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Exhibit (c)(9)
[WESTERN ATLAS INC. LETTERHEAD]
December 19, 1997
3-D Geophysical, Inc
000 Xxxxxxxxx Xxxxxx, Xxxxx 0x00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxx Xxxxxxxx
Chairman
RE: Confidentiality and Non-Disclosure Agreement
Dear Xx. Xxxxxxxx:
In connection with the evaluation of a potential transaction (a "Transaction")
involving 3-D Geophysical, Inc. ("3-D") and Western Geophysical, a division of
Western Atlas International, Inc. ("Western"), 3-D proposes to disclose to
Western certain Confidential Information (as hereinafter defined) from time to
time. For good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties hereto hereby undertake and agree as follows:
1. Confidential Information
(a) As used in this Agreement, the term "Confidential Information"
means any and all information relating to 3-D, its financial condition,
cash flow or results of operations, customers, assets or operations or
any other aspect of its financial affairs or business, including,
without limitation, those portions of any analyses, compilations,
forecasts, studies or other documents relating thereto, except such
thereof as (i) shall have become generally available to the public
through no act or omission of Western in breach of this Agreement, (ii)
which Western can establish was, prior to its disclosure by or on
behalf of 3-D to Western, already in Western's lawful possession, or
(iii) which Western can establish was independently disclosed to
Western by a third party who or which Western reasonably believes did
not acquire such information under any obligation of confidentiality in
favor of 3-D (including, without limitation, as a direct or indirect
result of the breach of any other party of any obligation of
confidentiality to 3-D).
(b) Except as provided in this Agreement or with the prior written
consent of 3-D, at all times during the course of and for a period for
two years following termination of the discussions relating to a
potential Transaction, Western shall keep and shall cause its
Representatives (as hereinafter defined) to keep, confidential and
shall not directly or indirectly disclose or cause to be disclosed to
anyone any Confidential Information which may be
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December 19, 1997
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communicated to Western or to which Western may have access. Western
shall not use any such Confidential Information for any purpose
whatsoever other than to evaluate a Transaction; provided, however,
that Western may communicate Confidential Information to such of
Western's Representatives as Western in good faith determines have a
need to know such Confidential Information for the purpose of
evaluating a Transaction, and then only on the condition that each such
person shall, prior to any such disclosure, (i) be informed that such
Confidential Information is subject to this Agreement, and (ii) be
directed by Western for the benefit of 3-D not to disclose any
Confidential Information to others or to use any Confidential
Information except as permitted by this Agreement. Western agrees that
any breach of this Agreement by any such person shall be deemed for all
purposes to be a breach of this Agreement by Western. Representatives
means all directors, officers, employees, affiliates, agents,
representatives and controlling persons, within the meaning of Section
20 of the Securities Exchange Act of 1934, as amended, of any party to
this Agreement, and, in the case of Western, such individual of Western
Atlas Inc., the corporate parent of Western (collectively
"Representatives").
(c) Notwithstanding the provisions of Paragraph 1(b) above, or
Paragraph 2 below, Western shall be entitled to disclose the
Confidential Information or the fact that Western and 3-D are
considering a Transaction or that discussions or negotiations have
taken or are taking place concerning a Transaction or any term,
condition or other fact relating to a Transaction to the extent
required by applicable law or requirement of any stock exchange or
market upon which the equity securities of Western are listed or
traded.
(d) As between the parties hereto, all Confidential Information shall
be and remain the sole and exclusive property of 3-D. Western shall
keep and hold all physical embodiments of any Confidential Information,
including, without limitation, those portions of any notes, computer
programs and files, drawings, pictures, blueprints, plans, schematics,
recordings, audio and video tapes, movies, prototypes, samples,
photographs, tables, records, documents, notebooks and the like which
constitute, contain, reflect or relate to Confidential Information,
whether prepared by 3-D, Western or on Western's behalf, and all
excerpts, abstracts and other summaries of any thereof (collectively,
"Confidential Documents"), which may from time to time be in Western's
possession or otherwise under Western's control, in a secure place, and
except as contemplated by paragraph 1(b) above shall not make or cause
to be made any copy or reproduction of any thereof without 3-D's prior
express written authorization. At 3-D's request (made at any time or
from time to time, whether during the course of or following
termination of the discussions referred to above) Western shall
promptly deliver to 3-D or its nominee all Confidential Documents then
in Western's possession, or under Western's control, whether or not
Western shall have been previously authorized to retain the same,
provided that Western may destroy Confidential Documents prepared by or
on behalf of Western so long as such
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December 19, 1997
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destruction is confirmed to 3-D by the certification of an officer of
the Western. Notwithstanding the foregoing, the attorneys of Western
may retain one set of the confidential Documents for use solely in
connection with defending itself or its Representatives against a claim
regarding its obligations hereunder.
(e) Western understands that 3-D will endeavor to include in the
Confidential Information those materials which 3-D believes to be
reliable and relevant for the purpose of Western's evaluation of a
Transaction; however, 3-D makes no express or implied representation or
warranty as to the accuracy or completeness of any information provided
hereunder. Western agrees that 3-D will not have any liability relating
to the Confidential Information or for any errors therein or omissions
therefrom and Western shall not be entitled to rely on such
Confidential Information except as to the extent representations and
warranties are provided in any definitive documentation relating to a
Transaction, subject to the restrictions and limitations set forth in
such documentation.
(f) Each party hereby acknowledges that it is aware (and that its
Representatives who are apprised of this matter have been, or upon
becoming so apprised will be, advised) of the restrictions imposed by
the United States securities laws on a person possessing material
non-public information about a company whose equity securities are
publicly traded.
2. No Disclosure Regarding Transaction
For the term of this Agreement, neither party shall disclose to any
person, other than to its Representatives, that Western and 3-D are
considering a Transaction or that discussions or negotiations have
taken or are taking place concerning a Transaction or any term,
condition or other fact relating to a Transaction or such discussions
or negotiations, including, without limitation, the status thereof.
3. Due Authorization
Each of the parties represents and warrants to the other that it has
full power, authority and legal right to enter into this Agreement and
to incur and perform its obligations hereunder.
4. Entire Agreement and Amendments
(a) This Agreement shall expire two years after the date hereof.
(b) This Agreement embodies the entire understanding between the
parties with respect to the subject matter hereof and merges all prior
discussions and writings between them as to their respective rights and
obligations respecting such subject matter.
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(c) This Agreement may not be amended, nor may any provisions hereof be
modified or waived, except by an instrument duly executed by or on
behalf of the party to be charged therewith. No failure or delay by any
party in exercising any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right
hereunder preclude any further exercise thereof or the exercise of any
other right hereunder.
5. Notices
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed
to have been duly given upon (a) personal delivery, (b) deposit in the
mails, registered or certified mail, postage prepaid, return receipt
requested, in either case addressed to the address for such party
specified herein or to such other address as such party may designate
by notice to the other party given in accordance with this Paragraph 5,
or (c) sending via facsimile the same to the fax number set forth
below:
If to 3-D, (000) 000-0000 (attention: Xxxx Xxxxxxxx, Chairman); if to
Western, (000) 000-0000 (attention: Xxxxx X. Xxxxxxx, General Counsel).
6. Governing Law Jurisdiction
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York, without reference to
principles of conflict of laws
If the foregoing correctly sets forth the terms of our understanding, please
evidence Western's agreement therewith by signing the enclosed copy of this
letter in the space provided below and returning it to my attention, whereupon
it will become a binding agreement between us in accordance with its terms.
Very truly yours,
WESTERN ATLAS INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxxxxxx
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Xxxx Xxxxxxxxxxx
Title: Senior Vice President
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ACKNOWLEDGED AND AGREED as of the date first written above:
3-D GEOPHYSICAL, INC.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Title: Chairman
