EXHIBIT 10.44
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of 21st day
of March, 2003 (the "Effective Date") between GRANT GEOPHYSICAL, (INT'L) INC. a
Texas corporation (the "Company") and Xxxxx X. XxXxxxx (the "Employee").
A. The Employee has faithfully served the Company as an employee, and
B. It is the desire of the Company to continue to employ the Employee on
the terms herein provided and to induce the Employee to continue to render
services to the Company, and
C. The Employee is desirous of committing himself to serve Company on the
terms and in the capacities herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties set forth below, the parties hereto
agree as follows:
1. EMPLOYMENT: This Agreement supersedes and replaces any previous
Employment Agreement between the Company and Employee. Subject to the terms
hereof, the Company hereby agrees to employ the Employee, and the Employee
hereby agrees to serve Company, on the terms and conditions set forth herein for
the period commencing on the Effective Date and expiring on the third
anniversary of the Effective Date (the "Term").
2. POSITION AND DUTIES: The Employee shall serve in the following manner:
2.1 The Employee shall have the responsibility for the activities as
Controller of the Company, or in such other position or positions as the
parties mutually may agree, and shall have such other powers and duties
as may from time to time be prescribed by the Company's President and
Chief Executive Officer (the "CEO") or his delegee.
2.2 During the term of this Agreement, Employee shall devote his full
time, skill and attention and his best efforts to the businesses and
affairs of the Company to the extent necessary to discharge faithfully
and efficiently his duties and responsibilities described herein, except
for usual, ordinary and customary periods of vacation (as provided
below) and absence due to illness or other disability or such periods of
leave as are approved in writing by the Company's CEO or other officer.
3. PLACE OF PERFORMANCE: In connection with his employment under this
Agreement, the Employee shall be based in Houston, Texas or in such other
location as may be designated by the Company and mutually acceptable by
Employee.
4. COMPENSATION AND RELATED MATTERS:
4.1 Base Salary: Employee shall receive a minimum base salary annualized
at the rate of U.S $121,056.00 during the term hereof, payable in
accordance with the Company's then existing payroll policy but in no
event less frequent than on a semi- monthly basis either by check or
cash to Employee or to a bank account designated by Employee. Increases
in the Base Salary during the term of this agreement, will replace and
become the effective Base Salary for the remainder of the term of the
agreement.
4.2 Expenses. During the term of his employment hereunder, the Employee
shall be entitled to receive prompt reimbursements for all reasonable
and necessary expenses incurred by him in
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performing services hereunder, provided that the Employee properly
accounts therefor in accordance with Company policy.
4.3 Other Benefits. During the term of the Employee's employment
hereunder the Employee shall be entitled to participate in or receive
benefits under any employee benefit plan or other arrangement made
available by the Company now, or in the future, to its officers and key
management employees or other employees (including without limitation
any group medical, dental, life insurance and disability programs,
long-term incentive plans, 401(k) savings plan or any other similar plan
or arrangement).
4.4 Vacation The Employee shall be entitled to four (4) weeks annual
vacation in accordance with Company policy applicable in the area
described in Clause 2.1 above, provided, that upon termination of
Employee's employment with the Company as a result of, voluntary
resignation, death, disability or for Cause (as defined herein), the
Company shall pay to employee upon such termination an amount in cash
equal to the value of the unused vacation time up to, but not to exceed,
four (4) weeks.
4.5 Effective Employment Date. It is agreed that, for the purpose of
calculating vacation to which Employee is entitled under published
Company policy the employment date of Employee will be July 2, 2001.
5. NON-COMPETE: For the three (3) year period commencing on the
Effective Date, the Employee agrees that he will not, directly or
indirectly;
5.1 engage or invest in, own, 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 the Employee's advice to, any business or other entity
engaging in the acquisition, processing or marketing of seismic data; or
5.2 solicit, employ, or otherwise engage, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is or was
an employee of the Company at any time during the term of this Agreement
or in any manner induce or attempt to induce any employee of the Company
to terminate his or her employment with the Company; or
5.3 interfere with the Company's relationship with any person, including
any person who at any time during the term of this Agreement was an
employee, contractor, supplier, or customer of the Company; or
5.4 transfer or otherwise dispose of or deal or trade with any party,
other than Company, any of the Company's proprietary information as
provided in Section 8 below; or
5.5 disparage the Company or any of its shareholders, directors,
officers, or other management or personnel.
This Section 5 shall remain in effect for six (6) months following termination
hereof for any reason. The Employee agrees and stipulates that: (i) the
provisions of this Section 5 are ancillary to and a part of an otherwise
enforceable agreement, (ii) the limitations as to time, geographic area or scope
of activity to be restrained under this Section 5 are reasonable and impose no
greater restraint than is necessary to protect the goodwill or other business
interest of the Company.
If, however, this Section 5 is determined by a court of competent jurisdiction
to contain limitations as to time, geographic area or scope of activity to be
restrained that are not reasonable and impose a greater restraint than is
necessary to protect the goodwill or other business interest of the Company, or
to otherwise be unenforceable to any extent or for any reason, the Employee
consents to the reformation of this Section 5 by such court to the minimum
extent necessary to cause the limitations contained in this Section 5 to be
deemed reasonable and to impose a restraint that is not greater than necessary
to protect
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the goodwill or other business interest of the Company, and to otherwise be
enforceable, and to the enforcement of this Section 5 as so reformed. For
purposes of any such reformation, the provisions of this Section 5 shall be
divisible.
5. TERMINATION: The Employee's employment hereunder may be terminated by
Company or the Employee, as applicable, without any breach of this Agreement,
only under the following circumstances:
5.1 Death. The Employee's employment hereunder shall terminate upon
his death.
5.1 Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his
duties hereunder on a full time basis for 120 consecutive calendar days,
or 180 days during any twelve (12) month period, the Company may
terminate the Employee's employment hereunder.
5.1 Cause. Company may terminate the Employee's employment hereunder
for Cause. For purposes of this Agreement, Company shall have "Cause" to
terminate the Employee's employment hereunder only in the event the
Employee has.
(i) Committed an intentional act of fraud, embezzlement or theft in
connection with his duties or in the course of his employment with
the Company;
(ii) intentionally or wrongfully damaged property of the Company;
(iii) intentionally or wrongfully disclosed secret processes or
confidential information of the Company.
(iv) intentionally violated the provisions of Section 5 hereof, or
(v) intentionally failed or refused to substantially follow the lawful
and proper directives of the Company's President and CEO or his
delegee, consistent with the Employee's position and within his
ability to do so.
For purposes of this Agreement, an act or omission on the part of the
Employee shall not be deemed "intentional" or "wrongful" if it was due
to an error in judgment or negligence, but shall be deemed "intentional"
or "wrongful" if done by the Employee not in good faith and without
reasonable belief that the act or omission was in the best interests of
the Company.
6.4 Employee's Right to Terminate. Employee shall have the right to
terminate this Agreement by 90 days written notice to the Company
and shall forfeit any and all benefits available to Employee from
and after the termination date with the exception of any vacation
pay as specified in 4.4.
6.4.1 In the event following the occurrence of a Change in Control
(as defined in the Company's 1997 Equity and Performance Incentive
Plan) that results in a diminution in Employee's duties,
responsibilities or position in the management of the Company, the
Employee shall have the right to terminate this Agreement by written
notice to the Company within 60 days following the occurrence of a
Change in Control as defined above.
6.4.2 If Employee has made an election to terminate this Agreement
under this Section 6.4 and has given the required notice, then
Employee shall be entitled to receive from the Company (a) the
payment of an amount equal to Employee's then current base annual
salary payable pursuant to Section 4.1, and (b) the perquisites
specified in Section 4.5, in each case, for 12 months from the date
of the Change in Control. Any amounts due to Employee pursuant to
this Section 6.4 shall be due and payable as and when they would
have become due and payable had Employee not been so terminated.
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It is the agreement of the parties that, upon execution of this
Agreement by Employee, this will be a binding agreement between the
parties and may not be terminated by either party except as
expressly provided above.
7. COMPENSATION UPON TERMINATION: The Employee shall be entitled to
the following compensation from the Company upon the termination of his
employment.
7.1 In the event of employment termination by death or disability or a
termination by the Company for Cause, the Company shall pay to the
Employee all current Base Salary owed hereunder through the date of
termination. Such payment shall be paid when due pursuant to the terms
of Section 4 hereof.
7.2 Upon the termination by the Company of Employee's employment with
the Company other than for Cause, as defined above, compensation due the
Employee will, nevertheless, be paid in accordance with the Company's
then existing payroll payment schedule for a period equivalent to six
(6) months the provisions of Section 5 and 8 will remain in force for
the remainder of the term of payment.
7.3 Upon such termination of employee's employment, Employee shall be
entitled to all benefits, rights and privileges of Employee under any
and all employee benefit plans or policies of the Company to which
terminated employees of the Company are entitled.
8. CONFIDENTIALITY
8.1 Employee acknowledges and agrees that in the performance of his
duties of employment he will be brought into frequent contact, either in
person, by telephone, through the mail or by electronic communication,
with existing and potential clients of the Company, or its respective
subsidiaries, (throughout this Article 8 "Company" shall be deemed to
include all of its direct and indirect subsidiaries). Employee also
agrees that trade secrets and confidential information of the Company
more fully described in Article 8.2 below, gained by Employee during his
association with the Company have been developed by the Company through
substantial expenditures of time, effort and money and constitute
valuable and unique property of the Company, as the case may be.
Employee further understands and agrees that the foregoing makes it
necessary for the protection of the business of the Company that
Employee not compete with the Company as provided by Article 5 above.
8.2 Employee will keep in strict confidence, and will not, directly or
indirectly, at any time during his employment or thereafter, disclose,
furnish disseminate, make available or, except in the course of
performing his duties of employment hereunder, use any trade secrets or
confidential business information of the Company or its clients, without
limitation as to when or how Employee may have acquired such
information, whether prior to or during the term of this Agreement. Such
confidential information shall include without limitation the Company's
client lists, client information, terms of client contracts, any listing
of names, addresses or telephone numbers, pricing policies, financial
statements, projections, marketing plans or strategies, new business
developments of plans, business acquisition plans and business methods.
8.3 Employee specifically acknowledges that all such confidential
information, whether reduced to writing, electronic media of any form,
or maintained in the mind or memory of Employee and whether compiled by
the Company and/or Employee derives independent economic value from not
being readily known to or ascertainable by proper means by others who
can obtain economic value from its disclosure or use, that reasonable
efforts have been made by the Company to maintain the secrecy of such
information, that such information is the sole property of the Company,
as the case may be, and that any retention and use of such information
by Employee during his employment with the Company (except in the course
of performing his duties and
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obligations hereunder) or after the termination of his employment shall
constitute a misappropriation of the Company's trade secrets.
8.4 Upon termination of his employment, Employee will immediately return
to the Company, in good condition, all property of the Company, as the
case may be, including without limitation, the originals and all copies
of all promotional material, client lists, client information and all
other materials related to the Company's business. In the event that
such items are not so returned, the Company will have the right to
recover such property
8.5 The provisions of this Article 8 shall survive the termination of
this Agreement.
9. SUCCESSORS; BINDING AGREEMENT:
9.1 Successors. This Agreement shall be binding upon, and inure to the
benefit of the Company, the Employee, and their respective successors,
assigns, personal and legal representatives, executors, administrators,
heirs, distributees, devisees, and legatees, as applicable.
9.2 Certain Payments: Any amounts that would otherwise be payable to the
Employee hereunder at the time of his death or thereafter (whether
pursuant to 7.2 hereof or otherwise) shall, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
the Employee's devisee, legatee, or other designee or, if there be no
such designee, to the Employee's estate.
10. NOTICE: For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when (a) delivered personally; (b) sent by
telecopy or similar electronic device and confirmed; (c) delivered by commercial
overnight express; or (d) sent by registered or certified mail, postage prepaid,
addressed as follows:
If to the Employee (marked "Personal and Confidential")
Xxxxx X. XxXxxxx
C/o Grant Geophysical (Int'l) Inc.
00000 Xxxx Xxx
Xxxxxxx, XX 00000
If to Company:
Grant Geophysical, Inc.
Attention: President and Chief Executive Officer
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
11. ENTIRE AGREEMENT: No provision of this Agreement may be amended,
modified, waived or discharged unless such amendment, waiver, modification or
discharge is agreed to in writing signed by the Employee and Company. No waiver
by either party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
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12. GOVERNING LAW:
12.1 THIS AGREEMENT IS BEING MADE AND EXECUTED IN AND IS INTENDED TO BE
PERFORMED IN THE STATE OF TEXAS AND SHALL BE GOVERNED, CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE STATE OF TEXAS, TO THE EXCLUSION OF ANY LAWS, SUBSTANTIVE OR
OTHERWISE WHICH WOULD DIRECT THE LAW OF ANY OTHER JURISDICTION TO BE
APPLICABLE HERETO.
12.2 The parties agree to attempt to resolve all disputes between them
concerning this Agreement or the interpretation or performance
thereof in an amicable manner. However, any such disputes which
cannot be so resolved shall be submitted to and decided by The United
States District Court of the Southern District of Texas and the
parties do hereby irrevocably submit themselves to the jurisdiction
of such court for such purposes. The parties agree that any decision
of such court (or any subsequent appeal thereof) shall be enforceable
in the jurisdiction of the respective parties.
13. VALIDITY: The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
14. COUNTERPARTS: This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
GRANT GEOPHYSICAL, INC.
By: /s/ XXXXXXX X. XXXXX
---------------------
Name: Xxxxxxx X. Xxxxx
Title: President & C.E.O.
EMPLOYEE:
By: /s/ XXXXX X. XXXXXXX
---------------------
Name: Xxxxx X. XxXxxxx
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