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EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated September 30, 1996
between 3-D Geophysical, Inc., a Delaware corporation (the "Company"), and
Xxxxxx X. Xxxxx (the "Employee").
WHEREAS, the Company desires to employ the Employee on the terms and
conditions provided in this Agreement; and
WHEREAS, the Employee desires to accept such employment and to render
services to the Company on the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Company and the Employee hereby agree as follows:
Section 1. Engagement. The Company hereby employs the Employee
as Vice President and Chief Financial Officer, and the Employee hereby accepts
such employment, upon and subject to the terms and conditions hereinafter set
forth.
Section 2. Term. Unless sooner terminated as provided in this
Agreement, the term of the Employee's employment under this Agreement shall
commence on September 30, 1999 (the "Term").
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Section 3. Duties and Services.
3.1 The Employee shall render services to the Company as Vice
President and Chief Financial Officer and shall perform such other duties and
responsibilities as may be assigned to the Employee from time to time by the
Board of Directors (the "Directors") or the Chief Executive Officer of the
Company and shall abide by the practices and policies of the Company governing
the conduct of employees.
3.2 During the Term, the Employee shall devote such energy and
time (exclusive of normal holidays and vacation periods and periods of sickness
and disability) as is reasonably necessary to perform the Employee's duties as
defined herein and shall promptly and faithfully perform all the duties which
pertain to the Employee's employment.
Section 4. Compensation.
4.1 Annual Compensation. In consideration of all of the services
to be rendered by the Employee hereunder and the covenants of Employee herein,
the Company agrees to pay to the Employee, and the Employee agrees to accept, a
salary at the annual rate of $125,000.00.
4.2 Bonus Pool. The Company intends to create a bonus plan based
upon the earnings of the Company to provide incentives for certain employees of
the Company and its subsidiaries. The Employee shall be entitled to participate
in such plan on such terms as may be determined by the Compensation Committee
of the
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Directors, in its discretion. Nothing in this Agreement shall require the
Company to pay any such bonus.
4.3 Grant of Option. As further consideration of the services to be
rendered by the Employee, on the Effective Date the Employee shall be granted
an option (the "Option"), pursuant to the Company's 1995 Long Term Incentive
Compensation Plan (the "Plan"), to purchase 30,000 shares of the Company's
Common Stock at a per share exercise price equal to the fair market value of
one share of Common Stock on the Effective Date. The Option shall vest in three
equal cumulative annual installments commencing on the first anniversary of the
Effective Date. The terms of the Option shall be governed by the Plan, as well
as the terms of the option agreement entered into pursuant to the terms of the
Plan.
Section 5. Expenses and Reimbursement. The Employee shall be
reimbursed by the Company for reasonable and necessary out-of-pocket expenses
incurred by the Employee in performing his duties hereunder, provided such
expenses are approved in accordance with the procedures of the Company then in
effect and are presented for reimbursement in accordance with the Company's
policies and practices then in effect.
Section 6. Benefits. During the Term, the Company agrees to provide
the Employee, in addition to and not in limitation of the compensation set
forth in Section 4, the following benefits,
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which shall be determined in the sole discretion of the Directors (or a duly
constituted committee thereof);
(a) The Employee shall be entitled, subject to qualification
requirements, to participate in any and all group insurance plans, group health
or medical insurance plans, group accidental and disability insurance plans
made generally available to the senior executive employees of the Company.
(b) The Employee shall be entitled to participate in the Company's
pension, profit-sharing, stock option, stock purchase and other employee
benefit programs made generally available to the senior executive employees of
the Company.
(c) The Employee shall be entitled to three weeks annual paid
vacation, as well as sick leave and holidays in accordance with the Company's
policies for senior executive employees generally.
(d) During the term of employment under this Agreement, the company
shall pay the Employee, on a monthly basis, an amount equal to $650 per month
as a non-accountable allowance for lease payments, insurance and other expenses
of an automobile leased by the Employee.
Section 7. Termination. Subject to the provisions of Section 8, which
shall survive the termination of this Agreement, this Agreement shall terminate
upon:
(a) The death of the Employee;
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(b) Illness, disability or incapacity that prevents the Employee
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 Employee by the Company;
or
(c) Upon written notice for Cause, which shall include, without
limitation, (i) the failure of the Employee to observe or perform any material
term of this Agreement for twenty (20) days after written notice thereof
specifying such failure; (ii) any act of illegality, dishonesty, moral
turpitude, or fraud in connection with the Employee's employment; or (iii) the
commission by the Employee of any felony.
Section 8. Restrictive Covenants. In consideration of the
undertakings of the Company set forth herein, the Employee agrees as follows:
8.1 Covenant Not to Compete. The Employee will not in any way,
directly or indirectly, as an agent, employee, officer, director, stockholder,
partner or otherwise of any corporation, partnership or other venture or
enterprise compete with the Company or any of its subsidiaries in the provision
of seismic data acquisition or analysis services or any services related
thereto (a "Competing Business") during the Term, other than pursuant hereto,
and for a period of one (1) year after the termination of this Agreement for any
reason whatsoever, unless this Agreement is terminated without Cause.
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8.2 Non-solicitation Covenant. During the Term and for a period of
one (1) year after the termination of this Agreement for any reason whatsoever,
the Employee shall not solicit, sell to or contract with, on behalf of the
Employee or on behalf of any Competing Business, any person or entity to which
the Company or any subsidiary of the Company, shall have provided seismic data
acquisition or analysis services at any time during the Term.
8.3 Covenant Not to Solicit Employees of the Company. During the
Term and for a period of one (1) year after the termination of this Agreement
for any reason whatsoever, the Employee shall not solicit for employment any
sales, engineering or other technical or management employee who was employed
by the Company or any of its subsidiaries during the Term.
8.4 Non-Disclosure Covenant. The Employee recognizes and
acknowledges that, in the course of his employment, the Employee will have
access to trade secrets and other confidential or proprietary information of the
Company and its subsidiaries, including, but not limited to, information
acquired or developed by the Company and its subsidiaries concerning seismic
data, marketing strategy, technology, techniques and know-how, customer
specifications and customer lists, cost figures, budgets, sales forecasts and
business plans. The Employee agrees that the disclosure of any such trade
secrets or information could be harmful to the interests of the Company or its
subsidiaries and that, during the Employee's employment by the Company or its
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subsidiaries, the Employee will take appropriate caution to safeguard such
trade secrets and information, and will not during the Term or thereafter use,
disclose, divulge or publish any such trade secrets or information except as
required by law or as the Employee's duties during the Employee's employment by
the Company or its subsidiaries may require or as the Company may in writing
specifically consent.
8.5 Proprietary Information. The Employee recognizes and
acknowledges that all documents, manuals, letters, notebooks, reports, records,
computer programs or data banks and other evidences of trade secrets and other
confidential or proprietary information of the Company and its subsidiaries,
including copies thereof, whether prepared by the Employee or others, are the
sole property of and belong exclusively to the Company and its subsidiaries,
and agrees that, during the Employee's employment by the Company or its
subsidiaries, the Employee will under no circumstances remove any such material
for use outside of his offices except in connection with the business of the
Company during the course of the Employee's employment. In the event of the
termination of this Agreement for any reason whatsoever, the Employee shall
immediately return to the Company any and all documents, manuals, letters,
notebooks, records, computer programs or data banks or other evidence of trade
secrets and other confidential or proprietary information of the Company and
its subsidiaries (and all copies thereof) which are the property of the Company
or any of its subsidiaries.
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8.6 Remedies. The Employee further agrees that in the event of a
breach or threatened breach of any of the covenants contained in this Section
8, the Company's remedy at law is likely to be inadequate and that accordingly
the Company will be entitled to obtain an injunction or other equitable relief
with regard thereto without proving damages or that damages would not
constitute an adequate remedy. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this Section 8 is invalid
or unenforceable, the parties hereto agree that the court making the
determination of invalidity or unenforceability shall have the power to, and is
hereby directed to, reduce the scope, duration or area of the term or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid
and unenforceable term or provision, and this Agreement shall be enforceable as
so modified.
9. Miscellaneous Provisions.
9.1 Notices. All notices and demands of any kind which any party
hereto may be required or desire to serve upon another party under the terms of
this Agreement shall be in writing and shall be served upon such other party:
(a) by personal service upon such other party at such other party's address set
forth below in this Section 9.1; or (b) by mailing a copy thereof by certified
or registered mail, postage prepaid, with return receipt requested, addressed
to such other party at the address
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of such other party set forth below in this Section 9.1; or (c) by sending a
copy thereof by Federal Express or equivalent courier service, addressed to
such other party at the address of such other party set forth below in this
Section 9.1; or (d) by sending a copy thereof by facsimile to such other party
at the facsimile number, if any, of such other party set forth below in this
Section 9.1.
In case of service by Federal Express or equivalent courier service or
by facsimile or by personal service, such service shall be deemed complete upon
receipt. In the case of service by mail, such service shall be deemed complete
upon reasonable proof of receipt. The address and facsimile number to which,
and person to whose attention, notices and demands shall be delivered or sent
may be changed from time to time by notice served, as hereinabove provided, by
any party upon the other party.
The current addresses and facsimile numbers of the parties are:
If to the Employee:
Xxxxxx Xxxxx
c/o 3-D Geophysical, Inc.
0000 Xxxxx Xxxxx Xxx, Xxxxxxxx X
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
If to the Company:
3-D Geophysical, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Chairman
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with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
9.2 Entire Agreement; Amendment. This Agreement contains the entire
agreement between the parties, merges all prior negotiations, agreements and
understandings, if any, and states in full all representations, warranties and
agreements which have induced this Agreement. Each party agrees that in dealing
with third parties no contrary representations will be made. This Agreement may
not be amended, modified or otherwise changed orally but only by an agreement
in writing signed by the party against whom enforcement of any amendment,
modification or change is sought.
9.3 Assignment; Binding Nature; Assumption. This Agreement shall
inure to the benefit of and be enforceable by, and may be assigned by the
Company to, any purchaser of all or substantially all of the Company's business
or assets, any successor to the Company or any assignee thereof (whether direct
or indirect, by purchase, merger, consolidation or otherwise). The Company will
require any such purchaser, successor or assignee 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 purchase, succession or
assignment had taken place. This Agreement may not be assigned by the Employee
without the prior written consent of the Company.
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9.4 Nonwaiver. No waiver by any party of any term, provision or
covenant contained in this Agreement (or any breach thereof) shall be effective
unless it is in writing executed by the party against which such waiver is to be
enforced; no waiver shall be deemed or construed as a further or continuing
waiver of any such term, provision or covenant (or breach) on any other occasion
or as a waiver of any other term, provision or covenant (or of the breach of any
other term, provision or covenant) contained in this Agreement on the same or
any other occasion.
9.5 Remedies. The remedies provided for or permitted by this
Agreement shall be cumulative and the exercise by any party of any remedy
provided for herein or otherwise available shall not preclude the assertion or
exercise by such party of any other right or remedy provided for herein or
otherwise available.
9.6 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
9.7 Construction. In this Agreement (i) words denoting the singular
include the plural and vice versa, (ii) "it" or "its" or words denoting any
gender include all genders, (iii) any reference herein to a Section refers to a
Section of the Agreement, unless otherwise stated, (iv) when calculating the
period of time within or following which any act is to be done or steps taken,
the date which is the reference day in calculating such period shall be
excluded and if the last day of such period is not a business day, then the
period shall end on the next day
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which is a business day, and (v) all dollar amounts are expressed in United
States funds.
9.8 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
applicable to contracts made and to be entirely performed therein.
9.9 Counterparts. For the convenience of the parties, any number of
counterparts hereof may be executed, each such executed counterpart shall be
deemed an original and all such counterparts together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first written above.
3-D GEOPHYSICAL, INC.
By /s/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
Title: Chairman
EMPLOYEE:
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
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