EMPLOYEE RETENTION AGREEMENT
By and Between
GEODYNAMICS CORPORATION,
a California corporation
("Corporation")
and
JOANNE M. DUNLAP
("Employee")
Table of Contents
1. CERTAIN DEFINITIONS 1
2. EMPLOYMENT PERIOD 2
3. TERMS OF EMPLOYMENT 2
(a) Position and Duties 2
(b) Compensation 3
(i) Base Salary 3
(ii) Change in Control Bonus 3
(iii) Annual Bonus 3
(iv) Incentive, Savings and Retirement Plans 3
(v) Welfare Benefit Plans 4
(vi) Expenses 4
(vii) Fringe Benefits 4
(viii)Office and Support Staff 4
(ix) Vacation 5
(x) Indemnity Agreement 5
(c) Payment in Lieu of Retaining Employee 5
4. TERMINATION 5
(a) Death or Disability 5
(b) Cause 5
(c) Notice of Termination 6
(d) Date of Termination 6
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION 6
(a) Death 6
(b) Disability 7
(c) Cause 7
(d) Other Than for Cause, Death or Disability 7
6. NON-EXCLUSIVITY OF RIGHTS 7
7. FULL SETTLEMENT 8
8. ENFORCEMENT OF RIGHTS 8
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY 8
10. CONFIDENTIAL INFORMATION 10
11. SUCCESSORS 11
12. MISCELLANEOUS 11
EMPLOYEE RETENTION AGREEMENT
THIS EMPLOYEE RETENTION AGREEMENT (the "Agreement") by and
between GEODYNAMICS CORPORATION, a California corporation (the
"Company") and JOANNE M. DUNLAP (the "Employee"), is entered into
on the date hereinafter set forth.
The Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and
its shareholders to assure that the Company will have the
continued dedication of the Employee, notwithstanding the
possibility, threat or occurrence of a Change in Control (as
hereinafter defined) of the Company. The Board believes it is
imperative to diminish the inevitable distraction of the Employee
by virtue of the personal uncertainties and risks created by a
pending or threatened Change in Control, to encourage the
Employee's full attention and dedication to the Company currently
and in the event of any threatened or pending change in control,
and to provide the Employee with compensation arrangements upon a
Change in Control which provide the Employee with individual
financial security and which are competitive with those of other
corporations. In order to accomplish these objectives, the Board
has caused the Company to enter into this Agreement. Should a
Change of Control occur because of a Management Buyout (as
hereinafter defined), then this Agreement will have no force or
effect. This Agreement will automatically expire on May 1, 1996
if no Change in Control occurs by that time.
1. CERTAIN DEFINITIONS
(a) The "Effective Date" shall be the first date
during the "Change in Control Period" (as defined in Section
1(b) below) on which a Change in Control occurs. Anything
in this Agreement to the contrary notwithstanding, if the
Employee's employment with the Company is terminated prior
to the date on which a Change in Control occurs, and it is
reasonably demonstrated that such termination was at the
request of a third party who has taken steps reasonably
calculated to effect a Change in Control or otherwise arose
in connection with or in anticipation of a Change in
Control, then for all purposes of this Agreement, the
Effective Date shall mean the date immediately prior to the
date of such termination.
(b) The "Change in Control Period" is the period
commencing on the Effective Date and ending on the first
anniversary of such date.
(c) A "Change in Control" shall occur or be deemed to
have occurred only if any of the following events occur:
(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 an employee benefit
plan of the Company, or any corporation owned directly or
indirectly by the stockholders of the Company in
substantially the same proportion 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
twenty percent (20%) or more of the combined voting power of
the Company's then outstanding securities (other than as a
result of acquisitions of such securities from the Company);
(ii) individuals who, as of the date hereof, constitute the
Board (as of the date hereof, the "Incumbent Board") cease
for any reason to constitute at least a majority of the
Board, provided that any person becoming a director
subsequent to the date hereof whose election or nomination
for election by the Company's shareholders was approved by a
vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of
an individual whose initial assumption of office is in
connection with an actual or threatened election contest
relating to the election of the Directors of the Company (as
such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) shall be, for purposes
of this Agreement, considered as though such person were a
member of the Incumbent Board; (iii) the stockholders of
the Company approve a merger or consolidation of the Company
with any other corporation, other than (A) 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 fifty percent (50%) of the combined voting power
of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no "Person" (as hereinafter defined)
acquires more than twenty percent (20%) of the combined
voting power of the Company's then outstanding securities;
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 all or substantially
all of the Company's assets.
(d) A "Management Buyout" shall occur when there has
been a Change of Control in which the Employee shall hold a
significant financial interest or management position.
2. EMPLOYMENT PERIOD
The Company hereby agrees to continue the Employee in
its employ and, subject to Section 5(d) hereof, the Employee
hereby agrees to remain in the employ of the Company, for the
period commencing on the Effective Date and ending on the first
anniversary of such date (the "Employment Period").
3. TERMS OF EMPLOYMENT
(a) Position and Duties
(i) During the Employment Period: (A) the
Employee's position (including status, offices, titles and
reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all
material respects with the most significant of those held,
exercised and assigned at any time during the ninety (90)
day period immediately preceding the Effective Date and (B)
the Employee's services shall be performed at the location
where the Employee was employed immediately preceding the
Effective Date, or any office or location less than fifteen
(15) miles from such location and less than ten (10) miles
in commuting distance further than the Employee's commuting
distance to the location at which the Employee performed
such services prior to the Change in Control.
(ii) During the Employment Period, and excluding
any periods of vacation and sick leave to which the Employee
is entitled, the Employee agrees to devote reasonable
attention and time during normal business hours to the
business and affairs of the Company and to use the
Employee's reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Employment
Period, it shall not be a violation of this Agreement for
the Employee to (A) serve on corporate, civic or charitable
boards or committees; (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions; and (C)
manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Employees' responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood
and agreed that to the extent that any such activities have
been conducted by the Employee prior to the Effective Date,
the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent
to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Employee's
responsibilities to the Company.
(b) Compensation
(i) Base Salary. During the Employment Period,
the Employee shall receive an annual base salary (the "Base
Salary"), payable biweekly, at a weekly rate at least equal
to the highest weekly Base Salary paid or payable to the
Employee by the Company during the twelve (12) month period
immediately preceding the month in which the Effective Date
occurs, with an annual increase in salary consistent with
the increases, if any, received for current periods over the
previous annual calendar twelve (12) months.
(ii) Change in Control Bonus. Upon the
Effective Date, Employee will be paid in cash a bonus equal
to Forty-Five Thousand Dollars ($45,000). All applicable
taxes and other payments will be withheld from that sum.
(iii) Annual Bonus. In addition to Base
Salary, the Employee shall be awarded, during the Employment
Period, an annual bonus (an "Annual Bonus") at least equal
to the guaranteed bonus to which the Employee is entitled
under any contractual arrangements between the Employee and
the Company as of the date hereof, or not less than the sum
of the bonus of the most recent past Annual Bonus received
by the Employee.
(iv) Incentive, Savings and Retirement Plans.
In addition to Base Salary and Annual Bonuses payable as
hereinabove provided, the Employee shall be entitled to
receive cash sales incentives and to participate during the
Employment Period in all other incentive, savings and
retirement plans, practices, policies and programs
applicable to other key employees of the Company and its
subsidiaries (including the Company's employee benefit
plans, in each case providing benefits which are the
economic equivalent to those in effect or as subsequently
amended). Such plans, practices, policies and programs, in
the aggregate, shall provide the Employee with compensation,
benefits and reward opportunities at least as favorable as
the most favorable of such compensation, benefits and reward
opportunities provided by the Company for the Employee under
such plans, practices, policies and programs as in effect at
any time during the ninety (90) day period immediately
preceding the Effective Date or, if more favorable to the
Employee, as provided at any time thereafter with respect to
other key employees of the Company.
(v) Welfare Benefit Plans. During the
Employment Period, the Employee and/or the Employee's
family, as the case may be, shall be eligible for
participation in and shall receive all benefits under
welfare benefit plans, practices, policies and programs
provided by the Company (including, without limitation,
medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and
travel accident insurance plans and programs), at least as
favorable as the most favorable of such plans, practices,
policies and programs in effect at any time during the
ninety (90) day period immediately preceding the Effective
Date or, if more favorable to the Employee and/or the
Employee's family, as in effect at any time thereafter with
respect to other key employees of the Company.
(vi) Expenses. During the Employment Period,
the Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the
Employee in accordance with the most favorable policies,
practices and procedures of the Company in effect at any
time during the ninety (90) day period immediately preceding
the Effective Date or, if more favorable to the Employee, as
in effect at any time thereafter with respect to other key
employees of the Company.
(vii) Fringe Benefits. During the Employment
Period, the Employee shall be entitled to fringe benefits
and perquisites in accordance with the most favorable plans,
practices, programs and policies of the Company in effect at
any time during the ninety (90) day period immediately
preceding the Effective Date or, if more favorable to the
Employee, as in effect at any time thereafter with respect
to other key employees of the Company, but not less in
dollar value than the Employee's present fringe package.
(viii) Office and Support Staff. During the
Employment Period, the Employee shall be entitled to an
office or offices of a size and with furnishings and other
appointments, and to secretarial and other assistance, at
least equal to the most favorable of the foregoing provided
to the Employee by the Company at any time during the one
hundred eighty (180) day period immediately preceding the
Effective Date or, if more favorable to the Employee, as
provided at any time thereafter with respect to other key
employees of the Company.
(ix) Vacation. During the Employment Period,
the Employee shall be entitled to paid vacation in
accordance with the most favorable plans, policies, programs
and practices of the Company as in effect at any time during
the ninety (90) day period immediately preceding the
Effective Date or, if more favorable to the Employee, as in
effect at any time thereafter with respect to other key
employees of the Company, and will pay all fees or costs
incurred to protect and uphold all aspects of said
agreement.
(x) Indemnity Agreement. During the Employment
Period, the Company shall keep in full force and effect, and
shall not purport to amend or terminate, any existing
indemnity agreement between the Employee and the Company.
(c) Payment in Lieu of Retaining Employee. In lieu of
retaining the Employee during the Employment Period (or
portion thereof), the Company may pay to the Employee an
amount equal to sixty-five percent (65%) of (b)(i) above for
a period of twelve (12) months to be paid on the date of
termination of employment. This payment is in excess of the
amount due under the severance pay policy of the Company.
4. TERMINATION
(a) Death or Disability. This Agreement shall
terminate automatically upon the Employee's death. If as a
result of incapacity due to physical or mental illness, the
Employee shall have been absent from the full-time
performance of the Employee's duties with the Company for
six (6) consecutive months, and within thirty (30) days
after written notice of termination is given to the
Employee, the Employee shall not have returned to the full-
time performance of the Employee's duties, the Employee's
employment may be terminated for "Disability" (as
hereinafter defined). Any termination for Disability under
this Agreement shall not affect any rights the Employee may
otherwise have. If the Company determines in good faith
that the Disability of the Employee has occurred (pursuant
to the definition of "Disability" set forth below), it may
give the Employee written notice of its intention to
terminate the Employee's employment. In such event, the
Employee's employment with the Company shall terminate
effective on the thirtieth (30th) day after receipt of such
notice by the Employee (the "Disability Effective Date"),
provided, that, within the thirty (30) days after such
receipt, the Employee shall not have returned to full-time
performance of the Employee's duties.
(b) Cause. The Company may terminate the Employee's
employment for "Cause." For purposes of this Agreement,
"Cause" shall mean termination (A) upon the Employee's
willful and continued failure to substantially perform the
Employee's with the Company up to his or her normal skill
level (performance of the past) (other than any such failure
resulting from the Employee's incapacity due to physical or
mental illness or any such actual or anticipated failure
after the issuance of a Notice of Termination by the
Employee, provided that a written demand for substantial
performance has been delivered to the Employee by the
Company specifically identifying the manner in which the
Company believes that the Employee has not substantially
performed the Employee's duties and the Employee has not
cured such failure within ninety (90) days after such
demand; (B) the Employee's willful violation of any material
provision of any confidentiality, nondisclosure, assignment
of invention, noncompetition or similar agreement entered
into by the Employee in connection with the Employee's
employment by the Company. For purposes of this paragraph,
no act or failure to act on the Employee's part shall be
deemed "willful" unless done by the Employee not in good
faith and without the Employee's reasonable belief that the
Employee's action was in the best interest of the Company;
or (C) other than specifically identified herein, no other
termination is without full compensation within the
Employee's Employment Agreements for the life of the same
without contest.
(c) Notice of Termination. Any termination by the
Company for Cause or by the Employee for any reason shall be
communicated by Notice of Termination (as hereinafter
defined) to the other party hereto given in accordance with
Section 12(b) of this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) sets forth in reasonable
detail the facts and circumstances claimed to provide a
basis for termination of the Employee's employment under the
provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such
notice specifies the termination date (which date shall be
not more than fifteen (15) days after the giving of such
notice.
(d) Date of Termination. "Date of Termination" means
the date of receipt of the Notice of Termination or any
later date specified therein, as the case may be; provided,
however, that (i) if the Employee's employment is terminated
by the Company other than for Cause or Disability, the Date
of Termination shall be the date on which the Company
notifies the Employee of such termination and (ii) if the
Employee's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of
death of the Employee or the Disability Effective Date, as
the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION
(a) Death. If the Employee's employment is terminated
by reason of the Employee's death, this Agreement shall
terminate without further obligation to the Employee's legal
representatives under this Agreement, other than those
obligations accrued or earned and vested (if applicable) by
the Employee as of the Date of Termination. All such
Accrued Obligations shall be paid to the Employee's estate
or beneficiary, as applicable, in a lump sum in cash within
thirty (30) days of the Date of Termination. Anything in
this Agreement to the contrary notwithstanding, the
Employee's family shall be entitled to receive benefits at
least equal to the most favorable benefits provided by the
Company to surviving families of employees of the Company
under such plans, programs, practices and policies relating
to family death benefits, if any, in accordance with the
most favorable plans, programs, practices and policies of
the Company in effect at any time during the ninety (90) day
period immediately preceding the Effective Date or, if more
favorable to the Employee and/or the Employee's family, as
in effect on the date of the Employee's death with respect
to other key employees of the Company and their families.
(b) Disability. If the Employee's employment is
terminated by reason of the Employee's Disability, this
Agreement shall terminate without further obligations to the
Employee, other than those obligations accrued or earned and
vested (if applicable) by the Employee as of the Date of
Termination, including for this purpose, all Accrued
Obligations. All such Accrued Obligations shall be paid to
the Employee in a lump sum in cash within thirty (30) days
of the Date of Termination. Anything in this Agreement to
the contrary notwithstanding, the Employee shall be
entitled, after the Disability Effective Date, to receive
disability and other benefits at least equal to the most
favorable of those provided by the Company to disabled
employees and/or their families in accordance with such
plans, programs, practices and policies relating to
disability, if any, in accordance with the most favorable
plans, programs, practices and policies of the Company in
effect at any time during the ninety (90) day period
immediately preceding the Effective Date or, if more
favorable to the Employee and/or Employee's family, as in
effect at any time thereafter with respect to other key
employees of the Company and their families.
(c) Cause. If the Employee's employment shall be
terminated for Cause, this Agreement shall terminate without
further obligations to the Employee, other than the
obligation to pay those obligations accrued or earned and
vested (if applicable) by the Employee through the Date of
Termination, plus the amount of any accrued vacation pay and
any compensation previously deferred by the Employee
(together with accrued interest thereon).
(d) Other Than for Cause, Death or Disability. If,
during the Employment Period, the Company shall terminate
the Employee's employment other than for Cause, Disability
or death, or if the Employee shall terminate his or her
employment for any reason, the payment described in
Paragraph 3(c) shall be made.
6. NON-EXCLUSIVITY OF RIGHTS
Nothing in this Agreement shall prevent or limit the
Employee's continuing or future participation in any benefit,
bonus, stock option, stock purchase incentive or other plans,
programs, policies or practices, provided by the Company or any
of its subsidiaries and for which the Employee may qualify, nor
shall anything herein limit or otherwise affect such rights as
the Employee may have under any stock option or other agreements
with the Company or any of its subsidiaries. Amounts which are
vested benefits or which the Employee is otherwise entitled to
receive under any plan, policy, practice or program of the
Company, or any of its subsidiaries, at or subsequent to the Date
of Termination, shall be payable in accordance with such plan,
policy, practice or program.
7. FULL SETTLEMENT
The Company's obligation to make the payments provided
for in this Agreement, and otherwise to perform its obligations
hereunder, shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the
Company may have against the Employee or others. In no event
shall the Employee be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to
the Employee under any of the provisions of this Agreement.
8. ENFORCEMENT OF RIGHTS
(a) Any dispute or controversy between the Company and
the Employee which the parties are unable to resolve by
negotiation shall be settled exclusively by arbitration,
conducted before a panel of one (1) arbitrator in Los
Angeles, California, or at the direction of the Employee, in
accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
(b) The Company shall pay to the Employee all legal
fees and expenses incurred by the Employee as a result of
any dispute under this Agreement (including all such fees
and expenses, if any, incurred in contesting or disputing
any such termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in connection
with any tax audit or proceeding to the extent attributable
to the application of Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") to any payment or
benefit provided hereunder).
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that
any payment (within the meaning of Section 380G(b)(2) of the
Code) 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 subject to the excise tax
imposed by Section 4999 of the Code, or any interest or
penalties to the Employee, with respect to such excise tax
(such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Employee shall be entitled to
receive an additional payment under this Agreement (a "Gross-
Up Payment") in an amount such that after payment by the
Employee of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise
Tax, imposed upon the Gross-Up Payment, the Employee retains
an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9,
including whether a Gross-Up Payment is required and the
amount of such Gross-Up Payment, shall be made by AA and Co.
(the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and to the
Employee within thirty (30) business days of the Date of
Termination, if applicable, or such earlier time as is
requested by the Company. The initial Gross-Up Payment, if
any, as determined pursuant to this Section 9(b), shall be
paid to the Employee within five (5) days of the receipt of
the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it
shall furnish the Employee with an opinion that failure to
report the Excise Tax on the Employee's applicable federal
income tax return would not result in the imposition of
negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the
Employee. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been
made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its
remedies pursuant to Section 9(c) below, and the Employee
thereafter is required to make payment of any Excise Tax,
the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to or for the benefit
of the Employee.
(c) The Employee shall notify the Company in writing
of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon
as practicable, but no later than ten (10) business days
after the Employee knows of such claim and shall appraise
the Company of the nature of such claim and the date on
which such claim is requested to be paid. The Employee
shall not pay such claim prior to the expiration of the
thirty (30) day period following the date on which it gives
such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Employee in
writing prior to the expiration of such period that it
desires to contest such claim, the Employee shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim;
(ii) take such action in connection with
contesting such claim as the Company shall reasonably
request in writing, from time to time, including, without
limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the
Company;
(iii) cooperate with the Company in good faith in
order to effectively contest such claim; and
(iv) permit the Company to participate in any
proceedings relating to such claim.
Provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Employee harmless,
on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto,
imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing
provisions of this Section 9(c), the Company shall control
all proceedings taken in connection with such contest and,
at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such
claim and may, at its sole option, either direct the
Employee to pay the tax claimed and sue for refund or
contest the claim in any permissible manner, and the
Employee agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the
Company directs the Employee to pay such claim and sue for
refund, the Company shall advance the amount of such payment
to the Employee, on an interest-free basis, and shall
indemnify and hold the Employee harmless, on an after-tax
basis, from any Excise Tax or income tax, including interest
or penalties with respect thereto, imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and further provided that any
extension of the statute of limitations relating to payment
of taxes for the taxable year of the Employee with respect
to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable
hereunder and the Employee shall be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 9(c) above, the
Employee becomes entitled to receive any refund with respect
to such claim, the Employee shall (subject to the Company's
complying with the requirements of Section 9(c)) promptly
pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Employee of an
amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Employee shall not be
entitled to any refund with respect to such claim, and the
Company does not notify the Employee in writing of its
intent to contest such denial or refund prior to the
expiration of sixty (60) days after such determination, then
such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to
the extent thereof, the amount of Gross-Up Payment required
to be paid.
10. CONFIDENTIAL INFORMATION
The Employee shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information,
knowledge or data relating to the Company, or any of its
subsidiaries, and their respective businesses, which shall have
been obtained by the Employee during the Employee's employment by
the Company, or any of its subsidiaries, and which shall not be
or become public knowledge (other than by acts by the Employee or
his or her representatives in violation of this Agreement).
After termination of the Employee's employment with the Company,
the Employee shall not, without the prior written consent of the
Company, communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by
it. In no event shall an asserted violation of the provisions of
this Section 10 constitute a basis for deferring or withholding
any amounts otherwise payable to the Employee under the
Agreement.
11. SUCCESSORS
(a) This Agreement is personal to the Employee and,
without the prior written consent of the Company, shall not
be assignable by the Employee otherwise than by will or the
laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Employee's
legal representatives.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly 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 successor had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement
by operation of law or otherwise.
12. MISCELLANEOUS
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of California,
without reference to principles of conflict of laws. The
captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement
may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to
the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Employee: Joanne M. Dunlap
31991 Via Oso
Coto de Casa, CA 92679
If to the Company: Geodynamics Corporation
21171 Western Avenue, Suite 110
Torrance, CA 90501
Attention: President
or to such other address as either party shall have
furnished to the other in writing in accordance herewith.
Notice and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement or
any other agreements by and between the Company and the
Employee.
(d) The Company may withhold from any amounts payable
under this Agreement such federal, state or local taxes as
shall be required to be withheld pursuant to any applicable
law or regulation.
(e) The Employee's failure to insist upon strict
compliance with any provision hereof shall not be deemed to
be a waiver of such provision or any other provision
thereof.
(f) This Agreement contains the entire understanding
of the Company and the Employee with respect to the subject
matter hereof, and the Employee waives any severance
benefits (but not pension benefits) that he or she might
otherwise be entitled to under other Company employee plans,
excluding such provisions as may be contained in the form of
Severance Agreement as may be in effect between the Employee
and the Company.
(g) The Employee and the Company acknowledge that,
except as provided by any other agreement between the
Employee and the Company, the employment of the Employee by
the Company is "at will", and, prior to the Effective Date,
may be terminated by either the Employee or the Company at
any time. Upon a termination of the Employee's employment
or upon the Employee's ceasing to be an officer of the
Company, in each case, prior to the Effective Date, there
shall be no further rights under this Agreement.
IN WITNESS WHEREOF, the Employee has hereunto set his or her
hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed
in its name on its behalf all, as of the 10th day of
August, 1995.
(Signatures on next page)
EMPLOYEE:
/s/ Joanne M. Dunlap
JOANNE M. DUNLAP
COMPANY:
GEODYNAMICS CORPORATION,
a California corporation
By:___________________________________
Title:_________________________________
ATTEST:
_____________________________