As filed with the Securities and Exchange Commission on June 27, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
3DX TECHNOLOGIES INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 73-0386601
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
12012 Wickchester, Suite 250
Houston, Texas 77079
(Address of Principal Executive Offices, Including Zip Code)
1994 STOCK OPTION PLAN
(Full Title of the Plan)
Randall D. Keys
Vice President of Finance and Chief Financial Officer
12012 Wickchester, Suite 250
Houston, Texas 77079
(281) 579-3390
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
---------------
COPY TO:
JAY R. SCHIFFERLI, ESQ.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901
---------------
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price(1) Fee
================================================================================
Common
Stock,
par value
$.01 per 2,004,937 shares $9.25 $18,545,667 $5,619.90
share
================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended. The price per share is estimated based on the average of the high
and low trading prices for 3DX Technologies Inc.'s Common Stock on June
20, 1997, as reported by the Nasdaq National Market.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by 3DX Technologies Inc. (the "Registrant") are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996 as filed with the Commission on March 31, 1997, and as amended
by Form 10-K/A-1 filed with the Commission on April 30, 1997.
(b) The Registrant's Form 10-Q for the quarter ended March 31, 1996, as
filed with the Commission on May 15, 1997;
(c) The description of the Registrant's common stock, par value $0.01 per
share (the "Common Stock"), contained in the Registration Statement on Form 8-A
(Registration No. 000-21841) filed with the Commission on December 9, 1996 under
Section 12 of the Exchange Act.
All documents and reports filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof and prior
to the filing of a post-effective amendment to the Registration Statement which
indicates that the securities offered hereby have been sold, or which
deregisters all such securities remaining unsold, shall also be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof commencing on the respective dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a Delaware corporation may 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 (a
"proceeding") (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if 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, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. A
Delaware corporation may indemnify any person under such Section in connection
with a proceeding by or in the right of the corporation to procure judgment in
its favor, as provided in the preceding sentence, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action, except that no indemnification shall be
made in respect thereof unless, and then only to the extent that, a court of
competent jurisdiction shall determine upon application that such person is
fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper. A Delaware corporation must indemnify any person who was successful
on the merits or otherwise in defense of any action, suit or proceeding or in
defense of any claim, issue or matter in any proceeding, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. A Delaware corporation may pay for the expenses (including attorneys'
fees) incurred by an officer or director in defending a proceeding in advance of
the final disposition upon receipt of an undertaking by or on behalf of such
officer or director to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation.
-2-
<PAGE>
Section 102(b)(7) of the DGCL, permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for any
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) in respect of certain unlawful dividend payments
or stock redemptions or repurchases, or (iv) for any transaction from which the
director derived an improper personal benefit. Article IX of the Registrant's
Certificate of Incorporation eliminates the liability of directors to the
fullest extent permitted by Section 102(b)(7) of the DGCL. The DGCL permits the
purchase of insurance on behalf of directors and officers against any liability
asserted against directors and officers and incurred by such persons in such
capacity, or arising out of their status as such, whether or not the corporation
would have the power to indemnify directors and officers against such liability.
The Registrant has obtained directors' and officers' liability insurance which
insures against liabilities that directors and officers of the Registrant may
incur in such capacities. The risks covered by such policies do not exclude
liabilities under the Securities Act. In addition, the Registrant has entered
into indemnification agreements with its officers and directors pursuant to
which it has agreed to indemnify each such officer and director against any and
all expenses, losses, claims, damages and liabilities incurred by each such
officer and director for or as a result of actions taken or not taken while each
such officer or director was acting in his or her capacity as a director or
officer of the Registrant.
At present, there is no pending litigation or other proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought, nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
Article Seventh of the Registrant's Restated Certificate of Incorporation
and Section 5 of Article Fifth the Company's By-laws provide for indemnification
of the Registrant's directors and officers to the fullest extent permitted by
Section 145 of the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------ --------------------------------------------------------------------
*4.1 Restated Certificate of Incorporation of the Registrant, as amended.
*4.2 1994 Stock Option Plan, as amended.
*5 Opinion of Kelley Drye & Warren LLP regarding the legality of the
Common Stock being registered.
*23.1 Consent of Kelley Drye & Warren LLP (included in their opinion filed
as Exhibit 5).
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Ryder Scott Company Petroleum Engineers.
*24 Powers of Attorney (See Signature Page).
- --------------------------
*Filed herewith
ITEM 9. UNDERTAKINGS.
(a) 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;
-3-
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration
Statement; and
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission (the "Commission") by the Registrant pursuant
to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of Item 6, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 June 27, 1997.
3DX TECHNOLOGIES INC.
By: /S/ C. EUGENE ENNIS
-----------------------------------------
C. Eugene Ennis
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes C.
Eugene Ennis and Randall D. Keys and each of them as his true and lawful
attorneys-in-fact, with full power of substitution, to execute in the name and
on behalf of such person, individually and in each capacity stated below, and to
file, any and all amendments to this Registration Statement, including any and
all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on June 27, 1997.
SIGNATURE TITLE
- --------- -----
/S/ JON W. BAYLESS
- -------------------------------- Chairman of the Board and Director
Jon W. Bayless
/S/ C. EUGENE ENNIS
- -------------------------------- President and Chief Executive Officer
C. Eugene Ennis and Director
/S/ RANDALL D. KEYS
- -------------------------------- Chief Financial Officer (Principal
Randall D. Keys Financial and Accounting Officer)
and Director
/S/ ROBERT H. CHANEY
- -------------------------------- Director
Robert H. Chaney
/S/ CHARLES E. EDWARDS
- -------------------------------- Director
Charles E. Edwards
/S/ DOUGLAS C. WILLIAMSON
- -------------------------------- Director
Douglas C. Williamson
-5-
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
*4.1 Restated Certificate of Incorporation of the Registrant, as amended.
*4.2 1994 Stock Option Plan, as amended.
*5 Opinion of Kelley Drye & Warren LLP regarding legality of the Common
Stock being registered.
*23.1 Consent of Kelley Drye & Warren LLP (included in their opinion filed
as Exhibit 5).
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Ryder Scott Company Petroleum Engineers.
*24 Powers of Attorney (See Signature Page).
- --------------------------
*Filed herewith
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
3DX TECHNOLOGIES INC.
It is hereby certified that:
1. The name of the corporation is 3DX TECHNOLOGIES INC. (the
"Corporation"), and the name under which the Corporation was originally
incorporated is Novera Energy Inc. The original Certificate of Incorporation of
the Corporation was filed with the Office of the Secretary of State of the State
of Delaware on December 8, 1992. A Restated Certificate of Incorporation was
filed with the Office of the Secretary of State of the State of Delaware on
January 27, 1993. A Second Restated Certificate of Incorporation was filed with
the Office of the Secretary of State of the State of Delaware on November 9,
1993. A third Restated Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on December 17, 1993. A fourth Restated
Certificate of Incorporation was filed with the Office of the Secretary of State
of the State of Delaware on July 26, 1995. A fifth Restated Certificate of
Incorporation was filed with the Office of the Secretary of State of the State
of Delaware on December 19, 1996. An amendment to the fifth Restated Certificate
was filed with the Office of the Secretary of State of the State of Delaware on
December 24, 1996 (as amended, the "Fifth Restated Certificate").
2. The Fifth Restated Certificate is hereby restated and further
amended as follows: (i) to eliminate the series of the Corporation's Preferred
Stock designated respectively as the Redeemable Preferred Stock, Series B and
the Senior Redeemable Convertible Preferred Stock, Series C, and (ii) to reduce
the total number of shares of capital stock that the Corporation shall have the
authority to issue from Twenty-Four Million Five Hundred Thousand (24,500,000)
shares to Twenty-One Million (21,000,000) shares, of which Twenty Million
(20,000,000) shares shall be Common Stock, par value $.01 per share, and One
Million (1,000,000) shares shall be designated Preferred Stock, par value $.01
per share.
3. Except for (i) the inclusion of the foregoing amendments, and
(ii) the renumbering of the Fifth Restated Certificate to effect the omission of
such matters, there are no discrepancies between the provisions of the Fifth
Restated Certificate as heretofore amended and supplemented and the provisions
of the said single instrument hereinafter set forth.
4. The amendments to the Fifth Restated Certificate and the
restatement of the Fifth Restated Certificate as amended as the sixth Restated
Certificate of Incorporation (the "Sixth Restated Certificate") herein certified
have been duly adopted by the stockholders of the Corporation in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware.
1
<PAGE>
The text of the Fifth Restated Certificate is restated with the
amendments described above, effective as of 10:00 a.m. on December 26, 1996 to
read as follows:
FIRST: The name of the corporation is 3DX Technologies Inc. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is located at 1013 Centre Road, City of Wilmington, County of
New Castle. The name of its registered agent at such address is the Corporation
Service Company.
THIRD: The nature of the business and the purpose of the Corporation
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware ("Delaware
Corporation Law").
FOURTH: The Corporation shall have the authority to issue two (2)
classes of shares of capital stock, to be designated respectively "Preferred
Stock" and "Common Stock". The total number of shares of stock that the
Corporation shall have the authority to issue is Twenty-One Million
(21,000,000). The total number of shares of Preferred Stock, par value $.01 per
share (the "Preferred Stock"), that the Corporation shall have authority to
issue is One Million (1,000,000). The total number of shares of Common Stock,
par value $.01 per share (the "Common Stock"), that the Corporation shall have
the authority to issue is Twenty Million (20,000,000).
The following is a statement fixing certain of the designations and
the powers, voting rights, preferences and relative, participating, optional and
other rights of the Preferred Stock and the Common Stock of the Corporation, and
the qualifications, limitations or restrictions thereof, and of the authority
with respect thereto expressly granted to the Board of Directors of the
Corporation to fix any such provisions not fixed by this Fifth Restated
Certificate.
A. PREFERRED STOCK
The Board of Directors is hereby expressly vested with the authority to
adopt a resolution or resolutions providing for the issue of authorized but
unissued shares of Preferred Stock, which shares may be issued from time to
time, in one or more series and in such amounts as may be determined by the
Board of Directors in such resolution or resolutions. The powers, voting rights,
designations, preferences and relative, participating, optional or other special
rights, if any, of each series of Preferred Stock and the qualifications,
limitations or restrictions, if any, of such preferences and/or rights
(collectively, the "Series Terms"), shall be such as are stated and expressed in
the resolution or resolutions providing for the issue of such series of such
previously Preferred Stock (the "Series Terms Resolution") adopted by the Board
of Directors. The powers of the Board of Directors with respect to the Series
Terms of a particular series (any of which powers may by resolution of the Board
of Directors be specifically delegated to one or more of its committees, except
as prohibited by Delaware Corporation Law) shall include, but not be limited to,
determination of the following:
<PAGE>
(1) The number of shares constituting that series and the
distinctive designation of that series;
(2) The dividend rate on the shares of that series, whether
such dividends, if any, shall be cumulative, and, if so, the date or
dates from which dividends payable on such shares shall accumulate, and
the relative rights of priority, if any, of payment of dividends on
shares of that series;
(3) Whether that series shall have voting rights, in addition
to any voting rights provided by law, and, if so, the terms of such
voting rights;
(4) Whether that series shall have conversion privileges with
respect to shares of any other class or classes of stock or of any other
series of any class of stock, and, if so, the terms and conditions of
such conversion upon the occurrence of such events as the Board of
Directors shall determine;
(5) Whether the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the
relative rights of priority of the shares of such series, if any, of
redemption, the date or dates upon or after which the shares of such
series shall be redeemable, provisions regarding redemption notices, and
the amount per share payable in case of redemption, which amount may vary
under different conditions and at different redemption dates;
(6) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms
and amount of such sinking fund;
(7) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation, and the relative rights of priority, if any, of payment of
shares of that series;
(8) The conditions or restrictions upon the creation of
indebtedness of the Corporation or upon the issuance of additional
Preferred Stock or other capital stock ranking on a parity therewith, or
prior thereto, with respect to dividends or distribution of assets upon
liquidation;
(9) The conditions or restrictions with respect to the
issuance of, payment of dividends upon, or the making of other
distributions to, or the acquisition or redemption of, shares ranking
junior to the Preferred Stock or to any series thereof with respect to
dividends or distribution of assets upon liquidation; and
(10) Any other designation, preference, power and right and
any qualification, limitation or restriction thereon as may be fixed by
resolution or resolutions of the Board of Directors under the Delaware
Corporation Law.
2
<PAGE>
Any of the Series Terms, including voting rights, of any series may be
made dependent upon facts ascertainable outside this Restated Certificate and
the Series Terms Resolution, provided that the manner in which such facts shall
operate upon such Series Terms is clearly and expressly set forth in this
Restated Certificate or in the Series Terms Resolution.
B. COMMON STOCK
The Common Stock shall consist of Twenty Million (20,000,000) shares. The
powers, preferences and rights, and the qualifications, limitations and
restrictions of the Common Stock are as follows:
1. VOTING, ETC. Each holder of shares of Common Stock shall be
entitled to one (1) vote for each share held. Each share of Common Stock is
vested with all of the same rights and powers in all respects, including,
without limitation, dividend and liquidation rights.
2. DIVIDENDS. When and as dividends are declared thereon,
whether payable in cash, property or securities of the Corporation, holders of
Common Stock will be entitled to share in such dividends ratably according to
the number of shares of Common Stock held by such holder, subject to the rights
of the holders of shares of any series of Preferred Stock set forth in any
Series Terms Resolution.
3. LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for the payment of the debts and other liabilities of
the Corporation and the payment or setting aside for payment of any preferential
amount due to the holders of shares of any series of Preferred Stock, the
holders of Common Stock shall be entitled to share, ratably according to the
number of shares of Common Stock held by them, in the remaining assets of the
Corporation available for distribution to its stockholders, subject to the
rights of the holders of any shares of any class of stock or series ranking on
parity with the Common Stock as to payment or distribution in such event.
4. ACTION BY STOCKHOLDERS. Except as otherwise provided in
this Restated Certificate, no action may be taken by holders of shares of Common
Stock except at a duly called annual or special meeting of stockholders.
FIFTH: In furtherance and not in limitation of the powers conferred by
statute, the Second Amended and Restated By-laws, as such By-Laws, may be from
time to time amended, modified or supplemented (as amended, the "By-Laws"), of
the Corporation may be modified, altered, amended or repealed by the Board of
Directors pursuant to a resolution adopted by the affirmative vote of a majority
of the entire Board of Directors.
SIXTH: The following provisions are inserted for purposes of the
management of the business and conduct of the affairs of the Corporation and for
creating, defining, limiting and regulating the powers of the Corporation and
its directors and stockholders:
3
<PAGE>
A. GENERAL POWER OF BOARD OF DIRECTORS.
The powers of the Corporation shall be exercised by or under
the authority of, and the business and affairs of the Corporation shall
be managed under the direction of, a Board of Directors. The number of
directors may be increased or decreased by the Board of Directors from
time to time as provided in the By-laws.
B. CLASSIFIED BOARD OF DIRECTORS.
The Board of Directors of the Corporation shall be divided
into three classes designated as Class A, Class B and Class C, each
initially composed of such number of directors as is nearly as equal in
number as is possible. Upon any change in the size of the Board of
Directors, each class shall consist, as nearly as may be possible, of
one-third (1/3) of the total number of directors constituting the entire
Board of Directors.
The initial term of office of Class A directors shall expire
at the next annual meeting of stockholders of the Corporation following
the filing of the Corporation's Restated Certificate of Incorporation
which was filed with the Office of the Secretary of State of the State of
Delaware on December 19, 1996 (the "December 19, 1996 Restated
Certificate"); the initial term of office of Class B directors shall
expire at the second annual meeting of stockholders of the Corporation
following the filing of the December 19, 1996 Restated Certificate of
Incorporation; and the initial term of office of Class C directors shall
expire at the third annual meeting of stockholders of the Corporation
following the filing of the December 19, 1996 Restated Certificate of
Incorporation. The initial designation of directors among Class A, Class
B and Class C shall be made by the Board of Directors. At each annual
meeting of stockholders, the successors to the class of directors whose
term shall then expire shall be elected to hold office for a term
expiring at the third succeeding annual meeting of stockholders. Each
director shall hold office for the term for which he or she was elected
and until his or her successor is elected and qualified or until his or
her resignation or removal. Any vacancy on the Board of Directors for any
reason shall be filled in accordance with the By-laws.
SEVENTH: No director of the Corporation shall have personal liability to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that nothing in this Article SEVENTH shall
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for any
act or omission not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. In the event the Delaware Corporation Law is amended after the
date hereof so as to authorize corporate action further eliminating or limiting
the liability of directors of the Corporation, the liability of the directors
shall thereupon be eliminated or limited to the maximum extent permitted by the
Delaware Corporation Law, as so amended from time to time. Any repeal or
modification of the foregoing provisions of this Article SEVENTH by the
stockholders of the Corporation shall
4
<PAGE>
not adversely affect any right or protection of a director existing at the time
of such repeal or modification.
EIGHTH: The Corporation shall, to the fullest extent permitted by Section
145 of the Delaware Corporation Law, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under Section 145 from and against any and all expense, liability, or
other matter referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other right to which
those indemnified may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate, in any manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation and further subject to the
condition that any amendment to each of Article Fourth, Sections B and C(4) of
this Restated Certificate and this Article Ninth shall require the affirmative
vote of holders of at least 67% of the issued and outstanding shares of the
Corporation's capital stock entitled to vote thereon.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
<PAGE>
IN WITNESS WHEREOF, 3DX Technologies Inc. has caused this
Restated Certificate of Incorporation to be signed by its duly authorized
officer this 26th day of December, 1996.
/S/ C. EUGENE ENNIS
-----------------------------------------
C. Eugene Ennis
President and Chief Executive Officer
6
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
3DX TECHNOLOGIES INC.
The undersigned, being the duly elected President of 3DX
Technologies Inc. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
does hereby certify:
FIRST: That at a meeting of the Board of Directors of the
Corporation at which all directors were present, resolutions were duly adopted
setting forth a proposed amendment to the Restated Certificate of Incorporation
(the "Restated Certificate") of the Corporation, declaring said amendment to be
advisable and calling a meeting of the stockholders of the Corporation for
consideration thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that Article SIXTH of the Restated Certificate of
the Corporation is hereby amended and restated in its entirety to
read as follows:
SIXTH: The powers of the Corporation shall be exercised by or
under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, a Board of
Directors. The number of directors may be increased or decreased by
the Board of Directors from time to time as provided in the Bylaws.
SECOND: That thereafter at a duly called meeting of the holders of a
majority of the issued and outstanding capital stock of the Corporation, a
majority of shares as required by statute were voted in favor of the amendment.
THIRD: That such amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said 3DX Technologies Inc. has caused this
Certificate of Amendment to be signed by C. Eugene Ennis, its President, this
13th day of June, 1997.
/S/ C. EUGENE ENNIS
-------------------------------------------
C. Eugene Ennis, President
3DX TECHNOLOGIES INC.
1994 STOCK OPTION PLAN
(Amended June 13, 1997)
1. ESTABLISHMENT AND PURPOSE.
(a) ESTABLISHMENT. The 3DX TECHNOLOGIES INC. Employee Stock Option Plan was
adopted effective January 4, 1994 (the "PLAN").
(b) PURPOSE. The purpose of the Plan is to attract, retain and reward
persons providing services to 3DX Technologies Inc., a Delaware corporation, and
any successor corporation thereto (collectively referred to as the "COMPANY"),
and any present or future parent and/or subsidiary corporations of such
corporation (all of which along with the Company being individually referred to
as a "PARTICIPATING COMPANY" and collectively referred to as the "PARTICIPATING
COMPANY GROUP"), and to motivate such persons to contribute to the growth and
profits of the Participating Company Group in the future. For purposes of the
Plan, a parent corporation and a subsidiary corporation shall be as defined in
Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended (the
"CODE").
2. ADMINISTRATION.
(a) ADMINISTRATION BY BOARD AND/OR COMMITTEE. The Plan shall be
administered by the Board of Directors of the Company (the "BOARD") and/or by a
duly appointed committee of the Board having such powers as shall be specified
by the Board. Any subsequent references herein to the Board shall also mean the
committee if such committee has been appointed and, unless the powers of the
committee have been specifically limited, the committee shall have all of the
powers of the Board granted herein, including, without limitation, the power to
terminate or amend the Plan at any time, subject to the terms of the Plan and
any applicable limitations imposed by law. All questions of interpretation of
the Plan or of any options granted under the Plan (an "Option") shall be
determined by the Board, and such determinations shall be final and binding upon
all persons having an interest in the Plan and/or any Option.
(b) OPTIONS AUTHORIZED. Options may be either incentive stock options as
defined in Section 422 of the Code ("INCENTIVE STOCK OPTIONS") or non-statutory
stock options.
(c) AUTHORITY OF OFFICERS. Any officer of a Participating Company shall
have the authority to act on behalf of the Company with respect to any matter,
right, obligation, or election which is the responsibility of or which is
allocated to the Company herein, provided the officer has apparent authority
with respect to such matter, right, obligation, or election.
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3. ELIGIBILITY.
(a) ELIGIBLE PERSONS. Options may be granted only to employees (including
officers) and directors of the Participating Company Group or to individuals who
are rendering services as consultants, advisors, or other independent
contractors to the Participating Company Group. The Board shall, in its sole
discretion, determine which persons shall be granted Options (an "OPTIONEE").
Eligible persons may be granted more than one (1) Option.
(b) RESTRICTIONS ON OPTION GRANTS. A director of a Participating Company
may only be granted a non-statutory stock option unless the director is also an
employee of the Participating Company Group. An individual who is rendering
services as a consultant, advisor, or other independent contractor may only be
granted a non-statutory stock option.
4. SHARES SUBJECT TO OPTION. Options shall be for the purchase of shares of
the authorized but unissued common stock or treasury shares of common stock $.01
par value of the Company (the "STOCK"), subject to adjustment as provided in
paragraph 10 below. The maximum number of shares of Stock which may be 2,004,937
shares. In the event that any outstanding Option for any reason expires or is
terminated or canceled and/or shares of Stock subject to repurchase are
repurchased by the Company, the shares allocable to the unexercised portion of
such Option, or such repurchased shares, may again be subject to an Option
grant. Notwithstanding the foregoing any such shares shall be made subject to a
new Option only if the grant of such new Option and the issuance of such shares
pursuant to such new Option would not cause the Plan or any Option granted under
the Plan to contravene Rule 16b-3.
5. TIME FOR GRANTING OPTIONS. All Options shall be granted, if at all,
within ten (10) years from the earlier of the date the Plan is adopted by the
Board or the date the Plan approved by the stockholders of the Company.
6. TERMS, CONDITIONS AND FORM OF OPTIONS. Subject to the provisions of the
Plan, the Board shall determine for each Option (which need not be identical)
the number of shares of Stock for which the Option shall be granted, the
exercise price of the Option, the timing and terms of exercisability and vesting
of the Option, the time of expiration of the Option, the effect of the
Optionee's termination of employment or service, whether the Option is to be
treated as an Incentive Stock Option or as a non-statutory stock option, the
method for satisfaction of any tax withholding obligation arising in connection
with Option, including by the withholding or delivery of shares of stock, and
all other terms and conditions of the Option not inconsistent with the Plan.
Options granted pursuant to the Plan shall be evidenced by written agreements
specifying the number of shares of Stock covered thereby, in such form as the
Board shall from time to time establish, which agreements may incorporate all or
any of the terms of the Plan by reference and shall comply with and be subject
to the following terms and conditions:
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(a) EXERCISE PRICE. The exercise price for each Option shall be established
in the sole discretion of the Board; provided, however; that (i) the exercise
price per share for an Incentive Stock Option shall be not less than the fair
market value, as determined by the Board, of a share of Stock on the date of the
granting of the Option, (ii) the exercise price per share for a non-statutory
stock option shall not be less than eighty-five percent (85%) of the fair market
value, as determined by the Board, of a share of Stock on the date of the
granting of the Option and (iii) no Incentive Stock Option granted to an
Optionee who at the time the Option is granted owns stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
a Participating Company within the meaning of Section 422(b)(6) of the Code (a
"TEN PERCENT OWNER OPTIONEE") shall have an exercise price per share less than
one hundred ten percent (110%) of the fair market value, as determined by the
Board, of a share of Stock on the date of the granting of the Option.
Notwithstanding the foregoing, an Option (whether an Incentive Stock Option or a
non-statutory stock option) may be granted with an exercise price lower than the
minimum exercise price set forth above if such Option is granted pursuant to an
assumption or substitution for another option in a manner qualifying with the
provisions of Section 424(a) of the Code.
(b) EXERCISE PERIOD OF OPTIONS. The Board shall have the power to set,
including by amendment of an Option, the time or times within which each Option
shall be exercisable or the event or events upon the occurrence of which all or
a portion of each Option shall be exercisable and the term of each Option;
provided, however, that (i) no Option shall be exercisable after the expiration
of ten (10) years after the date such Option is granted, and (ii) no Incentive
Stock Option granted to a Ten Percent Owner Optionee shall be exercisable after
the expiration of five (5) years after the date such Option is granted.
(c) PAYMENT OF EXERCISE PRICE.
(i) FORMS OF PAYMENT AUTHORIZED. Payment of the exercise price for the
number of shares of Stock being purchased pursuant to any Option shall be made
(1) in cash, by check, or cash equivalent, (2) by tender to the Company of
shares of the Company's stock owned by the Optionee having a fair market value,
as determined by the Board (but without regard to any restrictions on
transferability applicable to such stock by reason of federal or state
securities laws or agreements with an underwriter for the Company), not less
than the exercise price, (3) by the Optionee's recourse promissory note in a
form approved by the Company, (4) by the assignment of the proceeds of a sale of
some or all of the shares being acquired upon the exercise of the Option
(including, without limitation, through an exercise complying with the
provisions of Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System), (5) by the withholding of shares being
acquired upon exercise of the Option having a fair market value, as determined
by the Board (but without regard to any restrictions on transferability
applicable to such stock by reason of federal or state securities laws or
agreements with an underwriter for the Company), not less than the exercise
price, or (6) by any combination thereof. The Board may at any time or from time
to time grant Options which do not permit
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all of the foregoing forms of consideration to be used in payment of the
exercise price and/or which otherwise restrict one (1) or more forms of
consideration.
(ii) TENDER OF COMPANY STOCK. Notwithstanding the foregoing, an Option may
not be exercised by tender to the Company of shares of the Company's stock to
the extent such tender of stock, as determined by the Board, would constitute a
violation of the provisions of any law, regulation and/or agreement restricting
the redemption of the Company's stock. Unless otherwise provided by the Board,
an Option may not be exercised by tender to the Company of shares of the
Company's stock unless such shares of the Company's stock either have been owned
by the Optionee for more than six (6) months or were not acquired, directly or
indirectly, from the Company.
(iii) PROMISSORY NOTES. No promissory note shall be permitted if an
exercise using a promissory note would be a violation of any law. Any permitted
promissory note shall be due and payable not more than four (4) years after the
Option is exercised, and interest shall be payable at least annually and be at
least equal to the minimum interest rate necessary to avoid imputed interest
pursuant to all applicable sections of the Code. The Board shall have the
authority to permit or require the Optionee to secure any promissory note used
to exercise an Option with the shares of Stock acquired on exercise of the
Option and/or with other collateral acceptable to the Company. Unless otherwise
provided by the Board, in the event the Company at any time is subject to the
regulations promulgated by the Board of Governors of the Federal Reserve System
or any other governmental entity affecting the extension of credit in connection
with the Company's securities, any promissory note shall comply with such
applicable regulations, and the Optionee shall pay the unpaid principal and
accrued interest, if any, to the extent necessary to comply with such applicable
regulations.
(iv) ASSIGNMENT OF PROCEEDS OF SALE. The Company reserves, at any and all
times, the right, in the Company's sole and absolute discretion, to establish,
decline to approve and/or terminate any program and/or procedures for the
exercise of Options by means of an assignment of the proceeds of a sale of some
or all of the shares of Stock to be acquired upon such exercise.
7. STANDARD FORMS OF STOCK OPTION AGREEMENT.
(a) INCENTIVE STOCK OPTIONS. Unless otherwise provided for by the Board at
the time an Option is granted, an Option designated as an "Incentive Stock
Option" shall comply with and be subject to the terms and conditions set forth
in the form of incentive stock option agreement attached hereto as EXHIBIT A and
incorporated herein by reference.
(b) NON-STATUTORY STOCK OPTIONS. Unless otherwise provided for by the Board
at the time an Option is granted, an Option designated as a "Non-statutory Stock
Option" shall comply with and be subject to the terms and conditions set forth
in the forms
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of non-statutory stock option agreement attached hereto as EXHIBIT B and
incorporated herein by reference.
(c) STANDARD TERM FOR OPTIONS. Unless otherwise provided for by the Board
in the grant of an Option, any Option granted hereunder shall be exercisable for
a term of ten (10) years.
8. AUTHORITY TO VARY TERMS. The Board shall have the authority from time to
time to vary the terms of either of the standard forms of Stock Option Agreement
described in paragraph 7 above either in connection with the grant or amendment
of an individual Option or in connection with the authorization of a new
standard form or forms; provided, however, that the terms and conditions of such
revised or amended standard form or forms of stock option agreement shall be in
accordance with the terms of the Plan. Such authority shall include, but not by
way of limitation, the authority to grant Options which are not immediately
exercisable.
9. FAIR MARKET VALUE LIMITATION. To the extent that the aggregate fair
market value (determined at the time the Option is granted) of stock with
respect to which Incentive Stock Options are exercisable by an Optionee for the
first time during any calendar year (under all stock option plans of the
Company, including the Plan) exceeds One Hundred Thousand Dollars ($100,000),
such Options shall be treated as non-statutory stock options. This paragraph
shall be applied by taking Incentive Stock Options into account in the order in
which they were granted.
10. EFFECT OF CHANGE IN STOCK SUBJECT TO PLAN. Appropriate adjustments
shall be made in the number and class of shares of Stock subject to the Plan and
to any outstanding Options and in the exercise price of any outstanding Options
in the event of a stock dividend, stock split, reverse stock split,
recapitalization, combination, reclassification, or like change in the capital
structure of the Company.
In the event a majority of the shares which are of the same class as the
shares that are subject to outstanding Options are exchanged for, converted
into, or otherwise become (whether or not pursuant to a Transfer of Control (as
defined below)) shares of another corporation (the "New Shares"), the Company
may unilaterally amend the outstanding Options to provide that such Options are
exercisable for New Shares. In the event of any such amendment, the number of
shares and the exercise price of the outstanding Options shall be adjusted in a
fair and equitable manner.
11. TRANSFER OF CONTROL. A "TRANSFER OF CONTROL" shall be deemed to have
occurred in the event any of the following occurs with respect to the Company.
(a) the acquisition of direct or indirect ownership of stock by any person,
entity or group of persons or entities acting in concert possessing more than a
majority of the beneficial interest in the voting stock of the Company;
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(b) the direct or indirect sale or exchange by the stockholders of the
Company of all or substantially all of the stock of the Company where the
stockholders of the Company before such sale or exchange do not retain, directly
or indirectly, at least a majority of the beneficial interest in the voting
stock of the Company after such sale or exchange;
(c) a merger or consolidation where the stockholders of the Company before
such merger or consolidation do not retain, directly or indirectly, at least a
majority of the beneficial interest in the voting stock of the Company after
such merger or consolidation;
(d) the sale, exchange, or transfer of all or substantially all of the
assets of the Company (other than a sale, exchange, or transfer to one (1) or
more subsidiary corporations (as defined in paragraph 1 above) of the Company);
or
(e) a liquidation or dissolution of the Company.
For purposes of the foregoing, if a group of persons or entities begins to act
in concert, and if such group meets the beneficial ownership requirements set
forth in clause (a) above, then such acquisition shall be deemed to have
occurred on the date the Company first becomes aware of such group or its
actions.
A Stock Option Agreement may, in the discretion of the Board, provide for
accelerated vesting in the event of a Transer of Control.
In the event of a Transfer of Control, the surviving, continuing,
successor, or purchasing corporation or parent corporation thereof, as the case
may be (the "ACQUIRING CORPORATION"), shall either assume the Company's rights
and obligations under outstanding stock option agreements or substitute options
for the Acquiring Corporation's stock for such outstanding Options. In the event
the Acquiring Corporation elects not to assume or substitute for such
outstanding Options in connection with the Transfer of Control, any
unexercisable and/or unvested shares subject to such outstanding stock option
agreements shall be immediately exercisable and fully vested as of the date
thirty (30) days prior to the proposed effective date of the Transfer of
Control. The exercise and/or vesting of any Option that was permissible solely
by reason of this paragraph 11 shall be conditioned upon the consummation of the
Transfer of Control. Any Options which are neither assumed or substituted for by
the Acquiring Corporation in connection with the Transfer of Control nor
exercised as of the date of the Transfer of Control shall terminate and cease to
be outstanding effective as of the date of the Transfer of Control.
12. PROVISION OF INFORMATION. Each Optionee shall be given access to
information concerning the Company equivalent to that information generally made
available to the Company's common stockholders generally.
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13. OPTIONS NON-TRANSFERABLE. During the lifetime of the Optionee, the
Option shall be exercisable only by the Optionee. No Option shall be assignable
or transferable by the Optionee, except by will or by the laws of descent and
distribution.
14. TERMINATION OR AMENDMENT OF PLAN OR OPTIONS. The Board, including any
duly appointed committee of the Board, may terminate or amend the Plan or any
Option at any time; provided, however, that without the approval of the
Company's stockholders, there shall be (a) no increase in the total number of
shares of Stock covered by the Plan (except by operation of the provisions of
paragraph 10 above), (b) no change in the class eligible to receive Incentive
Stock Options and (c) no expansion in the class eligible to receive
non-statutory stock options. In addition to the foregoing, the approval of the
Company's stockholders shall be sought for any amendment to the Plan for which
the Board deems stockholder approval necessary in order to comply with Rule
16b-3. In any event, no amendment may adversely affect any then outstanding
Option or any unexercised portion thereof, without the consent of the Optionee,
unless such amendment is required to enable an Option designated as an Incentive
Stock Option to qualify as an Incentive Stock Option.
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KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, CT 06901-3229
(203) 324-1400
June 25, 1997
3DX Technologies Inc.
12012 Wickchester, Suite 250
Houston, Texas 77079
Dear Sirs:
We are acting as counsel to 3DX Technologies Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"). The Registration Statement relates to 2,004,937
shares of the Company's Common Stock, par value $0.01 per share (the "Shares"),
which are to be issued pursuant to the Company's 1994 Stock Option Plan, as
amended (the "Plan").
In connection with this opinion, we have examined and relied upon
copies certified or otherwise identified to our satisfaction of: (i) the Plan;
(ii) an executed copy of the Registration Statement; (iii) the Company's
Restated Certificate of Incorporation, as amended; (iv) the Company's Second
Amended and Restated By-laws, as amended; (v) the minute books and other records
of corporate proceedings of the Company, as made available to us by officers of
the Company and we have reviewed such matters of law as we have deemed necessary
or appropriate for the purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies. We
have also assumed the legal capacity of all natural persons, the genuineness of
all signatures on all documents examined by us, the authority of such persons
signing on behalf of the parties thereto other than the Company and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company. As to certain factual matters material to the opinion
expressed herein, we have relied to the extent we deemed proper upon
representations, warranties and statements as to factual matters of officers and
other representatives of the Company.
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3DX Technologies Inc.
June 25, 1997
Page 2
Our opinion expressed below is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, moratorium or other similar federal or state law
affecting the rights and remedies of creditors generally (including, without
limitation, fraudulent conveyance laws), (ii) providing for specific
performance, injunctive relief or other equitable remedies, regardless of
whether such enforceability is sought in a proceeding in equity or at law, (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies and (iv) any law of any jurisdiction other than laws of the
States of Delaware and New York and the federal laws of the United States of
America. Without limiting the foregoing, we express no opinion with respect to
the applicability thereto or effect of municipal laws or the rules, regulations
or orders of any municipal agencies within any such state.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, it is our opinion
that the Shares to be issued by the Company pursuant to the Plan have been duly
authorized and reserved for issuance and, when certificates for the Shares have
been duly executed by the Company, countersigned by a transfer agent, duly
registered by a registrar for the Shares and issued and paid for in accordance
with the terms of the Plan, the Shares will be validly issued, fully paid and
non-assessable.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. This
opinion is given as of the date hereof and we assume no obligation to update or
supplement this opinion to reflect any facts or circumstances or changes in law
which may occur after the date hereof.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished to you in connection with the filing of
the Registration Statement and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose.
Very truly yours,
KELLEY DRYE & WARREN LLP
By: /S/ JAY R. SCHIFFERLI
-----------------------------------
A Member of the Firm
EXHIBIT 23.2
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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 14, 1997
included in the Annual Report on Form 10-k, as amended, of 3DX Technologies Inc.
for the year ended December 31, 1996 and to all references to our Firm included
in this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
June 25, 1997
EXHIBIT 23.3
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CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
As independent petroleum engineers, we hereby consent to the
incorporation by reference into this registration statement on Form S-8 our
report and estimates, as of February 6, 1997, of the reserves and present value
of future net reserves of 3DX Technologies Inc. included in its Annual Report on
Form 10-K for the year ended December 31, 1996.
Houston, Texas
June 25, 1997
