EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made as of July __, 1997
by SIGNATURE GEOPHYSICAL SERVICES, INC, a Michigan corporation (the "EMPLOYER"),
and XXXXX X. XXXXXXX, an individual resident of the State of Texas (the
"EXECUTIVE").
INTRODUCTION
Employer is engaged in the business of conducting 2-D and 3-D seismic
surveys of oil and gas prospects, focusing on the Permian Basin and the Gulf
Coast with a special emphasis on swamp work. This Agreement shall be effective
on the date (the "EFFECTIVE DATE") that one hundred percent (100%) of the issued
and outstanding stock of Employer has been acquired by Geokinetics Inc., a
Delaware corporation ("GEOKINETICS"), pursuant to that certain Stock Purchase
Agreement, by and among Geokinetics, the Employer and Xxxxxxx Energy, Inc. dated
as of June 25, 1997 (the "Stock Purchase Agreement"). The Executive has been the
President of the Employer since July, 1996. The Employer desires the Executive's
continued employment with the Employer, and the Executive wishes to accept such
continued employment, upon the terms and conditions set forth in this Agreement.
The parties, intending to be legally bound, agree as follows:
Section 1. DEFINITIONS. For the purposes of this Agreement, the following
terms have the meanings specified or referred to in this Section 1.
1.1 "AFFILIATE" or "AFFILIATES" -- any Person that, directly or
indirectly, controls, or is controlled by or under common control with, the
Employer or Geokinetics, including the Employer and Geokinetics. For the
purposes of this definition, "CONTROL" (including the terms "CONTROLLED BY" and
"UNDER COMMON CONTROL WITH") means the power to direct or cause the direction of
the management and policies of any Person, directly or indirectly, through
ownership of voting securities, by contract, or otherwise.
1.2 "AGREEMENT" -- this Employment Agreement, including all Exhibits
attached hereto, as amended from time to time.
1.3 "BASIC COMPENSATION" -- Salary and Benefits.
1.4 "BENEFITS" -- as defined in Section 3.1(d).
1.5 "BOARD OF DIRECTORS" -- the board of directors of the Employer.
1.6 "CONFIDENTIAL INFORMATION" -- any and all:
(a) trade secrets concerning the business and affairs of any
Affiliate, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past,
current, and planned research and development, current and
planned
1
manufacturing or distribution methods and processes, customer
lists, current and anticipated customer requirements, price
lists, market studies, business plans, seismic data bases,
computer software and programs (including object code and
source code), computer software and database technologies,
systems, structures, and architectures (and related formulae,
compositions, processes, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and
information), and any other information, however documented,
that is a trade secret within the meaning of the common law of
the State of Texas; and
(b) information concerning the business and affairs of any
Affiliate (which includes historical financial statements,
financial projections and budgets, historical and projected
sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and
techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for any Affiliate containing or based,
in whole or in part, on any information included in the
foregoing.
1.7 "DISABILITY" -- as defined in Section 5.2.
1.8 "EFFECTIVE DATE" -- the date stated in the first paragraph of the
Agreement.
1.9 "EMPLOYEE INVENTION" -- any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer or the Affiliates, and any
such item created by the Executive, either solely or in conjunction with others,
following termination of the Executive's employment with the Employer, that is
based upon or uses Confidential Information.
1.10 "EMPLOYMENT PERIOD" -- the term of the Executive's employment under
this Agreement.
1.11 "FISCAL YEAR" -- the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
1.12 "FOR CAUSE" -- as defined in Section 5.3.
1.13 "FORCE MAJEURE" -- as defined in Section 3.2(b).
2
1.14 "INCENTIVE COMPENSATION" -- as defined in Section 3.2.
1.15 "OPTION PLAN" -- the Geokinetics Inc. 1995 Employee Stock Option
Plan.
1.16 "NONINCENTIVE COMPENSATION" -- as defined in Section 3.3.
1.17 "PERSON" -- any individual, general or limited partnership, joint
venture, corporation (including any non-profit corporation), limited liability
company, bank, estate, trust, association, entity, unincorporated organization,
or government body.
1.18 "POST-EMPLOYMENT PERIOD" -- as defined in Section 7.2.
1.19 "PROPRIETARY ITEMS" -- as defined in Section 6.2(a)(iv).
1.20 "SALARY" -- as defined in Section 3.1(a).
1.21 "SIGNING BONUS" -- as defined in Section 3.1(b).
Section 2. EMPLOYMENT TERMS AND DUTIES.
2.1 EMPLOYMENT. The Employer hereby employs the Executive, and the
Executive hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 TERM. Subject to the provisions of Section 5, the term of the
Executive's employment under this Agreement will be three years, beginning on
the Effective Date and ending on the third anniversary of the Effective Date.
Thereafter, the term may continue for additional one (1) year periods upon the
mutual written agreement of the Executive and the Employer.
2.3 DUTIES. The Executive will have such duties as are assigned or
delegated to the Executive by the Board of Directors (which duties shall be of a
management or executive level) and will initially serve as President of the
Employer and a member of its Board of Directors. The Executive will devote
substantially all of his entire business time, attention, skill, and energy
exclusively to the business of the Employer, will use his best efforts to
promote the success of the Employer's business, and will cooperate fully with
the Board of Directors in the advancement of the best interests of the Employer.
For the Executive's service as a director of the Employer or as a director or
officer of any of its affiliates, the Executive will fulfill his duties as such
director or officer without additional compensation.
Section 3. COMPENSATION.
3.1 BASIC COMPENSATION.
(a) SALARY. The Executive will be paid an annual salary of
$120,000.00, subject to adjustment as provided below (the
"SALARY"), which will be payable in equal periodic
installments according to the Employer's customary payroll
practices,
3
but no less frequently than monthly. The Salary will be
reviewed by the Board of Directors not less frequently than
annually, and may be adjusted upward or downward in the sole
discretion of the Board of Directors, but in no event will the
Salary be less than $120,000.00 per year.
(b) SIGNING BONUS. In order to induce the Executive to continue
his employment with the Employer, the Employer agrees to pay
the Executive a bonus ("SIGNING BONUS"). Subject to the
Executive's employment by the Employer, such bonus shall be
paid to the Executive, in installments, as follows: $50,000.00
upon execution of this Agreement, and $12,500.00 on each of
October 1, 1998, January 1, April 1, July 1 and October 1,
1999, and January 1, April 1, and July 1, 2000.
(c) CONTINUITY OF SERVICE PAYMENT. Upon Executive's completion of
each three months of employment hereunder, Employer shall pay
to the Executive an additional $7,500.00 bonus for continuity
of service. Subject to Executive's employment hereunder,
Employer shall pay the Executive $7,500.00 on each of October
1, 1997, January 1, April 1, July 1 and October 1, 1998,
January 1, April 1, July 1 and October 1, 1999, and January 1,
April 1 and July 1 2000.
(d) BENEFITS. The Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing,
bonus, life insurance, hospitalization, major medical, and
other employee benefit plans of the Employer that may be in
effect from time to time, to the extent the Executive is
eligible under the terms of those plans (collectively, the
"BENEFITS").
3.2 INCENTIVE COMPENSATION. As additional compensation (the "INCENTIVE
COMPENSATION") for the services to be rendered by the Executive pursuant to this
Agreement, the Executive will be entitled to participate in the following plans,
in the manner described below:
(a) The Executive shall be entitled to receive an annual bonus
("BONUS") based upon the amount of the Employer's earnings
before taxes in accordance with the terms of the Bonus Plan
attached hereto as Exhibit "A". The Employer's earnings before
taxes shall be computed by Geokinetics, for purposes of
calculation of the Bonus, for each twelve-month period
beginning on July 1 and ending on June 30 during the term
hereof, and shall be determined in accordance with generally
accepted accounting principles, consistently applied.
(b) Upon the commencement of Executive's employment hereunder,
Executive shall be granted an option to purchase up to an
aggregate of 400,000 shares of Geokinetics' Common Stock, $.20
par value ("COMMON STOCK"), at a price per share of $.75
(equal to the closing bid price for the Common Stock on the
day before the execution date of the Stock Purchase
Agreement), exercisable in accordance with the following terms
and conditions. On or before each of
4
March 31 and September 30, 1998 and March 31 and September 30,
1999, Geokinetics shall cause to be prepared and delivered to
the Executive a statement (each a "STATEMENT") based on the
financial statements of the Employer for each six-month period
ending on December 31, 1997, June 30 and December 31, 1998 and
June 30, 1999, respectively, prepared in accordance with
generally accepted accounting principles, and showing the
calculation of the amount of the Employer's earnings before
taxes, but after interest, depreciation and amortization
("EBIT"), for such period (the "EARN- OUT"). For purposes of
calculating the Earn-Out, the Employer shall not be charged
more than an average of $15,000 per month (or an aggregate of
$90,000 during each six-month period) for any services
rendered to or on behalf of the Employer by Geokinetics or any
Affiliate of Geokinetics. Any interest charges which may be
accrued by Geokinetics in respect of the $2,000,000 which will
be advanced by Geokinetics to the Employer after the Effective
Date shall not be considered in the calculation of the
Earn-Out. The number of shares of Common Stock as to which the
Executive shall be vested and entitled to exercise the option
granted herein shall be equal to the amount of the Earn-Out as
set forth in each Statement divided by five (5), up to a
maximum of 400,000 shares in the aggregate. The amount of any
negative EBIT shown on any Statement shall be cumulated and
offset against any positive EBIT shown on any succeeding
Statement(s). The option granted herein shall be exercisable
at any time during the thirty-six month period beginning on
the date of delivery of each Statement with respect to the
number of shares specified in each Statement up to an
aggregate of 400,000 shares. The maximum cumulative Earn-Out
that shall be considered hereunder is $2,000,000. The period
for determination of the Earn-Out shall be extended by the
period of any event of force majeure and the amount of EBIT
calculable hereunder shall not include any such period of
time. The term "force majeure" shall mean any acts of God,
strikes, lockouts, acts of the public enemy, wars, blockades,
insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, arrests, civil
disturbances, explosions, the binding order of any court or
governmental authority which has been resisted in good faith
by all reasonable legal means, and any other cause not within
the control of the Executive and which, by the exercise of due
diligence, the Executive was unable to prevent or overcome.
The Executive (A) understands that the shares of Common Stock
to be received by the Executive hereunder will not be
registered (except as contemplated by the Registration Rights
Agreement) under the Securities Act of 1933, as amended, or
under any state securities laws, and are being offered and
sold in reliance upon federal and state exemptions for
transactions not involving any public offering, (B) is
acquiring the Common Stock for his own account for investment
purposes, and not with a view to the distribution thereof, (C)
is a sophisticated investor with knowledge and experience in
business and financial matters, (D) has received, and will
continue to receive, information concerning Geokinetics, and
has had the opportunity to obtain additional
5
information as desired in order to evaluate the merits and the
risks inherent in acquiring the Common Stock, and (E) is able
to bear the economic risk and lack of liquidity inherent in
holding the Common Stock. The Executive understands that the
certificates evidencing the shares of Common Stock to be
issued hereunder will contain a legend restricting transfers
thereof.
3.3 NONINCENTIVE COMPENSATION. As additional compensation (the
"NONINCENTIVE COMPENSATION") for the services to be rendered by the Executive
pursuant to this Agreement, the Executive shall be permitted to participate in
the Option Plan. Upon the commencement of Executive's employment hereunder, the
Executive shall be granted one, five-year option to purchase an aggregate of
225,000 shares of Common Stock on the terms and conditions set forth below:
(a) The Executive will have one option (the "Option") to purchase
225,000 shares of Common Stock and will become eligible to
exercise 75,000 shares of the Option on and after each of July
15, 1998, 1999 and 2000 provided the Executive continues to be
employed by the Employer hereunder on such dates, and the
Executive exercises such Option prior to or on July 15, 2002;
and
(b) The Option shall be exercisable at a price per share of Common
Stock of $.75 (equal to the closing bid price for the Common
Stock on the day before the execution date of the Stock
Purchase Agreement).
3.4 VACATIONS AND HOLIDAYS. The Executive will be entitled to four weeks'
paid vacation each Fiscal Year in accordance with the vacation policies of the
Employer in effect for its executive officers from time to time. Vacation must
be taken by the Executive at such time or times as approved by the Chairman of
the Board of Directors. The Executive will also be entitled to the paid holidays
and other paid leave set forth in the Employer's policies. Vacation days and
holidays during any Fiscal Year that are not used by the Executive during such
Fiscal Year may not be used in any subsequent Fiscal Year, but Executive shall
be paid at the end of each Fiscal Year for any vacation days which Executive was
unable to use as a result of a request for approval of a vacation having been
denied by the Chairman of the Board of Directors.
3.5 AUTOMOBILE. During the Employment Period, the Executive shall be
entitled to the use of an automobile owned by the Employer, comparable to the
type of automobile presently being provided to the Executive for his use. The
Employer will pay on behalf of the Executive (or reimburse the Executive for)
reasonable expenses incurred by the Executive for the repair and maintenance of
such automobile in the performance of the Executive's duties pursuant to this
Agreement, and in accordance with the Employer's employment policies. The
Executive shall file expense reports with respect to such expenses in accordance
with the Employer's policies.
Section 4. FACILITIES AND EXPENSES. The Employer will furnish the
Executive office space, equipment, supplies, and such other facilities and
personnel as the Employer deems necessary or appropriate for the performance of
the Executive's duties under this Agreement and as are
6
commensurate with Executive's duties under Section 2.3. The Employer will pay
the Executive's dues in such professional societies and organizations as the
Chairman of the Board of Directors of the Employer deems appropriate, and will
pay on behalf of the Executive (or reimburse the Executive for) reasonable
expenses incurred by the Executive at the request of, or on behalf of, the
Employer in the performance of the Executive's duties pursuant to this
Agreement, and in accordance with the Employer's employment policies, including
reasonable expenses incurred by the Executive in attending conventions,
seminars, and other business meetings, in appropriate business entertainment
activities, and for promotional expenses. The Executive must file expense
reports with respect to such expenses in accordance with the Employer's
policies.
Section 5. TERMINATION.
5.1 EVENTS OF TERMINATION. The Employment Period, the Executive's Basic
Compensation, Incentive Compensation, Nonincentive Compensation, and any and all
other rights of the Executive under this Agreement or otherwise as an employee
of the Employer will terminate (except as otherwise provided in this Section 5):
(a) upon the death of the Executive;
(b) upon the Disability of the Executive (as defined in Section
5.2) immediately upon notice from either party to the other;
(c) For Cause (as defined in Section 5.3), immediately upon notice
from the Employer to the Executive, or at such later time as
such notice may specify; or
(d) upon Executive's voluntary termination of employment, which
termination shall be effective thirty (30) days after
Employer's receipt of Executive's written resignation.
5.2 DISABILITY. For purposes of this Section 5, the Executive will be
deemed to have a "DISABILITY" if, for physical or mental reasons, the Executive
is unable to perform the Executive's duties under this Agreement for 120
consecutive days, or 180 days during any twelve month period, as determined in
accordance with this Section 5.2. The Disability of the Executive will be
determined by a medical doctor selected by written agreement of the Employer and
the Executive upon the request of either party by notice to the other. If the
Employer and the Executive cannot agree on the selection of a medical doctor,
each of them will select a medical doctor and the two medical doctors will
select a third medical doctor who will determine whether the Executive has a
Disability. The determination of the medical doctor selected under this Section
5.2 will be binding on both parties. The Executive must submit to a reasonable
number of examinations by the medical doctor making the determination of
Disability under this Section 5.2, and the Executive hereby authorizes the
disclosure and release to the Employer of such determination and all supporting
medical records. If the Executive is not legally competent, the Executive's
legal guardian or duly authorized attorney-in-fact will act on behalf of the
Executive, under this Section 5.2, for the purposes of submitting the
7
Executive to the examinations, and providing the authorization of disclosure,
required under this Section 5.2.
5.3 FOR CAUSE. For purposes of Section 5.1, the phrase "FOR CAUSE" means
any conduct or behavior by the Executive that, in the good faith judgment of the
Employer's Board of Directors, is materially detrimental to or materially
harmful to the business or reputation of the Employer including, without
limitation: (a) the Executive's breach of this Agreement, which breach is not
substantially cured within ten (10) days after Executive's receipt of written
notice thereof from Employer; (b) the Executive's failure to adhere to any
written Employer policy and Executive's failure to cure such noncompliance
within ten (10) days after receipt of written notice thereof from Employer; (c)
the appropriation (or attempted appropriation) of a material business
opportunity of the Employer, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the
Employer; (d) the misappropriation (or attempted misappropriation) of any of the
Employer's funds or property; or (e) the conviction of, the indictment for (or
its procedural equivalent), or the entering of a guilty plea or plea of no
contest with respect to, a felony (other than involving the misuse of alcohol),
the equivalent thereof, or any other crime with respect to which imprisonment is
a possible punishment.
5.4 TERMINATION PAY. Effective upon the termination of this Agreement, the
Employer will be obligated to pay the Executive (or, in the event of his death,
his designated beneficiary as defined below) only such compensation as is
provided in this Section 5.4, and in lieu of all other amounts and in settlement
and complete release of all claims the Executive may have against the Employer
under this Agreement. For purposes of this Section 5.4, the Executive's
designated beneficiary will be such individual beneficiary or trust, located at
such address, as the Executive may designate by notice to the Employer from time
to time or, if the Executive fails to give notice to the Employer of such a
beneficiary, the Executive's estate. Notwithstanding the preceding sentence, the
Employer will have no duty, in any circumstances, to attempt to open an estate
on behalf of the Executive, to determine whether any beneficiary designated by
the Executive is alive or to ascertain the address of any such beneficiary, to
determine the existence of any trust, to determine whether any person or entity
purporting to act as the Executive's personal representative (or the trustee of
a trust established by the Executive) is duly authorized to act in that
capacity, or to locate or attempt to locate any beneficiary, personal
representative, or trustee.
(a) TERMINATION BY THE EMPLOYER FOR CAUSE. If the Employer
terminates this Agreement For Cause, the Executive will be
entitled to receive his Salary, Signing Bonus and Benefits
through the date such termination is effective and the vested
portion of any Incentive Compensation and any Nonincentive
Compensation.
(b) TERMINATION UPON DISABILITY. If this Agreement is terminated
by either party as a result of the Executive's Disability, as
determined under Section 5.2, the Employer will pay the
Executive his Salary, Signing Bonus and Benefits through the
remainder of the calendar month during which such termination
is effective and for the lesser of (i) six consecutive months
thereafter, or (ii) the period until Disability insurance
benefits commence under the
8
Disability insurance coverage, if any, furnished by the
Employer to the Executive. The Executive shall be entitled to
the vested portions of his Incentive Compensation and
Nonincentive Compensation and to a pro rata portion of his
Incentive Compensation and Nonincentive Compensation for the
year during which such Disability occurs, but shall not be
entitled to any other Incentive Compensation or Nonincentive
Compensation.
(c) TERMINATION UPON DEATH. If this Agreement is terminated
because of the Executive's death, the Executive will be
entitled to receive his Salary, Signing Bonus and Benefits
through the end of the calendar month in which his death
occurs. The Executive shall be entitled to receive the vested
portions of his Incentive Compensation and Nonincentive
Compensation and to a pro rata portion of his Incentive
Compensation and Nonincentive Compensation for the year during
which the Executive's death occurs, but shall not be entitled
to any other Incentive Compensation or Nonincentive
Compensation for or any subsequent year.
(d) TERMINATION UPON RESIGNATION. If this Agreement is terminated
because of the voluntary resignation of the Executive
hereunder, the Executive shall be entitled to receive his
Salary, Signing Bonus and Benefits through the effective date
of his termination and any vested portions of his Incentive
Compensation or Nonincentive Compensation. The Executive shall
not be entitled to any other Incentive Compensation or to any
other Nonincentive Compensation.
(e) TERMINATION BY THE EMPLOYER NOT FOR CAUSE. If the Employer
terminates this Agreement not For Cause, the Executive will be
entitled to either: (i) receive all of the compensation and
Benefits provided by Section 3.1, the Incentive Compensation
provided by Section 3.2, and the Nonincentive Compensation
provided by Section 3.3 for the remainder of the Employment
Term, and the Executive shall be subject to the provisions of
Section 7.2 hereof; or (ii) the Executive shall be entitled to
receive all of the compensation and Benefits provided by
Section 3.1 and the vested portions of any Incentive
Compensation provided by Section 3.2 and Nonincentive
Compensation provided by Section 3.3 through the end of the
calendar month in which such termination occurs, and the
Executive shall not be subject to the provisions of Section
7.2.
(f) BENEFITS. The Executive's accrual of, or participation in
plans providing for, the Benefits will cease at the effective
date of the termination of this Agreement, and the Executive
will be entitled to accrued Benefits pursuant to such plans
only as provided in such plans. The Executive will not
receive, as part of his termination pay pursuant to this
Section 5, any payment or other compensation for any vacation,
holiday, sick leave, or other leave unused on the date the
notice of termination is given under this Agreement.
9
(g) EXPIRATION OF EMPLOYMENT. Employer agrees to notify the
Executive not less than sixty (60) days prior to the
expiration of the initial term of this Agreement or any
subsequent continuation thereof as to whether Employer desires
to extend the Employment Period of this Agreement.
Section 6. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS.
6.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges that
during the Employment Period and as a part of his employment, the Executive will
be afforded access to Confidential Information; public disclosure of such
Confidential Information could have an adverse effect on the Employer and its
business; because the Executive possesses substantial technical expertise and
skill with respect to the Employer's business, the Employer desires to obtain
exclusive ownership of each Employee Invention, and the Employer will be at a
substantial competitive disadvantage if it fails to acquire exclusive ownership
of each Employee Invention; Geokinetics has required that the Executive make the
covenants in this Section 6 as a condition to its purchase of the Employer's
stock; and the provisions of this Section 6 are reasonable and necessary to
prevent the improper use or disclosure of Confidential Information and to
provide the Employer with exclusive ownership of all Employee Inventions.
6.2 AGREEMENTS OF THE EXECUTIVE. In consideration of the compensation and
benefits to be paid or provided to the Executive by the Employer under this
Agreement, the Executive covenants as follows:
(a) CONFIDENTIALITY.
(i) During and for a period of three (3) years following the
Employment Period, the Executive will hold in confidence
the Confidential Information and will not disclose it to
any person except with the specific prior written
consent of the Employer or except as otherwise expressly
permitted by the terms of this Agreement.
(ii) Any trade secrets of any Affiliate will be entitled to
all of the protections and benefits under the common law
of the State of Texas and any other applicable law. If
any information that the Employer deems to be a trade
secret is found by a court of competent jurisdiction not
to be a trade secret for purposes of this Agreement,
such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement.
The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade
secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that
the Executive demonstrates either (x) was known by
Executive prior to the date of his employment by the
Employer, (y) was or became generally available to the
public
10
other than as a result of a disclosure by the Executive,
or (z) was made known to Executive on a nonconfidential
basis from a source other than Employer or its
representatives or agents, provided that such source is
not bound by a confidentiality agreement with, or other
obligation of secrecy to, Employer or another party.
(iv) The Executive will not remove from the premises of the
Employer or any Affiliate (except to the extent such
removal is for purposes of the performance of the
Executive's duties at home or while traveling, or except
as otherwise specifically authorized by the Employer or
such Affiliate) any document, record, notebook, plan,
model, component, device, or computer software or code,
whether embodied in a disk or in any other form
(collectively, the "PROPRIETARY ITEMS"). The Executive
recognizes that, as between the Employer or any
Affiliate and the Executive, all of the Proprietary
Items, whether or not developed by the Executive, are
the exclusive property of the Employer or the
Affiliates. Upon termination of this Agreement by either
party, or upon the request of the Employer or any
Affiliate during the Employment Period, the Executive
will return to the Employer or the Affiliates all of the
Proprietary Items in the Executive's possession or
subject to the Executive's control, and the Executive
shall not retain any copies, abstracts, sketches, or
other physical embodiment of any of the Proprietary
Items.
(b) EMPLOYEE INVENTIONS. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that
all of the Executive's writing, works of authorship, specially
commissioned works, and other Employee Inventions are works
made for hire and the property of the Employer, including any
copyrights, patents, or other intellectual property rights
pertaining thereto. If it is determined that any such works
are not works made for hire, the Executive hereby assigns to
the Employer all of the Executive's right, title, and
interest, including all rights of copyright, patent, and other
intellectual property rights, to or in such Employee
Inventions. The Executive covenants that he will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by
the Employer, at the Employer's request and
without additional compensation, all of the
Executive's right to the Employee Invention for
the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such
applications, assignments, and other documents as
the Employer may request in order to apply for and
obtain patents or other
11
registrations with respect to any Employee
Invention in the United States and any foreign
jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of the Employer's rights to any Employee
Invention.
6.3 DISPUTES OR CONTROVERSIES. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Employer, the Executive, and their respective attorneys and experts, who will
agree, in advance and in writing, to receive and maintain all such information
in secrecy, except as may be limited by them in writing.
Section 7. NON-COMPETITION AND NON-INTERFERENCE.
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges and
agrees that the limitations set forth in this Section 7 are a necessary part of
and ancillary to the Executive's agreement not to disclose Confidential
Information, reasonable and do not impose a greater restraint on the activities
of the Executive than is necessary to protect the business interest of the
Employer. In the event that any such territorial, scope, or time limitation are
deemed to be unreasonable by a court of competent jurisdiction, the Executive
agrees to the reduction of the territorial, scope or time limitation to the
area, scope or time which such court shall have deemed reasonable.
7.2 COVENANTS OF THE EXECUTIVE. In consideration of the acknowledgments by
the Executive, and in consideration of the compensation and benefits to be paid
or provided to the Executive by the Employer in the event this Agreement is
terminated pursuant to Section 5.4(a), 5.4(d) or 5.4(e)(i), the Executive
covenants that he will not, directly or indirectly:
(a) during the Employment Period, except in the course of his
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 the
Executive's name or any similar 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 Employer or any Affiliate of
Employer anywhere within the geographic areas in which the
Employer or any such Affiliate now or hereafter conducts its
business; provided, however, that the Executive may purchase
or otherwise acquire up to (but not more than) one percent of
any class of securities of any enterprise (but without
otherwise participating in the activities of such enterprise)
if such securities are listed on
12
any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act
of 1934;
(b) whether for the Executive's own account or for the account of
any other person, at any time during the Employment Period and
the Post-Employment Period, solicit business of the same or
similar type being carried on by the Employer or any Affiliate
of Employer, from any person known by the Executive to be a
customer of the Employer or any such Affiliate, whether or not
the Executive had personal contact with such person during and
by reason of the Executive's employment with the Employer;
(c) whether for the Executive's own account or the account of any
other person at any time during the Employment Period 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 Employer or any
Affiliate of Employer at any time during the Employment Period
or in any manner induce or attempt to induce any employee of
the Employer and any such Affiliate to terminate his
employment with the Employer; or (ii) interfere with the
Employer's or any Affiliate's relationship with any person,
including any person who at any time during the Employment
Period was an employee, contractor, supplier, or customer of
the Employer or any such Affiliate; or
(d) at any time during or after the Employment Period, disparage
the Employer or any of its shareholders, directors, officers,
employees, or agents.
For purposes of this Section 7.2, the term "POST-EMPLOYMENT PERIOD" means
the two-year period beginning on the date of termination of the Executive's
employment with the Employer.
If any covenant in this Section 7.2 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 the Executive.
The period of time applicable to any covenant in this Section 7.2 will be
extended by the duration of any violation by the Executive of such covenant, as
determined by a court of competent jurisdiction.
The Executive will, while the covenant under this Section 7.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's new employer. Geokinetics or the
Employer may notify such new employer that the Executive is bound by this
Agreement and, at Geokinetics' or the Employer's election, furnish such new
employer with a copy of this Agreement or relevant portions thereof.
13
Section 8. GENERAL PROVISIONS.
8.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The Executive acknowledges
that the injury that would be suffered by the Employer as a result of a breach
of the provisions of this Agreement (including any provision of Sections 6 and
7) would be irreparable and that an award of monetary damages to the Employer
for such a breach would be an inadequate remedy. Consequently, the Employer will
have the right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or otherwise to
specifically enforce any provision of this Agreement, and the Employer will not
be obligated to post bond or other security in seeking such relief. Any such
remedy shall be in addition to any damages which the Employer may be legally
entitled to recover as a result of any breach by the Employee of any provision
of this Agreement. The Employer may pursue any of the remedies described in this
Section concurrently or consecutively and in any order as to such breach or
violation, and the pursuit of any one of such remedies at any time will not be
deemed an election of remedies or a waiver of the right to pursue any other
available remedy.
8.2 ESSENTIAL AND INDEPENDENT COVENANTS. The covenants by the Executive in
Sections 6 and 7 are essential elements of this Agreement supported by the
payment of $10.00 and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Executive, and without the
Executive's agreement to comply with such covenants, the Employer would not have
entered into this Agreement or employed or continued the employment of the
Executive. The Employer and the Executive have independently consulted their
respective counsel and have been advised in all respects concerning the
reasonableness and propriety of such covenants, with specific regard to the
nature of the business conducted by the Employer.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 6 and 7.
8.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The Executive
represents and warrants to the Employer that the execution and delivery by the
Executive of this Agreement do not, and the performance by the Executive of the
Executive's obligations hereunder will not, with or without the giving of notice
or the passage of time, or both: violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to the
Executive; or conflict with, result in the breach of any provisions of or the
termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound. The Executive
further represents and warrants to the Employer that no agreements or
understandings, whether written or oral, are currently in force and effect
between the Executive and the Employer, or any other Person concerning the
subject matter of this Agreement.
14
8.4 OBLIGATIONS CONTINGENT ON PERFORMANCE. The obligations of the Employer
hereunder, including its obligation to pay the compensation provided for herein,
are contingent upon the Executive's performance of the Executive's obligations
hereunder.
8.5 WAIVER. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
no claim or right arising out of this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; no waiver that may be given by a party will
be applicable except in the specific instance for which it is given; and no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
8.6 NOTICES. All notices pertaining to this Agreement must be in writing,
must be sent to the addressee at the address set forth in this Section, or at
such other address as the addressee has designated by a notice given in the
manner set forth in this Section, and must be sent by telegram, telex,
facsimile, electronic mail, courier, or prepaid, certified U.S. Mail. Notices
will be deemed given when received, if sent by telegram, telex, electronic mail
or facsimile and if received between the hours of 8:00 a.m. and 5:00 p.m., local
time of the destination address, on a business day (with confirmation of
completed transmission sufficing as prima facie evidence of receipt of a notice
sent by telex, telecopy, electronic mail, or facsimile), and when delivered and
receipted for (or when attempted delivery is refused at the address where sent)
if sent by courier or by certified U.S. Mail. Notices sent by telegram, telex,
electronic mail, or facsimile and received between 12:01 a.m. and 7:59 a.m.,
local time of the destination address, on a business day will be deemed given at
8:00 a.m. on that same day. Notices sent by telegram, telex, electronic mail, or
facsimile and received at a time other than between the hours of 12:01 a.m. and
5:00 p.m., local time of the destination address, on a business day will be
deemed given at 8:00 a.m. on the next following business day after the day of
receipt. The addresses for notice are as follows:
If to Employer: Signature Geophysical Services, Inc.
c/o Geokinetics Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
15
With copies to: Geokinetics Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
and
If to the Executive: Xxxxx X. Xxxxxxx
0000 X. Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
With a copy to: Xxxxx & Small
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Small
8.7 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs, and legal representatives, including any
entity with which the Employer may merge or consolidate or to which all or
substantially all of its assets may be transferred. The duties and covenants of
the Executive under this Agreement, being personal, may not be delegated.
8.8 INTERPRETATION. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision.
8.9 HEADINGS. The section headings appearing in this Agreement have been
inserted for convenience only and shall be given no substantive meaning or
significance whatever in construing the terms and provisions of this Agreement.
8.10 ENTIRE AGREEMENT. This Agreement constitutes the final and entire
agreement and understanding between the parties to this Agreement concerning the
subject matter of this Agreement, and this Agreement supersedes and replaces all
prior agreements and understandings, whether written or oral, between such
parties concerning the subject matter of this Agreement. No alleged
representation, warranty, promise, inducement, or statement of intention not
expressly set forth in this Agreement is binding on any party to this Agreement.
8.11 ACKNOWLEDGMENT AND RELEASE BY THE EXECUTIVE. By his execution of this
Agreement, the Executive acknowledges that this Agreement supersedes and
replaces all other agreements and understandings, whether written or oral,
between the Executive and any other Person concerning the subject matter of this
Agreement. In consideration for the rights and obligations arising under this
Agreement, the Executive hereby voluntarily, knowingly, fully, finally,
completely, and forever releases, relinquishes, and forever discharges the
Employer and its Affiliates, their officers, directors,
16
employees, and agents, from any and all claims, actions, demands, and causes of
action of whatever kind or character, whether known or unknown, joint or
several, which the Executive might have or might claim to have against the
Employer for any and all injuries, harm, damages, penalties, costs, losses,
expenses, attorneys' fees, liabilities, or other detriments, if any, whatsoever
and whenever incurred, suffered, or claimed by the Executive arising from any
prior agreement or understanding, whether written or oral, between the Executive
and the Employer, or any other Person concerning the subject matter of this
Agreement.
8.12 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Texas without regard to conflicts of laws principles.
8.13 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 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 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. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world.
8.14 LIMITATION OF LIABILITY. The Executive acknowledges that he has
personally guaranteed the obligations of Xxxxxxx Energy, Inc. and the Employer
under the Stock Purchase Agreement. In consideration for the agreement of
Geokinetics to limit the Executive's personal liability under such guarantee to
the amount of the Earn-Out described in Section 3.2(b) above, the Executive
hereby authorizes Geokinetics to offset any amounts that may be payable by the
Executive pursuant to the terms of such guarantee against the amount of the
Earn-Out. Geokinetics hereby agrees that, so long as Executive has not willfully
concealed adverse information regarding the Employer from Geokinetics which
would otherwise have been required to be disclosed pursuant to the terms of the
Stock Purchase Agreement, Geokinetics' sole remedy against the Executive under
his guarantee shall be to offset any liability incurred thereunder against the
amount of the Earn-Out.
8.15 EXERCISE OF OPTIONS. The Executive shall be entitled to exercise the
options granted pursuant to Section 3.2(b) and 3.3: (i) in cash or by certified
or cashier's check payable to Geokinetics; or (ii) by delivery to Geokinetics of
certificates representing the number of shares of Common Stock then owned by the
Executive, the Designated Value of which equals the option price of the shares
of Common Stock purchased pursuant to the option or options being exercised.
(For purposes of this Agreement, the Designated Value of any shares of Common
Stock delivered in payment of the option price payable upon exercise of any
option granted hereunder shall be the Designated Value as of the exercise date,
and the exercise date shall be the date of delivery of the certificates for the
Common Stock used as payment of such option price. The "Designated Value" of the
shares of Common Stock on a given date shall mean the average of the closing
prices of the Common Stock on the principal market or registered exchange on
which the Common Stock is traded (or the average of the closing bid and asked
prices, if a single closing price is not reported for such market) on the ten
(10) consecutive trading days preceding the date for the determination of such
value, provided that the Common Stock is then traded on the over-the-counter
market or on the NASDAQ National Market System or any registered securities
exchange.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EMPLOYER:
SIGNATURE GEOPHYSICAL SERVICES, INC.
BY: /s/ XXXXXXX XXXX
NAME: Xxxxxxx Xxxx
TITLE: Vice President
EXECUTIVE:
/s/ XXXXX X. XXXXXXX
XXXXX X. XXXXXXX
19
