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EXHIBIT 10.2
EMPLOYMENT AGREEMENT (this "Agreement") dated February 8, 1996
between 3-D Geophysical, Inc. (the "Company"), a Delaware corporation, and
G.C.L. Xxxx (the "Employee").
WHEREAS, the Employee has been an executive officer of Xxxx
Geophysical Corporation ("Xxxx") for a number of years;
WHEREAS, the Company has purchased all of the outstanding capital
stock of Xxxx pursuant to that certain Stock Purchase Agreement dated as of
October 24, 1995 among the Company and G.C.L. Xxxx and Xxxxxxx Xxxx;
WHEREAS, the Company desires to employ the Employee on the terms
and conditions provided in this Agreement;
WHEREAS, the Employee desires to accept such employment and to
render services to the Company and Xxxx 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 a
Vice President of the Company and as President of Xxxx, and the Employee hereby
accepts such employment, upon and subject to the terms and conditions
hereinafter set forth.
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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 date of the closing of the underwritten initial public offering
of the Company's common stock, and shall end on December 31, 1998 (the "Term").
Section 3. Duties and Services.
3.1 The Employee shall render services to the Company as a Vice
President of the Company and as President of Xxxx, shall perform such other
duties and responsibilities as may be assigned to the Employee from time to
time by the Board of Directors (the "Directors") or Chief Executive Officer of
the Company or by the Board of Directors of Xxxx and shall abide by the
practices and policies of the Company and Xxxx governing the conduct of
employees.
3.2 During the Term, the Employee shall devote his full energy and time
(exclusive of normal holidays and vacation periods and periods of sickness and
disability) to the performance of the Employee's duties as defined herein and
shall promptly and faithfully perform all the duties which pertain to the
Employee's employment.
Section 4. Compensation.
4.1 Annual Compensation. In consideration of all of the services to be
rendered by the Employee hereunder, the Company agrees to pay to the Employee,
and the Employee agrees to accept, a salary at the annual rate of $75,000,
payable in accordance with the Company's normal payroll practices.
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4.2 Potential Bonus. In addition to the compensation provided for in
Section 4.1, the Employee may receive such bonus, if any, as shall be
determined in the sole discretion of the Directors (or a duly constituted
committee thereof), but nothing in this Agreement shall be construed to require
the Company 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):
(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, group accidental and disability insurance plans
made generally available to the senior executive employees of the Company
provided that the Employee shall be entitled to the maintenance of his current
medical insurance coverage or substantially equivalent coverage during the
Term.
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(b) The Employee shall be entitled to participate in the Company'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 vacation, sick leave and
holidays in accordance with the Company's policies for senior executive
employees generally.
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 sixty (60) consecutive days, or for any
sixty (60) days within any one hundred and eighty (180) day period, and the
provision of written notice of such termination to the Employee by the Company;
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; (iii) any
course of action which is materially detrimental to the business of the
Company; or (iv) the commission by the Employee of any felony.
Section 8. Restrictive Covenants. In consideration of the undertakings
of the Company set forth herein, the Employee agrees as follows:
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8.1 Covenant Not to Compete. The Employee will not in any way,
directly or indirectly, as an agent, employee, officer, director, stockholder,
partner or otherwise of any corporation, partnership or other venture or
enterprise compete with the Company or any of its subsidiaries in the provision
of seismic data acquisition or analysis services or any services related
thereto (a "Competing Business") during the Term, other than pursuant hereto,
and for a period of one (1) year after the termination of this Agreement for
any reason whatsoever. In consideration of the covenant contained in this
Section 8.1, the Company shall pay the Employee an aggregate of $150,000,
payable in thirty six monthly installments of $4,167 each, payable on the final
day of each month, commencing with the first month of the Term.
8.2 Non-Solicitation Covenant. 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, sell to or contract with, on behalf of the Employee
or on behalf of any Competing Business, any person or entity to which the
Company or any of its subsidiaries shall have provided seismic data acquisition
or analysis services at any time during the Term.
8.3 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.
8.4 Non-Disclosure Covenant. The Employee recognizes and acknowledges
that, prior to and in the course of his employment, the Employee may have had
and shall have
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access to trade secrets and other confidential or proprietary information of
the Company and its subsidiaries, including, but not limited to, information
acquired or developed by the Company and its subsidiaries 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 trade
secrets or information could be harmful to the interests of the Company or its
subsidiaries and that, during the Employee's employment by the Company or its
subsidiaries, the Employee will take appropriate caution to safeguard such
trade secrets and information, and will not during the Term or thereafter use,
disclose, divulge or publish any such trade secrets or 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.
8.5 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 and other
confidential or proprietary information of the Company and its subsidiaries,
including copies thereof, whether prepared by the Employee or others, are the
sole property of and belong exclusively to the Company and its 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 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
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other evidence of trade secrets and other confidential or proprietary
information of the Company and its subsidiaries (and all copies thereof) which
are the property of the Company or any of its subsidiaries.
8.6 Remedies. 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, 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, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is 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 after the expiration of the time within which the judgment may be
appealed.
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
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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 inthis 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 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 members of the parties are:
If, to Employee: G. C. "Len" Xxxx
c/x Xxxx Geophysical Corporation
P.O. Box 821148
00000 Xxxx Xxxxxxx 000
Xxxxxxx, Xx 00000
Fax: (000)000-0000
copy to: Xxxx Xxxxxxx Xxxx, Esq.
Xxxx & Xxxxxxxxxx, P.C.
0000 Xxxx Xxx Xxxx. Xxxxx 0000
Xxxxxxx, Xx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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If, to the Company: 3-D Geophysical, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Chairman of the Board
Phone: (000) 000-0000
Fax: (000) 000-0000
copy to: Xxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
9.2 Entire Agreement; Amendment. 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 whom enforcement of any
amendment, modification or change is sought.
9.3 Assignment; Binding Nature; No Beneficiaries. This Agreement may
not be assigned by any party hereto without the written consent of the other
party. This Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, personal
representatives, legatees, successors and permitted assigns. This Agreement
shall not confer any rights or remedies upon any person other than the parties
hereto and their respective heirs, personal representatives, legatees,
successors, and permitted assigns.
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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 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 this 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 United States funds.
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9.8 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date and year first written above.
3-D GEOPHYSICAL, INC.
Attest: By
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Name: Xxxx Xxxxxxxx
Title: Chairman of the Board
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Xxxx X. Xxxxx
Secretary
EMPLOYEE:
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G.C.L. Xxxx
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