NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT (this "Agreement") dated as of January 27,
1997 by D.E. Janveau (the "Seller") for the benefit of 3-D Geophysical, Inc., a
Delaware corporation ("3-D"), and 3-D Geophysical of Canada, Inc., a Canadian
corporation ("3-D Canada").
WHEREAS, the Seller has been an executive officer and an indirect
shareholder of the Company for a number of years and was active in the
management of the business and affairs of the Company;
WHEREAS, all of the outstanding capital stock of the J.R.S. Exploration
Company Limited an Alberta corporation (the "Company"), has been acquired by 3-D
pursuant to that certain Stock Purchase Agreement dated as of December 10, 1996
by and among 3-D, 3-D Canada, the Seller, Gladys Mueller and W.G. Mueller
(collectively, the "Vendors")(the "Stock Purchase Agreement");
WHEREAS, the Seller acknowledges that 3-D and 3-D Canada have paid a
substantial price to acquire the Company from the Vendors, and it is the
intention of 3-D, 3-D Canada and the Vendors (including the Seller) that the
Company shall be entitled exclusively to the benefits of the goodwill, trade
secrets, proprietary rights, know-how and customer and client relationships
heretofore established, developed and maintained by the Company, whether or not
through the services or efforts of
the Seller as an executive officer, employee or indirect shareholder of the
Company; and
WHEREAS, to induce 3-D and 3-D Canada to enter the Stock Purchase
Agreement, the Seller agreed that at the Closing under the Stock Purchase
Agreement it would enter into this Agreement not to compete with the Company on
the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises, the acquisition by
3-D and 3-D Canada of all of the outstanding capital stock of the Company
pursuant to the Stock Purchase Agreement, the Seller, intending to be legally
bound, hereby agrees as follows:
Section 1. Restrictive Covenants.
1.1 Covenant Not to Compete. For a period of five (5) years from the
date of this Agreement, the Seller 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, 3-D or any of their respective subsidiaries in the provision of seismic
data acquisition or analysis services or any services related thereto (a
"Competing Business") within the territorial limits of the Province of Alberta,
the other provinces and territories of Canada, the United States of America and
the countries forming part of Central and South America.
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1.2 Non-Solicitation Covenant. For a period of four (4) years from the
date of this Agreement, the Seller shall not solicit, sell to or contract with,
on behalf of the Seller or on behalf of any Competing Business, any person or
entity to which the Company or any subsidiary of the Company shall have provided
seismic data acquisition or analysis services at any time during such four (4)
year period.
1.3 Remedies. The Seller hereby agrees that all restrictions imposed
upon the Seller hereunder are reasonable, fair and valid, and all defenses to
the strict enforcement of the provisions hereof are hereby waived by the Seller.
The Seller further agrees that in the event of a breach or threatened breach of
any of the covenants contained in this Section 1, 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 1 is invalid or unenforceable, in whole or in part,
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 by deleting specific words
or phrases as necessary to comply with applicable law or to be enforceable by a
court of competent jurisdiction or by replacing any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable
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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.
2. Miscellaneous Provisions.
2.1 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 2.1; or (b) by mailing a copy thereof by certified or
registered mail, postage prepaid, with return receipt requested, addressed to
such other party at the address of such other party set forth below in this
Section 2.1; 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 2.1; 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 2.1.
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
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be delivered or sent may be changed from time to time by notice served, as
hereinabove provided, by any party upon the other party.
The current addresses and facsimile numbers of the parties are:
If to the Seller: D.E. Janveau c/o J.R.S. Exploration Company Limited 4750 30th
Street S.E. Calgary, Alberta T2B271 Telecopier No.: (403) 264-0478
If to the Company:
J.R.S. Exploration Company Limited
4750 30th Street S.E.
Calgary, Alberta T2B271
Attention: Chief Financial Officer
Telecopier No.: (403) 264-0478
with copies to:
3-D Geophysical, Inc.
599 Lexington Avenue
Suite 4102
New York, New York 10022
Telecopier No.: (212) 317-9230
Attention: Joel Friedman, Chairman
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Kramer, Levin, Naftalis & Frankel
919 Third Avenue
New York, New York 10022
Telecopier No.: (212) 715-8000
Attention: Peter S. Kolevzon, Esq.
2.2 Entire Agreement; Amendment. This Agreement contains the entire
agreement between the parties respecting the subject matter hereof, merges all
prior negotiations, agreements and understandings, if any, respecting the
subject matter hereof and states in full all representations, warranties and
agreements
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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.
2.3 Assignment; Binding Nature; Assumption. This Agreement shall inure
to the benefit of and be enforceable by, and may be assigned in whole or in part
by 3-D and 3-D Canada to, any purchaser of all or substantially all of the
business or assets of the Company, 3-D or 3-D Canada, any successor to the
Company, 3-D or 3-D Canada or any assignee thereof (whether direct or indirect,
by purchase, merger, consolidation or otherwise). This Agreement may not be
assigned by the Seller without the prior written consent of 3-D.
2.4 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.
2.5 Remedies. The remedies provided for or permitted by this Agreement
shall be cumulative and the exercise by any party
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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.
2.6 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
2.7 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 the 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 Canadian funds.
2.8 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the Province of Alberta applicable
to contracts made and to be entirely performed therein.
2.9 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 Seller has executed and delivered this
Agreement as of the date and year first written above.
SELLER:
/s/ D.E. Janveau
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