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EXHIBIT A-2
EMPLOYMENT AGREEMENT (this "Agreement") dated February 6, 1996
between 3-D Geophysical, Inc. (the "Company"), a Delaware corporation, and
Xxxxxxx X. Xxxxxxxx (the "Employee").
WHEREAS, the Employee has been an executive officer of Paragon
Geophysical, Inc., a Delaware corporation ("Paragon"), for a number of years;
WHEREAS, the Company has acquired, by merger, all of the
outstanding capital stock of Paragon pursuant to that certain Agreement and
Plan of Merger dated November __, 1995 by and among the Company, 3-D Paragon
Acquisition Sub, Inc., a wholly-owned subsidiary of the Company, and Paragon
(the "Merger Agreement");
WHEREAS, it is a condition to the closing of the transactions
contemplated under the Merger Agreement that the parties hereto enter into this
Agreement;
WHEREAS, the Company desires to employ the Employee on the terms
and conditions provided in this Agreement;
WHEREAS, the Employee desires to accept such employment and to
render services to the Company and Paragon 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:
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Section 1. Engagement. The Company hereby employs the Employee as Vice
President of the Company and as President of Paragon, 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 the date of the closing under the Merger Agreement and shall end on
December 31, 1998 (the "Term").
Section 3. Duties and Services.
3.1 The Employee shall render services to the Company as a Vice
President and as President of Paragon, 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 Chief Executive Officer of the Company
and shall abide by the practices and policies of the Company and Paragon
governing the conduct of employees.
3.2 During the Term, the Employee shall devote his full energy and time
(exclusive of normal holidays and vacation periods and periods of sickness and
disability) to the performance of 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.
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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 $82,500.
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 Chief Executive Officer and
the Directors, in their discretion. Nothing in this Agreement shall require
the Company to pay any such bonus.
4.3 Stock Options. The Company has established a 1995 Long-Term
Incentive Compensation Plan pursuant to which the Company has granted to the
Employee options to purchase 10,000 shares of Common Stock of the Company as
and to the extent set forth in the Option Agreement governing such grant and
subject to the terms and conditions of such 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.
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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, 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 vacation, 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 provide the Employee with a Company vehicle.
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;
(c) Upon written notice by the Company for Cause, which shall
include: (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; (iii) any
course of action which is materially detrimental to the business of the Company
(other than good faith actions of the employee to fulfill his duties hereunder
in the exercise of his business judgment and in accordance with the direction
of the Chief Executive Officer or Directors of the Company); or (iv) the
commission by the Employee of any felony; or
(d) Upon written notice by the employee for Good Reason. As used
herein, "Good Reason" shall mean: (i) assignment to the Employee of duties
inconsistent with his position as described herein without his consent; or (ii)
the Employee's permanent relocation to a location more than 100 miles from Mt.
Gilead, Ohio; in either case provided that the Company fails to rescind such
assignment or relocation within 20 days after written notice thereof from the
Employee specifying the condition which is the subject of such notice.
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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 its subsidiaries in the provision of
seismic data acquisition or analysis services or any services related thereto
(a "Competing Business") during the Term, and, unless this Agreement is
terminated by the Company without Cause or by the Employee for Good Reason, for
a period of one (1) year after the termination of this Agreement for any reason
whatsoever other than (i) pursuant hereto; or (ii) by ownership for investment
purposes of no more than 1% of the stock of a company which is traded on a
national securities exchange or interdealer quotation system.
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 its subsidiaries shall have provided seismic data acquisition or
analysis services at any time during the Term or to which Paragon provided such
services during the year preceding the commencement of the Term.
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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 during the Term.
8.4 Certain Payments. Upon the termination of this Agreement other
than by the Company for Cause or by the Employee without Good Reason, the
provisions of Sections 8.1, 8.2 and 8.3 shall lapse unless, during the year
following such termination, the Company pays to the Employee an amount equal to
80% of the Employee's salary pursuant to Section 4.1 in equal monthly
installments commencing on the first day of the month following such
termination. The amounts owed pursuant to this Section 8.4 shall be reduced by
any amounts earned by the Employee as an employee or independent contractor
during such year.
8.5 Non-Disclosure Covenant. The Employee recognizes and acknowledges
that, prior to and in the course of his employment, the Employee may have had
and shall 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
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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
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.
8.6 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 or 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 or its subsidiaries 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
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Company and its subsidiaries (and all copies thereof) which are the property of
the Company or any of its subsidiaries.
8.7 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 after the expiration of the time within which the judgment may be
appealed.
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
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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 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 members of the parties are:
If, to Employee: Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx 00, Xxxxx
X.X. Xxx 00
Xx. Xxxxxx, Xxxx 00000
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If, to the Company: 3-D Geophysical, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Chairman
of the Board
Phone: (000) 000-0000
Fax: (000) 000-0000
copy to: Xxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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; No Beneficiaries. This Agreement may
not be assigned by either party hereto without the written consent of the other
party. This Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, personal
representatives, legatees, successors and permitted assigns. This Agreement
shall not confer any rights or remedies upon any person other than the parties
hereto and their respective heirs,
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personal representatives, legatees, successors and permitted assigns.
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
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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 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.
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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.
Attest: By
-----------------------------
Name:
Title:
----------------------------
Secretary
EMPLOYEE:
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Xxxxxxx X. Xxxxxxxx
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