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EXHIBIT 10.16
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EMPLOYMENT AGREEMENT
Between
GRANT GEOPHYSICAL, INC.
And
XXXXXX XXXXXX
dated as of January 27, 2000
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of January 27, 2000, by and between Grant Geophysical, Inc., a Delaware
corporation (the "Company"), and Xxxxxx Xxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company is desirous of employing Executive on the terms
and conditions, and for the consideration hereinafter set forth, and Executive
is desirous of being employed by the Company on such terms and conditions and
for such consideration;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, the Company and Executive agree as
follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
Section 1.1 Employment. Subject to the terms and conditions of this
Agreement, the Company hereby employs the Executive, and Executive hereby
agrees to be so employed by the Company, beginning on February 4, 2000 (the
"Commencement Date"), for the term set forth in Article 3. From and after the
Commencement Date, the Company shall employ the Executive in the position of
Executive Vice President Finance and Administration of the Company, or in such
other position or positions as the parties mutually may agree, and Executive
shall perform such duties, consistent with the Executive's job title or titles,
as may be prescribed from time to time by the Board of Directors of the Company
(the "Board").
Section 1.2 Duties and Powers. Executive agrees to serve in the
position referred to in Section 1.1 and to perform diligently and to the best
of his abilities the duties and services of such office or offices. For so long
as Executive is employed by the Company, Executive agrees to devote his full
and exclusive business time and attention to the business of the Company and
its subsidiaries or affiliates (excluding reasonable vacations and sick leave
in accordance with the Company's policies consistent with his position), to
perform all duties in a professional and prudent manner, and to devote the best
of his skill, energy, experience and judgment to such duties. Executive shall
have the powers associated with his position, subject to all policies and
guidelines as may be established by the Board. Executive agrees to devote his
full business time to the performance of services hereunder and not to engage
in any other activity or own any interest that would conflict with the
interests of the Company or would interfere with his responsibilities to the
Company and the performance of his duties hereunder; provided, however, that
this Agreement shall not prohibit the Executive from: (a) serving as a member
of the board of directors, board of trustees or the like of any for profit or
non-profit entity, or performing services of any type for any civic or
community entity, whether or not the Executive receives compensation therefor;
(b) investing his assets in such form or manner as will require no more than
nominal services on the part of the Executive in the operation of the business
of the entity in which such investment is made; or (c) serving in various
capacities
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with, and attending meetings of, industry, trade or governmental groups and
associations, including without limitation the industry, trade or governmental
groups and associations with which the Executive is currently involved, as long
as the Executive's engaging in activities permitted by virtue of clauses (a),
(b) and (c) above does not interfere with the ability of the Executive to
perform the services and discharge the responsibilities required of him under
this Agreement or conflict with any of the provisions hereof.
ARTICLE 2
COMPENSATION AND BENEFITS
Section 2.1 Salary. In consideration of the full and faithful
performance by Executive of his obligations hereunder, subject to the terms and
conditions set forth herein, the Company (or, at the Company's option, any
subsidiary or affiliate of the Company for which the Executive also provides
services hereunder) shall pay to the Executive an annual base salary of
$225,000 per year. Executive's annual base salary shall be paid in equal
installments in accordance with the Company's standard policy regarding payment
of compensation to executives (but no less frequently than monthly) and will be
prorated based upon the number of days elapsed in any partial year. The
Executive's salary shall be reviewed annually by the Board and may be increased
at the sole discretion of the Board.
Section 2.2 Bonuses. Executive shall receive such bonuses, if any, as
the Board shall determine in its sole discretion.
Section 2.3 Initial Stock Grant and Stock Options. The Company shall
grant to Executive, effective as of the Commencement Date, an option to
purchase 400,000 shares of the Company's common stock, $.001 par value per
share, pursuant to the Stock Option Agreement in the form attached hereto as
Exhibit "A."
Section 2.4 Other Perquisites. During his employment hereunder,
Executive shall be afforded the following benefits as incidences of his
employment:
(a) Subject to compliance with the Company's standard
policies and procedures with respect to expense reimbursement, the
Company shall reimburse Executive for, or pay on behalf of Executive,
reasonable and appropriate expenses incurred by Executive in
connection with the performance of his duties hereunder.
(b) Executive and, to the extent applicable, Executive's
spouse, dependents and beneficiaries, shall be allowed to participate
in all benefits, plans and programs, including improvements or
modifications, which are now, or may hereafter be, generally available
to other executive employees of the Company.
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ARTICLE 3
TERM AND TERMINATION OF EMPLOYMENT
Section 3.1 Term.
(a) Unless extended or sooner terminated pursuant to other
provisions hereof, the Company agrees to employ Executive for the
period (such period, prior to the conversion to an at-will
relationship as provided herein, the "Term") beginning on the
Commencement Date and ending two years thereafter. If the employment
relationship is not terminated prior to the end of the Term, either
the Company or Executive may elect, for any reason whatever, with or
without cause, to cause the employment relationship to cease as of the
expiration of the Term. This shall occur by either party giving a
written notice to the other party at least 30 days prior to the end of
the Term that the employment relationship shall cease as of the
expiration of the Term. Should Executive serve the full Term and
remain employed by the Company beyond the expiration of the Term, such
employment shall convert to a month-to-month, at-will relationship.
Such at-will relationship may be terminated at any time by either
Executive or the Company for any reason whatsoever, with or without
cause, upon 30 days' prior written notice to the other party.
(b) If a Change of Control (as defined below) occurs during
the Term, the Term shall automatically be extended, without the
necessity of any action on the part of the Company or Executive, to
end on the date three years after the Commencement Date.
(c) For purposes of this Agreement, "Change of Control" shall
mean the occurrence at any time after the Commencement Date of any of
the following events: (1) the purchase or other acquisition by any
person, entity or group (within the meaning of section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended, or any comparable
successor provisions) of persons or entities (a "Group"), other then
Xxxxxxx Associates, L.P., Westgate International, L.P., or any of
their affiliates, of (i) ownership of fifty percent (50%) or more of
the combined voting power of the Company's then outstanding voting
securities entitled to vote generally or (ii) all or substantially all
of the direct and indirect assets of the Company or (2) any merger,
consolidation, reorganization or other business combination of the
Company with or into any other entity which results in a person,
entity or Group, other than Xxxxxxx Associates, L.P., Westgate
International, L.P., or any of their affiliates, owning fifty percent
(50%) or more of the combined voting power of the surviving or
resulting corporation's then outstanding voting securities entitled to
vote generally.
Section 3.2 The Company's Right to Terminate. Notwithstanding the
provisions of Section 3.1, the Company shall have the right to terminate
Executive's employment during the Term at any time for any of the following
reasons:
(a) upon Executive's death;
(b) upon Executive's becoming incapacitated by accident,
sickness or other circumstance which renders him mentally or
physically incapable of performing, in the good
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faith determination of the Board, the duties and services required of
him hereunder on a full-time basis for a period of at least 60
consecutive days or for a period of 90 days in any 12 month period;
(c) for "Cause," which for purposes of this Agreement shall
mean (i) the commission of a felony or any other act or omission
involving dishonesty, disloyalty, or fraud with respect to the Company
or any of its customers or suppliers, (ii) conduct tending to bring
the Company into substantial public disgrace or disrepute, (iii)
substantial and repeated failure to perform duties as reasonably
requested by the Board or its designees, (iv) gross negligence or
willful misconduct in connection with the performance of Executive's
duties as an employee or (v) a material breach (which shall include,
without limitation, all breaches of Article 4 hereof by Executive) or
repeated violation of this Agreement; provided that in the case of a
violation of his duties as described in Article 1, the violation, if
correctable, remains uncorrected for 30 days following written notice
to Executive by the Company of such breach or violation.
(d) without Cause, in which event the Company's obligation to
Executive under this Agreement shall be limited solely to the payment,
at the time and upon the terms provided for herein, of Executive's
annual base salary payable pursuant to Section 2.1 for the remainder
of the Term. Any amounts due to Executive pursuant to this Section
3.2(d) shall be due and payable as and when they would have become due
and payable had Executive not been so terminated.
Section 3.3 Notice of Termination. If the Company desires to terminate
Executive's employment hereunder at any time prior to expiration of the Term,
it shall do so by giving written notice to Executive that it has elected to
terminate Executive's employment hereunder and stating the effective date of
such termination and the reason for such termination, provided that, except as
provided herein, no such action shall alter or amend any other provisions
hereof or rights arising hereunder, including, without limitation, the
provisions of Article 4 hereof. Any notice of termination from the Company to
Executive shall indicate the specific termination provision of this Agreement
relied upon and set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated. Except as provided in Sections 3.2(d) (if applicable),
upon any such termination, the Company shall cease paying Executive the
compensation and benefits set forth in Article 2 and have no further obligation
to Executive.
ARTICLE 4
PROTECTION OF INFORMATION
Section 4.1 Disclosure to Executive. The Company shall disclose to
Executive, or place Executive in a position to have access to or develop, trade
secrets or confidential information of the Company and/or its affiliates;
and/or shall entrust Executive with business opportunities of the Company
and/or its affiliates; and/or shall place Executive in a position to develop
business good will on behalf of the Company and/or its affiliates.
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Section 4.2 Disclosure to and Property of the Company. Executive
agrees not to disclose or utilize, for Executive's personal benefit or for the
direct or indirect benefit of any other person or entity, or for any other
reason, whether for consideration or otherwise, during the term of his
employment or at any time thereafter, any information, ideas, concepts,
improvements, discoveries or inventions, whether patentable or not, which are
conceived, made, developed, or acquired by Executive, individually or in
conjunction with others, during Executive's employment by the Company (whether
during business hours or otherwise and whether on the Company's premises or
otherwise) which relate to the business, products, or services of the Company
(including, without limitation, all such business ideas, prospects, proposals
or other opportunities which are developed by Executive during his employment,
or originated by any third party and brought to the attention of Executive
during his employment, together with information relating thereto (including,
without limitation, data, memoranda, opinions or other written, electronic or
charted means, or any other trade secrets or other confidential or proprietary
information of or concerning the Company)) (collectively, "Business
Information"). Moreover, all documents, drawings, notes, files, data, records,
correspondence, manuals, models, specifications, computer programs, E-mail,
voice mail, electronic databases, maps, and all other writings or materials of
any type embodying any such Business Information are and shall be the sole and
exclusive property of the Company. Upon termination of Executive's employment
by the Company, for any reason, Executive promptly shall deliver all Business
Information, and all copies thereof, to the Company.
Section 4.3 No Unauthorized Use or Disclosure. Executive will not, at
any time during or after Executive' s employment by the Company, make any
unauthorized disclosure of Business Information of the Company or its
affiliates, or make any use thereof, except in the carrying out of Executive's
employment responsibilities hereunder. Affiliates of the Company shall be third
party beneficiaries of Executive's obligations under this Article 4. As a
result of knowledge of confidential Business Information of third parties, such
as customers, suppliers, partners, joint ventures, and the like, of the Company
and its affiliates, Executive also agrees to preserve and protect the
confidentiality of such third party Business Information to the same extent,
and on the same basis, as the Company's Business Information.
Section 4.4 Ownership by the Company. If during Executive's employment
by the Company, Executive creates any work of authorship fixed in any tangible
medium of expression which is the subject matter of copyright (such as written
presentations, computer programs, E-mail, voice mail, electronic databases,
drawings, maps, models, manuals, brochures, or the like) relating to the
Company's business, whether such work is created solely by Executive or jointly
with others (whether during business hours or otherwise and whether on the
Company's premises or otherwise), the Company shall be deemed the author of
such work if the work is prepared by Executive in the scope of Executive's
employment; or, if the work is not prepared by Executive within the scope of
Executive's employment but is specially ordered by the Company as a
contribution to a collective or compiled work then the work shall be considered
to be work made for hire and the Company shall be author of the work. If such
work is neither prepared by Executive within the scope of Executive's
employment nor a work specially ordered that is deemed to be a work made for
hire, then Executive hereby agrees to assign, and by these presents does
assign, to the Company all of Executive's worldwide right, title, and interest
in and to such work and all rights of copyright therein free and clear of any
liens, security interests or any other adverse claims.
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Section 4.5 Assistance by Executive. Both during the period of
Executive's employment by the Company and thereafter, Executive shall assist
the Company and its nominee, at any time, in the protection of the Company's
worldwide right, title, and interests in and to information, ideas, concepts,
improvements, discoveries, and inventions, and copyrighted works including
without limitation, the execution of all formal assignment documents requested
by the Company or its nominee and the execution of all lawful oaths and
applications for patents and registration of copyright in the United States or
foreign countries.
Section 4.7 No Conflicts, Disclose. In keeping with Executive's duties
to the Company during the period of Executive' s employment by the Company,
Executive shall not, acting alone or in conjunction with others, directly or
indirectly, become involved in any conflict of interest, or upon discovery
thereof, allow such a conflict to continue. Executive shall promptly disclose
to the Company any facts that might involve any reasonable possibility of a
conflict of interest. It is agreed that any direct or indirect interest in,
connection with, or benefit from any outside activities, particularly
commercial activities, which interest might in any way adversely affect the
Company involves a possible conflict of interest. Circumstances in which a
conflict of interest on the part of Executive would or might arise, and which
should be reported immediately by Executive to the Company include, but are not
limited to, the following: (a) acceptance, directly or indirectly, of payments,
services or loans from a supplier, contractor, subcontractor, customer or other
entity with which the Company does business, including, but not limited to,
gifts, trips, entertainment or other favors of more than nominal value; (b)
misuse of information or facilities of the Company to which Executive has
access in a manner which is detrimental to the interests of the Company such as
utilization for Executive's own benefit of know-how or information developed
through the business or research activities of the Company; and (c) the
appropriation to Executive or the diversion to others, directly or indirectly,
of any business opportunity with respect to which it is known or could
reasonably be anticipated that the Company would be interested such as the
opportunity for the creation of a joint venture or other business relationship,
or the marketing of products, services or the like. Executive shall make full
disclosure to the Company of any and all business opportunities pertaining to
the Company's business.
Section 4.8 Statements Concerning the Company. Executive shall
refrain, both during his employment relationship with the Company and after
such employment relationship terminates, from publishing any oral or written
statements about the Company, any of its affiliates, or any of such entities'
officers, executives, agents or representatives that are slanderous, libelous,
or defamatory; or that disclose private or confidential information about the
Company, any of its affiliates, or any of such entities' business affairs,
officers, executives, agents, or representatives; or that constitute an
intrusion into the seclusion or private lives of the Company, any of its
affiliates, or any of such entities' officers, executives, agents or
representatives or that give rise to unreasonable publicity about the private
lives of the Company, any of its affiliates, or any of such entities' officers,
executives, agents, or representatives; or that place the Company, any of its
affiliates, or any of such entities' officers, executives, agents, or
representatives in a false light before the public; or that constitute a
misappropriation of the name or likeness of the Company, any of its affiliates,
or any of such entities' officers, employees, agents, or representatives.
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Section 4.9 Covenants. In consideration of the acknowledgements and
agreements by Executive in Section 4.11 hereof, and in consideration of the
compensation and benefits to be paid or provided to Executive by the Company,
Executive covenants that he will not, directly or indirectly:
(a) if Executive's employment hereunder is terminated by the
Company during the Term pursuant to Section 3.2(d), until the date on
which the Company ceases paying the Executive pursuant to Section
3.2(d), Executive shall not engage or invest in, manage, operate,
finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with,
or in any manner connected with, lend Executive's name or any similar
name to, lend Executive's credit to or render services or advice to,
any business whose products or activities compete in whole or in part
with the products or activities of the Company or any affiliate of the
Company, which restriction, because of Executive's position, duties
and responsibilities as Executive Vice President Finance and
Administration of the Company, shall have effect and be enforceable
anywhere within the geographic areas in which the Company or any such
affiliate now or hereafter conducts its business; provided, however,
that Executive may purchase or otherwise acquire up to (but not more
than) one percent of any class of securities of any enterprise (but
only as a passive investor and without otherwise participating in the
activities of such enterprise) if such securities are listed on any
national or regional securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934;
(b) at any time during Executive's employment hereunder and
for a period beginning on the date of termination of Executive's
employment with the Company and ending on the third anniversary of the
Executive's termination of employment, whether for Executive's own
account or for the account of any other person, solicit business of
the same or similar type being carried out by the Company or any
affiliate of the Company, from any customer of the Company or any such
affiliate during or after Executive's employment hereunder, whether or
not Executive had personal contact with such person; or
(c) at any time during Executive's employment hereunder and
for a period beginning on the date of termination of Executive's
employment with the Company and ending on the third anniversary of the
Executive's termination of employment, whether for Executive's own
account or the account of any other person, (i) solicit, employ, or
otherwise engage as an employee, independent contractor, or otherwise,
any person who is or was an employee of the Company or any affiliate
of the Company at any time during or after Executive's employment with
the Company or in any manner induce or attempt to induce any employee
of the Company or any such affiliate to terminate his employment with
the Company; or (ii) interfere with the Company's or any affiliate's
relationship with any person, including any person who at any time
during or after Executive's employment with the Company is or was an
employee, contractor, supplier, or customer of the Company or such
affiliate.
If any covenant in this Section 4.9 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic
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area, and such lesser scope, time, or geographic area, or all of them, as a
court of competent jurisdiction may determine to be reasonable, not arbitrary,
and not against public policy, will be effective, binding, and enforceable
against Executive.
Executive will, while the covenant under this Section 4.9 is in
effect, give notice to the Company, within ten days of accepting any other
employment, of the identity of Executive's new employer. The Company may notify
such new employer that Executive is bound by this Agreement.
Section 4.10 Remedies. Executive acknowledges that money damages would
not be sufficient remedy for any breach of this Article by Executive, and the
Company shall be entitled to enforce the provisions of this Article by specific
performance and injunctive relief as remedies for such breach or any threatened
breach. Such remedies shall not be deemed the exclusive remedies for a breach
of this Article, but shall be in addition to all remedies available at law or
in equity to the Company, including the recovery of damages from Executive and
his agents involved in such breach and remedies available to the Company
pursuant to any other agreement with Executive.
Section 4.11 Reasonableness. Executive expressly acknowledges,
recognizes and agrees that the restraints imposed by this Article 4 are (a)
reasonable as to time, geographic limitation and scope of activity; (b)
reasonably necessary to the enjoyment by the Company of the value of its assets
and to protect its legitimate interests; and (c) not oppressive. Executive
further expressly recognizes and agrees that the restraints imposed by this
Article 4 represent a reasonable and necessary restriction for the protection
of the legitimate interests of the Company, that it is and will continue to be
difficult to ascertain the harm and damages to the Company that a failure by
Executive to comply with such restrictions would cause, that the consideration
received by Executive for entering into these covenants and agreements is fair,
that the covenants and agreements and their enforcement will not deprive
Executive of his ability to earn a reasonable living in the oil and gas
industry or otherwise, and that Executive has knowledge and skills in his field
that will allow him to obtain employment without violating these covenants and
agreements. Executive further expressly acknowledges that he has been
encouraged to and has consulted independent counsel, and has reviewed and
considered this Agreement with that counsel before executing this Agreement.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Notices. For purposes of this Agreement, notices and other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company to: Grant Geophysical, Inc.
Attention: Chief Executive Officer
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Phone: 000-000-0000
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If to Executive to: Xxxxxx Xxxxxx
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
Section 5.2 Applicable Law. This Agreement is entered into under, and
shall be governed for all purposes by, the laws of the State of Texas without
regard to its conflicts of law principles.
Section 5.3 No Waiver. No failure by either party hereto at any time
to give notice of any breach by the other party of, or to require compliance
with, any condition or provision of this Agreement shall be deemed a wavier of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
Section 5.4 Severability. If a court of competent jurisdiction
determines that any provision of this Agreement is invalid or unenforceable,
then the invalidity or unenforceability of that provision shall not affect the
validity or enforceability of any other provision of this Agreement, and all
other provisions shall remain in full force and effect.
Section 5.5 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
Section 5.6 Withholding of Taxes and Other Employee Deductions. The
Company may withhold from any benefits and payments made pursuant to this
Agreement all federal, state, city and other taxes as may be required pursuant
to any law or governmental regulation or ruling and all other normal employee
deductions made with respect to the Company's employees generally.
Section 5.7 Headings. The Section headings have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
Section 5.8 Gender and Plurals. Wherever the context so requires, the
masculine gender includes the feminine or neuter, and the singular number
includes the plural and conversely.
Section 5.9 Affiliate. As used in this Agreement, the term "affiliate"
shall mean any entity which owns or controls, is owned or controlled by, or is
under common ownership or control with, the entity or person in question.
Section 5.10 Assignment. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor of the Company, by merger
or otherwise. Except as provided in the preceding sentence, this Agreement, and
the rights and obligations of the parties hereunder, are personal and neither
this Agreement, nor any right, benefit, or obligation of either party hereto,
shall
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be subject to voluntary or involuntary assignment, alienation or transfer,
whether by operation of law or otherwise, without the prior written consent
of the other party.
Section 5.11 Entire Agreement. Except as provided in any signed
written agreement contemporaneously or hereafter executed by the Company and
Executive, this Agreement constitutes the entire agreement of the parties with
regard to the subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to
employment of Executive by the Company. Without limiting the scope of the
preceding sentence, all prior understandings and agreements among the parties
hereto relating to the subject matter hereof are hereby null and void and of no
further force and effect. Any modification of this Agreement will be effective
only if it is in writing and signed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
COMPANY:
GRANT GEOPHYSICAL, INC.
By:
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Xxxxxxx X. Xxxx
President and Chief Executive Officer
EXECUTIVE:
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Xxxxxx Xxxxxx
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