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EXHIBIT (C)(2)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement")
dated January 13, 1998 between 3-D Geophysical, Inc. (the "Company"), a Delaware
corporation, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the "Employee").
WHEREAS, the Employee is employed by the Company in a key
managerial capacity and the Employee's services are valuable to the conduct of
the business of the Company;
WHEREAS, the Company recognizes that circumstances may arise
in which a change in control of the Company occurs, through acquisition or
otherwise, thereby causing uncertainty about the Employee's future employment
with the Company without regard to the Employee's competence or past
contributions, which uncertainty may result in the loss of valuable services of
the Employee to the detriment of the Company and its stockholders, and the
Company and the Employee wish to provide reasonable security to the Employee as
an incentive for the continuation by Employee of his current relationship with
the Company;
WHEREAS, the Employee and the Company are parties to an
Employment Agreement dated January 31, 1996 (the "Prior Agreement") and wish to
amend and restate the terms and conditions of the Prior Agreement in their
entirety with the terms and conditions of this Agreement;
WHEREAS, the Company desires to continue to employ the
Employee on the terms
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and conditions provided in this Agreement; and
WHEREAS, the Employee desires to continue such employment and
to render services to the Company 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
Executive Vice President and Chief Operating Officer of the Company, and the
Employee hereby accepts such employment, upon and subject to the terms and
conditions hereinafter set forth.
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 hereof (the "Effective Date") and shall end on December 31,
2000 (the "Term").
Section 3. Duties and Services.
3.1 The Employee shall render services to the Company as the Executive
Vice President and Chief Operating Officer of the Company, shall perform such
other duties and responsibilities (including, without limitation, service
otherwise consistent with the Employee's duties hereunder as an officer,
director or equivalent position of any subsidiary, affiliated company or venture
of the Company, without additional compensation) as may be assigned to the
Employee from time to time
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by the Board of Directors (the "Directors") or the Chief Executive Officer of
the
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Company and shall abide by the practices and policies of the Company governing
the conduct of employees. The Company and all such subsidiaries, affiliated
companies and ventures are herein collectively referred to as the "3-D
Companies".
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. The previous sentence shall not prohibit the Employee
from activities permitted pursuant to clause (iii) of Section 9.1 or from
activities in connection with ownership of an interest in the real property
owned by CBNC, Inc. ("Northern") in Grand Junction, Colorado, provided that such
activities do not interfere with the performance of Employee's duties hereunder.
Section 4. Compensation.
4.1 Annual Compensation. In consideration of all of the services to be
rendered by the Employee hereunder and the covenants of Employee herein, the
Company agrees to pay to the Employee, and the Employee agrees to accept, a
salary at the annual rate of $140,000, payable in accordance with the Company's
normal payroll practices.
4.2 Bonus Pool. The Company intends to create a bonus plan based upon
the earnings of the Company to provide incentives for certain employees of the
Company and its subsidiaries. The Employee shall be entitled to participate in
such plan on such terms as may be determined by the Board of Directors of the
Company or a duly constituted committee thereof, in its discretion.
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Nothing in this Agreement shall require the Company to pay any such bonus.
Section 5. Change in Control.
5.1 Definitions. As used in this Agreement, the
following terms shall have the following meanings:
(a) Change of Control. The term "Change of
Control" means an event which shall be deemed to have occurred if:
(i) any "person" as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (other than the Company, any trustee or other fiduciary
holding securities under any employee benefit plan of the Company, or any
company owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities; or
(ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Directors, and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in clause (iii) or (iv) of this Section 5.1(a)) whose
election by the Board of Directors of
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the Company or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the Directors then still in
office who either were Directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute at least a majority of the Board of Directors of the
Company; or
(iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation; provided, however, that a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no person acquires more than 25% of the combined voting power of the
Company's then outstanding securities shall not constitute a Change of Control;
or
(iv) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of, or the Company sells or disposes of, all
or substantially all of the Company's assets, or any such sale or disposition is
effected through condemnation proceedings.
The Company's outside legal counsel shall notify the parties
to this Agreement whether and when a Change of Control has occurred. However,
the preceding sentence shall not
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preclude any party to this Agreement from giving such notice.
(b) Code. The term "Code" means the Internal
Revenue Code of 1986, including any amendments thereto or successor tax codes
thereof. References to any section of the Code shall include any amended or
successor section of comparable import.
(c) Covered Termination. The term "Covered
Termination" means any termination of the Employee's employment for "Good
Reason" after a Change of Control of the Company which occurs prior to the end
of the Term.
(d) Good Reason. The Employee shall have a "Good
Reason" for termination of employment after a Change of Control of the Company
in the event of:
(i) a termination of the Employee's
employment by the Company for any reason other than Cause (as defined in Section
8(c) hereof); or
(ii) a good faith determination by the
Employee that there has been a significant adverse change, without the
Employee's express prior written consent, in the Employee's working conditions
or status with the Company from such working conditions or status in effect
immediately prior to the Change of Control of the Company, including but not
limited to (A) a significant change in the nature or scope of the Employee's
authority, powers, functions, duties or responsibilities or reporting
responsibilities, or (B) a significant reduction in the level of support
services, staff, secretarial and other assistance, office space and
accoutrements (regardless of
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whether such reduction is part of a general reduction applicable to all senior
executive employees of the Company), or (C) a reduction in the salary or
benefits to which the Employee is entitled under this Agreement, or (D) a
relocation of the Employee's principal place of business to a location which is
more than 50 miles from its current location as of the Effective Date.
5.2 Benefits. If there is a Covered Termination, the
Employee shall be entitled to the following benefits:
(a) Accrued Benefits. The Employee shall be paid
the amount of the Employee's Accrued Benefits. For purposes of this Agreement,
the Employee's "Accrued Benefits" shall consist of the aggregate of the
following amounts, payable as described herein: (i) all base salary, and accrued
vacation pay, for the time period ending with the date of termination; (ii)
reimbursement for any and all monies or other reimbursable costs advanced in
connection with the Employee's employment for reasonable and necessary expenses
incurred by the Employee on behalf of the Company for the time period ending
with the date of termination; (iii) any and all other cash earned through the
date of termination and deferred at the election of the Employee or pursuant to
any deferred compensation plan then in effect, and any increments thereon as
determined under such plan; and (iv) a lump sum payment of the bonus or
incentive compensation otherwise payable to the Employee with respect to the
year in which termination occurs, or for the prior year, under all bonus or
incentive compensation plans in which the Employee is a participant. Payment of
Accrued Benefits shall be made promptly in accordance with the Company's
prevailing practice.
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(b) Severance Payment. The Employee will be
entitled to cash compensation, calculated as described below, payable in one
lump sum within fifteen (15) days of the Company's receipt of notice of the
Covered Termination. The aggregate cash compensation will be calculated as two
times the Employee's annual rate of salary as provided for in Section 4.1 and
bonus. Cash compensation paid pursuant to this provision shall be subject to
appropriate payroll deductions.
(c) Payment Adjustment.
(i) Anything in this Agreement to the
contrary notwithstanding, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Employee (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise) (a "Payment") would be nondeductible by the Company for
Federal income tax purposes because of Section 280G of the Code, then the
aggregate present value of amounts payable or distributable as severance
benefits hereunder shall be reduced to the Reduced Amount. The "Reduced Amount"
shall be an amount expressed in present value which maximizes the aggregate
present value of such severance benefits without causing any Payment to be
nondeductible by the Company because of Section 280G of the Code. Anything in
this Agreement to the contrary notwithstanding, if the Reduced Amount is zero
and it is determined further that any Payment which is not part of the severance
benefits payable hereunder would nevertheless be nondeductible by the Company
for Federal income tax purposes because of Section 280G of the Code, then the
aggregate present value of Payments which are not severance benefits under this
Agreement shall also be reduced (but not below zero) to an amount expressed in
present value which maximizes the aggregate present value of Payments without
causing any Payment to
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be nondeductible by the Company because of Section 280G of the Code. For
purposes of this Section 5.2(c), present value shall be determined in accordance
with Section 280G(d)(4) of the Code.
(ii) All determinations required to be
made under this Section 5.2(c) shall be made by the Company's independent
auditors which shall provide detailed supporting calculations both to the
Company and the Employee within 15 business days of the date of termination or
such earlier time as is requested by the Company and, to the extent appropriate
under the circumstances, an opinion to the Employee that he has substantial
authority not to report any excise tax on his Federal income tax return with
respect to any Payments. Any such determination by the Company's independent
auditors shall be binding upon the Company and the Employee. The Employee shall
determine which and how much of the Payments shall be eliminated or reduced
consistent with the requirements of this Section 5.2(c), provided that, if the
Employee does not make such determination within ten business days of the
receipt of the calculations made by the Company's independent auditors, the
Company shall elect which and how much of the Payments shall be eliminated or
reduced consistent with the requirements of this Section 5.2(c) and shall notify
the Employee promptly of such election; and provided further that any Payments
which do not constitute gross income to the Employee shall not be reduced or
eliminated unless all other Payments have first been eliminated. Within five
business days thereafter, the Company shall pay to or distribute to or for the
benefit of the Employee such amounts as are then due to the Employee under this
Agreement.
(iii) As a result of the uncertainty in
the application of Section 280G of the Code at the time of the initial
determination by the Company's independent auditors
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hereunder, it is possible that Payments will have been made by the Company which
should not have been made ("Overpayment") or that Payments will not have been
made by the Company which could have been made ("Underpayment"), in each case,
consistent with the calculations required to be made hereunder. In the event
that the Company's independent auditors, based upon the assertion of a
deficiency by the Internal Revenue Service against Employee or the Company which
the Company's independent auditors believe has a high probability of success,
determine that an Overpayment has been made, any such Overpayment paid or
distributed by the Company to or for the benefit of the Employee shall be
treated for all purposes as a loan ab initio to the Employee which the Employee
shall repay to the Company together with interest at the applicable Federal rate
provided for in Section 7872(f)(2) of the Code, compounded semiannually;
provided, however, that no such loan shall be deemed to have been made and no
amount shall be payable to the Company if and to the extent such deemed loan and
payment would not either reduce the amount on which the Employee is subject to
tax under Section 1 and Section 4999 of the Code or generate a refund of such
taxes. In the event that the Company's independent auditors, based upon
controlling precedent or other substantial authority, determine that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Employee together with interest at 120% of
the applicable Federal rate provided for in Section 7872(f)(2) of the Code,
compounded semiannually.
Section 6. 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.
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Section 7. 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 general
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 in the event that this Agreement is terminated
pursuant to Section 8(b), the Company shall pay to the Employee during the
lesser of (A) six months following such termination and (B) the remainder of the
Term an amount equal to the Employee's salary pursuant to Section 4.1 less any
payments to Employee pursuant to any plan of disability insurance based on the
Employee's disability, if applicable. Except to the extent set forth in the
prior sentence, any payment owed by the Company pursuant to such sentence is in
addition to and not in lieu of any policy of disability insurance, and payments
owed by the Company pursuant to such sentence shall not be deemed co-insurance
but additional salary.
(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 but in no case less than four weeks paid vacation per annum.
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(d) During the term of employment under this Agreement, the
Company shall pay the Employee $575 per month as a non-accountable allowance for
lease payments, insurance and other expenses of an automobile leased by the
Employee. The Company shall provide all insurance for such vehicles required by
law or applicable lease terms.
Section 8. Termination. Subject to the provisions of Sections 5 and 9,
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;
(c) Upon written notice by the Company for "Cause", which shall
include: (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 (other than good faith
actions of the Employee to fulfill his duties hereunder in the exercise of his
business judgment and not inconsistent with the direction of the Chief Executive
Officer or Directors of the Company); or (iv) the commission by the Employee of
any felony; or
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(d) Upon written notice by the Employee to the Company for Good
Reason.
Section 9. Restrictive Covenants. In consideration of the undertakings
of the Company set forth herein, the Employee agrees as follows:
9.1 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 3-D Companies in the provision of seismic data acquisition or
analysis services or any services related thereto (a "Competing Business") while
Employee is employed under this Agreement, and, unless this Agreement is
terminated by the Company without Cause or by the Employee for Good Reason, for
a period of one (1) year after the termination of this Agreement for any reason
whatsoever other than (i) due to the Employee's performance of his duties
hereunder during the Term; (ii) by ownership for investment purposes of no more
than 1% of the stock of a company which is traded on a national securities
exchange or interdealer quotation system; or (iii) the sale, use and licensing
by the Employee, directly or indirectly, in a manner which does not interfere
with the performance of Employee's duties hereunder, of seismic data retained by
Northern pursuant to the Asset Purchase Agreement dated as of November 8, 1995
by and between the Company and Northern and transferred to the Employee or an
entity in which the Employee has an interest (the "Seismic Data Library").
9.2 Non-Solicitation Covenant. During the Term and for a period of one
(1) year after the termination of this Agreement for any reason whatsoever,
unless this Agreement is terminated by
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the Company without Cause or by the Employee for Good Reason, 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 3-D Companies shall
have provided seismic data acquisition or analysis services at any time during
the Term. This Section 9.2 shall not prohibit the sale, use and licensing by the
Employee, directly or indirectly, in a manner which does not interfere with the
performance of Employee's duties hereunder, of the Seismic Data Library.
9.3 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
3-D Companies during the six months prior to the conclusion of the Term.
9.4 Certain Payments. Upon the termination of this Agreement other than
by the Company for Cause or by the Employee without Good Reason, the provisions
of Sections 9.1, 9.2 and 9.3 shall lapse unless, during the year following such
termination, the Company pays to the Employee an amount equal to 80% of the
Employee's salary pursuant to Section 4.1 in equal monthly installments
commencing on the first day of the month following such termination. Such lapse
shall occur if the Company (i) fails to pay the first such installment within 20
days of notice from the Employee citing this Section or (ii) fails to make any
subsequent payment within seven days of notice from the Employee citing this
Section. In the event the Company makes the payment described in clause (i) of
the preceding sentence and the circumstances described in clause (ii) occur, the
remaining payments described in the preceding sentence shall become immediately
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due and payable. The amounts owed pursuant to this Section 9.5 shall be reduced
(or if already paid shall be repaid by the Employee) to the extent that such
amounts plus any amounts earned by the Employee as an employee or independent
contractor during such year exceed 120% of the Employee's annual salary pursuant
to Section 4.1.
9.5 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 access to trade secrets and other confidential or proprietary
information of the 3-D Companies, including, but not limited to, information
acquired or developed by the 3-D Companies and Northern concerning seismic data,
marketing strategy, technology, techniques and know-how, customer specifications
and customer lists, cost figures, budgets, sales forecasts and business plans
(other than the Seismic Data Library). The Employee agrees that the disclosure
of any such trade secrets or information could be harmful to the interests of
the 3-D Companies and that, during the Employee's employment by the Company, 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 may
require or as the Company may in writing specifically consent.
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9.6 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 3-D Companies, including copies
thereof, whether prepared by the Employee or others, are the sole property of
and belong exclusively to the 3-D Companies, and agrees that, during the
Employee's employment by the Company, the Employee will under no circumstances
remove any such material for use outside of his offices except in connection
with the business of the 3-D Companies 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, reports, records, computer programs or
data banks or other evidence of trade secrets and other confidential or
proprietary information of the 3-D Companies (and all copies thereof) which are
the property of the 3-D Companies.
9.7 Remedies. The Employee further agrees that in the event of a breach
or threatened breach of any of the covenants contained in this Section 9, 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 9 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
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expiration of the time within which the judgment may be appealed.
Section 10. Miscellaneous Provisions.
10.1 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 10.1; (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 10.1; 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 10.1.
In case of service by Federal Express or equivalent courier
service 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 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 of the parties are:
If, to Employee: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Moye, Giles, ▇'▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If, to the Company: 3-D Geophysical, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman
copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
10.2 Entire Agreement; Amendment. This Agreement contains the
entire agreement between the parties, expressly supersedes the Prior Agreement
in its entirety, which the parties hereto agree shall be of no further force and
effect, 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.
10.3 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.
10.4 Nonwaiver. No waiver by any party of any term, provision or
covenant contained in
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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.
10.5 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.
10.6 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
10.7 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.
10.8 Governing Law; Arbitration. This Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of
Delaware applicable to contracts made
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and to be entirely performed therein. Any controversy arising out of or relating
to this Agreement or the breach hereof shall be settled by arbitration in
Denver, Colorado before a single, neutral arbitrator who shall be a former state
or federal judge in accordance with the Commercial Arbitration rules of the
American Arbitration Association then existing and judgment upon the award
rendered may be entered in any court having jurisdiction thereof, except that in
the event of any controversy relating to any violation or alleged violation of
any provision of Section 9 hereof, the Company in its sole discretion shall be
entitled to seek injunctive relief from a court of competent jurisdiction
without any requirement to seek arbitration. The party (or aligned parties)
substantially prevailing in such arbitration or judicial proceeding shall
receive in addition to other relief afforded by the arbitrator or judge an award
of costs, expert witness fees and reasonable attorneys' fees.
10.9 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.
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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______________________________
Name:
Title:
_____________________________
Name:
Title:
EMPLOYEE:
______________________________
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