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EXHIBIT 10.6
AMENDED AND RESTATED TERMINATION AGREEMENT
AMENDED AND RESTATED AGREEMENT (this "Agreement"), dated as of October
1, 1996, between 3-D Geophysical, Inc., a Delaware corporation (the "Company"),
and Xxxx X. Xxxxx, Xx. ("JD").
WHEREAS, JD has resigned as an officer of the Company and the Company
and JD wish to terminate the Employment Agreement dated February 1996 between
them and to provide for JD's advice and assistance in connection with the
Company's presently proposed underwritten public offering of Common Stock (the
"Offering") and the proposed acquisition of J.R.S. Exploration Company Limited
("J.R.S.");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Termination. The Employment Agreement between the Company and
JD dated February, 1996, and all rights and obligations thereunder, is hereby
terminated as of October 1, 1996 (the "Effective Date").
2. Consideration.
2.1 On January 3, 1997, the Company shall pay to JD
$200,000 in a lump sum, in cash, in consideration of JD's advice and assistance
in connection with the proposed acquisition of J.R.S.
2.2 From the Effective Date until December 31, 1998, the
Company shall pay to JD $5,000 a month on the first day of each month in
consideration of JD's advice and assistance in connection with the Offering and
other financial advisory services to be rendered in the future.
2.3 The Company will, to the extent it is entitled to do
so under the relevant plan, provide to JD, through December 31, 1998,
participation, on the same basis as senior executives of the Company, in
accordance with and subject to the respective terms and conditions thereof as
to eligibility and otherwise, in the Company's medical, dental, long-term
disability and standard life insurance programs (subject to insurability at
standard rates, it being understood and agreed that if insurance becomes
unavailable at standard rates, the Company shall maintain the insurance
provided that the difference in premiums between standard and actual rates is
paid by JD).
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2.4 The Company shall make available to JD an office at
the Company's New York offices, and such secretarial assistance and general
office support as JD may reasonably require, until December 31, 1997, provided
that JD shall not, as an officer, engage or participate in any business
enterprise that is in whole or substantial part in competition with the Company
or any of its subsidiaries during such period.
2.5 JD will provide to the Company financial and
advisory services in connection with the Offering and the proposed acquisition
of J.R.S.
3. Confidential Information.
3.1 JD agrees that he will not disclose to any person,
corporation, firm, partnership or other entity whatsoever (except the Company
or any of its subsidiaries or affiliates), or use for his own benefit, any
confidential or proprietary information with respect to the Company's trade
secrets, financial condition, marketing programs or otherwise related to the
Company's business and affairs that JD learned of or had access to as a result
of his employment by the Company ("Confidential Information"), which
Confidential Information is not in the public domain through no fault of JD's.
Notwithstanding anything hereinabove to the contrary, the Company authorizes JD
to make disclosure of Confidential Information (x) pursuant to a court order by
a court of competent jurisdiction, or (y) to any authority exercising
executive, legislative, regulatory or administrative functions of or pertaining
to a government having jurisdiction with respect to the Company or JD.
3.2 The Company shall be entitled, in addition to any
other right and remedy it may have, at law or in equity, to an injunction,
without the posting of any bond or other security and without proving that
damages would not be an adequate remedy, enjoining or restraining JD from any
material violation or threatened material violation of Section 3.1 and JD
hereby consents to the issuance of such injunction. If any of the restrictions
contained herein shall be deemed to be unenforceable by reason of the extent,
duration or scope thereof or otherwise, then the parties hereto contemplate
that the court shall reduce such extent, duration, scope or other provision
hereof and enforce this Section 3 in its reduced form for all purposes in the
manner contemplated hereby. This Section 3.2 and Section 3.1 shall survive the
payment of the consideration to JD under this Agreement.
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4. Miscellaneous Provisions.
4.1 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 4.1; 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 4.1; 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 4.1; 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 4.1.
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 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 JD:
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
If to the Company:
3-D Geophysical, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Chairman
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
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4.2 Entire Agreement; Amendment; Amendment of Prior
Agreements. This Agreement contains the entire agreement between the parties,
merges all prior negotiations, agreements and understandings, if any, 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 which enforcement of any amendment, modification or change
is sought. This Agreement amends and restates in its entirety that certain
Termination Agreement dated as of October 1, 1996 between the Company and JD.
The consulting agreement between the Company and Megansett Capital, Inc.
("Megansett") dated February 1996 pursuant to which the Company is obligated to
pay to Megansett $125,000 in February 1997 is hereby amended to provide that
such payment shall be made on January 3, 1997.
4.3 Assignment; Binding Nature; Assumption. This
Agreement shall inure to the benefit of and be enforceable by JD and his
personal representatives, heirs, successors and assigns and shall be binding
upon the Company, 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 expressly to
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 JD without the prior written consent of the Company, except that JD may
assign this Agreement to Megansett, provided that no such assignment shall
relieve JD of his obligations under this Agreement and notwithstanding any such
assignment, JD shall personally perform the services provided for in Section
2.5.
4.4 Nonwaiver. No waiver by any party of any term,
provision or covenant contained in this Agreement (or any breach hereof) 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 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.
4.5 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. In the event the Company breaches this Agreement, JD
shall be entitled to recover reasonable attorneys fees incurred in connection
with enforcing this Agreement.
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4.6 Headings; Construction. The headings in this
Agreement are inserted for convenience only and shall not constitute a part
hereof. 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 this
Agreement, unless otherwise expressly 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 United States funds.
4.7 Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of New
York applicable to contracts made and to be entirely performed therein.
4.8 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
3-D GEOPHYSICAL, INC.
By: /s/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
Title: Chairman
/s/ XXXX X. XXXXX, XX.
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Xxxx X. Xxxxx, Xx.
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