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EXHIBIT 10.32.2
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is made and entered
into as of this 23rd day of July, 1997, by and between EAGLE GEOPHYSICAL, INC.,
a Delaware corporation ("Eagle"), and XXX X. XXXXXXXXX ("Xxxxxxxxx"), and
relates to the subscription by Xxxxxxxxx for 25,000 shares of common stock of
Eagle.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. ISSUANCE OF STOCK AND PAYMENT.
(a) Subscription. Eagle agrees to sell to Xxxxxxxxx, and
Xxxxxxxxx agrees to purchase from Eagle, 25,000 shares (the "Shares")
of common stock of Eagle (the "Stock"), at a per share price of $16,
for an aggregate purchase price of $400,000 (the "Purchase Price"),
subject to the provisions of Section 1(c) hereof.
(b) Payment of Purchase Price. Xxxxxxxxx shall deliver
the Purchase Price by executing a promissory note in the original
principal amount of $400,000 (the "Note") payable to Eagle
concurrently with the execution and delivery hereof.
(c) Purchase Price Adjustment. In the event the initial
public offering price of the Stock in connection with the Registration
Statement on Form S-1 (Registration No. 333-28303) filed with the
Securities and Exchange Commission by Eagle is determined to be less
than $16.00 per share of Stock, the Purchase Price shall be adjusted
downward accordingly, and the principal amount of the Note shall be
credited in an amount equal to the difference between the Purchase
Price as defined in Section 1(a) hereof and the adjusted Purchase
Price, which shall be based upon the actual initial public offering
price per share.
2. DELIVERY OF SHARE CERTIFICATE. Promptly upon receipt of the
Purchase Price, Eagle shall issue a share certificate or certificates
representing the Shares to Xxxxxxxxx and shall promptly deliver such
certificate or certificates to Xxxxxxxxx.
3. REPRESENTATIONS AND WARRANTIES OF EAGLE. In order to induce
Xxxxxxxxx to purchase the Shares and to otherwise consummate the transactions
contemplated by this Agreement, Eagle represents and warrants as follows:
(a) Status of Eagle. Eagle is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and has full corporate
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power to carry on its business as the same is now conducted and to own
or lease its assets as the same are now being owned or leased.
(b) Xxxxxxxxx'x Title upon Consummation. Upon
consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof, Xxxxxxxxx shall be vested with good
and marketable title to the Shares, free and clear of any liens,
claims, charges or other encumbrances or restrictions whatsoever,
except as set forth in Eagle's Certificate of Incorporation, as
amended, or Eagle's Amended and Restated Bylaws or otherwise arising
by operation of law. The Shares, when issued and delivered pursuant
to this Agreement, will be validly issued, fully paid and
nonassessable.
(c) Authority for Agreement. Eagle has the full right,
power and authority to enter into this Agreement and to perform its
obligations hereunder. This Agreement has been duly and validly
executed and delivered by Eagle and constitutes a valid and binding
obligation of Eagle, enforceable against Eagle in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws relating
to or affecting the rights of creditors generally or upon general
principles of equity and the availability of injunctive relief or
other equitable remedies, whether enforcement is considered at law or
in equity (hereinafter the "Bankruptcy and Equitable Exceptions").
(d) Litigation, Etc. There is no action, proceeding or
investigation pending or (to the knowledge of Eagle) threatened (or
any reasonable basis therefor known to Eagle) which (i) questions the
validity of this Agreement or any of the transactions contemplated
hereby or (ii) if adversely determined, could reasonably be expected
to result, either in any case or in the aggregate, in a material
adverse effect on the business of Eagle. Eagle has no material
contingent or undisclosed liabilities as of the date hereof.
4. REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX. In order to
induce Eagle to issue and sell the Shares to Xxxxxxxxx and to otherwise
consummate the transactions contemplated by this Agreement, Xxxxxxxxx
represents and warrants as follows:
(a) Acquisition for Own Account. Xxxxxxxxx is acquiring
the Shares for his own account, for investment and not with a view to
the sale or distribution thereof or with any present intention of
distributing or selling the same, or dividing the Shares with other
persons.
(b) Securities Law Restrictions. Xxxxxxxxx will not
sell, assign, transfer, pledge or otherwise dispose of any of the
Shares except in accordance with the provisions of applicable state
and federal securities laws.
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(c) No Public Solicitation. Eagle has not offered the
Shares to Xxxxxxxxx by means of advertising or other form of public
solicitation.
(d) Investment Risk. Xxxxxxxxx has such knowledge and
experience in financial business matters as to be capable of
evaluating the merits and risks of investment in the Shares.
Xxxxxxxxx acknowledges that Eagle is a combination of Seitel
Geophysical, Inc. and Energy Research International and its operating
subsidiaries with no operating history and that his investment in the
Shares is highly speculative and involves a high degree of risk;
Xxxxxxxxx further acknowledges that he is capable of sustaining a loss
of the Purchase Price paid for the Shares. This representation does
not constitute a waiver by Xxxxxxxxx of any liability on the part of
Eagle for its breach of any representations, warranties, conditions or
covenants contained herein.
(e) Information Provided. Xxxxxxxxx has had the
opportunity to ask questions of, and receive satisfactory answers
from, the executive management of Eagle regarding Eagle and the
Shares, including the terms and conditions of this Agreement and the
proposed business plan of Eagle and related matters. Xxxxxxxxx has
had the opportunity to obtain the information necessary to satisfy
himself concerning the answers so obtained. Nothing contained herein
shall be interpreted to relieve the responsibility of Eagle to provide
adequate and accurate disclosure in the representations and warranties
contained in this Agreement.
(f) Accredited Investor. Xxxxxxxxx is an "accredited
investor" as said term is defined in Rule 501 of Regulation D under
the Securities Act of 1933, as amended (the "Securities Act"), in that
he is an executive officer of Eagle.
(g) Legend, Etc. Xxxxxxxxx acknowledges and agrees that
(i) the certificates representing the Shares will contain the legend
referred to in Section 5 hereof, (ii) the Shares are not registered
under the Securities Act or any other federal or state law, (iii)
Xxxxxxxxx will have no right to require such registration and must
bear the economic risks of their investment for an indefinite period
of time and are capable of bearing such risk, and (iv) the Shares are
a nonliquid investment and there is not now and there may never be any
public market for the Shares and Xxxxxxxxx cannot now and may never be
able to avail himself of the benefits of Rule 144 adopted by the
Securities and Exchange Commission with respect to the resale of the
Shares.
(h) Authority for Agreement. Xxxxxxxxx has the full
right, power and authority to enter into this Agreement and to perform
his obligations hereunder. This Agreement has been duly and validly
executed and delivered by Xxxxxxxxx and constitutes a valid and
binding obligation of Xxxxxxxxx, enforceable against Xxxxxxxxx in
accordance with its terms, subject to the Bankruptcy and Equitable
Exceptions.
(i) No Other Representations. Eagle and its directors,
officers and employees have made no representations, promises or
projections regarding the future financial
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status or competitive success of Eagle or its operations. Xxxxxxxxx
understands that except as set forth herein, Eagle makes no
representations or warranties whatsoever, and disclaims all liability
and responsibility for any representation, warranty, statement or
information made or communicated (orally or in writing) to Xxxxxxxxx
other than as specifically set forth herein.
5. STOCK LEGEND. Each stock certificate evidencing the Shares,
including any such stock certificates representing Shares issued to subsequent
transferees as permitted hereunder, shall be stamped or otherwise imprinted
with a legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT BY OPERATION OF LAW UNLESS (1) A REGISTRATION STATEMENT WITH
RESPECT TO SUCH SHARES SHALL BE EFFECTIVE UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (2) THE CORPORATION SHALL HAVE RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT
WILL BE INVOLVED IN SUCH TRANSFER, OR (3) THE CORPORATION SHALL HAVE
RECEIVED A "NO ACTION" LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION COVERING SUCH TRANSFER."
6. MISCELLANEOUS.
(a) Notices. All notices, requests and other
communications hereunder shall be deemed to have been duly given if in
writing and either delivered personally, sent by facsimile
transmission or by air courier service, or mailed by postage prepaid
registered or certified U.S. mail, return receipt requested, to the
addresses designated below or such other addresses as may be
designated in writing by notice given hereunder, and shall be
effective upon personal delivery or facsimile transmission thereof or
72 hours following deposit in the U.S. mail or 24 hours following
deposit with an air courier service:
IF TO EAGLE: Eagle Geophysical, Inc.
00 Xxxxx Xxxxxx Xxxx, 0xx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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IF TO XXXXXXXXX: Xxx X. Xxxxxxxxx
Eagle Geophysical, Inc.
00 Xxxxx Xxxxxx Xxxx, 0xx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Governing Law. This Agreement shall be construed and
governed in accordance with the laws of the State of Texas, without
giving effect to any conflict of law rules or provisions.
(c) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same Agreement.
(d) Entire Agreement. Except as otherwise specifically
provided herein, this Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
No modification, amendment or waiver of any provision hereof shall be
binding upon any party hereto unless it is in writing and executed by
all of the parties hereto or, in the case of a waiver, by the party
waiving compliance.
(e) Waiver. The waiver by any party hereto of any
breach, default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall not be deemed to extend
to any prior or subsequent breach, default, misrepresentation or
breach of warranty or covenant hereunder and shall not affect in any
way any rights arising by virtue of any such prior or subsequent
occurrence.
(f) Severability. In the event any one or more of the
provisions contained in this Agreement or any application thereof
shall be finally determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, any other
application thereof and the validity, legality, or enforceability of
the remaining provisions of this Agreement shall not in any way be
affected or impaired thereby.
(g) Rule 405 Employee Benefit Plan. This Agreement is
intended to be an Employee Benefit Plan within the meaning of Rule 405
under the Securities Act.
(h) Expenses. Each party hereto shall pay all costs and
expenses incurred or to be incurred by it in negotiating and preparing
this Agreement and in closing and effectuating the transactions
contemplated hereby.
(i) Section Headings. The section headings contained
herein are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
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(j) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the legal representatives,
successors and permissible assigns of the parties hereto, whether so
expressed or not, except as specifically otherwise provided.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written, with the intention of being
legally bound hereby.
EAGLE GEOPHYSICAL, INC.
BY: /s/ XXXXXXX X. XXXXXXX
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XXXXXXX X. XXXXXXX,
VICE PRESIDENT-
CHIEF FINANCIAL OFFICER
/s/ XXX X. XXXXXXXXX
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XXX X. XXXXXXXXX
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