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EXHIBIT 10.33
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
effective as of the 1st day of March, 1995, by and between Universal Seismic
Associates, Inc., a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxxxx, now residing at 0000 Xxxxxxx Xxxx Xxxxx, Xxxx, Xxxxx 00000 (the
"Employee").
W I T N E S S E T H
WHEREAS, the Employee is employed by the Company in an executive capacity,
and the Company desires to ensure that the Employee will be available to
provide executive services to the Company in the future, which services are
significant to the Company's long range prospects; and
WHEREAS, to induce the Employee to agree to provide such services, the
Company is offering to provide the Employee with the compensation, benefits and
security provided for in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment; Capacity: Term. The Company agrees to and does hereby
employ the Employee, and the Employee agrees to and does hereby enter into the
employ of the Company upon the terms and conditions set forth in this
Agreement. Such employment shall be as Chief Financial officer of the Company
with all powers and authority as are normally incident to such position,
subject to the supervision of the Board of Directors of the Company. Such
employment shall commence on the date hereof and shall continue through the
last day of February, 1997, and shall extend and renew automatically for
successive two (2) year terms unless the Employee or the Company shall
terminate such employment by written notice of termination given to the other
party at least 60 days prior to the expiration of the two (2) year term then in
effect. Termination by either party, in accordance with the provisions of the
preceding sentence, shall not require a statement of the reason or cause for
such termination and shall not be deemed a breach or violation of the Agreement
by the party giving such notice. As used in this Agreement, the phrase "term of
this Agreement" shall be deemed to include the period subsequent to the date
hereof and prior to termination of this Agreement; provided, however, such
phrase shall not be construed as limiting the enforceability by either party of
any rights which survive termination of this Agreement.
2. Time and Effort; Absences. During the term of this Agreement, the
Employee shall devote his time and attention during normal business hours to
the business of the Company. The Employee shall not be restricted from
performing services as a member of the Board of Directors, Board of Trustees or
the like for non-profit or for profit entity whether or not the Employee
receives compensation therefor or from investing his assets in such
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form or manner that may require some participation in the operation of the
business of the entity in which such investments are made, provided that such
services and participation do not unreasonably interfere with the ability of
the Employee to perform the services and discharge the responsibilities
required of him pursuant to this Agreement. The Employee shall be excused from
rendering his services during reasonable vacation periods and during other
reasonable temporary absences, all as authorized from time to time by the Board
of Directors of the Company. At the date hereof, the Employee maintains his
residence in Katy, Texas and performs services for the Company in Sugar Land,
Texas; it is understood that without his consent the Employee will not be
required to relocate to a different location to discharge his responsibilities
under this Agreement.
3. Corporate Offices. If elected, the Employee will serve, without
additional compensation (except as otherwise provided by the Board of Directors
of the Company), as an officer and director (or in either capacity) of the
Company, its subsidiary Universal Seismic Acquisition, Inc., or any other
subsidiary of the Company. It is anticipated that during the term of this
Agreement Employee will serve as a director of the Company and its
subsidiaries.
4. Salary; Bonus; other Benefits. In consideration of the services and
duties to be rendered and performed by the Employee during the term of this
Agreement, including the assumption of the duties and responsibilities as an
executive officer of the Company, the Company agrees to pay and provide for the
Employee the compensation and benefits described below:
(a) An annual salary, payable in equal semi-monthly installments, in the
amount of not less than $72,000.00 or in such greater amount as may from time
to tine be fixed by the Board of Directors of the Company. The annual salary
shall never be reduced.
(b) An annual incentive bonus in such amount as may from time to time be
fixed by the Board of Directors.
(c) An automobile of Employee's choosing which is reasonable and customary
for the chief financial officer of a company of the size and nature of the
Company, which the Company shall insure, maintain, service and fuel.
(d) All payments and/or benefits under any pensions, profit-sharing,
thrift, bonus, incentive, stock option or stock appreciation or other employee
benefit plan, including any life insurance, accident, medical, disability,
health or relocation plan or policy (all of which are included by reference to
the term "Plan") maintained by the Company for its employees, generally, or for
its senior executives, in particular, on the same basis and subject to the same
requirements and limitations as may be made
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applicable to other senior executive employees of the Company. Nothing herein,
however, shall be construed as limiting the right of the Employee to additional
or other and greater benefits if the provisions of this Agreement obligate the
Company to provide such other or greater benefits. In addition, the Company
agrees that where credited service of the Employee for the Company is relevant
in determining eligibility for or benefits under any Plan, the Employee's
credited service for the Company shall be determined to include service for any
parent, subsidiary or affiliate of the Company or for a predecessor of the
Company.
(e) Company shall provide directors and officers liability insurance
coverages of the Employee with coverages and limits which are reasonable and
customary for the chief financial officer of a company of the size and nature
of the Company, and shall provide indemnification of the Employee to the
maximum extent permitted by applicable law.
5. Expenses. The Employee shall be reimbursed for out-of-pocket expenses
reasonably incurred from time to time on behalf of the Company or any
subsidiary or in the performance of his duties under this Agreement, upon the
presentation of such supporting documents and forms as the Company shall
reasonably request.
6. Disability; Disability Benefit. In the event that the Employee is
incapable because of physical or mental illness of rendering services of the
character contemplated hereby, for a period of two consecutive months, the
Board of Directors of the Company may determine that the Employee has become
disabled. In the event of such a determination of disability, the Company shall
have the continuing right and option while such disability continues by notice
in writing to the Employee to terminate this Agreement effective 30 days after
such notice of termination is so given, unless within such 30 day period, the
Employee resumes rendering full-time services of the character contemplated
hereby. The incapacity due to physical or mental illness to render the services
of the character contemplated hereby shall not constitute a breach of this
Agreement by the Employee.
7. Death. If the Employee dies during the term of this Agreement, this
Agreement will terminate.
8. Severance Pay. If the employment of the Employee is terminated any
time (a) by the Employee for Good Reason (as defined in Section 9) or (b) by
the company for any reason other than for Cause (as hereafter defined) the
Company shall (i) continue to pay to the Employee the full amount of Employee's
then current annual salary and annual incentive bonus until the next succeeding
December 31 as of which the Company could have terminated the Employee's
employment pursuant to Section 1 without such termination constituting a breach
or violation of this Agreement and, in addition, (ii) upon such termination,
pay immediately to
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Employee an amount in cash equal to Employee's then current annual salary
pursuant to Section 4(a) and the amount of the incentive bonus paid or payable
for the immediately preceding year pursuant to Section 4(b). The Employer and
the Employee agree that the purpose of these payments is to reinforce and
encourage the continued loyalty, attention and dedication of the Employee to
the Company's business and affairs without the concerns that normally arise
from the possibility of a loss of employment security. Termination of the
Employee's employment on account of his death or Retirement (as hereafter
defined) will not be considered a termination of the Employee's employment by
the Company and will not require the Company to pay and provide any severance
pay or benefits pursuant to this Section 8. As used herein, the Terms
"Retirement" and "Cause" shall have the following meanings, respectively:
(a) Retirement. Termination of the Employee's employment on account of
"Retirement" shall mean termination on the Employee's normal retirement date in
accordance with the terms of any Employer maintained Plan (or any successor or
substitute plan or plans of the Company or of any subsidiary of the Company
under which the Employee may be a participant); and
(b) Cause. Termination by the Company of the Employee's employment for
"Cause" shall mean termination as a result of (i) the willful and continued
failure by the Employee to perform substantially the services contemplated by
this Agreement (other than any such failure resulting from the Employee's
incapacity due to physical or mental illness), or (ii) the willful engaging by
the Employee in gross misconduct which is materially and demonstrably injurious
to the company; provided that no act, or failure to act, on the Employee's part
shall be considered "willful" unless done, or omitted to be done, in bad faith
and without reasonable belief that such action or omission was in, or not
opposed to, the best interests of the company, or (iii) for a serious conduct
violation specifically listed in Article IV., Conduct, page 9, of the Universal
Seismic Associates, Inc. Employee Handbook in effect on January 1, 1995. It is
also expressly understood that the Employee's attention to or engagement in
matters not directly related to the business of the Company shall not provide a
basis for termination for Cause if such attention or engagement is authorized
by the terms of this Agreement or has otherwise been approved by the Board of
Directors of the Company. Anything in this Agreement to the contrary
notwithstanding the Employee's employment may not be terminated for Cause (1)
unless the Employee shall have failed to have corrected the failure or
misconduct constituting such Cause within 30 days after having received written
notice from not less than two (2) members of the Board of Directors of the
Company specifying such failure or misconduct and the action that the Company
requests the Employee take to remedy such failure or misconduct, and (2) unless
and until there shall have been delivered to the Employee a copy of a
resolution duly
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adopted by the affirmative vote of not less than three quarters of the entire
membership of the Board at a meeting of the Board called and held for the
purpose (after reasonable notice to the Employee and an opportunity for the
Employee, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Employee was guilty of the
conduct set forth in clause (i), (ii) or (iii) of this subparagraph (b),
specifying the particulars thereof in detail, that the Employee was given
written notice to correct such failure or misconduct as provided above, and
that Employee failed to have corrected such failure or misconduct within the 30
day period provided above.
9. Termination by the Employee for Good Reason. The termination by the
Employee of his employment for "Good Reason" shall be deemed a justifiable
termination of his employment and shall excuse the Employee from the obligation
to render services as provided in Section 2 hereof. As used herein, the terms
"Good Reason" shall mean:
(a) a change in the Employee's status, title or positions) as an officer
of the Company which, in his reasonable judgment, does not represent a
promotion from or enhancement of his status, title and position as an executive
officer, or the assignment by the Board of Directors of the Company to the
Employee of any duties or responsibilities which, in his reasonable judgment,
are inconsistent with such status, title or position, or any removal of the
Employee from or any failure to reappoint or reelect him to such position,
except in connection with a justifiable termination by the Company of the
Employee's employment for Cause or on account of disability, the Retirement or
death of the Employee or the termination by the Employee of his employment
other than for Good Reason;
(b) a reduction in the employee's annual salary or a failure by the
Company to pay to the Employee any installment of the annual salary or
incentive bonus required pursuant to Section 4, which failure continues for a
period of 20 days after written notice thereof is give by the Employee to the
Company;
(c) the failure by the Company to adopt, continue or maintain in effect,
any Plan or benefit which is required to be provided by the Company pursuant to
this Agreement (unless the Company provides the Employee with the equivalent or
at lease substantially similar benefits under one or more other Plans) other
than as a result of the normal expiration of such Plan; or the taking of any
action or the failure to act by the Company, which could adversely affect the
Employee's continued participation in any such Plan(s) or the ability of the
Employee to enjoy or realize upon any material benefit intended, or which could
materially reduce the Employee's benefits under any such Plan(s) or deprive him
of any material benefit then enjoyed by the Employee;
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(d) the Company's requiring the Employee to be based anywhere other than
in Sugar Land, Texas or an area within a radius of 25 miles thereof, except for
required travel on the Company's business to an extent substantially consistent
with the business travel obligations which the Employee undertook on behalf of
the Company prior to such required change;
(e) the failure by the Company to obtain the assumption of this Agreement
by any successor (other than by merger or consolidation) as contemplated in
Section 12;
(f) the Company sells all or substantially all of the assets of the
Company or the purchase of a majority of the issued and outstanding stock of
the Company (other than the sale of assets to or purchase of stock by
subsidiaries, affiliates, employees or then existing stockholders of the
Company), or a change in effective control of the Company;
(g) any purported termination by the Company of the Employee's employment
which is not effected pursuant to a Notice of Termination satisfying the
requirements of Section 10, or which is not justified as a termination of the
Employee's employment based on Cause; and for purposes of this Agreement, no
such purported termination shall be effective; or
(h) any refusal by the Company to allow the Employee to attend to matters
or engage in activities not directly related to the business of the Company
which is permitted by this Agreement or which, prior thereto, was permitted by
the Board of Directors of the Company.
10. Notice of Termination. Any purported notice of termination of the
Employee's employment (other than a notice given by either party pursuant to
Section 1) shall be communicated in a writing delivered to the other party as
provided in Section 14 (hereinafter a "Notice of Termination"). For purposes of
this Agreement a "Notice of Termination" shall mean a notice which specifies
the termination provision relied upon by the party giving such notice and shall
set forth in detail such facts and circumstances claimed by such party to
provide a justified basis for termination of the Employee's employment under
the provisions) so indicated.
11. Certain Proprietary Rights. Employee agrees to and hereby does assign
to the Company all his right, title and interest in and to all inventions,
whether or not patentable, which are made or conceived solely or jointly by
him:
(a) At any time during the term of his employment by the Company it such
inventions were made or conceived while Employee was employed in an executive,
managerial, planning, technical research or engineering capacity (including
development, manufacturing systems, applied science and sales) with the Company;
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(b) During the course of or in connection with his duties during the term
of this Agreement; or
(c) With the use of time or materials of the Company.
Employee agrees to communicate to the Company or its representatives all
facts known to him concerning such inventions, to sign all rightful papers,
make all rightful oaths and generally to do everything possible to aid the
Company in obtaining and enforcing proper patent protection for all such
inventions in all countries and in vesting title to such invention and patents
in the company. For the purpose of this Agreement, the subject matter of any
application for patent naming Employee as a sole or joint inventor filed during
the course of employment or within one year subsequent to the termination
thereof shall be deemed to be an invention made or conceived by him during the
course of his employment by the Company and assignable to the Company
hereunder, unless the Employee established by a preponderance of the evidence
that such invention was made or conceived by him subsequent to termination of
his employment hereunder. At the Company's request (during or after the term of
this Agreement) and expense, the Employee will promptly execute a specific
assignment of title to the Company, and perform any other acts reasonable
necessary to implement the foregoing assignment.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of:
(a) The Company, and any successors or assigns of the Company, whether by
way of a merger or consolidation, or liquidation of the Company, or by way of
the Company selling all or substantially all of the assets of the Company, or a
division thereof, to a successor entity; however, in the event of the
assignment by the company of this Agreement, the Company shall nevertheless
remain liable and obligated to the Employee in accordance with the terms
hereof; and
(b) The Employee, his estate, his executors, administrators, heirs and
beneficiaries.
13. Expenses Relating to Enforcement of Rights. If either party shall
successfully seek to enforce any provision of this Agreement or to collect any
amount claimed to be due hereunder, such successful party shall be entitled to
be reimbursed by the other party for any and all out-of pocket expenses,
including reasonable attorneys' fees, incurred in connection with such
enforcement and/or collection.
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14. Notices. Any notice or other communication required or permitted
hereunder shall be in writing or by telex, telephone or facsimile transmission
with subsequent written confirmation, and may be personally served or sent by
United States mail, certified mail return receipt requested, addressed to the
respective parties at the addresses stated opposite each party's name on the
signature page hereof or to such other addresses as they shall designate
hereafter in writing from time to time.
15. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Texas.
16. Disputes; Arbitration. All disputes of any nature whatsoever arising
out of or relating to this Agreement, whether in contract or in tort, shall be
submitted to binding arbitration at Houston, Texas under the Texas General
Arbitration Law. All arbitration proceedings shall be heard and determined by a
panel of three arbitrators. Each party shall appoint one arbitrator and the two
arbitrators so appointed shall select the third. The arbitrators shall hold
oral hearings at the request of either party. The prevailing party in any
arbitration proceedings may be awarded its or his costs and reasonable
attorneys' fees. Any award of the arbitrators shall be final, and may be entered
in any court having jurisdiction.
17. Entire Agreement. This document contains or refers to the entire
arrangement or understanding between the parties relating to the Employee or
the Company. This Agreement contains the entire arrangement or understanding
between the Employee and the Company relating to the employment of the Employee
by the Company. No provision of the Agreement may be modified or amended except
by an instrument in writing signed by or for both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
The address of the Company is: COMPANY:
12999 Xxxx Xxxxxx Xxxx.
Xxxxx Xxxx, Xxxxx 00000-0000
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: President
Signed by Direction of the
Board of Directors by
Resolution dated effective
March 1, 1995
the Address of Employee is: EMPLOYEE:
0000 Xxxxxxx Xxxx Xxxxx
Xxxx, Xxxxx 00000 /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
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