuant to a Promissory Note in the form
of Exhibit C hereto. The Promissory Note will bear interest at 4.0% per
annum and be payable as follows: (i) 60 equal monthly payments of principal
and interest calculated so as to pay interest as it accrues and to reduce
the principal balance to 40% of the purchase price on the Stated Date, and
(ii) all outstanding principal and accrued but unpaid interest shall be due
on the Stated Date. Such payments shall be made by payroll deduction
(one-half of such payment twice per month for non-commission employees, or
the full amount of such payment monthly for commission employees).
Notwithstanding the foregoing, (i) if an Eligible Employee receives
commissions quarterly rather than monthly, the Eligible Employee may elect
to defer monthly payments under the Promissory Note and instead make
quarterly payments of accrued interest and principal at the time of payment
of such quarterly commission, provided that such payment shall in any event
be due on or before each April 30, July 30, October 30 and January 30 prior
to the Stated Date, and (ii) if an Eligible Employee is eligible to receive
an annual bonus from the Company pursuant to a written employment contract
between the Company and the Eligible Employee, the Eligible Employee may
elect to defer monthly payments under the Promissory Note and instead make
annual payments of accrued interest and principal at the time of payment of
such bonus, provided that such payment shall in any event be due on or
before each March 15 prior to the Stated Date. If the Expiration Date
occurs prior to the Stated Date, all amounts due under the Promissory Note
shall become immediately due and payable on the Expiration Date. The
Promissory Note will be secured by the Pledge, and the Company shall have
an express contractual right of setoff against any amounts otherwise due to
an Eligible Employee for any payments due under the Promissory Note,
including any amounts due upon acceleration of the maturity thereof.
Notwithstanding any other provision hereof, in the event that the amount of
a paycheck, commission or bonus is not sufficient to discharge a payment
due under the Promissory Note, the Eligible Employee will be required to
pay any difference to the Company in cash at the time such payment is due.
3. The first paragraph of Section 1 of Exhibit B to the Plan is hereby amended
to read in its entirety as follows:
1. Subscription. Subject to the terms and conditions hereof and of the
Seitel, Inc. 1998 Employee Stock Purchase Plan, (the "Subscriber") hereby
irrevocably subscribes for and agrees to purchase shares of Common
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Stock, par value $0.01 per share (the "Shares"), of Seitel, Inc., a
Delaware corporation (the "Company"), and warrants to purchase an equal
number of shares of Common Stock of the Company for $ per share (the
---
"Warrants") and agrees to become a shareholder of the Company and to be
bound by the terms of this Subscription Agreement ("Agreement"). As
consideration for the Shares and the Warrants, the Subscriber hereby
delivers to the Company a duly executed Promissory Note in the amount of
$ (the "Purchase Price").
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<PAGE>
4. Paragraph (a) of Section 3 of Exhibit B to the Plan is hereby amended to
read in its entirety as follows:
(a) The Subscriber has been provided with a copy of the prospectus
dated September 14, 1998, and prospectus supplement dated , 1998,
--------
relating to the Shares and the Warrants.
5. The first and second paragraphs of Exhibit C to the Plan are hereby amended
to read in their entirety as follows:
(the "Maker"), for value received, hereby
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promises to pay to the order of Seitel, Inc. (together with any successors
or assigns, the "Payee"), at the time and in the manner hereinafter
provided, the principal sum of Dollars
--------------------------
($ ), together with interest computed thereon at the rate
------------
hereinafter provided. This Note shall be payable at the office of the Payee
at 50 Briar Hollow Lane West, Houston, Texas 77027, or at such other
address in Houston, Texas as the holder of this Note shall from time to
time designate. This Note is made and issued as consideration for the
purchase by the Maker of certain shares ("Shares") of common stock, par
value $0.01 per share, of Payee (the "Common Stock") and certain warrants
to purchase shares of Common Stock (the "Warrants") pursuant to the Payee's
1998 Employee Stock Purchase Plan.
The outstanding principal amount of this Promissory Note shall bear
interest from the date hereof at four percent (4.0%) per annum and be
payable as follows: (i) 60 equal monthly payments of principal and interest
of $ and (ii) all outstanding principal and accrued but
--------------
unpaid interest shall be due on September __, 2003 (the "Stated Date").
Such monthly payments shall be made by payroll deduction (one-half of such
payment twice per month for non-commission employees, or the full amount of
such payment monthly for commission employees). Notwithstanding the
foregoing, (i) if the Maker receives commissions quarterly rather than
monthly, the Maker may elect to defer monthly payments under this Note and
instead make quarterly payments of accrued interest and principal at the
time of payment of such quarterly commission, provided that such payment
shall in any event be due on or before each April 30, July 30, October 30
and January 30 prior to the Stated Date, and (ii) if the Maker is eligible
to receive an annual bonus from the Payee pursuant to a written employment
contract with Payee, the Maker may elect to defer monthly payments under
this Note and instead make annual payments of accrued interest and
principal at the time of payment of such bonus, provided that such payment
shall in any event be due on or before each March 15 prior to the Stated
Date. Notwithstanding any other provision hereof, in the event that the
amount of a paycheck, commission or bonus is not sufficient to discharge a
payment due hereunder, the Maker shall be required to pay any difference to
the Company in cash at the time such payment is due. All payments hereunder
shall be applied first to accrued interest and the balance, if any, shall
be applied to reduce the principal amount hereof. If the period during
which the Maker may exercise the Warrants expires on a date (the
"Expiration Date") prior to the Stated Date, all amounts due under this
Note shall become immediately due and payable on the Expiration Date.
6. The first paragraph of Exhibit D to the Plan is hereby amended to read in
its entirety as follows:
I have on this date executed a promissory note in the principal amount
of $ (the "Note") as consideration for shares (the
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"Shares") of common stock, par value $0.01 per share, of Seitel, Inc. (the
"Company"), and warrants to purchase such Stock (the "Warrants," and
together with the Stock, the "Securities") purchased by me from the Company
pursuant to the Seitel, Inc. 1998 Employee Stock Purchase Plan.
7. This Amendment No. 1 is adopted as and shall constitute an amendment to the
Plan, and shall be construed in connection with and as a part of the Plan.
Except as specifically amended by this Amendment No. 1, all of the terms
and provisions of the Plan shall remain in full force and effect. In the
event of any conflict between the terms of the Plan and the terms of this
Amendment No. 1, the terms of this Amendment No. 1 shall apply.
