NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT (this "Agreement") dated as of January 27,
1997 by C.D. Siegfried (the "Employee") 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 Employee has been an employee of the Company for a number
of years;
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, D.E. Janveau, Gladys Mueller and W.G. Mueller
(collectively, the "Vendors")(the "Stock Purchase Agreement");
WHEREAS, the Employee 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 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 Employee as an employee of the Company; and
WHEREAS, to induce 3-D and 3-D Canada to enter the Stock Purchase
Agreement, the Employee 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 Employee, intending to be legally
bound, hereby agrees as follows:
Section 1. Restrictive Covenants.
1.1 Covenant Not to Compete. During the Term (as defined therein) of
the Employment Agreement of even date herewith between the Company and the
Employee (the "Employment Agreement"), 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, 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. During the Term of the Employment
Agreement and for a period of one (1) year after the termination of the
Employment 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 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 Employee hereby agrees that all restrictions imposed
upon the Employee hereunder are reasonable, fair and valid, and all defenses to
the strict enforcement of the provisions hereof are hereby waived by the
Employee. The Employee 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
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court of competent jurisdiction or by replacing 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.
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
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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 numbers of the parties are:
If to the Employee:
C.D. Siegfried
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
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understandings, if any, respecting the subject matter hereof 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.
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 Employee 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.
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2.5 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.
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
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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 Employee has executed and delivered this
Agreement as of the date and year first written above.
EMPLOYEE:
/s/ C.D. Siegfried
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C.D. Siegfried
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