1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of February 24, 1999 (the "Commencement Date") by and between Grant
Geophysical, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxx,
who resides at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 ("Executive").
WITNESSETH:
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 agrees to employ Executive, and Executive agrees to be
employed by the Company, for the term set forth in Article 3.
Section 1.2 Position; Location. From and after the Commencement Date,
the Company shall employ Executive in the position of Chief Operating Officer of
the Company, or in such other position or positions as the parties mutually may
agree, and Executive shall perform such duties, consistent with 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 1.3 Duties and Services. Executive agrees to serve in the
positions referred to in Section 1.2 and to perform diligently and to the best
of his abilities the duties and services appertaining to such offices. For so
long as Executive is employed by Company, Executive agrees to devote his full
and exclusive business time and attention to the business of Company and its
subsidiaries and affiliates, 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 all the powers associated with his positions,
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 Company or would interfere with his
responsibilities to Company or the performance of his duties hereunder;
provided, however, that this Agreement shall not prohibit 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
-1-
2
not 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
Executive in the operation of the business of the entity in which such
investment is made; or (c) serving in various capacities with, and attending
meetings of, professional, industry, trade or governmental groups and
associations, including without limitation the industry, trade or governmental
groups and associations with which Executive is currently involved, as long as
Executive's engaging in activities permitted by virtue of clauses (a), (b) or
(c) above does not interfere with the ability of Executive to perform the
services and discharge the responsibilities required of him under this Agreement
nor conflict with any of Executive's covenants or obligations hereunder.
ARTICLE 2.
COMPENSATION AND BENEFITS
Section 2.1 Base Salary. During his employment hereunder, Executive
shall receive an annual base salary equal to $200,000. 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.
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 (the
"Option") to purchase 200,000 shares of the Company's common stock, $.001 par
value per share (the "Common Stock") pursuant to the Stock Option Agreement in
the form attached hereto as Exhibit "A" (the "Option Agreement").
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 of the same, which are now, or may hereafter be,
generally available to other executive employees of the Company.
-2-
3
ARTICLE 3.
TERM AND TERMINATION OF EMPLOYMENT
Section 3.1 Term. Unless sooner terminated pursuant to other provisions
hereof, the Company agrees to employ Executive for the period (the "Term")
beginning on the Commencement Date and ending three 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, which shall be deemed part of the Term for purposes of Article 4
hereof. 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.
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 under this Agreement 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 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 50% of
Executive's annual base salary payable pursuant to Section 2.1 for the
number of months remaining in the Term. Any amounts due to Executive
-3-
4
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 Section 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.
Section 4.2 Disclosure to and Property of the Company. All information,
ideas, concepts, improvements, discoveries and 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 Company's business, products, or
services (including, without limitation, all such business ideas, prospects,
proposals and other opportunities pertaining to (a) the purchasing, acquiring,
gathering, processing, interpreting, marketing, licensing, selling or delivering
seismic or other geophysical data or records of any nature whatsoever, and (b)
the exploration potential of geographical areas on which oil and gas exploration
prospects are located, which are developed by Executive during his employment by
the Company, or originated by any third party and brought to the attention of
Executive during his employment by the Company, together with information
relating thereto (including, without limitation, geological and seismic data and
interpretations thereof, whether in the form of maps, charts, logs,
seismographs, calculations, summaries, memoranda, opinions or other written,
electronic or charted means, engineering data, reserve calculations or
production methods)) (collectively, "Business Information") shall be disclosed
to the Company and is and shall be the sole and exclusive property of the
Company. Moreover, all documents, drawings, notes, lease files, well files,
seismic and statistical 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 the same, and all copies thereof, to
the Company.
-3-
5
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.
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 4.6 Covenants Not to Compete. In consideration of the
acknowledgments and agreements by Executive in Section 4.10 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) during Executive's employment hereunder and during the
Post-Employment Period (as defined below), 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 Executive's name
or any similar
-5-
6
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 Chief Operating Officer 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) whether for Executive's own account or for the account of
any other person, at any time during Executive's employment hereunder
and the Post-Employment Period, solicit business of the same or similar
type being carried on 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;
(c) whether for Executive's own account or the account of any
other person at any time during Executive's employment hereunder and
the Post-Employment Period, (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 any such affiliate;
or
(d) any time during or after Executive's employment hereunder
disparage the Company or any of its affiliates, shareholders,
directors, officers, employees, or agents.
For purposes of this Section 4.6, the term "Post-Employment Period"
means the period beginning on the date of termination of Executive's employment
with the Company and ending on the later to occur of (i) the second anniversary
of the Executive's termination of employment or (ii) the date the Company ceases
paying the Executive pursuant to Section 3.2(d).
If any covenant in this Section 4.6 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 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.
-6-
7
Executive will, while the covenant under this Section 4.6 is in effect,
give notice to the Company, within ten days after 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 4.7 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.
Section 4.9 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
-7-
8
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 4.10 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: Chairman of the Board
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
If to Executive to: Xxxxxxx X. Xxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
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 Jurisdiction. Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may be
brought against either of the parties in
-8-
9
the courts of the State of Texas, County of Xxxxxx, or, if it has or can acquire
jurisdiction, in the United States District Court for the Southern District of
Texas, and each of the parties consents to the jurisdiction of such courts (and
of the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein. Each party further waives his or its right
to trial by jury. Process in any action or proceeding referred to in the
preceding sentence may be served on either party anywhere in the world.
Section 5.4 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 waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent
time.
Section 5.5 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 5.6 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 5.7 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 5.8 Headings. The Section headings have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
Section 5.9 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 5.10 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 5.11 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
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 5.12 Term. This Agreement has a term co-extensive with the term
of employment provided in Section 3.1. Except as specified herein, termination
shall not affect any right or
-9-
10
obligation of any party hereunder that is accrued or vested prior to such
termination. Without limiting the scope of the preceding sentence, the
provisions of Article 4 shall survive any termination of Executive's employment
relationship with the Company and/or of this Agreement.
Section 5.13 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.
[The balance of this page is intentionally blank]
-10-
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
COMPANY:
GRANT GEOPHYSICAL, INC.
By: /s/ XXX X. XXXXXX
---------------------------------
Xxx X. Xxxxxx
Chairman of the Board
EXECUTIVE:
/s/ XXXXXXX X. XXXX
------------------------------------
Xxxxxxx X. Xxxx
-11-
