EXHIBIT 10.43
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of August
1, 2001 (the "Effective Date") between GRANT GEOPHYSICAL, INC. a Delaware
corporation (together with any subsidiary of such corporation employing Employee
at any time during the term hereof (the "Company") and Xxxxxxx X. Xxxxxx (the
"Employee").
A. The Employee has faithfully served the Company as an employee, and
B. It is the desire of the Company to continue to employ the Employee on
the terms herein provided and to induce the Employee to continue to render
services to the Company, and
C. The Employee is desirous of committing himself to serve Company on the
terms and in the capacities herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties set forth below, the parties hereto
agree as follows:
1. EMPLOYMENT: This Agreement supersedes and replaces any previous
Employment Agreement between the Company and Employee. Subject to the terms
hereof, the Company hereby agrees to employ the Employee, and the Employee
hereby agrees to serve Company, on the terms and conditions set forth herein for
the period commencing on the Effective Date and expiring on the third
anniversary of the Effective Date (the "Term").
2. POSITION AND DUTIES: The Employee shall serve in the following manner:
2.1 The Employee shall have the responsibility for the activities as
Manager TZ Operations of the Company, or in such other position or
positions as the parties mutually may agree, and shall have such other
powers and duties as may from time to time be prescribed by the
Company's President and Chief Executive Officer (the "CEO") or his
delegee.
2.2 During the term of this Agreement, Employee shall devote his full
time, skill and attention and his best efforts to the businesses and
affairs of the Company to the extent necessary to discharge faithfully
and efficiently his duties and responsibilities described herein,
except for usual, ordinary and customary periods of vacation (as
provided below) and absence due to illness or other disability or such
periods of leave as are approved in writing by the Company's CEO or
other officer.
3. PLACE OF PERFORMANCE: In connection with his employment under this
Agreement, the Employee shall be based in Houston, Texas or in such other
location as may be designated by the Company.
4. COMPENSATION AND RELATED MATTERS:
4.1 Base Salary: Employee shall receive a base salary annualized at the
rate of U.S $90,000.00 during the term hereof, payable in accordance
with the Company's then existing payroll policy but in no event less
frequent than on a monthly basis either by check or cash to Employee or
to a bank account designated by Employee.
4.2 Stock Options: Company shall grant to Employee, within thirty (30)
days after the execution of this Agreement (but effective as of the
date hereof), options to acquire 31,000 shares of the common stock of
the Company in accordance with the Company's standard Stock Option
Agreement at a price of U.S. $2.00 per share. This grant shall be in
addition to those
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options, if any, previously granted by Company to Employee, that will
also be re-priced to U.S. $2.00 per share.
4.4 Expenses. During the term of his employment hereunder, the Employee
shall be entitled to receive prompt reimbursements for all reasonable
and necessary expenses incurred by him in performing services
hereunder, provided that the Employee properly accounts therefor in
accordance with Company policy.
4.5 Other Benefits. During the term of the Employee's employment
hereunder the Employee shall be entitled to participate in or receive
benefits under any employee benefit plan or other arrangement made
available by the Company now, or in the future, to its officers and key
management employees or other employees (including without limitation
any group medical, dental, life insurance and disability programs,
long-term incentive plans, 401(k) savings plan or any other similar
plan or arrangement).
4.6 Vacation The Employee shall be entitled to annual vacation in
accordance with Company policy applicable in the area described in
Clause 2.1 above, provided, that upon termination of Employee's
employment with the Company as a result of, voluntary resignation,
death, disability or for Cause (as defined herein), the Company shall
pay to employee upon such termination an amount in cash equal to the
value of the unused vacation time up to, but not to exceed, four (4)
weeks.
4.7 Effective Employment Date. It is agreed that, for the purpose of
calculating vacation to which Employee is entitled under published
Company policy the employment date of Employee will be February 1,
1982.
5. NON-COMPETE: For the two (2) year period commencing on the Effective
Date, the Employee agrees that he will not, directly or indirectly;
5.1 engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or
control of, be employed by, associated with, or in any manner connected
with, lend the Employee's advice to, any business or other entity
engaging in the acquisition, processing or marketing of seismic data;
or
5.2 solicit, employ, or otherwise engage, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is or
was an employee of the Company at any time during the term of this
Agreement or in any manner induce or attempt to induce any employee of
the Company to terminate his or her employment with the Company; or
5.3 interfere with the Company's relationship with any person,
including any person who at any time during the term of this Agreement
was an employee, contractor, supplier, or customer of the Company; or
5.4 transfer or otherwise dispose of or deal or trade with any party,
other than Company, any of the Company's proprietary information as
provided in Section 8 below; or
5.5 disparage the Company or any of its shareholders, directors,
officers, or other management or personnel.
This Section 5 shall remain in effect for two (2) years from the Effective Date
regardless of the prior termination hereof for any reason. The Employee agrees
and stipulates that: (i) the provisions of this Section 5 are ancillary to and a
part of an otherwise enforceable agreement, (ii) the limitations as to time,
geographic area or scope of activity to be restrained under this Section 5 are
reasonable and impose no greater restraint than is necessary to protect the
goodwill or other business interest of the Company.
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If, however, this Section 5 is determined by a court of competent jurisdiction
to contain limitations as to time, geographic area or scope of activity to be
restrained that are not reasonable and impose a greater restraint than is
necessary to protect the goodwill or other business interest of the Company, or
to otherwise be unenforceable to any extent or for any reason, the Employee
consents to the reformation of this Section 5 by such court to the minimum
extent necessary to cause the limitations contained in this Section 5 to be
deemed reasonable and to impose a restraint that is not greater than necessary
to protect the goodwill or other business interest of the Company, and to
otherwise be enforceable, and to the enforcement of this Section 5 as so
reformed. For purposes of any such reformation, the provisions of this Section 5
shall be divisible.
6. TERMINATION: The Employee's employment hereunder may be terminated by
Company or the Employee, as applicable, without any breach of this Agreement,
only under the following circumstances:
6.1 Death. The Employee's employment hereunder shall terminate upon his
death.
6.2 Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from
his duties hereunder on a full time basis for 120 consecutive calendar
days, or 180 days during any twelve (12) month period, the Company may
terminate the Employee's employment hereunder.
6.3 Cause. Company may terminate the Employee's employment hereunder
for Cause. For purposes of this Agreement, Company shall have "Cause"
to terminate the Employee's employment hereunder only in the event the
Employee has.
(i) Committed an intentional act of fraud, embezzlement or theft in
connection with his duties or in the course of his employment
with the Company;
(ii) intentionally or wrongfully damaged property of the Company;
(iii) intentionally or wrongfully disclosed secret processes or
confidential information of the Company.
(iv) intentionally violated the provisions of Section 5 hereof, or
(v) intentionally failed or refused to substantially follow the
lawful and proper directives of the Company's President and CEO
or his delegee, consistent with the Employee's position and
within his ability to do so.
For purposes of this Agreement, an act or omission on the part of the
Employee shall not be deemed "intentional" or "wrongful" if it was due
to an error in judgment or negligence, but shall be deemed
"intentional" or "wrongful" if done by the Employee not in good faith
and without reasonable belief that the act or omission was in the best
interests of the Company.
It is the agreement of the parties that, upon execution of this
Agreement by Employee, this will be a binding agreement between the
parties and may not be terminated by either party except as expressly
provided above.
7. COMPENSATION UPON TERMINATION: The Employee shall be entitled to the
following compensation from the Company upon the termination of his employment.
7.1 In the event of employment termination by death or disability or a
termination by the Company for Cause, the Company shall pay to the
Employee all Base Salary owed hereunder through the date of
termination. Such payment shall be paid when due pursuant to the terms
of Section 4 hereof.
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7.2 Upon the termination by the Company of Employee's employment with
the Company for other than Cause, as defined above, compensation due
the Employee will, nevertheless, be paid in accordance with the
Company's then existing payroll payment schedule for a period
equivalent to six (6) months. In such event the provisions of Section 5
and 8 will remain in force for the remainder of the term of payment.
7.3 Upon such termination of employee's employment, Employee shall be
entitled to all benefits, rights and privileges of Employee under any
and all employee benefit plans or policies of the Company to which
terminated employees of the Company are entitled.
8. CONFIDENTIALITY
8.1 Employee acknowledges and agrees that in the performance of his
duties of employment he will be brought into frequent contact, either
in person, by telephone, through the mail or by electronic
communication, with existing and potential clients of the Company, or
its respective subsidiaries, (throughout this Article 8 "Company" shall
be deemed to include all of its direct and indirect subsidiaries).
Employee also agrees that trade secrets and confidential information of
the Company more fully described in Article 8.2 below, gained by
Employee during his association with the Company have been developed by
the Company through substantial expenditures of time, effort and money
and constitute valuable and unique property of the Company, as the case
may be. Employee further understands and agrees that the foregoing
makes it necessary for the protection of the business of the Company
that Employee not compete with the Company as provided by Article 5
above.
8.2 Employee will keep in strict confidence, and will not, directly or
indirectly, at any time during his employment or thereafter, disclose,
furnish disseminate, make available or, except in the course of
performing his duties of employment hereunder, use any trade secrets or
confidential business information of the Company or its clients,
without limitation as to when or how Employee may have acquired such
information, whether prior to or during the term of this Agreement.
Such confidential information shall include without limitation the
Company's client lists, client information, terms of client contracts,
any listing of names, addresses or telephone numbers, pricing policies,
financial statements, projections, marketing plans or strategies, new
business developments of plans, business acquisition plans and business
methods.
8.3 Employee specifically acknowledges that all such confidential
information, whether reduced to writing, electronic media of any form,
or maintained in the mind or memory of Employee and whether compiled by
the Company and/or Employee derives independent economic value from not
being readily known to or ascertainable by proper means by others who
can obtain economic value from its disclosure or use, that reasonable
efforts have been made by the Company to maintain the secrecy of such
information, that such information is the sole property of the Company,
as the case may be, and that any retention and use of such information
by Employee during his employment with the Company (except in the
course of performing his duties and obligations hereunder) or after the
termination of his employment shall constitute a misappropriation of
the Company's trade secrets.
8.4 Upon termination of his employment, Employee will immediately
return to the Company, in good condition, all property of the Company,
as the case may be, including without limitation, the originals and all
copies of all promotional material, client lists, client information
and all other materials related to the Company's business. In the event
that such items are not so returned, the Company will have the right to
recover such property in addition to the right to charge Employee for
all damages, costs, attorney's fees and other expenses incurred in
searching for, taking, removing and/or recovering such property.
8.5 The provisions of this Article 8 shall survive the termination of
this Agreement.
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9. SUCCESSORS; BINDING AGREEMENT:
9.1 Successors. This Agreement shall be binding upon, and inure to the
benefit of the Company, the Employee, and their respective successors,
assigns, personal and legal representatives, executors, administrators,
heirs, distributees, devisees, and legatees, as applicable.
9.2 Certain Payments: Any amounts that would otherwise be payable to
the Employee hereunder at the time of his death or thereafter (whether
pursuant to 7.2 hereof or otherwise) shall, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
the Employee's devisee, legatee, or other designee or, if there be no
such designee, to the Employee's estate.
10. NOTICE: For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when (a) delivered personally; (b) sent by
telecopy or similar electronic device and confirmed; (c) delivered by commercial
overnight express; or (d) sent by registered or certified mail, postage prepaid,
addressed as follows:
If to the Employee (marked "Personal and Confidential")
Xxxxxxx X. Xxxxxx
C/o Grant Geophysical Inc.
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000
If to Company:
Grant Geophysical, Inc.
Attention: President and Chief Executive Officer
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
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11. ENTIRE AGREEMENT: No provision of this Agreement may be amended,
modified, waived or discharged unless such amendment, waiver, modification or
discharge is agreed to in writing signed by the Employee and Company. No waiver
by either party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
12. GOVERNING LAW:
12.1 THIS AGREEMENT IS BEING MADE AND EXECUTED IN AND IS INTENDED TO BE
PERFORMED IN THE STATE OF TEXAS AND SHALL BE GOVERNED, CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF
THE STATE OF TEXAS, TO THE EXCLUSION OF ANY LAWS, SUBSTANTIVE OR
OTHERWISE WHICH WOULD DIRECT THE LAW OF ANY OTHER JURISDICTION TO BE
APPLICABLE HERETO.
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12.2 The parties agree to attempt to resolve all disputes between them
concerning this Agreement or the interpretation or performance
thereof in an amicable manner. However, any such disputes which
cannot be so resolved shall be submitted to and decided by The United
States District Court of the Southern District of Texas and the
parties do hereby irrevocably submit themselves to the jurisdiction
of such court for such purposes. The parties agree that any decision
of such court (or any subsequent appeal thereof) shall be enforceable
in the jurisdiction of the respective parties.
13. VALIDITY: The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
14. COUNTERPARTS: This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
GRANT GEOPHYSICAL, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President & C.E.O.
EMPLOYEE:
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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