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EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This Employment Agreement executed by and between Universal Seismic
Associates, Inc., a Delaware corporation ("Company") and Xxxxxxx X. Xxxxxx now
residing in Spring, Texas ("Employee").
W I T N E S S E T H
WHEREAS, the Employee is employed by the Company in a managerial or
executive capacity and desires to continue such employment; and
WHEREAS, the Company desires to retain the services of Employee in such
capacity.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. The Company agrees to employ the Employee, and the Employee agrees to
render Employee's exclusive and full time service to the Company upon the terms
and conditions set forth in this Agreement. Such employment shall be initially
as Vice President, Exploration and Production, of the UNEXCO subsidiary of the
Company and with such duties as assigned from time to time by the Company. Such
employment shall commence on August 1, 1997 and shall continue through July 31,
1998, and shall extend and renew automatically for successive one (1) 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 one (1) 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. 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 a manager or executive of the
Company, its affiliates and/or subsidiaries, the Company agrees to pay and
provide for the Employee the compensation and benefits described below:
(a) An annual salary, payable in the amount of not less than $3,846.15
every two (2) weeks, or in such greater amount as may from time to time be
fixed by the Board of Directors of the Company.
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(b) An automobile which is reasonable and customary for the position held
by Employee in a company of the size and nature of the Company, which the
Company shall insure, maintain, service and fuel. In lieu of providing such
automobile, the Company may, at its sole option and discretion, pay Employee an
automobile allowance in accordance with the Company's policies for such
allowances.
(c) 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.
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.
(d) Company shall provide directors and officers liability insurance
coverages of the Employee as an officer and director of the Company and of any
of its subsidiaries or affiliates, and Company shall provide indemnification of
the Employee as an officer and director of the Company as permitted by
applicable law and the applicable provisions of the Company's Articles of
Incorporation and By-laws, as amended from time to time.
(e) Any and all of Employee's service as an employee, officer or director
of any subsidiary or other affiliate of the Company shall be performed without
additional compensation.
3. Employee's location of employment will be at Houston, Texas and/or at
such other locations as may be designated from time to time by the Company;
provided, however, in the event Employee while employed outside Texas is
terminated without good cause or due to a general reduction in force by
Employer or the expiration of this Agreement, Employer will pay the reasonable
and necessary cost of travel (economy class or equivalent) and transportation
of household goods and furnishings (excluding vehicles and boats) of the
Employee, his spouse and dependent children from the location where employed at
the time of such termination or expiration to Spring, Texas.
4. 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 required by the policies and procedures of
the Company.
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5. In the event Employee receives any advance payment or "draw" on any
compensation, expense, benefit, bonus or commission, or receives payment for or
charges to Company any improper expense or other improper payment or charge,
such payment, draw or charge shall be repaid by Employee on demand of Company
or, at Company's sole discretion and option, be off set at any time against any
salary, bonus, commission or any other payment owed by company to Employee.
6. Employee shall not, during the period of employment herein provided,
directly or indirectly invest or engage in any business which is competitive
with that of the Company or accept employment with or render services to a
competitor as a director, officer, agent, employee or consultant, or take any
action inconsistent with the fiduciary or other relationship of an employee to
an employer.
7. In the event that the employment of Employee hereunder shall be
terminated by the Company for cause, Employee agrees that during the period of
twelve (12) months following the termination of such employment Employee will
not, directly or indirectly, either through any kind of ownership (other than
ownership of securities of publicly held corporations of which Employee owns
less than one percent (1%) of any class of outstanding securities) or as a
director, officer, agent, employee or consultant, engage in any business within
the State of Texas which is competitive with the Company or its subsidiaries or
affiliates at the time such employment is terminated. Employee agrees the
foregoing covenant not to compete will also extend for a period of twelve (12)
months following termination of Employee's employment by the Company without
cause or by the Employee for other than cause if the Company elects, at its
sole option and discretion, at the time of such termination to so extend such
covenant and continues to pay Employee his salary in accordance with Section
2(a) during the time such covenant is in force. During employment and for
twelve (12) months following termination for any reason, Employee shall not
solicit any employee, agent or representative of the Company to terminate or
breach any employment, contract or any other relationship or duty to or with
the Company. It is expressly agreed that the remedy at law for breach of this
covenant is inadequate and that injunctive relief shall be available to prevent
the breach thereof. Employee hereby acknowledges and agrees that the
limitations as to time, geographical area, and scope of activity to be
restrained are reasonable and do not impose a greater restraint than is
necessary to protect the goodwill or other business interest of Company.
8. All information relating to the identity of the customers and suppliers
of the Company or its subsidiaries or affiliates, their arrangements with such
suppliers and customers, pricing methods and policies, technical, scientific
and financial information, data, designs, processes, procedures, formulas and
improvements relating to Company's or its subsidiary or affiliates
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products and services (hereinafter "Confidential Information"), shall be
treated as confidential by Employee both during and after the termination of
Employee's employment under this Agreement. Employee understands and
acknowledges that the Confidential Information, including without limitation
customer lists, accounts and information, are valuable, special and unique
assets and trade secrets of the Company and that the Company has taken measures
to prevent Confidential Information from becoming available to persons other
than those selected by the Company to have access to such Confidential
Information for limited purposes. Employee further acknowledges that prior to
Employee's employment by Company Employee had no knowledge of any of the
Confidential Information. Except with the prior approval of the Company,
Employee shall not disclose any of such Confidential Information at any time to
any person except personnel of the Company or its subsidiary or affiliated
corporations authorized by the Company to receive such Confidential
Information. In the event of a breach or threatened breach by the Employee of
the provisions of this paragraph, the Company shall, in addition to any other
available remedies, be entitled to any injunction restraining Employee from
disclosing, in whole or in part, any such information or from rendering any
services to any person, firm or corporation to whom any of such Confidential
Information may be disclosed or is threatened to be disclosed.
9. All data, designs, processes, procedures, formulas, improvements,
drawings, software, photographs, copies and other records and written material
prepared, compiled or conceived by Employee, solely or jointly, during the
course of or in connection with Employee's duties with the Company, or with the
use of the time or materials of the Company, or which relates to the business
of the Company, or furnished to Employee while in the employ of the Company
shall be the sole and exclusive property of the Company, none of such, data,
designs, processes, procedures, formulas, improvements, drawings, software or
other records, or copies thereof shall be retained by Employee upon termination
of Employee's employment and shall be returned to the Company upon such
termination or at such other time the Company requests such return.
10. Employee shall promptly disclose to the Company any and all
inventions, designs, improvements, and discoveries which Employee may now or
hereafter have, whether developed or conceived by Employee alone or with
others. All inventions, designs, improvements and discoveries which Employee,
alone or with others, develops or conceives during working hours, or with the
use of the Company property or assets, or which pertain or are related to the
business of the Company shall be the exclusive property of the Company.
Employee shall assist the Company to obtain patent, trademark, copyrights or
other rights, including executing documents necessary to vest full title
thereto in Company, and to protect such rights against infringement or
unauthorized disclosure.
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11. The provisions of Sections 7, 8, 9 and 10 of this Agreement shall
continue to be binding upon Employee in accordance with their terms,
notwithstanding termination of Employee's employment hereunder for any reason;
provided, however, the non-competition provision (but not the prohibition
against solicitation of employees, agents and representatives) set forth in
Section 7 above shall be null and void in the event Employer breaches the
provisions of Section 13(a) or (b) below.
12. Employee's employment may be terminated without notice by the
Company for good cause. Termination for good cause shall include, without
limitation, the following causes:
(a) Except as otherwise provided by law, upon the expiration of any sick
leave or medical leave provided by Company policies or applicable laws or
regulations Employee by reason of injury or illness is unable with any
required reasonable accommodation to perform the essential functions of
Employee's duties as an employee under this Agreement;
(b) Death of Employee;
(c) Except as otherwise provided by Company policies or applicable laws or
regulations, Employee for reasons other than illness or injury being
absent from Employee's duties without the consent of the Company for more
than ten (10) consecutive days;
(d) Employee being adjudicated a bankrupt or being charged with a crime
punishable by imprisonment;
(e) Employee engaging in any activity that would in the opinion of the
Board of Directors of the Company constitute a conflict of interest with
the Company;
(f) Employee negligently or inefficiently performing Employee's duties
hereunder, or otherwise failing to comply with the terms and conditions of
this Agreement; or
(g) Employee engaging in serious conduct violation specifically listed in
Article IV, Conduct, page 11, of the Universal Seismic Associates, Inc.
Employee Handbook attached hereto.
13. Notwithstanding any other provision of this Agreement, in the event
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 by a
public stock offering), or a change in effective control of the Company:
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(a) Employee will not be terminated without good cause within twelve (12)
months from the date of such sale, purchase or change of control;
(b) Employee's total compensation and benefits will not be reduced for a
period of twelve (12) months from the date of such sale, purchase or
change of control, other than any reduction of any incentive bonus plan
benefits resulting from the failure of the Company to meet plan
performance requirements that existed on the date of such sale, purchase
or change of control or Employee's employment is terminated for good
cause; and
(c) Employee shall be paid the total compensation and benefits Employee
would have otherwise received during the above period(s) in the event
Employee is terminated without good cause in violation of (a) above or
Employee's total compensation and benefits are reduced in violation of (b)
above.
14. Employee represents and warrants that Employee has not previously
assumed any obligations inconsistent with those of this Agreement.
15. This Agreement supersedes all previous agreements, written or oral,
relating to Employee's employment by the Company, and shall not be changed
orally, but only by a written instrument to which the Company and the Employee
are both parties.
16. Nothing herein shall limit or restrict any rights or remedies that
Company might have at law or equity.
17. The invalidity or unenforceability of any provision hereof shall be
deemed severable and shall in no way affect the validity or enforceability of
any other provision hereof.
18. Any notice or other communication required or permitted hereunder
shall be in writing or by telex, telephone or facsimile transmission with
subsequent written conformation, and may be personally served or sent by United
States mail, certified mail return receipt requested or registered mail,
addressed to the respective parties at the addresses stated opposite each
parties name on the signature page hereof or to such other addresses as the
shall designate hereafter in writing from time to time.
19. This Agreement shall be deemed to be made, entered into and shall be
construed according to the laws of the State of Texas.
20. All disputes of any nature whatsoever arising out of or relating to
this Agreement or breach hereof or Employee's employment, 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
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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.
21. This Agreement and the rights and obligations hereunder shall be
binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the benefit
of any successor of the Company by merger or consolidation or any assignee of
any or substantially all of its properties or assets. Neither this Agreement
nor any rights or benefits hereunder may be assigned by either party hereto,
except it may be assigned by the Company to an above successor or assignee and
to any subsidiary or affiliate of the Company.
Executed effective the this 1st day of August, 1997.
The address of the Company is: COMPANY:
00000 Xxxx Xxx Xxxxx, Xxxxx 000 Universal Seismic Associates,
Xxxxxxx, Xxxxx 00000 Inc.
Attn: President
By: /s/ Xxxxxxx X. Xxxxxxx
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TITLE: President & CEO
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The address of the Employee is: /s/ Xxxxxxx X. Xxxxxx
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EMPLOYEE
00000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
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