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Exhibit (c)(5)
CONSULTING AND NON-COMPETE AGREEMENT
AGREEMENT, dated as of March 8, 1998, by and between Western
Atlas Inc., a Delaware corporation (the "Parent"), Xxxxxxxx Enterprises Inc., a
New York corporation ("FEI") and Xxxx Xxxxxxxx (the "Consultant").
WHEREAS, the Consultant is the Chairman of the Board of
Directors of 3-D Geophysical, Inc., a Delaware corporation, (collectively with
its subsidiaries, the "Company");
WHEREAS, the Parent has entered into an Agreement and Plan of
Merger with the Company and WAI Acquisition Corp., dated as of March 8, 1998
(the "Merger Agreement");
WHEREAS, the Consultant will terminate employment with the
Company effective as of the "Effective Time" (as defined in the Merger
Agreement) of the merger contemplated by the Merger Agreement (the "Merger");
and
WHEREAS, the Consultant is the President and sole shareholder
of FEI; and
WHEREAS, the Parent desires to provide for the Consultant to
perform services for the Parent and the Company following the Merger and FEI
desires to make Consultant available to perform such services.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the Parent and the
Consultant hereby agree as follows:
1. Consulting Services. Subject to the effectiveness of the
Merger, the Consultant hereby agrees to provide such consulting services to the
Parent and to the Company as the President of the Western Geophysical Division
of Western Atlas International, Inc. or his designee shall reasonably request
for not more than 20 hours per month. Such consulting services may be rendered
in New York, New York, or at any other mutually agreeable place. FEI hereby
agrees to make Consultant available to provide such service.
2. Term. The period of consultancy under this Agreement shall
be for a period commencing on the Effective Time and ending on the fourth
anniversary of the Effective Time (the "Term").
3. Consulting Fee. The Parent shall pay to FEI, in
consideration of the consulting services, a consulting fee (the "Consulting
Fee") at an annual rate of $250,000 payable in substantially equal monthly
installments during the Term.
4. Expenses. The Parent will reimburse FEI for all authorized
reasonable and necessary out-of-pocket expenses incurred by the Consultant in
the performance of his duties hereunder upon the presentation of appropriate
documentation. Such expenses shall be submitted to Parent, at X.X. Xxx 0000,
Xxxxxxx, XX 00000-0000, Attn.: X. Xxxxx, on Parent's standard
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expense report forms in accordance with Parent's expense reimbursement policy in
effect from time to time during the Term.
5. Termination of Consultancy. The Consultant's consultancy
hereunder shall terminate prior to the scheduled end of the Term upon the first
to occur of:
(a) the death of the Consultant; or
(b) the Consultant's illness, disability or incapacity
("Disability") that prevents the Consultant from performing his duties hereunder
for sixty (60) consecutive days, or for any sixty (60) days within any one
hundred and eighty (180) day period, and the provision of written notice of such
termination to the Consultant; or
(c) written notice by the Parent to the Consultant of
termination of the Consultant's consultancy by the Parent for "Cause," which
shall include, without limitation, (i) the failure of the Consultant to perform
his duties hereunder after at least 30 days' written notice thereof specifying
such failure and the Consultant's failure to remedy same within such 30-day
period; (ii) any act of illegality, dishonesty, moral turpitude, or fraud in
connection with the Consultant's consultancy; (iii) any course of action by the
Consultant which is materially detrimental to the business of the Parent or any
of its affiliates (including without limitation any violation of Sections 7, 8
or 9 of this Agreement); or (iv) the commission by the Consultant of any felony;
or
(d) written notice by the Parent to the Consultant of
termination of the Consultant's consultancy without Cause; or
(e) written notice by the Consultant to the Parent of
termination of his consultancy.
The date of termination of the Consultant's consultancy shall be the date
written notice is given or such later date (within thirty (30) days following
such notice) specified in the written notice.
6. Termination Payments. In the event of the termination of
the Consultant's consultancy pursuant to Section 5, the Parent shall make the
payments to FEI set forth below and have no further obligation to the Consultant
or FEI hereunder.
(a) In the event of the termination of the Consultant's
consultancy by the Parent for Cause pursuant to Section 5(c) of this Agreement
or the termination of the Consultant's consultancy by the Consultant pursuant to
Section 5(e) of this Agreement, the Parent shall pay to FEI the Consulting Fee
previously earned but not paid as of the date of termination.
(b) In the event of the termination of the Consultant's
consultancy by the Parent without Cause (and not for death or Disability)
pursuant to Section 5(d) of this Agreement, the Parent shall continue to pay FEI
the full Consulting Fee contemplated by Section 3 of this Agreement in monthly
installments through the scheduled end of the Term, subject to the Consultant's
and FEI's compliance with Sections 7, 8 and 9 of this Agreement.
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(c) In the event of the Consultant's death or termination for
Disability pursuant to Section 5(b) of this Agreement during the Term, the
Parent shall continue to pay to FEI the Consulting Fee contemplated by Section 3
in monthly installments for the lesser of (i) six months following such date of
termination or (ii) the number of months remaining in the Term, subject to the
Consultant's and FEI's compliance with Section 7, 8 and 9 of this Agreement.
7. Covenant Not to Compete. During the Term and until the
later of (a) 12 months after the Consultant's termination of consultancy with
the Parent for any reason or (b) the end of the scheduled Term (the
"Noncompetition Period"), the Consultant will not, directly or indirectly
(whether as sole proprietor, partner or venturer, stockholder, director,
officer, employee or consultant or in any other capacity as principal or agent
or through any person, subsidiary or employee acting as nominee or agent):
(a) Conduct or engage in or have an interest in or be
associated with any person, firm, association, partnership, corporation or other
entity which conducts or engages in the business of seismic data acquisition or
data processing (the "Business"), which are the primary businesses of the
Company;
(b) Take any action, directly or indirectly, to finance,
guarantee or provide any other material assistance to any person, firm,
association, partnership, corporation or other entity which conducts or engages
in the Business;
(c) Influence or attempt to influence any person, firm,
association, partnership, corporation or other entity which is a contracting
party with the Parent at any time during the Noncompetition Period to terminate
any agreement with the Parent except to the extent the Consultant is acting on
behalf, and at the direction, of the Parent in good faith;
(d) Hire or attempt to hire for employment any person who is
employed by the Parent or attempt to influence any such person to terminate
employment with the Parent, except to the extent the Consultant is acting on
behalf, and at the direction, of the Parent in good faith; or
(e) Call on, solicit or take away as a client or customer or
attempt to call on, solicit or take away as a client or customer any person,
firm, association, partnership, corporation or other entity that is or was a
client or customer of the Parent, including actively sought prospective
customers, during the Term or the Consultant's prior employment with the
Company.
The restrictive provisions of this Agreement shall not
prohibit the Consultant from having an equity interest in the securities of any
corporation engaged in the Business, which securities are listed on a recognized
securities exchange or traded in the over-the-counter market to the extent that
such interest does not exceed 3% of the value or voting power of such
corporation and does not constitute control of such corporation. For purposes of
this Section 7 and Sections 8 and 9 of this Agreement, the term "Parent" shall
include the Parent and the Company, and each of their affiliates, and the term
"Consultant" shall include the Consultant and FEI.
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8. Confidential Information; Ownership Rights. (a) The
Consultant acknowledges and agrees that all nonpublic information concerning the
Parent's business including, without limitation, information relating to its
products, customer lists, pricing, trade secrets, patents, business methods,
financial and cost data, business plans and strategies (collectively, the
"Confidential Information") is and shall remain the property of the Parent. The
Consultant recognizes and agrees that all of the Confidential Information,
whether developed by the Consultant or made available to the Consultant, other
than information that is generally known to the public, is a unique asset of the
business of the Parent, the disclosure of which would be damaging to the Parent.
Accordingly, the Consultant agrees to hold such Confidential Information in a
fiduciary capacity for the benefit of the Parent. The Consultant agrees that he
will not at any time during or after the Consultant's consultancy with the
Parent for any reason, directly or indirectly, disclose to any person any
Confidential Information of the Parent, other than information that is already
known to the public, except as may be required in the ordinary course of
business of the Parent or as may be required by law. Promptly upon the
termination of this Agreement for any reason, the Consultant agrees to return to
the Parent any and all documents, memoranda, drawings, notes and other papers
and items (including all copies thereof, whether electronic or otherwise)
embodying any Confidential Information of the Parent which are in the possession
or control of the Consultant. Information concerning the Parent's business that
becomes public as a result of the Consultant's breach of this Section 8 shall be
treated as Confidential Information under this Section 8.
(b) The Consultant hereby assigns to the Parent all right,
title and interest in and to any ideas, inventions, original works or
authorship, developments, improvements or trade secrets with respect to the
Business which the Consultant solely or jointly has conceived or reduced to
practice, or will conceive or reduce to practice, or cause to be conceived or
reduced to practice, during the Term or his prior employment with the Company.
All original works or authorship which are made by Consultant (solely or jointly
with others) within the scope of Consultant's services hereunder or for the
Company and which are protectable by copyright are "works made for hire," as
that term is defined in the United States Copyright Act.
9. Disparagement. During the Term and thereafter, the
Consultant agrees not to (a) criticize, denigrate or speak adversely of, or (b)
disclose negative information about, the operations, management or performance
of the Parent or about any director, officer, employee or agent of the Parent,
except as may be required by law.
10. Breach of Certain Provisions. The Consultant acknowledges
that a violation on the Consultant's part of any of the covenants contained in
Sections 7, 8 or 9 of this Agreement would cause immeasurable and irreparable
damage to the Parent and the Company. Accordingly, the Consultant agrees that
the Parent shall be entitled to injunctive relief in any court of competent
jurisdiction for any actual or threatened violation of any such covenant in
addition to any other remedies it may have. The Consultant agrees that in the
event that any court of competent jurisdiction shall finally hold that any
provision of Section 7, 8 or 9 hereof is void or constitutes an unreasonable
restriction against the Consultant, the provisions of such Section shall not be
rendered void but shall apply to such extent as such court may determine
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constitutes a reasonable restriction under the circumstances. Sections 7, 8 and
9 shall survive the termination of this Agreement.
11. Independent Contractor. Nothing herein shall be construed
to create an employer-employee, agency, master and servant or joint venture
relationship or other association between the Parent or the Company and FEI or
the Consultant, and the Consultant shall not be deemed to be an employee of the
Parent or the Company for any purpose, including without limitation for the
purpose of participating in any employee benefit plan of the Parent or the
Company. The Consultant agrees that he is an independent contractor and will not
hold himself out to be an employee of the Parent or the Company. FEI and the
Consultant shall perform all services under this Agreement as, and shall remain,
independent contractors. All persons performing or assisting FEI or the
Consultant with any part of the services under this Agreement for the Company or
the Parent shall be employees or agents of FEI. FEI's employees and personnel
are not employees, agents or representatives of the Company or the Parent, or
their shareholders, affiliates or co-venturers, notwithstanding that any such
employees or personnel may be construed to be borrowed servants of the Company
or the Parent at any time or from time to time. FEI shall not hold its employees
or personnel out as employees, representatives or agents of the Company or the
Parent or make any representations to create such impression. The Consultant,
FEI, and its employees and personnel shall have no authority, express or
implied, to make any contract or agreement for, or on behalf of, or otherwise
commit the Company or the Parent, or their shareholders, affiliates or
coventurers to any contract, commitment, obligation, or liability binding on the
Company or the Parent, and the Parent and the Company do not assume any
responsibility for proposals, guarantees, or contracts entered into by FEI or
the Consultant with others.
12. Risk of Loss. The Consultant assumes all risk of personal
injury or death to himself and all risk of damage to or loss of personal
property furnished by the Consultant in connection with the services to be
performed by the Consultant under this Agreement. The Consultant will abide by
the safety and security regulations of the Parent and the Company while on the
respective properties of the Parent and the Company.
13. Warranty. The Consultant and FEI warrant that entering
into this Agreement and performance of services hereunder will not conflict with
any obligation of the Consultant arising under any other contract or by
operation of law. The Consultant warrants that he has the right to disclose all
information transmitted to the Parent or the Company pursuant to this Agreement,
and that the services to be performed by the Consultant under this Agreement do
not violate or in any way infringe upon the rights of third parties, including
property, contractual, employment, trade secrets, proprietary information, and
nondisclosure rights, or any trademark, copyright or patent rights, and that
Consultant will not enter into any agreements or arrangements with third persons
that would result in the performance of such services violating or infringing
the rights of such persons.
14. Assignment. This agreement is a contract for the personal
services of the Consultant, and neither FEI nor the Consultant may assign this
Agreement or subcontract any services without first obtaining the written
consent of the Parent. The Parent may assign this
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Agreement to any subsidiary or affiliated company or to any third party together
with the business to which it pertains.
15. Governing Law. This Agreement is governed by, and is to be
construed and enforced in accordance with, the laws of the State of Delaware.
If, under such law, any portion of this Agreement is at any time deemed to be in
conflict with any applicable statute, rule, regulation or ordinance, such
portion shall be deemed to be modified or altered to conform thereto or, if that
is not possible, to be omitted from this Agreement; and the invalidity of any
such portion shall not affect the force, effect and validity of the remaining
portion hereof. The parties agree that all actions or proceedings initiated by
any party hereto and arising directly or indirectly out of this Agreement which
are brought pursuant to judicial proceedings shall be litigated in the State
courts of Delaware.
16. Notices. All notices hereunder shall be in writing and
shall be given (and shall be deemed to have been duly received if so given) by
hand delivery, telegram, telex or telecopy, or by mail (registered or certified
mail, postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. All communications hereunder
shall be delivered to the respective parties at the following addresses:
If to the Parent, to:
Western Atlas Inc.
00000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
Fax: 000-000-0000
If to the Consultant, to:
Xxxx Xxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
If to FEI, to:
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
17. Miscellaneous. The Consultant shall terminate from
employment with the Company as of the Effective Time. This Agreement constitutes
the entire understanding between the Parent and the Consultant and FEI relating
to the consulting services to be rendered by the Consultant to the Parent and
the Company and cancels all prior written and oral agreements and
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understandings with respect to the subject matter of this Agreement between the
Company and the Consultant, and the Consultant hereby waives any further
payments, under the Employment Agreement, dated February 1, 1996, between the
Company and the Consultant, and any severance payments under any plan or
agreement. This Agreement may be amended only by a subsequent written agreement
of the parties hereto. This Agreement shall be binding upon and shall inure to
the benefit of FEI, its successors and permitted assigns, and the Consultant,
his heirs, executors, administrators, beneficiaries and permitted assigns and
shall be binding upon and shall inure to the benefit of the Parent and its
successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the year and day first above written.
WESTERN ATLAS INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
XXXXXXXX ENTERPRISES INC.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, President
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