EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of January 27, 1997
between J.R.S. Exploration Company Limited, an Alberta corporation (the
"Company"), and X.X. Xxxxxxx (the "Employee").
WHEREAS, the Employee has been an executive officer and an indirect
shareholder of the Company for a number of years and was active in the
management of the business and affairs of the Company;
WHEREAS, all of the outstanding capital stock of the Company has been
acquired by 3-D Geophysical, Inc., a Delaware corporation ("3-D"), pursuant to
that certain Stock Purchase Agreement dated as of December 10, 1996 by and among
3-D, 3-D Geophysical of Canada, Inc., a Canadian corporation (3-D Canada"), D.E.
Janveau, Xxxxxx Xxxxxxx and the Employee (collectively, the "Vendors") (the
"Stock Purchase Agreement");
WHEREAS the Employee acknowledges that 3-D and 3-D Canada have paid a
substantial price to acquire the Company from the Vendors, and it is the
intention of 3-D, 3-D Canada and the Vendors (including the Employee) that the
Company shall be entitled exclusively to the benefits of the goodwill, trade
secrets, proprietary rights, patents, know-how and customer and client
relationships heretofore established, developed and maintained by the Company,
whether or not through the services or
efforts of the Employee as an executive officer, employee or indirect
shareholder of the Company;
WHEREAS, it is a condition to the closing of the transactions
contemplated under the Stock Purchase 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 with a view to maintaining and developing
the goodwill, trade secrets, proprietary rights, know-how and customer and
client relationships of the Company; and
WHEREAS, the Employee desires to accept such employment and to render
services to the Company on the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Company and the Employee hereby agree as follows:
Section 1. Engagement. The Company hereby employs the Employee as its
Vice President of Operations, 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 Closing Date under the Stock
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Purchase Agreement (as defined therein) and shall end on the third anniversary
thereof (the "Term").
Section 3. Duties and Services.
3.1 The Employee shall render services to the Company as its Vice
President of Operations and shall perform such other duties and responsibilities
as may be assigned to the Employee from time to time by the President of the
Company or the Board of Directors of the Company (the "Directors") and shall
abide the practices and policies of the Company governing the conduct of
employees. However, any assignments presented to the Employee for continuous
work outside of Canada for a duration of two weeks or longer may be accepted or
rejected in the discretion of the Employee. The Employee shall also serve as an
officer or director of such other direct or indirect subsidiaries of 3-D as may
be requested by the Directors or the Chief Executive Officer of 3-D, without any
additional compensation. The Employee will perform all such services hereunder
with a view to maintaining and developing the goodwill, trade secrets,
proprietary rights, know-how and customer and client relationships of the
Company.
3.2 During the Term, the Employee shall devote such energy and time
(exclusive of normal holidays and vacation periods and periods of sickness and
disability) as are reasonably necessary to perform the Employee's duties as
defined herein and shall promptly and faithfully perform all the duties which
pertain to the Employee's employment.
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Section 4. Compensation.
4.1 Annual Compensation. In consideration of all of the services to be
rendered by the Employee hereunder and the covenants of Employee herein, the
Company agrees to pay to the Employee, and the Employee agrees to accept, a
salary at the annual rate of $150,000.00 (Canadian).
4.2 Bonus Pool. 3-D intends to create a bonus plan based upon the
earnings of 3-D to provide incentives for certain employees of 3-D and its
subsidiaries, including the Company. The Employee shall be entitled to
participate in such plan on such terms as may be determined by the Compensation
Committee of the Board of Directors of 3-D, in its discretion. Nothing in this
Agreement shall require 3-D to pay any such bonus.
Section 5. Expenses and Reimbursement. The Employee shall be reimbursed
by the Company for reasonable and necessary out-of-pocket expenses incurred by
the Employee in performing his duties hereunder, provided such expenses are
approved in accordance with the procedures of the Company then in effect and are
presented for reimbursement in accordance with the Company's policies and
practices then in effect.
Section 6. Benefits. During the Term, the Company agrees to provide the
Employee, in addition to and not in limitation of the compensation set forth in
Section 4, the following benefits, which shall be determined in the sole
discretion of the Directors (or a duly constituted committee thereof):
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(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 and 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 3-D'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 four weeks annual paid vacation,
as well as sick leave and holidays in accordance with the Company's policies for
senior executive employees generally.
(d) During the term of employment under this Agreement, the Company
shall pay the Employee, on a monthly basis, an amount equal to $650 (Canadian)
per month as a non-accountable allowance for lease payments, insurance and other
expenses of an automobile leased by the Employee.
Section 7. Termination. Subject to the provisions of Section 8, which
shall survive the termination of this Agreement, this Agreement shall terminate
upon:
(a) The death of the Employee;
(b) Illness, disability or incapacity that prevents the Employee from
performing his duties hereunder for one hundred
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twenty (120) consecutive days, or for any one hundred twenty (120) days within
any twelve (12) month period, and the provision of written notice to the
Employee by the Company of such election to terminate; or
(c) Upon written notice for Cause, which shall include, without
limitation, (i) the failure of the Employee to observe or perform any material
term of this Agreement for twenty (20) days after written notice thereof
specifying such failure; (ii) any act of illegality, dishonesty, moral turpitude
or fraud in connection with the Employee's employment; or (iii) the commission
by the Employee of any serious indictable offense.
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 Solicit Employees of the Company. During the Term
and for a period of one (1) year after the termination of this Agreement for any
reason whatsoever, the Employee shall not solicit for employment any sales,
engineering or other technical or management employee who was employed by the
Company or any of its subsidiaries during the Term.
8.2 Non-Disclosure Covenant. The Employee recognizes and acknowledges
that, in the course of his employment, the Employee will have access to trade
secrets, proprietary rights, know-how, and other confidential information
(collectively, "Confidential Information") of the Company, 3-D and their
respective
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subsidiaries, including, but not limited to, information 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 Confidential
Information could be harmful to the interests of the Company, 3-D or such
subsidiaries and that, during the Employee's employment by the Company or its
subsidiaries, the Employee will take appropriate caution to safeguard all such
Confidential Information, and will not during the Term or thereafter use,
disclose, divulge or publish any such Confidential 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.
8.3 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, proprietary rights,
know-how and other confidential information of the Company, 3-D and their
respective subsidiaries, including copies thereof, whether prepared by the
Employee or others, are the sole property of and belong exclusively to the
Company, 3-D and their respective subsidiaries, and agrees that, during the
Employee's employment by the Company or its subsidiaries, the Employee will
under no circumstances remove any such material for use outside of his offices
except in connection with the business of the Company during the course of the
Employee's employment. In the event of
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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 such
Confidential Information of the Company, including copies thereof, which are the
property of the Company, 3-D or any of their respective subsidiaries.
8.4 Remedies. The Employee hereby agrees that all restrictions imposed
upon the Employee hereunder are reasonable, fair and valid, and all defenses to
the strict enforcement of the provisions hereof are hereby waived by the
Employee. 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, in whole or in part, 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 by deleting specific words or phrases as necessary to comply with
applicable law or to be enforceable by a court of competent jurisdiction or by
replacing any invalid or unenforceable term or provision with a term or
provision that is
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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.
8.5 Survival. The provisions of this Section 8 shall survive the Term.
9. Miscellaneous Provisions.
9.1 Notices. All notices and demands of any kind which any party hereto
may be required or desire to serve upon another party under the terms of this
Agreement shall be in writing and shall be served upon such other party: (a) by
personal service upon such other party at such other party's address set forth
below in this Section 9.1; or (b) by mailing a copy thereof by certified or
registered mail, postage prepaid, with return receipt requested, addressed to
such other party at the address 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
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reasonable proof of receipt. The address and facsimile number to which, and
person to whose attention, notices and demands shall be delivered or sent may be
changed from time to time by notice served, as hereinabove provided, by any
party upon the other party.
The current addresses and facsimile numbers of the parties are:
If to the Employee:
X.X. Xxxxxxx
c/o J.R.S. Exploration Company Limited
0000 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X000
Telecopier No.: (000) 000-0000
If to the Company:
J.R.S. Exploration Company Limited
0000 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
with copies to:
3-D Geophysical, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Chairman
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Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
9.2 Entire Agreement; Amendment. This Agreement contains the entire
agreement between the parties respecting the subject
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matter hereof, merges all prior negotiations, agreements and understandings, if
any, respecting the subject matter hereof and states in full all
representations, warranties and agreements which have induced this Agreement.
Each party agrees that in dealing with third parties no contrary representations
will be made. This Agreement may not be amended, modified or otherwise changed
orally but only by an agreement in writing signed by the party against whom
enforcement of any amendment, modification or change is sought.
9.3 Assignment; Binding Nature; Assumption. This Agreement shall inure
to the benefit of and be enforceable by, and may be assigned by the Company to,
any purchaser of all or substantially all of the Company's business or assets,
any successor to the Company or any assignee thereof (whether direct or
indirect, by purchase, merger, consolidation or otherwise). The Company will
require any such purchaser, successor or assignee to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such purchase, succession or
assignment had taken place. This Agreement may not be assigned by the Employee
without the prior written consent of the Company.
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
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any such term, provision or covenant (or breach) on any other occasion or as a
waiver of any other term, provision or covenant (or of the breach of any other
term, provision or covenant) contained in this Agreement on the same or any
other occasion.
9.5 Remedies. The remedies provided for or permitted by this Agreement
shall be cumulative and the exercise by any party of any remedy provided for
herein or otherwise available shall not preclude the assertion or exercise by
such party of any other right or remedy provided for herein or otherwise
available.
9.6 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
9.7 Construction. In this Agreement (i) words denoting the singular
include the plural and vice versa, (ii) "it" or "its" or words denoting any
gender include all genders, (iii) any reference herein to a Section refers to a
Section of the Agreement, unless otherwise stated, (iv) when calculating the
period of time within or following which any act is to be done or steps taken,
the date which is the reference day in calculating such period shall be excluded
and if the last day of such period is not a business day, then the period shall
end on the next day which is a business day, and (v) all dollar amounts are
expressed in Canadian funds.
9.8 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the
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Province of Alberta 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.
J.R.S. EXPLORATION COMPANY LIMITED
By /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
EMPLOYEE:
/s/ X.X. Xxxxxxx
------------------------------
X.X. Xxxxxxx
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