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Exhibit (c)(8)
[WESTERN ATLAS INC. LETTERHEAD]
July 18, 1997
3-D Geophysical, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
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 and Western propose to
disclose to each other certain Confidential Information (as hereinafter defined)
from time to time (each such party as disclosing party hereunder, a "Disclosing
Party" and as recipient of Confidential Information hereunder, a "Recipient").
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 a Disclosing Party, 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 Recipient in
breach of this Agreement, (ii) which Recipient can establish was, prior
to its disclosure by or on behalf of Disclosing Party to Recipient,
already in Recipient's lawful possession, or (iii) which Recipient can
establish was independently disclosed to Recipient by a third party who
or which Recipient reasonably believes did not acquire such information
under any obligation of confidentiality in favor of Disclosing Party
(including, without limitation, as a direct or indirect result of the
breach of any other party of any obligation of confidentiality to
Disclosing Party).
(b) Except as provided in this Agreement or with the prior written
consent of Disclosing Party, at all times during the course of and for
a period for two years following termination of the discussions
relating to a potential Transaction, Recipient
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Western Geophysical
July 18, 1997
Page 2
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 communicated to Recipient or to which Recipient may have access.
Recipient shall not use any such Confidential Information for any
purpose whatsoever other than to evaluate a Transaction; provided,
however, that Recipient may communicate Confidential Information to
such of Recipient's Representatives as Recipient 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 Recipient for the benefit of
Disclosing Party not to disclose any Confidential Information to others
or to use any Confidential Information except as permitted by this
Agreement. Recipient 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 Recipient. 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, Recipient shall be entitled to disclose the
Confidential Information or the fact that Recipient and Disclosing
Party 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 Recipient are listed or
traded.
(d) As between the parties hereto, all Confidential Information shall
be and remain the sole and exclusive property of the Disclosing Party.
Recipient 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 Disclosing Party,
Recipient or on Recipient's behalf, and all excerpts, abstracts and
other summaries of any thereof (collectively, "Confidential
Documents"), which may from time to time be in Recipient's possession
or otherwise under Recipient's control, in a secure place, and shall
not make or cause to be made any copy or reproduction of any thereof
without Disclosing Party's prior express written authorization. At
Disclosing Party'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), Recipient shall promptly deliver to
Disclosing Party or its nominee all Confidential Documents then in
Recipient's
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July 18, 1997
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possession, or under Recipient's control, whether or not Recipient
shall have been previously authorized to retain the same, provided that
Recipient may destroy Confidential Documents prepared by or on behalf
of Recipient so long as such destruction is confirmed to Disclosing
Party by the certification of an officer of the Recipient.
Notwithstanding the foregoing, the attorneys of Recipient 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) Recipient understands that the Disclosing Party will endeavor to
include in the Confidential Information those materials which
Disclosing Party believes to be reliable and relevant for the purpose
of Recipients evaluation of a Transaction; however, no Disclosing Party
makes any express or implied representation or warranty as to the
accuracy or completeness of any information provided hereunder.
Recipient agrees that the Disclosing Party will not have any liability
relating to the Confidential Information or for any errors therein or
omissions therefrom and Recipient 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 is
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 Recipient and
Disclosing Party 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.
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July 18, 1997
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(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.
(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.
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Western Geophysical
July 18, 1997
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Very truly yours,
WESTERN GEOPHYSICAL, A DIVISION OF
WESTERN ATLAS INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Title: Sr. Vice President, Finance
and Administration
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
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