1 Exhibit (c)(3) AMENDED AND RESTATED EMPLOYMENT AGREEMENT AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") dated January 13, 1998 between 3-D Geophysical, Inc., a Delaware corporation (the "Company"), and Ronald L. Koons (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 September 30, 1996 (the "Prior Agreement") and wish to amend and restate the terms and conditions of the Prior Agreement in their entirety with the terms 2 and conditions of this Agreement; WHEREAS, the Company desires to continue to employ the Employee on the terms 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 Vice President, Chief Financial Officer, Secretary and Treasurer 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"). -2- 3 Section 3. Duties and Services. 3.1 The Employee shall render services to the Company as Vice President, Chief Financial Officer, Secretary and Treasurer of the Company, shall perform such other duties and responsibilities as may be assigned to the Employee from time to time by the Board of Directors (the "Directors") or the Chief Executive Officer of the Company and shall abide by the practices and policies of the Company governing the conduct of employees. 3.2 During the Term, the Employee shall devote such energy and time (exclusive of normal holidays and vacation periods and periods of sickness and disability) as is reasonably necessary to perform the Employee's duties as defined herein and shall promptly and faithfully perform all the duties which pertain to the Employee's employment. Section 4. Compensation. 4.1 Annual Compensation. In consideration of all of the services to be rendered by the Employee hereunder 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 $125,000.00, 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 -3- 4 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. 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 -4- 5 (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 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 -5- 6 (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 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: -6- 7 (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 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 -7- 8 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. (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 one 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 -8- 9 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 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 -9- 10 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 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 -10- 11 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. 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, -11- 12 the following benefits, which shall be determined in the sole discretion of the Directors (or a duly constituted committee thereof): (a) The Employee shall be entitled, subject to qualification requirements, to participate in any and all group insurance plans, group health or medical insurance plans, group accidental and disability insurance plans made generally available to the senior executive employees of the Company. (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 three weeks annual paid vacation, as well as sick leave and holidays in accordance with the Company's policies for senior executive employees generally. (d) During the term of employment under this Agreement, the Company shall pay the Employee, on a monthly basis, an amount equal to $650 per month as a non-accountable allowance for lease payments, insurance and other expenses of an automobile leased by the Employee. 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: -12- 13 (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, without limitation, (i) the failure of the Employee to observe or perform any material term of this Agreement for twenty (20) days after written notice thereof specifying such failure; (ii) any act of illegality, dishonesty, moral turpitude, or fraud in connection with the Employee's employment; or (iii) the commission by the Employee of any felony; or (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 Company or any of its subsidiaries in the provision of seismic data acquisition or analysis services or -13- 14 any services related thereto (a "Competing Business") during the Term, other than due to the Employee's performance of his duties hereunder, and for a period of one (1) year after the termination of this Agreement for any reason whatsoever, unless this Agreement is terminated by the Company without Cause. 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, 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 the Term. 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 Company or any of its subsidiaries during the Term. 9.4 Non-Disclosure Covenant. The Employee recognizes and acknowledges that, prior to and in the course of his employment, the Employee may have had and shall have access to trade secrets and other confidential or proprietary information of the Company and its subsidiaries, including, but not limited to, information acquired or developed by the Company and its subsidiaries concerning seismic data, marketing strategy, -14- 15 technology, techniques and know-how, customer specifications and customer lists, cost figures, budgets, sales forecasts and business plans. The Employee agrees that the disclosure of any such trade secrets or information could be harmful to the interests of the Company or its subsidiaries and that, during the Employee's employment by the Company or its subsidiaries, the Employee will take appropriate caution to safeguard such trade secrets and information, and will not during the Term or thereafter use, disclose, divulge or publish any such trade secrets or information except as required by law or as the Employee's duties during the Employee's employment by the Company or its subsidiaries may require or as the Company may in writing specifically consent. -15- 16 9.5 Proprietary Information. The Employee recognizes and acknowledges that all documents, manuals, letters, notebooks, reports, records, computer programs or data banks and other evidences of trade secrets and other confidential or proprietary information of the Company and its subsidiaries, including copies thereof, whether prepared by the Employee or others, are the sole property of and belong exclusively to the Company and its subsidiaries, and agrees that, during the Employee's employment by the Company or its subsidiaries, the Employee will under no circumstances remove any such material for use outside of his offices except in connection with the business of the Company during the course of the Employee's employment. In the event of the termination of this Agreement for any reason whatsoever, the Employee shall immediately return to the Company any and all documents, manuals, letters, notebooks, reports, records, computer programs or data banks or other evidence of trade secrets and other confidential or proprietary information of the Company and its subsidiaries (and all copies thereof) which are the property of the Company or any of its subsidiaries. 9.6 Remedies. The Employee further agrees that in the event of a breach or threatened breach of any of the covenants contained in this Section 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 -16- 17 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. 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; 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 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; 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 10.1. 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 -17- 18 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: Ronald Koons c/o 3-D Geophysical, Inc. 8226 Park Meadows Drive Littleton, Colorado 80124 Telecopier No.: (303) 708-8941 If to the Company: 3-D Geophysical, Inc. 599 Lexington Avenue Suite 4102 New York, New York 10022 Telecopier No.: (212) 317-9230 Attention: Joel Friedman, Chairman with a copy to: Kramer, Levin, Naftalis & Frankel 919 Third Avenue New York, New York 10022 Telecopier No.: (212) 715-8000 Attention: Peter S. Kolevzon, 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, -18- 19 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; Assumption; No Beneficiaries. 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. This Agreement may be assigned by the Company to any purchaser of all or substantially all of the Company's business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase, merger, consolidation or otherwise). The Company will require any such purchaser, successor or assignee to expressly assume 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 purchase, succession or assignment had taken place. This Agreement may not be assigned by the Employee without the prior written consent of the Company. 10.4 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 -19- 20 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. -20- 21 10.8 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware applicable to contracts made and to be entirely performed therein. 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. -21- 22 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. By ------------------------------ Attest: Name: --------------------------------- Title: Name: Title: EMPLOYEE: ------------------------------ Ronald L. Koons -22-