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EXHIBIT 10.36
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as
of the 7 day of August, 1997, by and among Universal Seismic Associates, Inc.,
a Delaware corporation (the "Company"), and Xxx X. Xxx ("Executive").
WHEREAS, the Company desires to employ Executive as its Chief Accounting
Officer, and Executive desires to accept such employment, on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, the parties agree as follows:
SECTION 1. Employment.
The Company hereby employs Executive, and Executive hereby accepts
employment with the Company, on the terms and conditions set forth in this
Agreement.
SECTION 2. Term.
Subject to the provisions of Section 5, this Agreement shall be for a term
commencing on the date hereof and expiring six months thereafter (the "Term").
SECTION 3. Executive's Duties.
3.1 Duties. Executive shall hold the position of the Company's Chief
Accounting Officer. As such, Executive's duties shall be, in general, to (i)
oversee the completion of the Company's current audit, including, without
limitation, working with the Company's independent accountants on finalizing
such audit, and (ii) evaluate the Company's financial controls and make a
report with respect thereto. Executive shall be subject solely to the control
of, and shall report solely to, the Audit Committee of the Board of Directors
of the Company (the "Board").
3.2 Performance of Duties. Executive shall perform Executive's duties and
responsibilities during the Company's normal business hours and at all other
times reasonably necessary to comply with the terms and conditions of this
Agreement. Executive shall devote the time and attention required to the
performance of Executive's duties and responsibilities hereunder. Executive
currently serves on the board of a company and performs consulting services for
certain other companies. It is agreed by the parties that Executive may
continue to provide such other services provided that such other services do
not unreasonably interfere with the performance of Executive's duties
hereunder.
3.3 Place of Employment. Executive's place of employment shall be at the
location of the Company's executive offices on the date of this Agreement or at
any other location within the
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Houston, Texas metropolitan area to which the Company may relocate its
executive offices. The Company shall provide Executive, at such place of
employment, with a private office, secretarial services and such other
facilities and support services as are appropriate to the position of Chief
Accounting Officer and necessary or appropriate in the performance of
Executive's assigned duties.
SECTION 4. Compensation and Other Benefits.
Executive shall be entitled to receive from the Company the following
compensation and benefits for the services to be rendered by Executive
hereunder:
4.1 Salary. During the Term, the Company shall pay Executive a monthly
base salary ("Base Salary") of $17,500, payable in advance on the first of each
month, but prorated for any partial month of employment.
4.2 Stock Options. Executive will be granted as of the above effective
date of this Agreement 50,000 nonqualified stock options substantially in the
form of the grant agreement attached hereto as Attachment A. The Corporation
shall file a registration statement on a Form S-8 with the Securities and
Exchange Commission registering the shares to be issued pursuant to the
exercise of the above option within 10 business days of the date of this
Agreement.
4.3 Participation in Benefit Plans. Except as provided below, during the
Term Executive shall be eligible to participate in all employee benefit plans
and arrangements now in effect or which may hereafter be established that are
generally applicable to other senior executives of the Company, as long as any
such plan or arrangement remains generally applicable to other senior
executives of the Company. Notwithstanding the foregoing, Executive shall not
participate in any group health plan of the Company and, to the extent
Executive is eligible to participate therein by the terms of such plan,
Executive hereby waives such eligibility and participation.
4.4 Reimbursement of Expenses. The Company shall reimburse Executive for
reasonable expenses incurred by Executive in the performance of Executive's
duties hereunder in accordance with the policy of the Company for reimbursement
of expenses as adopted by the Board from time to time and generally applicable
to senior executives of the Company. Executive shall furnish the Company with
the supporting documentation required under the Company's policy in connection
with the reimbursement of such expenses. In addition, the Company shall
reimburse Executive for the reasonable and ordinary costs of temporary housing
incurred by Executive during the Tenn, but not to exceed $1,140 in any calendar
month (or the pro rata portion thereof for any partial calendar month).
SECTION 5. Termination.
5.1 Termination by the Company Without Cause. The Company may terminate
Executive's employment other than for Cause or Executive becoming Disabled (as
such terms are defined below) at any time during the Term if the Board
determines, in its sole discretion, that the continued employment of Executive
is not in the continued interests of the Company. In the event the Company
terminates Executive's employment pursuant to this Section 5. 1, then Executive
shall
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be paid on termination (i) any unpaid Base Salary earned hereunder prior to the
termination date (the "Earned Amount"), and (ii) an amount equal to the amount
of Base Salary that Executive would receive if Executive's employment had
continued without change through the remainder of the original Term.
5.2 Termination by the Company for Cause. The Company may terminate this
Agreement at any time, in the discretion of the Board, in the event of "Cause",
which shall mean (i) any conviction of Executive for a felony, (ii) any
material breach of any material provision of this Agreement by Executive, (iii)
any willful conduct by Executive materially injurious to the Company, (iv) any
willful failure by Executive to comply with any material policies, procedures,
or directives of the Audit Committee of the Board that are consistent with the
terms of this Agreement, (v) any fraud, misappropriation of funds,
embezzlement, or other similar acts of misconduct by Executive with respect to
the Company, or (vi) the failure by Executive to sign the Company's management
representation letter to the Company's auditors or the Company's Form 10-K, in
a form reasonably satisfactory to the Audit Committee; provided, however, Cause
shall exist with respect to a matter described in (ii), (iii) or (iv) above
that is capable of being corrected only if Executive shall first be given
notice from the Audit Committee of such failure and such failure shall not have
been cured within five days after such notice or, if such failure is not
capable of being cured within five days, Executive shall not have commenced and
be diligently pursuing in good faith efforts to cure such default. In the event
the Company terminates Executive's employment pursuant to this Section 5.2 for
Cause, then Executive shall be paid on termination the Earned Amount and the
Company shall have no further liability or obligations to Executive pursuant to
this Agreement.
5.3 Termination Upon Death or Disability of Executive. This Agreement shall
terminate upon the death of Executive or upon Executive becoming Disabled (as
defined below). In the event of a termination of this Agreement pursuant to
this Section 5.3, Executive (or Executive's estate, if applicable) shall be
paid on termination the Earned Amount and the Company shall have no further
liability or obligations to Executive pursuant to this Agreement. For purposes
of this Agreement, "Disabled" shall mean that Executive shall have incurred a
mental or physical disability that has prevented Executive from substantially
performing his duties under this Agreement for a period of 30 days within any 45
day period.
5.4 Voluntary Resignation for Good Reason. Executive may resign
Executive's employment with the Company at any time and, if such resignation is
for "Good Reason" (as defined below), Executive shall be entitled to the same
payments that Executive would receive under Section 5.1 if Executive's
employment were being terminated by the Company other than for Cause or
Executive becoming Disabled. "Good Reason" shall mean: (i) the failure by the
Company to pay when due any portion of the Base Salary payable to Executive
hereunder, (ii) any material breach by the Company of any material provision of
this Agreement, (iii) the Company's failure at any time to cause Executive to
be covered as an insured under a policy or contract that insures directors and
officers of the Company against personal liability for acts or omissions or
alleged acts or omissions in connection with such individual's service as an
officer or director of the Company or service in other capacities at the
request of the Company ("D&O Policy") on terms and conditions that are
substantially the same as the coverages provided to officers and directors of
the Company as of the date of this Agreement, (iv) the failure of the Company
to provide Executive a written binding
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commitment by September 17, 1997 that the Company will maintain coverage for
Executive under the Company's D&O Policy for a period of three years
following the Term of this Agreement for claims arising from acts or omissions
or alleged acts or omission occurring during the Term of this Agreement, or (v)
the failure of Resource Investors Management Company Limited Partnership (or
its affiliates) to provide the Company with a written binding commitment by
September 17, 1997 to finance the costs of such coverage referred to in clause
(iv) immediately above; provided, however, Good Reason shall exist with respect
to a matter that is capable of being corrected by the Company only if such
matter is not corrected by the Company within a reasonable period, not to
exceed 30 days, following its receipt of written notice of such matter from
Executive, and in no event shall a termination by Executive occurring more
than 35 days following any such written notice of the event described above be
for Good Reason.
SECTION 6. Covenant Not to Compete; Confidentiality.
6.1 Noncompetition. Unless granted written permission by the Board, while
employed by the Company and for a period of 12 months after the termination of
such employment, Executive covenants that Executive shall not (i) own (as a
proprietor, partner, or stockholder of greater than one percent of outstanding
equity securities, interests or otherwise) an interest in, or (ii) participate
(as an officer, director, or in any other capacity) in the management,
operation, or control of, or (iii) perform services as or act in the capacity
of any employee, independent contractor, consultant, or agent of any business
which engages in activities that are competitive with the three-dimensional
seismic acquisition and processing services of the Company or its subsidiaries
in an area within North America in which the Company is then conducting
business and in which the Company commenced conducting such business prior to
the commencement of such activities therein by Executive.
6.2 Confidentiality. Executive acknowledges that in the course of
Executive's employment by the Company, Executive will be furnished and have
access to certain information concerning the business, financial condition,
operations, assets and liabilities of the Company that is confidential or
proprietary in nature. All such information (irrespective of the form of
communication) is hereinafter collectively referred to as the "Information."
Executive agrees to keep the Information confidential and agrees that Executive
will use the Information solely for the purpose of performing Executive's
duties hereunder or as otherwise authorized by the Board. This Agreement shall
be inoperative as to such portions of the Information which (a) are or become
generally available to the public other than as a result of a disclosure by
Executive in violation of this Agreement, (b) become available to Executive on
a non-confidential basis from a source other than the Company that is not bound
by an obligation of confidentiality to such entity or entities, or (c) are
required to be disclosed by an order or decree of a court or other tribunal of
competent jurisdiction, provided the Company is given prompt notice of, and the
opportunity to contest disclosure under, such order or decree. Upon termination
of this Agreement, Executive will return all Information furnished by the
Company and any documents that contain, reflect, or are based upon, in whole or
in part, the Information.
6.3 Equitable Relief. Executive acknowledges and agrees that it would be
difficult to measure damage to the Company from any breach by Executive of
Section 6.1 or 6.2 and that
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monetary damages would be an inadequate remedy for any such breach.
Accordingly, Executive agrees that if Executive shall breach Section 6.1 or
6.2, the Company shall be entitled, in addition to all other remedies it may
have at law or in equity, to an injunction or other appropriate orders or
equitable relief to restrain any such breach, without showing or proving any
actual damage sustained by the Company.
6.4 Executive's Acknowledgment. Executive hereby expressly acknowledges and
agrees that (i) the restrictions and obligations set forth in and imposed by
this Section 6 will not prevent Executive from obtaining gainful employment in
Executive's field of expertise or cause Executive undue hardship, and (ii) in
view and consideration of the substantial benefits Executive will receive from
the Company pursuant to this Agreement, the restrictions and obligations
imposed on Executive under this Section 6 are reasonable and necessary to
protect the legitimate business interests of the Company.
Section 7. Indemnification.
(a) During the Term, the Company shall cause Executive to be covered by
and named as an insured under any policy or contract of insurance obtained by
it to insure its directors and officers against personal liability for acts or
omissions in connection with service as an officer or director of the Company
or service in other capacities at the request of the Company. The coverage
provided to Executive pursuant to this Section 7 shall be of a scope and on
terms and conditions at least as favorable as the coverage (if any) provided to
any other officer or director of the Company.
(b) To the maximum extent permitted under applicable law, the Company
shall indemnify Executive against and hold Executive harmless from any costs,
liabilities, losses and exposures ("Liabilities") for an act or omission or
alleged act or omission of Executive as an officer or employee, of the Company.
In addition, to the maximum extent permitted by applicable law, the Company
shall advance to Executive all reasonable fees and expenses Executive may incur
in connection with any such Liability; provided, however, that Executive shall
be required to reimburse the Company for all sums advanced to Executive to the
extent it is determined such advanced amounts may not be properly paid by the
Company.
SECTION 8. Representations and Warranties.
8.1 By the Executive. Executive represents and warrants to the Company
that (i) Executive is under no contractual or other restriction or obligation
which would prevent the performance of Executive's duties hereunder or
interfere with the rights of the Company hereunder and (ii) this Agreement has
been duly executed and delivered by Executive, is the legal, valid and binding
obligation of Executive, and is enforceable against Executive in accordance
with its terms.
8.2 By the Company. The Company represents and warrants to Executive that
(i) it has all requisite corporate power and authority to execute, deliver and
perform this Agreement, (ii) all necessary proceedings of the Company have been
duly taken to authorize the execution, delivery and performance of this
Agreement, and (iii) this Agreement has been duly authorized, executed and
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delivered by the Company, is the legal, valid and binding obligation of the
Company, and is enforceable against the Company in accordance with its terms.
SECTION 9. Notices.
Any notice given pursuant to this Agreement shall be in writing and shall
be deemed given on the earlier of the date (i) the notice is personally
delivered to the party to be notified, (ii) that is three days after the notice
is mailed, postage prepaid, certified with return receipt requested, addressed
as follows, or at such other address as a party may from time to time designate
by notice to the other party, (iii) the notice is delivered at the party's
address via courier service, or (iv) the notice is received by fax or
telecopier:
To the Company: Universal Seismic Associates, Inc.
00000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Chairman, Board of Directors
Facsimile No: 000-000-0000
To Executive: Xxx X. Xxx
158 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile No: 000-000-0000
SECTION 10. General Provisions.
10.1 Remedies on Default. In the event either party breaches this
Agreement, the other party shall be entitled to pursue all remedies available
at law or in equity. Except as otherwise provided herein, in the event this
Agreement is breached by either party, the non-breaching party shall not
terminate this Agreement without notice and a reasonable opportunity to cure
such breach.
10.2 Assignment; Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor of the Company, by merger
or otherwise. The Company will require any successor, by agreement in form and
substance reasonably acceptable to Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place
and following such assumption all references to the Company herein shall be
deemed to mean such successor. 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 be subject to voluntary or involuntary assignment,
alienation or transfer, whether by operation of law or otherwise, without the
prior written consent
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of the other party. Subject to the foregoing, the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective heirs, personal representatives, administrators, successors, and
permitted assigns.
10.3 Waiver. Failure of any party at any time to require performance
of any provision of this Agreement shall not limit such party's right to
enforce such provision, nor shall any waiver of any breach of any provision of
this Agreement constitute a waiver of any succeeding breach of such provision
or a waiver of such provision itself. No attempted or purported waiver of any
provision of this Agreement shall be effective unless set forth in writing and
signed by the party to be bound.
10.4 Amendment. This Agreement may not be modified or amended except
by the written agreement of the parties.
10.5 Severability. The agreements and covenants contained in this
Agreement are severable, and in the event any of the agreements and covenants
contained in this Agreement should be held to be invalid by any court or
tribunal of competent jurisdiction, this Agreement shall be interpreted as if
such invalid agreements and covenants were not contained herein; provided,
however, that if in any legal proceeding a court shall hold unenforceable the
covenants contained in Section 6 by reason of their extent or duration or
otherwise, any such covenant shall be reduced in scope to the extent required
by law and enforced in its reduced form.
10.6 Integration. This Agreement contains the entire agreement and
understanding of the parties with respect to the employment of Executive by the
Company and supersedes all prior and Contemporaneous agreements (oral or
written) between them with respect to such subject matter.
10.7 Attorneys' Fees. The Company shall reimburse Executive for the
reasonable attorney's fees and expenses Executive incurs in the negotiation of
this Agreement.
10.8 Third Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
10.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas.
10.10 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Houston, Texas in accordance with the Expedited Procedures of the Commercial
Arbitration Rules of the American Arbitration Association. Judgment may be
entered on the arbitrators' award in any court having jurisdiction. All costs
and expenses (including attorneys' fees) arising in connection with any
arbitration or other proceeding to enforce the rights awarded in the
arbitration proceeding shall be allocated among the parties by the court or
arbitrator, as applicable.
10.11 Withholding. All payments made by the Company under this
Agreement shall be reduced by any tax or other amounts required to be withheld
by the Company under applicable law.
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10.12 Survival. In the event of termination of this Agreement by
either party, this Agreement shall become void and there shall be no liability
on the part of Executive or the Company except to the extent such termination
results from the breach by a party hereto of its obligations hereunder (in
which case Section 10.1 shall apply); provided that Sections 5.1, 5.2, 5.3,
5.4, 6, 7, 9 and 10.7 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective for
all purposes as of the date first above written.
UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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/s/ XXX X. XXX
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Xxx X. Xxx
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