UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
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|
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þ
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|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2011
OR
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|
|
o
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|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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COMMISSION FILE NUMBER: 1-12691
ION GEOPHYSICAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE
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(State or other jurisdiction of
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22-2286646
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incorporation or organization)
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(I.R.S. Employer Identification No.)
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2105 CityWest Blvd.
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Suite 400
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Houston, Texas
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77042-2839
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(Address of principal executive offices)
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(Zip Code)
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REGISTRANTS TELEPHONE NUMBER, INCLUDING AREA CODE: (281) 933-3339
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes:
þ
No:
o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files). Yes
þ
No
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer
o
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Accelerated filer
þ
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Non-accelerated filer
o
(Do not check if a smaller reporting company)
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|
Smaller reporting company
o
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act). Yes:
o
No:
þ
At October 28, 2011, there were 155,203,656 shares of common stock, par value $0.01 per share,
outstanding.
ION GEOPHYSICAL CORPORATION AND SUBSIDIARIES
TABLE OF CONTENTS FOR FORM 10-Q
FOR THE QUARTER ENDED SEPTEMBER 30, 2011
2
PART I. FINANCIAL INFORMATION
Item 1.
Financial Statements
ION GEOPHYSICAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
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September 30,
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December 31,
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2011 (unaudited)
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2010
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( In thousands, except share data)
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ASSETS
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Current assets:
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Cash and cash equivalents
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$
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43,290
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$
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84,419
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Short-term investments
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28,000
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Accounts receivable, net
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87,923
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77,576
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Unbilled receivables
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45,378
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70,590
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Inventories
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94,240
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66,882
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Prepaid expenses and other current assets
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13,021
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13,165
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Total current assets
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311,852
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312,632
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Deferred income tax asset
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13,180
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8,998
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Property, plant and equipment, net
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22,478
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20,145
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Multi-client data library, net
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146,781
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112,620
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Investment in INOVA Geophysical
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86,894
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95,173
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Goodwill
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51,576
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51,333
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Intangible assets, net
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16,674
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20,317
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Other assets
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10,754
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3,224
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|
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|
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Total assets
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$
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660,189
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$
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624,442
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LIABILITIES AND EQUITY
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Current liabilities:
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Current maturities of long-term debt
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$
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4,859
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$
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6,073
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Accounts payable
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29,848
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30,940
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Accrued expenses
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56,382
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59,835
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Accrued multi-client data library royalties
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15,523
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18,667
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Deferred revenue
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36,917
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17,851
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Total current liabilities
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143,529
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133,366
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Long-term debt, net of current maturities
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98,921
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102,587
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Other long-term liabilities
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7,429
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8,042
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Total liabilities
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249,879
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243,995
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Equity:
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Cumulative convertible preferred stock
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27,000
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27,000
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Common stock, $0.01 par value; authorized 200,000,000
shares; outstanding 155,195,407 and 152,870,679
shares at September 30, 2011 and December 31, 2010,
respectively, net of treasury stock
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1,552
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1,529
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Additional paid-in capital
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839,161
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822,399
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Accumulated deficit
|
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(435,963
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)
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(448,386
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)
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Accumulated other comprehensive loss
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(15,064
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)
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(15,530
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)
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Treasury stock, at cost, 849,539 shares both at
September 30, 2011 and December 31, 2010
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(6,565
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)
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(6,565
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)
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Total stockholders equity
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410,121
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380,447
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Noncontrolling interest
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189
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Total equity
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410,310
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380,447
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Total liabilities and equity
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$
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660,189
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$
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624,442
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See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
3
ION GEOPHYSICAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
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Three Months Ended
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Nine Months Ended
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September 30,
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September 30,
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2011
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2010
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2011
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2010
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(In thousands, except per share data)
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Product revenues
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$
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41,760
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$
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34,299
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$
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113,163
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$
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113,974
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Service revenues
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73,894
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87,295
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181,575
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171,725
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Total net revenues
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115,654
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121,594
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294,738
|
|
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285,699
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Cost of products
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21,568
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17,354
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|
|
|
53,831
|
|
|
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68,421
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|
Cost of services
|
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50,028
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|
|
|
55,292
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|
|
|
132,079
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117,902
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|
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Gross profit
|
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44,058
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|
|
|
48,948
|
|
|
|
108,828
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99,376
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|
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Operating expenses:
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Research, development and engineering
|
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|
6,325
|
|
|
|
5,532
|
|
|
|
18,070
|
|
|
|
19,748
|
|
Marketing and sales
|
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|
8,199
|
|
|
|
7,768
|
|
|
|
23,079
|
|
|
|
21,323
|
|
General and administrative
|
|
|
11,038
|
|
|
|
12,279
|
|
|
|
34,312
|
|
|
|
39,929
|
|
|
|
|
|
|
|
|
|
|
|
|
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Total operating expenses
|
|
|
25,562
|
|
|
|
25,579
|
|
|
|
75,461
|
|
|
|
81,000
|
|
|
|
|
|
|
|
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|
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Income from operations
|
|
|
18,496
|
|
|
|
23,369
|
|
|
|
33,367
|
|
|
|
18,376
|
|
Interest expense, net
|
|
|
(1,382
|
)
|
|
|
(1,861
|
)
|
|
|
(4,184
|
)
|
|
|
(28,877
|
)
|
Loss on disposition of land division
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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(38,115
|
)
|
Fair value adjustment of warrant
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,788
|
|
Equity in losses of INOVA Geophysical
|
|
|
(4,811
|
)
|
|
|
(8,004
|
)
|
|
|
(9,844
|
)
|
|
|
(8,183
|
)
|
Other income (expense)
|
|
|
199
|
|
|
|
(3,229
|
)
|
|
|
(2,303
|
)
|
|
|
(811
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
12,502
|
|
|
|
10,275
|
|
|
|
17,036
|
|
|
|
(44,822
|
)
|
Income tax expense (benefit)
|
|
|
3,484
|
|
|
|
(1,934
|
)
|
|
|
4,716
|
|
|
|
12,400
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
9,018
|
|
|
|
12,209
|
|
|
|
12,320
|
|
|
|
(57,222
|
)
|
Net income attributable to noncontrolling interest
|
|
|
34
|
|
|
|
|
|
|
|
103
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) attributable to ION
|
|
|
9,052
|
|
|
|
12,209
|
|
|
|
12,423
|
|
|
|
(57,222
|
)
|
Preferred stock dividends
|
|
|
338
|
|
|
|
338
|
|
|
|
1,014
|
|
|
|
1,598
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to common shares
|
|
$
|
8,714
|
|
|
$
|
11,871
|
|
|
$
|
11,409
|
|
|
$
|
(58,820
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.06
|
|
|
$
|
0.08
|
|
|
$
|
0.07
|
|
|
$
|
(0.42
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
$
|
0.06
|
|
|
$
|
0.08
|
|
|
$
|
0.07
|
|
|
$
|
(0.42
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
155,166
|
|
|
|
152,344
|
|
|
|
154,648
|
|
|
|
141,483
|
|
Diluted
|
|
|
162,227
|
|
|
|
152,690
|
|
|
|
156,095
|
|
|
|
141,483
|
|
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
4
ION GEOPHYSICAL CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
|
|
(In thousands)
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
12,320
|
|
|
$
|
(57,222
|
)
|
Adjustments to reconcile net income (loss) to cash provided by operating activities:
|
|
|
|
|
|
|
|
|
Depreciation and amortization (other than multi-client library)
|
|
|
10,649
|
|
|
|
20,439
|
|
Amortization of multi-client library
|
|
|
55,166
|
|
|
|
54,358
|
|
Stock-based compensation expense related to stock options, nonvested stock and employee stock purchases
|
|
|
4,177
|
|
|
|
5,471
|
|
Amortization of debt discount
|
|
|
|
|
|
|
8,656
|
|
Write-off of unamortized debt issuance costs
|
|
|
|
|
|
|
10,121
|
|
Fair value adjustment of warrant
|
|
|
|
|
|
|
(12,788
|
)
|
Loss on disposition of land division
|
|
|
|
|
|
|
38,115
|
|
Equity in losses of INOVA Geophysical
|
|
|
9,844
|
|
|
|
8,183
|
|
Deferred income taxes
|
|
|
(7,254
|
)
|
|
|
9,269
|
|
Change in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
(10,842
|
)
|
|
|
27,546
|
|
Unbilled receivables
|
|
|
25,212
|
|
|
|
(43,447
|
)
|
Inventories
|
|
|
(30,539
|
)
|
|
|
(867
|
)
|
Accounts payable, accrued expenses and accrued royalties
|
|
|
(1,108
|
)
|
|
|
(723
|
)
|
Deferred revenue
|
|
|
19,046
|
|
|
|
(428
|
)
|
Other assets and liabilities
|
|
|
(527
|
)
|
|
|
(11,929
|
)
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
86,144
|
|
|
|
54,754
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Purchase of property, plant and equipment
|
|
|
(9,024
|
)
|
|
|
(7,014
|
)
|
Investment in multi-client data library
|
|
|
(91,594
|
)
|
|
|
(58,866
|
)
|
Purchase of short-term investments
|
|
|
(80,000
|
)
|
|
|
|
|
Proceeds from sale of short-term investments
|
|
|
52,000
|
|
|
|
|
|
Investment in a convertible note
|
|
|
(6,500
|
)
|
|
|
|
|
Proceeds from disposition of land division, net of fees paid
|
|
|
|
|
|
|
99,790
|
|
Other investing activities
|
|
|
50
|
|
|
|
(521
|
)
|
|
|
|
|
|
|
|
Net cash provided by (used in) investing activities
|
|
|
(135,068
|
)
|
|
|
33,389
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Borrowings under revolving line of credit
|
|
|
|
|
|
|
101,000
|
|
Repayments under revolving line of credit
|
|
|
|
|
|
|
(190,429
|
)
|
Net proceeds from the issuance of debt
|
|
|
|
|
|
|
105,695
|
|
Net proceeds from the issuance of stock
|
|
|
|
|
|
|
38,039
|
|
Payments on notes payable and long-term debt
|
|
|
(4,880
|
)
|
|
|
(143,835
|
)
|
Payment of preferred dividends
|
|
|
(1,014
|
)
|
|
|
(1,598
|
)
|
Contribution from noncontrolling interest
|
|
|
313
|
|
|
|
|
|
Proceeds from exercise of stock options
|
|
|
13,047
|
|
|
|
|
|
Other financing activities
|
|
|
352
|
|
|
|
255
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities
|
|
|
7,818
|
|
|
|
(90,873
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of change in foreign currency exchange rates on cash and cash equivalents
|
|
|
(23
|
)
|
|
|
2,479
|
|
|
|
|
|
|
|
|
Net decrease in cash and cash equivalents
|
|
|
(41,129
|
)
|
|
|
(251
|
)
|
Cash and cash equivalents at beginning of period
|
|
|
84,419
|
|
|
|
16,217
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
43,290
|
|
|
$
|
15,966
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash items from investing and financing activities:
|
|
|
|
|
|
|
|
|
Sale of rental equipment financed with a note receivable
|
|
$
|
3,578
|
|
|
$
|
|
|
Transfer of inventory to rental equipment
|
|
|
2,978
|
|
|
|
3,635
|
|
Reduction in multi-client data library related to finalization of accrued liabilities
|
|
|
1,888
|
|
|
|
|
|
Investment in multi-client data library financed through trade payables
|
|
|
|
|
|
|
3,429
|
|
Expiration of BGP Warrant
|
|
|
|
|
|
|
32,001
|
|
Conversion of BGP Domestic Convertible Note to equity
|
|
|
|
|
|
|
28,571
|
|
Investment in INOVA Geophysical
|
|
|
|
|
|
|
119,000
|
|
Exchange of RXT receivables into shares
|
|
|
|
|
|
|
9,516
|
|
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
5
ION GEOPHYSICAL CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1) Basis of Presentation
The condensed consolidated balance sheet of ION Geophysical Corporation and its subsidiaries
(collectively referred to as the Company or ION, unless the context otherwise requires) at
December 31, 2010 has been derived from the Companys audited consolidated financial statements at
that date. The condensed consolidated balance sheet at September 30, 2011, the condensed
consolidated statements of operations for the three and nine months ended September 30, 2011 and
2010, and the condensed consolidated statements of cash flows for the nine months ended September
30, 2011 and 2010 are unaudited. In the opinion of management, all adjustments (consisting of
normal recurring accruals) considered necessary for a fair presentation have been included. The
results of operations for the three and nine months ended September 30, 2011 are not necessarily
indicative of the operating results for a full year or of future operations.
These condensed consolidated financial statements have been prepared using accounting
principles generally accepted in the United States for interim financial information and the
instructions to Form 10-Q and applicable rules of Regulation S-X of the Securities and Exchange
Commission (the SEC). Certain information and footnote disclosures normally included in annual
financial statements presented in accordance with accounting principles generally accepted in the
United States have been omitted. The accompanying condensed consolidated financial statements
should be read in conjunction with the Companys Annual Report on Form 10-K for the year ended
December 31, 2010, and the amendment thereto on Form 10-K/A that the Company filed in June 2011
that contains the separate consolidated financial statements of INOVA Geophysical Equipment Limited
(INOVA Geophysical) for the fiscal year ended December 31, 2010.
(2) Segment Information
The Company evaluates and reviews its results based on four segments: Systems, Software,
Solutions and Legacy Land Systems (INOVA). The Company measures segment operating results based on
income from operations. The Legacy Land Systems (INOVA) segment represents the Companys disposed
land division operations through March 25, 2010, the date of the formation of the INOVA Geophysical
joint venture.
A summary of segment information is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
|
2011
|
|
|
2010
|
|
Net revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Towed Streamer
|
|
$
|
22,219
|
|
|
$
|
20,185
|
|
|
$
|
60,000
|
|
|
$
|
50,096
|
|
Ocean Bottom
|
|
|
|
|
|
|
510
|
|
|
|
509
|
|
|
|
1,821
|
|
Other
|
|
|
10,065
|
|
|
|
5,036
|
|
|
|
25,210
|
|
|
|
19,721
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
32,284
|
|
|
$
|
25,731
|
|
|
$
|
85,719
|
|
|
$
|
71,638
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software Systems
|
|
$
|
9,476
|
|
|
$
|
8,567
|
|
|
$
|
27,444
|
|
|
$
|
25,824
|
|
Services
|
|
|
715
|
|
|
|
561
|
|
|
|
1,545
|
|
|
|
1,409
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
10,191
|
|
|
$
|
9,128
|
|
|
$
|
28,989
|
|
|
$
|
27,233
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Solutions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Data Processing
|
|
$
|
22,416
|
|
|
$
|
27,943
|
|
|
$
|
63,349
|
|
|
$
|
79,661
|
|
New Venture
|
|
|
35,597
|
|
|
|
49,971
|
|
|
|
67,819
|
|
|
|
62,314
|
|
Data Library
|
|
|
15,166
|
|
|
|
8,821
|
|
|
|
48,862
|
|
|
|
28,342
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
73,179
|
|
|
$
|
86,735
|
|
|
$
|
180,030
|
|
|
$
|
170,317
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Legacy Land Systems (INOVA)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
16,511
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
115,654
|
|
|
$
|
121,594
|
|
|
$
|
294,738
|
|
|
$
|
285,699
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
|
2011
|
|
|
2010
|
|
Gross profit:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems
|
|
$
|
13,397
|
|
|
$
|
11,202
|
|
|
$
|
40,752
|
|
|
$
|
29,141
|
|
Software
|
|
|
8,061
|
|
|
|
6,074
|
|
|
|
20,970
|
|
|
|
18,254
|
|
Solutions
|
|
|
22,600
|
|
|
|
31,672
|
|
|
|
47,106
|
|
|
|
52,965
|
|
Legacy Land Systems (INOVA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(984
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
44,058
|
|
|
$
|
48,948
|
|
|
$
|
108,828
|
|
|
$
|
99,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems
|
|
|
41
|
%
|
|
|
44
|
%
|
|
|
48
|
%
|
|
|
41
|
%
|
Software
|
|
|
79
|
%
|
|
|
67
|
%
|
|
|
72
|
%
|
|
|
67
|
%
|
Solutions
|
|
|
31
|
%
|
|
|
37
|
%
|
|
|
26
|
%
|
|
|
31
|
%
|
Legacy Land Systems (INOVA)
|
|
|
|
%
|
|
|
|
%
|
|
|
|
%
|
|
|
(6
|
%)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
38
|
%
|
|
|
40
|
%
|
|
|
37
|
%
|
|
|
35
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems
|
|
$
|
6,852
|
|
|
$
|
5,693
|
|
|
$
|
21,989
|
|
|
$
|
13,833
|
|
Software
|
|
|
7,117
|
|
|
|
5,451
|
|
|
|
18,409
|
|
|
|
16,513
|
|
Solutions
|
|
|
13,897
|
|
|
|
22,556
|
|
|
|
22,751
|
|
|
|
30,669
|
|
Legacy Land Systems (INOVA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9,623
|
)
|
Corporate and other
|
|
|
(9,370
|
)
|
|
|
(10,331
|
)
|
|
|
(29,782
|
)
|
|
|
(33,016
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
|
18,496
|
|
|
|
23,369
|
|
|
|
33,367
|
|
|
|
18,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
(1,382
|
)
|
|
|
(1,861
|
)
|
|
|
(4,184
|
)
|
|
|
(28,877
|
)
|
Loss on disposition of land division
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(38,115
|
)
|
Fair value adjustment of warrant
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,788
|
|
Equity in losses of INOVA Geophysical
|
|
|
(4,811
|
)
|
|
|
(8,004
|
)
|
|
|
(9,844
|
)
|
|
|
(8,183
|
)
|
Other income (expense)
|
|
|
199
|
|
|
|
(3,229
|
)
|
|
|
(2,303
|
)
|
|
|
(811
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
$
|
12,502
|
|
|
$
|
10,275
|
|
|
$
|
17,036
|
|
|
$
|
(44,822
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In September 2011, INOVA Geophysical announced the launch of its next-generation products.
These products are in process of field testing with plan of
commercial introduction in 2012. The Company expects to see a
one-time write-down of inventory based upon previous technologies to
occur in INOVA Geophysicals third quarter and then reflected in the Companys
fourth quarter results, as the Company records its share of earnings of INOVA Geophysical on a one fiscal quarter lag. The Company estimates that its 49% share of this one-time write-down to be in the range of $6 million to $8 million.
(3) Investments
Short-term Investments
Short-term investments are comprised solely of bank certificates of deposit denominated in
U.S. dollars with original maturities in excess of three months and represent the investment of
excess cash that is available for current operations. The Company recorded these investments on
its balance sheet at cost based on its intent and ability to hold these investments to maturity.
These short-term investments were purchased at a cost, which approximates fair value based on Level
1 inputs, of $80.0 million and have scheduled maturities through January 2012. During the second
quarter of 2011, the Company liquidated $41.0 million of its original investment to cover the
working capital requirements of the Companys multi-client projects. During the third quarter of
2011, $11.0 million of the remaining $39.0 million investment matured resulting in an investment of
$28.0 million as of September 30, 2011.
In addition, the Company believes that the carrying
amount of its cash and cash equivalents approximates fair value as of September 30, 2011.
Long-term Investment
In May 2011, the Company purchased a convertible note from a private U.S-based technology
company. The principal amount of the note is $6.5 million, and it bears interest at a rate of 4%
per annum. The maturity date of the note is two years; however, the note will automatically
convert into shares of common stock of the investee on the earlier to occur of (a) the maturity
date of the note and (b) the date funds are invested into the investee by any venture capital firm
or other investor. Upon the occurrence of a conversion event, the note will convert into a number
of shares of common stock equal to 15% of the total post-conversion outstanding shares of common
stock of the investee, excluding any shares issued after the date of the note to third party
investors who have made equity investments in the investee. The investee does not have the right
to prepay any principal on the note without the Companys consent; therefore, it is expected that
the note will automatically convert within two years. Interest on the note will be paid in cash
upon the maturity date, or conversion, if sooner.
7
The Company classifies this investment as available-for-sale and has recorded the fair value
of this investment as a noncurrent asset included in other assets on its condensed consolidated
balance sheet with unrealized gains and losses reflected in accumulated other comprehensive income
until realized. The Company uses a market approach to estimate the fair value of its investment in
the
convertible note using Level 3 inputs, including the investees expectations of the terms and likelihood of a future financing event, time to
liquidity and stock price volatility. As of September 30, 2011, the fair value of this investment was approximately $5.8
million with $0.7 million of unrealized losses recorded in accumulated other comprehensive income.
(4) Inventories
A summary of inventories is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2011
|
|
|
2010
|
|
Raw materials and subassemblies
|
|
$
|
45,973
|
|
|
$
|
39,412
|
|
Work-in-process
|
|
|
5,869
|
|
|
|
4,605
|
|
Finished goods
|
|
|
55,395
|
|
|
|
35,741
|
|
Reserve for excess and obsolete inventories
|
|
|
(12,997
|
)
|
|
|
(12,876
|
)
|
|
|
|
|
|
|
|
Total
|
|
$
|
94,240
|
|
|
$
|
66,882
|
|
|
|
|
|
|
|
|
The increase in finished goods is principally due to inventory build related to the Companys
contract to outfit a BGP twelve-streamer vessel with the Companys
DigiSTREAMER
TM
data acquisition system and BGP is expected to deploy the system
in the fourth quarter of this year.
(5) Net Income (Loss) per Share
Basic net income (loss) per common share is computed by dividing net income (loss) applicable
to common shares by the weighted average number of common shares outstanding during the period.
Diluted net income per common share is determined based on the assumption that dilutive restricted
stock and restricted stock unit awards have vested and outstanding dilutive stock options have been
exercised and the aggregate proceeds were used to reacquire common stock using the average price of
such common stock for the period. The total number of shares issued or committed for issuance under
outstanding stock options at September 30, 2011 and 2010 was 5,572,300 and 7,157,990, respectively,
and the total number of shares of restricted stock and shares reserved for restricted stock units
outstanding at September 30, 2011 and 2010 was 1,009,217 and 906,408, respectively.
There are 27,000 outstanding shares of the Companys Series D Cumulative Convertible Preferred
Stock, which may currently be converted, at the holders election, into up to 6,065,075 shares of
the Companys common stock. See further discussion of the Series D Preferred Stock conversion
provisions at Note 7
Cumulative Convertible Preferred
Stock.
The outstanding shares of all Series D Preferred Stock were anti-dilutive for all periods presented,
except for the three months ended September 30, 2011.
The following table summarizes the computation of basic and diluted net income (loss) per
common share (in thousands, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
|
2011
|
|
|
2010
|
|
Net income (loss) applicable to common shares
|
|
$
|
8,714
|
|
|
$
|
11,871
|
|
|
$
|
11,409
|
|
|
$
|
(58,820
|
)
|
Impact of assumed Series D Preferred Stock conversion
|
|
|
338
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) after impact of assumed preferred stock conversion
|
|
$
|
9,052
|
|
|
$
|
11,871
|
|
|
$
|
11,409
|
|
|
$
|
(58,820
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
155,166
|
|
|
|
152,344
|
|
|
|
154,648
|
|
|
|
141,483
|
|
Effect of dilutive stock awards
|
|
|
996
|
|
|
|
346
|
|
|
|
1,447
|
|
|
|
|
|
Effect of assumed Series D Preferred Stock conversion
|
|
|
6,065
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of diluted common shares outstanding
|
|
|
162,227
|
|
|
|
152,690
|
|
|
|
156,095
|
|
|
|
141,483
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net income (loss) per share
|
|
$
|
0.06
|
|
|
$
|
0.08
|
|
|
$
|
0.07
|
|
|
$
|
(0.42
|
)
|
Diluted net income (loss) per share
|
|
$
|
0.06
|
|
|
$
|
0.08
|
|
|
$
|
0.07
|
|
|
$
|
(0.42
|
)
|
8
(6) Long-term Debt, Lease Obligations and Interest Rate Caps
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
|
December 31,
|
|
Obligations (in thousands)
|
|
2011
|
|
|
2010
|
|
$100.0 million revolving line of credit
|
|
$
|
|
|
|
$
|
|
|
Term loan facility
|
|
|
100,250
|
|
|
|
103,250
|
|
Facility lease obligation
|
|
|
3,209
|
|
|
|
3,657
|
|
Equipment capital leases
|
|
|
321
|
|
|
|
1,753
|
|
|
|
|
|
|
|
|
Total
|
|
|
103,780
|
|
|
|
108,660
|
|
Current portion of long-term debt and lease obligations
|
|
|
(4,859
|
)
|
|
|
(6,073
|
)
|
|
|
|
|
|
|
|
Non-current portion of long-term debt and lease obligations
|
|
$
|
98,921
|
|
|
$
|
102,587
|
|
|
|
|
|
|
|
|
Revolving Line of Credit and Term Loan Facility
In March 2010, ION, its Luxembourg subsidiary, ION International S.à r.l. (ION Sàrl), and
certain of its other U.S. and foreign subsidiaries entered into a new credit facility (the Credit
Facility). The terms of the Credit Facility are set forth in a credit agreement dated as of March
25, 2010 (the Credit Agreement), by and among ION, ION Sàrl and China Merchants Bank Co., Ltd.,
New York Branch (CMB), as administrative agent and lender. The obligations of ION under the
Credit Facility are guaranteed by certain of IONs material U.S. subsidiaries and the obligations
of ION Sàrl under the Credit Facility are guaranteed by certain of IONs material U.S. and foreign
subsidiaries, in each case that are parties to the Credit Agreement. In addition, in June 2010,
INOVA Geophysical also entered into an agreement to guarantee the indebtedness under the Credit
Facility.
The Credit Facility provides ION with a revolving line of credit of up to $100.0 million in
borrowings (including borrowings for letters of credit) and refinanced IONs outstanding term loan
with a new term loan in the original principal amount of $106.3 million.
The revolving credit sub-facility and term loan under the Credit Facility are each scheduled
to mature on March 24, 2015. The principal amount under the term loan is subject to scheduled
quarterly amortization payments that commenced on June 30, 2010, of $1.0 million per quarter until
the maturity date, upon which the remaining unpaid principal amount of the term loan becomes due
and payable. The indebtedness under the Credit Facility may sooner mature on a date that is 18
months after the earlier of (i) any dissolution of INOVA Geophysical, or (ii) the administrative
agent determining in good faith that INOVA Geophysical is unable to perform its obligations under
its guarantee.
The interest rate per annum on borrowings under the Credit Facility will be, at IONs option:
|
|
|
An alternate base rate equal to the sum of (i) the greatest of (a) the prime rate of
CMB, (b) a federal funds effective rate plus 0.50%, or (c) an adjusted LIBOR-based rate
plus 1.0%, and (ii) an applicable interest margin of 2.5%; or
|
|
|
|
|
For Eurodollar borrowings and borrowings in Euros, Pounds Sterling or Canadian Dollars,
the sum of (i) an adjusted LIBOR-based rate, and (ii) an applicable interest margin of
3.5%.
|
As of September 30, 2011, the $100.3 million in outstanding term loan indebtedness under the
Credit Facility accrued interest at a rate of 3.7% per annum.
The Credit Facility requires compliance with certain financial covenants. Certain of these
financial covenants became effective on June 30, 2011, and will continue in effect for each fiscal
quarter thereafter over the term of the Credit Facility. These financial covenants require ION and
its U.S. subsidiaries to:
|
|
|
Maintain a minimum fixed charge coverage ratio in an amount equal to at least 1.125 to
1;
|
|
|
|
|
Not exceed a maximum leverage ratio of 3.25 to 1; and
|
9
|
|
|
Maintain a minimum tangible net worth of at least 60% of IONs tangible net worth as of
March 31, 2010, as defined in the Credit Agreement.
|
The fixed charge coverage ratio is defined as the ratio of (i) IONs consolidated EBITDA less
cash income tax expense and non-financed capital expenditures, to the sum of (ii) scheduled
payments of lease payments and payments of principal indebtedness, interest expense actually paid
and cash dividends, in each case for the four consecutive fiscal quarters most recently ended. The
leverage ratio is defined as the ratio of (x) total funded consolidated debt, capital lease
obligations and issued letters of credit (net of cash collateral) to (y) consolidated EBITDA of ION
for the four consecutive fiscal quarters most recently ended. As of September 30, 2011, the Company
was in compliance with these financial covenants and expects to remain in compliance with these
financial covenants through the remainder of 2011.
The fair market value of the
Companys outstanding long-term debt was $107.3 million at September 30, 2011 compared to a carrying
value of $103.8 million. The fair value of the long-term debt was calculated using an estimated interest rate reflecting
current market conditions.
Interest Rate Caps
In August 2010, the Company entered into an interest rate cap agreement and purchased interest
rate caps (the August 2010 Caps) having an initial notional amount of $103.3 million with a
three-month average LIBOR cap of 2.0%. If and when the three-month average LIBOR rate exceeds 2.0%,
the LIBOR portion of interest owed by the Company would be capped at 2.0%. The initial notional
amount was set to equal the projected outstanding balance under the Companys term loan facility at
December 31, 2010. The notional amount was then set so as not to exceed the Companys outstanding
balance of its term loan facility over a period extending through March 29, 2013. The Company
purchased these interest rate caps for approximately $0.4 million and designated the interest rate
caps as cash flow hedges.
In July 2011, the Company purchased additional interest rate caps (the July 2011 Caps)
related to its term loan facility. The notional amounts of the July 2011 Caps, together with the
notional amounts of the August 2010 Caps, were set so as not to exceed the outstanding balance of
the Companys term loan facility over a period that extends through March 31, 2014. The Company
purchased these interest rate caps for an amount equal to approximately $0.3 million and designated
the interest rate caps as cash flow hedges.
As of September 30, 2011, the Company held interest rate caps as follows (amounts in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notional Amounts
|
|
Payment Date
|
|
Cap Rate
|
|
|
August 2010 Caps
|
|
|
July 2011 Caps
|
|
|
Total
|
|
December 29, 2011
|
|
|
2.0
|
%
|
|
$
|
90,225
|
|
|
$
|
|
|
|
$
|
90,225
|
|
March 29, 2012
|
|
|
2.0
|
%
|
|
$
|
89,325
|
|
|
$
|
|
|
|
$
|
89,325
|
|
June 29, 2012
|
|
|
2.0
|
%
|
|
$
|
68,775
|
|
|
$
|
18,850
|
|
|
$
|
87,625
|
|
September 28, 2012
|
|
|
2.0
|
%
|
|
$
|
68,075
|
|
|
$
|
18,650
|
|
|
$
|
86,725
|
|
December 31, 2012
|
|
|
2.0
|
%
|
|
$
|
67,375
|
|
|
$
|
18,450
|
|
|
$
|
85,825
|
|
March 29, 2013
|
|
|
2.0
|
%
|
|
$
|
66,675
|
|
|
$
|
18,250
|
|
|
$
|
84,925
|
|
June 28, 2013
|
|
|
2.0
|
%
|
|
$
|
|
|
|
$
|
63,175
|
|
|
$
|
63,175
|
|
September 30, 2013
|
|
|
2.0
|
%
|
|
$
|
|
|
|
$
|
62,475
|
|
|
$
|
62,475
|
|
December 31, 2013
|
|
|
2.0
|
%
|
|
$
|
|
|
|
$
|
61,775
|
|
|
$
|
61,775
|
|
March 31, 2014
|
|
|
2.0
|
%
|
|
$
|
|
|
|
$
|
61,075
|
|
|
$
|
61,075
|
|
These interest rate caps have been designated as cash flow hedges according to ASC 815
(
Derivatives and Hedging
) and, accordingly, the effective portion of the change in fair value of
these interest rate caps are recognized in other comprehensive income in the Companys consolidated
financial statements. The Company has recorded the fair value of these interest rate caps as a noncurrent asset
included in other assets on its condensed consolidated balance sheet.
As of September 30, 2011, the total fair value of the interest rate caps was
$0.1 million, which was based on Level 2 inputs such as interest rates and yield curves that are
observable at commonly quoted intervals. For the three and nine months ended September 30, 2011,
there was approximately $0.2 million, net of tax, and $0.3 million, net of tax, respectively,
related to the change in fair value included in other comprehensive income. Unrealized gains or losses included in other comprehensive income related to these
interest rate caps will be reclassified into earnings as each interest rate caplet settles on
the contractual payment dates as shown in the table above.
10
(7) Cumulative Convertible Preferred Stock
During 2005, the Company entered into an Agreement with Fletcher International, Ltd. (this
Agreement, as amended to the date hereof, is referred to as the Fletcher Agreement) and issued to
Fletcher 30,000 shares of Series D-1 Cumulative Convertible Preferred Stock (Series D-1 Preferred
Stock) in a privately-negotiated transaction, receiving $29.8 million in net proceeds. The
Fletcher Agreement also provided to Fletcher an option to purchase up to an additional 40,000
shares of additional series of preferred stock from time to time, with each series having a
conversion price that would be equal to 122% of an average daily volume-weighted market price of
the Companys common stock over a trailing period of days at the time of issuance of that series.
In 2007 and 2008, Fletcher exercised this option and purchased 5,000 shares of Series D-2
Cumulative Convertible Preferred Stock (Series D-2 Preferred Stock) for $5.0 million (in December
2007) and the remaining 35,000 shares of Series D-3 Cumulative Convertible Preferred Stock (Series
D-3 Preferred Stock) for $35.0 million (in February 2008). The shares of Series D-1 Preferred
Stock, Series D-2 Preferred Stock and Series D-3 Preferred Stock are sometimes referred to herein
as the Series D Preferred Stock.
Dividends on the shares of Series D Preferred Stock must be paid in cash on a quarterly basis.
Dividends are payable at a rate equal to the greater of (i) 5.0% per annum or (ii) the three month
LIBOR rate on the last day of the immediately preceding calendar quarter plus 2.5% per annum. The
Series D Preferred Stock dividend rate was 5.0% at September 30, 2011.
Under the Fletcher Agreement, if a 20-day volume-weighted average trading price per share of
the Companys common stock fell below $4.4517 (the Minimum Price), the Company was required to
deliver a notice (the Reset Notice) to Fletcher. On November 28, 2008, the volume-weighted
average trading price per share of the Companys common stock on the New York Stock Exchange for
the previous 20 trading days was calculated to be $4.328, and the Company delivered the Reset
Notice to Fletcher in accordance with the terms of the Fletcher Agreement. In the Reset Notice,
the Company elected to reset the conversion prices for the Series D Preferred Stock to the Minimum
Price ($4.4517 per share), and Fletchers rights to redeem the Series D Preferred Stock were
terminated. The adjusted conversion price resulting from this election was effective on November
28, 2008.
In addition, under the Fletcher Agreement, the aggregate number of shares of common stock
issued or issuable to Fletcher upon conversion or redemption of, or as dividends paid on, the
Series D Preferred Stock could not exceed a designated maximum number of shares (the Maximum
Number), and such Maximum Number could be increased by Fletcher providing the Company with a
65-day notice of increase, but under no circumstance could the total number of shares of common
stock issued or issuable to Fletcher with respect to the Series D Preferred Stock ever exceed
15,724,306 shares. The Fletcher Agreement had designated 7,669,434 shares as the original Maximum
Number. In November 2008, Fletcher delivered a notice to the Company to increase the Maximum
Number to 9,669,434 shares, effective February 1, 2009. On November 8, 2010, Fletcher delivered a
notice to the Company to increase the Maximum Number to the full 15,724,306 shares, effective
January 12, 2011.
On April 8, 2010, Fletcher converted 8,000 of its shares of the outstanding Series D-1
Preferred Stock and all of the outstanding 35,000 shares of the Series D-3 Preferred Stock into a
total of 9,659,231 shares of the Companys common stock. The conversion price for these shares was
$4.4517 per share, in accordance with the terms of these series of preferred stock. Fletcher
continues to own 22,000 shares of the Series D-1 Preferred Stock and 5,000 shares of the Series D-2
Preferred Stock. As a result of Fletchers delivery of its notice to increase the Maximum Number
to the full 15,724,306 shares in November 2010, under the terms of the Fletcher Agreement,
Fletchers remaining 27,000 shares of Series D Preferred Stock are convertible into 6,065,075
shares of the Companys common stock. The conversion prices and number of shares of common stock
to be acquired upon conversion are also subject to customary anti-dilution adjustments. Fletcher
remains the sole holder of all of the outstanding shares of Series D Preferred Stock.
(8) Income Taxes
The Company maintains a valuation allowance for a portion of its U.S. deferred tax assets. The
valuation allowance is calculated in accordance with the provisions of ASC 740
Income Taxes,
which requires that a valuation allowance be established or maintained when it is more likely than
not that all or a portion of deferred tax assets will not be realized. In the event the Companys
expectations of future operating results change, the valuation allowance may need to be adjusted
upward or downward. As of September 30, 2011, the Companys unreserved U.S. deferred tax assets
totaled $11.1 million. These existing unreserved deferred tax assets are currently considered to be
more likely than not realized.
The Companys effective tax rates for the three months ended September 30, 2011 and 2010 were
27.9% (provision on income) and 18.8% (benefit on income), respectively. For the three months ended
September 30, 2010, the Company recorded a benefit of $3.9
11
million related to alternative minimum
tax. Excluding the benefit related to alternative minimum tax included in the third quarter of
2010, the Companys effective tax rate would have been 22.2% (provision on income). The increase in
the Companys effective tax rate for the three months ended September 30, 2011 was due to changes
in the distribution of earnings between U.S. and foreign jurisdictions.
The
Companys effective tax rate for the nine months ended September 30, 2011 was 27.7%, a
provision on income, compared to a provision on a loss of 27.7% for the nine months ended September
30, 2010. The difference between these effective tax rates relates primarily to the transactions
involved in the completion of the INOVA Geophysical joint venture transaction and to changes in the
distribution of earnings between U.S. and foreign jurisdictions, partially offset by recognition of
the benefit related to alternative minimum tax for the three months ended September 30, 2010.
A reconciliation of the expected income tax expense (benefit) on income (loss) before income
taxes using the statutory federal income tax rate of 35% for the nine months ended September 30,
2011 and 2010 to income tax expense is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
Expected income tax expense (benefit) at 35%
|
|
$
|
5,963
|
|
|
$
|
(15,688
|
)
|
Alternative minimum tax (benefit) provision
|
|
|
|
|
|
|
(3,910
|
)
|
Foreign taxes (tax rate differential and foreign tax differences)
|
|
|
(3,212
|
)
|
|
|
348
|
|
Formation of INOVA Geophysical
|
|
|
|
|
|
|
10,507
|
|
Nondeductible expenses and other
|
|
|
5
|
|
|
|
118
|
|
Deferred tax asset valuation allowance on formation of INOVA Geophysical
|
|
|
|
|
|
|
20,213
|
|
Deferred tax asset valuation allowance on equity in losses of INOVA Geophysical
|
|
|
1,960
|
|
|
|
812
|
|
|
|
|
|
|
|
|
Total income tax expense
|
|
$
|
4,716
|
|
|
$
|
12,400
|
|
|
|
|
|
|
|
|
The Company has no significant unrecognized tax benefits and does not expect to recognize
significant increases in unrecognized tax benefits during the next twelve month period. Interest
and penalties, if any, related to unrecognized tax benefits are recorded in income tax expense.
The Companys U.S. federal tax returns for 2007 and subsequent years remain subject to
examination by tax authorities. The Company is no longer subject to IRS examination for periods
prior to 2007, although carryforward attributes that were generated prior to 2007 may still be
adjusted upon examination by the IRS if they either have been or will be used in an open year. In
the Companys foreign tax jurisdictions, tax returns for 2007 and subsequent years generally remain
open to examination.
(9) Comprehensive Net Income (Loss)
The components of comprehensive net income (loss) are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
|
2011
|
|
|
2010
|
|
Net income (loss)
|
|
$
|
9,018
|
|
|
$
|
12,209
|
|
|
$
|
12,320
|
|
|
$
|
(57,222
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss), net of taxes:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustments (ION)
|
|
|
(2,107
|
)
|
|
|
3,816
|
|
|
|
1,130
|
|
|
|
2,086
|
|
Foreign currency translation adjustments (noncontrolling interest)
|
|
|
32
|
|
|
|
|
|
|
|
21
|
|
|
|
|
|
Change in fair value of effective cash flow hedges (net of taxes)
|
|
|
(184
|
)
|
|
|
(131
|
)
|
|
|
(332
|
)
|
|
|
(131
|
)
|
Equity interest in INOVA Geophysicals other comprehensive income
|
|
|
(17
|
)
|
|
|
(937
|
)
|
|
|
1,565
|
|
|
|
(937
|
)
|
Unrealized loss on available-for-sale securities
|
|
|
(1,412
|
)
|
|
|
(365
|
)
|
|
|
(1,918
|
)
|
|
|
(7,717
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other comprehensive income (loss)
|
|
|
(3,688
|
)
|
|
|
2,383
|
|
|
|
466
|
|
|
|
(6,699
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive net income (loss)
|
|
|
5,330
|
|
|
|
14,592
|
|
|
|
12,786
|
|
|
|
(63,921
|
)
|
Comprehensive income attributable to noncontrolling interest
|
|
|
34
|
|
|
|
|
|
|
|
103
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive net income (loss) attributable to ION
|
|
$
|
5,364
|
|
|
$
|
14,592
|
|
|
$
|
12,889
|
|
|
$
|
(63,921
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
(10) Litigation
WesternGeco
In June 2009, WesternGeco L.L.C. (WesternGeco) filed a lawsuit against the Company in the
United States District Court for the Southern District of Texas, Houston Division. In the lawsuit,
styled
WesternGeco L.L.C. v. ION Geophysical Corporation
, WesternGeco alleges that the Company has
infringed several United States patents regarding marine seismic streamer steering devices that are
owned by WesternGeco. WesternGeco is seeking unspecified monetary damages and an injunction
prohibiting the Company from making, using, selling, offering for sale or supplying any infringing
products in the United States. Based on the Companys review of the lawsuit filed by WesternGeco
and the WesternGeco patents at issue, the Company believes that its products do not infringe any
WesternGeco patents, that the claims asserted against the Company by WesternGeco are without merit
and that the ultimate outcome of the claims against it will not result in a material adverse effect
on the Companys financial condition or results of operations. The Company intends to defend the
claims against it vigorously.
In June 2009, the Company filed an answer and counterclaims against WesternGeco, in which the
Company denies that it has infringed WesternGecos patents and asserts that the WesternGeco patents
are invalid or unenforceable. The Company also asserted that WesternGecos Q-Marine system,
components and technology infringe upon a United States patent owned by the Company related to
marine seismic streamer steering devices. The claims by the Company also assert that WesternGeco
tortiously interfered with the Companys relationship with its customers. In addition, the Company
claims that the lawsuit by WesternGeco is an illegal attempt by WesternGeco to control and restrict
competition in the market for marine seismic surveys performed using laterally steerable streamers.
In its counterclaims, the Company is requesting various remedies and relief, including a
declaration that the WesternGeco patents are invalid or unenforceable, an injunction prohibiting
WesternGeco from making, using, selling, offering for sale or supplying any infringing products in
the United States, a declaration that the WesternGeco patents should be co-owned by the Company,
and an award of unspecified monetary damages.
In June 2010, WesternGeco filed a lawsuit against various subsidiaries and affiliates of Fugro
N.V. (Fugro), a seismic contractor customer of the Company, accusing Fugro of infringing the same
United States patents regarding marine seismic streamer steering devices by planning to use certain
equipment purchased from the Company on a survey located outside of U.S. territorial waters. The
court approved the consolidation of the Fugro case with the case against the Company. Fugro filed
a motion to dismiss the lawsuit, and in March 2011 the presiding judge granted Fugros motion to
dismiss in part, on the basis that the alleged activities of Fugro would occur more than 12 miles
from the U.S. coast and therefore are not actionable under U.S. patent infringement law.
Fletcher
In November 2009, Fletcher, the holder of shares of the Companys outstanding Series D
Preferred Stock, filed a lawsuit against the Company and certain of its directors in the Delaware
Court of Chancery. In the lawsuit, styled
Fletcher International, Ltd. v. ION Geophysical
Corporation, f/k/a Input/Output, Inc., ION International S.à r.l., James M. Lapeyre, Bruce S.
Appelbaum, Theodore H. Elliott, Jr., Franklin Myers, S. James Nelson, Jr., Robert P. Peebler, John
Seitz, G. Thomas Marsh And Nicholas G. Vlahakis,
Fletcher alleged, among other things, that the
Company violated Fletchers consent rights contained in the Series D Preferred Stock Certificates
of Designation, by ION Sàrls issuance of a convertible promissory note to the Bank of China, New
York Branch, in connection with a bridge loan funded in October 2009 by Bank of China, and that the
directors violated their fiduciary duty to the Company by allowing ION Sàrl to issue the
convertible note without Fletchers consent. A total of $10.0 million was advanced to ION Sàrl
under the bridge loan, and ION Sàrl repaid $10 million on the following day. Fletcher sought a
court order requiring ION Sàrl to repay the $10 million advanced to ION Sàrl under the bridge loan
and unspecified monetary damages. On March 24, 2010, the presiding judge in the case denied
Fletchers request for the court order. In a Memorandum Opinion issued on May 28, 2010 in response
to a motion for partial summary judgment, the judge dismissed all of Fletchers claims against the
named Company directors but also concluded that, because the bridge loan note issued by ION Sàrl
was convertible into ION common stock, Fletcher technically had the right to consent to the
issuance of the note and that the Company violated Fletchers consent right by ION Sàrl issuing the
note without Fletchers consent. In December 2010, the presiding judge in the case recused himself
from the case and a new presiding judge was appointed to the case. In March 2011, the judge
dismissed certain of the claims asserted by Fletcher. The Company believes that the remaining
claims asserted by Fletcher in the lawsuit are without merit. The Company further believes that
the monetary damages suffered by Fletcher as a result of ION Sàrl issuing the bridge loan note
without Fletchers consent are nonexistent or nominal, and that the ultimate outcome of the lawsuit
will not result in a material adverse effect on the Companys financial condition or results of
operations. The Company intends to defend the remaining claims against it in this lawsuit
vigorously.
13
Sercel
On January 29, 2010, the jury in a patent infringement lawsuit filed by the Company against
seismic equipment provider Sercel, Inc. in the United States District Court for the Eastern
District of Texas returned a verdict in the Companys favor. In the lawsuit, styled
Input/Output,
Inc. et al v. Sercel, Inc., (5-06-cv-00236)
, the Company alleged that Sercels 408, 428 and SeaRay
digital seismic sensor units infringe the Companys United States Patent No. 5,852,242, which is
incorporated in the Companys VectorSeis
®
sensor technology. Products of the Company or
INOVA Geophysical that use the VectorSeis technology include the System Four, Scorpion
®
,
FireFly
®
, and VectorSeis Ocean seismic acquisition systems. After a two-week trial, the
jury concluded that Sercel infringed the Companys patent and that the Companys patent was valid,
and the jury awarded the Company $25.2 million in compensatory past damages. In response to
post-verdict motions made by the parties, on September 16, 2010, the presiding judge issued a
series of rulings that (a) granted the Companys motion for a permanent injunction to be issued
prohibiting the manufacture, use or sale of the infringing Sercel products, (b) confirmed that the
Companys patent was valid, (c) confirmed that the jurys finding of infringement was supported by
the evidence and (d) disallowed $5.4 million of lost profits that were based on infringing products
that were manufactured and delivered by Sercel outside of the United States, but were offered for
sale by Sercel in the United States and involved underlying orders and payments received by Sercel
in the United States. In addition, the judge concluded that the evidence supporting the jurys
finding that the Company was entitled to be awarded $9.0 million in lost profits associated with
certain infringing pre-verdict marine sales by Sercel was too speculative and therefore disallowed
that award of lost profits. As a result of the judges ruling, the Company is now entitled to be
awarded an additional amount of damages equal to a reasonable royalty on the infringing pre-verdict
Sercel marine sales. After the Company learned that Sercel continued to make sales of infringing
products after the January 2010 jury verdict was rendered, the Company filed motions with the court
to seek additional compensatory damages for the post-verdict infringing sales and enhanced damages
as a result of the willful nature of Sercels post-verdict infringement. On February 16, 2011, the
Court entered a final judgment and permanent injunction in the case. The final judgment awarded
the Company $10.7 million in damages, plus interest, and the permanent injunction prohibits Sercel
and parties acting in concert with Sercel from making, using, offering to sell, selling, or
importing in the United States (which includes territorial waters of the United States) Sercels
408UL, 428XL and SeaRay digital sensor units, and all other products that are only colorably
different from those products. The Court ordered that the additional damages to be paid by Sercel
as a reasonable royalty on the infringing pre-verdict Sercel marine sales and the additional
damages to be paid by Sercel resulting from post-verdict infringing sales would be determined in a
separate future proceeding. Sercel and the Company have each appealed portions of the final
judgment. The Company has not recorded any amounts related to this gain contingency as of
September 30, 2011.
Other
The Company has been named in various other lawsuits or threatened actions that are incidental
to its ordinary business. Litigation is inherently unpredictable. Any claims against the Company,
whether meritorious or not, could be time-consuming, cause the Company to incur costs and expenses,
require significant amounts of management time and result in the diversion of significant
operational resources. The results of these lawsuits and actions cannot be predicted with
certainty. Management currently believes that the ultimate resolution of these matters will not
have a material adverse impact on the financial condition, results of operations or liquidity of
the Company.
(11) Noncontrolling Interest
In February 2011, the Company established a new seismic data processing center in Rio de
Janeiro, Brazil, with Brazilian energy consultancy Bratexco, to provide advanced imaging services
to exploration and production (E&P) companies operating in basins off the coast of Brazil. The
entity is named GX Technology Processamento de Dados Ltda. The Company owns a 70% interest, and
Bratexco owns a 30% interest. Bratexcos cash contributions were $0.3 million.
The Company consolidates the assets, liabilities, revenues and expenses of all majority-owned
subsidiaries over which the Company exercises control or for which the Company has a controlling
financial interest. Bratexcos interest in results of operations related to the entity is reflected
in Net income attributable to noncontrolling interest in the condensed consolidated statements of
operations and its interest in the assets and liabilities related to the entity is reflected in
Noncontrolling interest in the condensed consolidated balance sheet.
14
(12) Related Party Transactions
BGP, Inc., China National Petroleum Corporation (BGP) owned approximately 15.3% of the
Companys outstanding common stock as of September 30, 2011. For the three months ended September
30, 2011 and 2010, the Company recorded revenues from BGP of $0.9 million and $1.7 million,
respectively. For the nine months ended September 30, 2011 and 2010, the Company recorded revenues
from BGP of $2.3 million and $4.8 million, respectively. Total receivables due from BGP were $2.0
million at September 30, 2011. As of September 30, 2011, BGP had paid the Company $14.8 million in
cash related to the Companys contract to outfit a BGP twelve-streamer vessel with the Companys
DigiSTREAMER data acquisition system, for which revenue has not yet been recognized.
(13) Restructuring Activities
At December 31, 2010, the Company had a liability (reflected in Other long-term liabilities)
of $6.7 million related to permanently ceasing to use certain leased facilities. During the nine
months ended September 30, 2011, the Company made cash payments of $0.9 million and accrued $0.3
million related to accretion expense, resulting in a remaining liability of $6.1 million as of
September 30, 2011.
(14) Recent Accounting Pronouncement
In June 2011, the Financial Accounting Standards Board issued revised guidance on the
presentation of comprehensive income that will be effective for the Company beginning in 2012.
This guidance eliminates the option to present the components of comprehensive income as part of
the statement of shareholders equity and also requires presentation of reclassification
adjustments from other comprehensive income to net income on the face of the financial statements.
The implementation of this revised guidance in 2012 will change the presentation of the Companys
financial statements, but will not have any impact on the Companys financial position, results of
operations or cash flows.
|
|
|
Item 2.
|
|
Managements Discussion and Analysis of Financial Condition and Results of Operations
|
In this Item 2 and elsewhere in this Form 10-Q, the terms we, our, ours and us refer
to ION Geophysical Corporation and its consolidated subsidiaries, except where the context
otherwise requires or as otherwise indicated.
Executive Summary
Our Business
We are a leading provider of geophysical technology, services, and solutions for the global
oil and gas industry, offering advanced acquisition equipment, software and planning and seismic
processing services to the global energy industry. Our product and service offerings allow
exploration and production (E&P) operators to obtain higher resolution images of the subsurface
to reduce the risk of exploration and reservoir development, and to enable seismic contractors to
acquire geophysical data more efficiently.
We serve customers in all major energy-producing regions of the world from strategically
located offices in 19 cities on five continents. In March 2010, we contributed most of our land
seismic equipment business to a joint venture we formed with BGP Inc., China National Petroleum
Corporation (BGP), a wholly-owned oil field service subsidiary of China National Petroleum
Corporation (CNPC). The resulting joint venture company, organized under the laws of the Peoples
Republic of China, is named INOVA Geophysical Equipment Limited (INOVA Geophysical). We believe
that this joint venture will provide us the opportunity to further extend the geographic scope of
our business through the sales and service facilities of BGP, especially in Africa, the Middle
East, China and Southeast Asia.
Our products and services include the following:
|
|
|
Marine seismic data acquisition equipment,
|
15
|
|
|
Navigation, command & control and data management software products,
|
|
|
|
|
Planning services for survey design and optimization,
|
|
|
|
|
Seismic data processing and reservoir imaging services,
|
|
|
|
|
Seismic data libraries, and
|
|
|
|
|
Land seismic data acquisition equipment (principally through our 49% ownership in INOVA
Geophysical).
|
We operate our company through four business segments: Systems, Software, Solutions and our
INOVA Geophysical joint venture.
|
|
|
Systems
towed streamer and redeployable ocean bottom cable seismic data acquisition
systems and shipboard recorders, streamer positioning and control systems and energy sources
(such as air guns and air gun controllers) and analog geophone sensors.
|
|
|
|
|
Software
software systems and related services for navigation and data management
involving towed marine streamer and seabed operations.
|
|
|
|
|
Solutions
advanced seismic data processing services for marine and land environments,
seismic data libraries, and our GeoVentures (formerly Integrated Seismic Solutions, or ISS)
services.
|
|
|
|
|
INOVA Geophysical
cable-based, cableless and radio-controlled seismic data acquisition
systems, digital sensors, vibroseis vehicles (i.e. vibrator trucks) and source controllers
for detonator and energy sources business lines.
|
Economic Conditions
Demand for our seismic data acquisition products and services is cyclical and substantially
dependent upon activity levels in the oil and gas industry, particularly our customers willingness
and ability to expend their capital for oil and natural gas exploration and development projects.
This demand is sensitive to current and expected future oil and natural gas prices. During 2011,
West Texas Intermediate (WTI) spot crude oil prices initially rose above $100 per barrel, but
have declined since then; since August 1, 2011, WTI spot crude oil prices have generally been in
the range of $75 to $90 per barrel. Brent crude oil prices have remained above $100 per barrel
during most of 2011 with prices ranging between $95 and $125 per barrel. Economic concerns and the
ongoing debt crisis in Europe have contributed to lower price levels across multiple asset classes,
as oil prices were affected by lower expectations about near and mid-term growth of oil demand
around the world. However, Brent crude oil prices continue to exceed $100 per barrel suggesting
that worldwide oil demand offsets the concerns regarding the European debt crisis. A notable price
divergence persists between the Brent and WTI benchmarks, as Brent oil prices are decoupled from
the impact of excess oil inventories in the U.S. and WTI oil prices are decoupled from the
political unrest in North Africa and the Middle East. Energy price forecasts are by their nature
highly uncertain, but external reports indicate that oil prices are expected to remain resilient in
2012 as demand outpaces supply, particularly in developing countries in the Asian market. Unlike
the recovery in oil prices, U.S. natural gas prices have remained depressed relative to 2008
levels, due to the excess supply of natural gas in the North American market. However, demand for
natural gas has not deteriorated and industry interest in natural gas and oil shale opportunities
continues to increase, along with developments in the technologies employed to locate and extract
shale reserves.
For the first nine months of 2011, our Solutions segment experienced increased revenues
compared to the comparable period in 2010, due to increased seismic data library sales (principally
driven by customers demand for access to our multi-client programs in Greenland and Brazil) and
new venture business revenues. In addition, we recently completed a scientific project for the
Russian Government using our unique Arctic technology and know-how to survey large swatches of the
Russian Arctic, positioning us to become a major player in future Russian Arctic multi-client
business. Our footprint in the U.S. shale play is also expanding with three new venture programs in
our backlog and more on the drawing board, as we increase our technical understanding of shale
plays and leverage this to broaden our shale footprint in both the U.S. and international markets
in 2012. Our Solutions segments data processing business has been negatively impacted by the
slowdown in Gulf of Mexico exploration and production activities resulting
16
from the Deepwater Horizon incident in April 2010. However, our pipeline for data processing
work grew in the third quarter of 2011 and we expect the recovery of our data processing business
to return to pre-Macondo levels in 2012.
Our Software segment generated slightly higher revenues during the first nine months of 2011
compared to the same period in 2010, principally due to favorable foreign currency exchange rates.
In terms of the segments functional currency (British Pounds Sterling), Software segment revenues
remained consistent with the 2010 nine-month period.
Revenues for our Systems segment increased for the first nine months of 2011 compared with the
first nine months of 2010, as demand for our marine products offset decreased sales of our sensor
geophone products. Also, we remain on track to recognize the revenue from the BGP twelve-streamer
system (announced in August 2010) in the fourth quarter. Our land seismic business, particularly INOVA Geophysicals business
in North America and Russia, continues to show signs of recovery. However, due to the political
unrest in North Africa and the Middle East in 2011, and the ongoing investment in INOVA
Geophysicals next-generation cable and cableless land acquisition systems (which are scheduled to
be launched in 2012), we do not expect to see improvements in our land seismic businesss results
until 2012.
Although the U.S. economic recovery has been slower than initially expected and geopolitical
tensions and regulatory uncertainties have adversely affected customers purchasing plans, we
believe that our industrys long-term prospects remain favorable because of the decreasing number
of significant new discoveries of hydrocarbons and increasing interest in oil and natural gas shale
opportunities based upon developments in the technology to locate and extract shale reserves. We
believe that technologies that add a competitive advantage through cost reductions or improvements
in productivity will continue to be valued in our marketplace. We believe that our newest
technologies such as DigiFIN
®
, DigiSTREAMER
TM
, Orca
®
and
INOVA Geophysicals recently announced technologies (including FireFly
®
DR31,
Hawk
TM
SN11, UniVib
TM
, VectorSeis
®
ML21 and
ARIES
®
II with digital sensor capabilities), will continue to attract customer interest,
because those technologies are designed to deliver improvements in image quality within more
productive delivery systems.
Key Financial Metrics
The following table provides an overview of key financial metrics for our company as a whole
and our four business segments during the three and nine months ended September 30, 2011, compared
to those for the same period of 2010 (in thousands, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
|
2011
|
|
|
2010
|
|
Net revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Towed Streamer
|
|
$
|
22,219
|
|
|
$
|
20,185
|
|
|
$
|
60,000
|
|
|
$
|
50,096
|
|
Ocean Bottom
|
|
|
|
|
|
|
510
|
|
|
|
509
|
|
|
|
1,821
|
|
Other
|
|
|
10,065
|
|
|
|
5,036
|
|
|
|
25,210
|
|
|
|
19,721
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
32,284
|
|
|
$
|
25,731
|
|
|
$
|
85,719
|
|
|
$
|
71,638
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Software Systems
|
|
$
|
9,476
|
|
|
$
|
8,567
|
|
|
$
|
27,444
|
|
|
$
|
25,824
|
|
Services
|
|
|
715
|
|
|
|
561
|
|
|
|
1,545
|
|
|
|
1,409
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
10,191
|
|
|
$
|
9,128
|
|
|
$
|
28,989
|
|
|
$
|
27,233
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Solutions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Data Processing
|
|
$
|
22,416
|
|
|
$
|
27,943
|
|
|
$
|
63,349
|
|
|
$
|
79,661
|
|
New Venture
|
|
|
35,597
|
|
|
|
49,971
|
|
|
|
67,819
|
|
|
|
62,314
|
|
Data Library
|
|
|
15,166
|
|
|
|
8,821
|
|
|
|
48,862
|
|
|
|
28,342
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
73,179
|
|
|
$
|
86,735
|
|
|
$
|
180,030
|
|
|
$
|
170,317
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Legacy Land Systems (INOVA)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
16,511
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
115,654
|
|
|
$
|
121,594
|
|
|
$
|
294,738
|
|
|
$
|
285,699
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
|
2011
|
|
|
2010
|
|
Gross profit:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems
|
|
$
|
13,397
|
|
|
$
|
11,202
|
|
|
$
|
40,752
|
|
|
$
|
29,141
|
|
Software
|
|
|
8,061
|
|
|
|
6,074
|
|
|
|
20,970
|
|
|
|
18,254
|
|
Solutions
|
|
|
22,600
|
|
|
|
31,672
|
|
|
|
47,106
|
|
|
|
52,965
|
|
Legacy Land Systems (INOVA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(984
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
44,058
|
|
|
$
|
48,948
|
|
|
$
|
108,828
|
|
|
$
|
99,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems
|
|
|
41
|
%
|
|
|
44
|
%
|
|
|
48
|
%
|
|
|
41
|
%
|
Software
|
|
|
79
|
%
|
|
|
67
|
%
|
|
|
72
|
%
|
|
|
67
|
%
|
Solutions
|
|
|
31
|
%
|
|
|
37
|
%
|
|
|
26
|
%
|
|
|
31
|
%
|
Legacy Land Systems (INOVA)
|
|
|
|
%
|
|
|
|
%
|
|
|
|
%
|
|
|
(6
|
%)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
38
|
%
|
|
|
40
|
%
|
|
|
37
|
%
|
|
|
35
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Systems
|
|
$
|
6,852
|
|
|
$
|
5,693
|
|
|
$
|
21,989
|
|
|
$
|
13,833
|
|
Software
|
|
|
7,117
|
|
|
|
5,451
|
|
|
|
18,409
|
|
|
|
16,513
|
|
Solutions
|
|
|
13,897
|
|
|
|
22,556
|
|
|
|
22,751
|
|
|
|
30,669
|
|
Legacy Land Systems (INOVA)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9,623
|
)
|
Corporate and other
|
|
|
(9,370
|
)
|
|
|
(10,331
|
)
|
|
|
(29,782
|
)
|
|
|
(33,016
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
$
|
18,496
|
|
|
$
|
23,369
|
|
|
$
|
33,367
|
|
|
$
|
18,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) applicable to common shares
|
|
$
|
8,714
|
|
|
$
|
11,871
|
|
|
$
|
11,409
|
|
|
$
|
(58,820
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net income (loss) per common share
|
|
$
|
0.06
|
|
|
$
|
0.08
|
|
|
$
|
0.07
|
|
|
$
|
(0.42
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net income (loss) per common share
|
|
$
|
0.06
|
|
|
$
|
0.08
|
|
|
$
|
0.07
|
|
|
$
|
(0.42
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
We intend that the following discussion of our financial condition and results of operations
will provide information that will assist in understanding our consolidated financial statements,
the changes in certain key items in those financial statements from quarter to quarter, and the
primary factors that accounted for those changes. Our results of operations for the nine months
ended September 30, 2010 were materially affected by the disposition of our land systems businesses
in forming INOVA Geophysical on March 25, 2010, which affects the comparability of certain of the
financial information contained in this Form 10-Q. In order to assist with the comparability to our
historical results of operations, certain of the financial tables and discussions below with
respect to the nine months ended September 30, 2010 have been adjusted to exclude the results of
operations of our disposed legacy land equipment segment, which we refer to below as our Legacy
Land Systems segment. The term as adjusted as it appears in certain of such tables and
discussions, reflects the exclusion of results from the Legacy Land Systems segment.
We account for our 49% interest in our INOVA Geophysical joint venture as an equity method
investment and record our share of earnings of INOVA Geophysical on a one fiscal quarter lag basis.
Thus, for the three months ended September 30, 2011 and 2010, we recognized our share of losses in
INOVA Geophysical of $4.8 million and $8.0 million, respectively, which reflected joint venture
operating results for the three months ended June 30, 2011 and 2010. For the nine months ended
September 30, 2011 and 2010, we recognized our share of losses in INOVA Geophysical of $9.8 million
and $8.2 million; these sums were derived from INOVA Geophysicals operating results for the
nine-month period from October 1, 2010 through June 30, 2011, and the period from March 26, 2010
through June 30, 2010, respectively. See below for the summarized, unaudited financial information
for INOVA Geophysical at
Results of Operations
Three and Nine Months Ended September 30,
2011 Compared to the Three and Nine Months Ended September 30, 2010
Equity in Losses of INOVA
Geophysical.
We filed an amendment to our 2010 Annual Report on Form 10-K on Form 10-K/A in June 2011 that
contained separate consolidated financial statements for INOVA Geophysical for the fiscal year
ended December 31, 2010, as required under SEC Regulation S-X.
18
For a discussion of factors that could impact our future operating results and financial
condition, see Item 1A.
Risk Factors
in our Annual Report on Form 10-K for the year ended
December 31, 2010.
References below to Notes are to Notes to Unaudited Condensed Consolidated Financial
Statements appearing in Part I, Item 1 of this Form 10-Q.
The information contained in this Quarterly Report on Form 10-Q contains references to our
registered marks, as indicated. Except where stated otherwise or unless the context otherwise
requires, the terms DigiSTREAMER, VectorSeis, Scorpion, Orca, DigiFIN, Hawk, Univib,
ARIES and FireFly refer to our (or INOVA Geophysicals (as applicable))
DigiSTREAMER
TM
, VectorSeis
®
, Scorpion
®
, Orca
®
,
DigiFIN
®
, Hawk
TM
, Univib
TM
, ARIES
®
and FireFly
®
registered marks.
Results of Operations
Three Months Ended September 30, 2011 Compared to Three Months Ended September 30, 2010
Our overall total net revenues of $115.7 million for the three months ended September 30, 2011
decreased $5.9 million, or 5%, compared to total net revenues for the three months ended September
30, 2010, principally due to lower revenues from our Solutions segment, which were partially offset
by increased net revenues in our Systems segment for the quarter. Our overall gross profit
percentage for the three months ended September 30, 2011 was 38%, compared to 40% for the same
period of 2010. Total operating expenses as a percentage of net revenues for the three months ended
September 30, 2011 and 2010 were 22% and 21%, respectively. For the three months ended September
30, 2011, we recorded income from operations of $18.5 million, compared to $23.4 million for the
same prior-year period.
Net Revenues, Gross Profits and Gross Margins
Systems
Net revenues for the three months ended September 30, 2011 increased by $6.6
million, or 25%, to $32.3 million, compared to $25.7 million for the three months ended September
30, 2010, due to strong demand for marine positioning equipment and improved sales of marine data
acquisition systems and sensor geophones during the quarter. Gross profit for the three months
ended September 30, 2011 increased by $2.2 million to $13.4 million, representing a 41% gross
margin, compared to $11.2 million, representing a 44% gross margin, for the three months ended
September 30, 2010. The decrease in gross margins in our Systems segment was primarily due to the
relatively higher proportions of revenues from sales of lower-margin marine data acquisition
systems and sensor geophones.
Software
Net revenues for the three months ended September 30, 2011 increased by $1.1
million, or 12%, to $10.2 million compared to $9.1 million for the same prior-year period.
Excluding the effects of foreign currency translation, revenues increased 8% due to continued
demand for Orca and Gator software. Gross profit of $8.1 million for the three months ended
September 30, 2011 increased $2.0 million over the comparative period and gross margins increased
by 12% to 79% due to changes in product mix (there was a relative increase in software sales during
the third quarter of 2011, which have higher margins than the associated hardware sales for this
segment).
Solutions
Net revenues for the three months ended September 30, 2011 decreased by $13.5
million, or 16%, to $73.2 million, compared to $86.7 million for the three months ended September
30, 2010. This decrease was predominantly driven by the timing of new venture revenues, with 2011
new venture projects being spread more evenly between the third and fourth quarters compared to
2010 new venture projects (mostly in the Arctic) where the majority of new venture activity was
concentrated in the third quarter of the year, and by lower data processing revenues as the data
processing business continues to be impacted by the lagging effects of the slowdown in the Gulf of
Mexico. These decreases were partially offset by increased demand for access to our multi-client
data libraries in the Arctic, East Africa and the Congo. Gross profit decreased by $9.1 million to
$22.6 million compared to $31.7 million in 2010, and gross margins decreased 6% to 31% as a result
of lower data processing revenues and the sales mix within the multi-client business.
Operating Expenses
Research, Development and Engineering
Research, development and engineering expense was
$6.3 million, or 5% of net revenues, for the three months ended September 30, 2011, an increase of
$0.8 million compared to $5.5 million or 5% of net revenues,
19
for the corresponding period of 2010. Research, development and engineering expense for both
the 2011 and 2010 quarters related to our continuing investment in our next-generation seismic data
acquisition products and services.
Marketing and Sales
Marketing and sales expense of $8.2 million, or 7% of net revenues, for
the three months ended September 30, 2011 increased $0.4 million compared to $7.8 million, or 6% of
net revenues, for the corresponding period of 2010. The increase was primarily due to higher
consulting fees and employment-related expenses.
General and Administrative
General and administrative expenses of $11.0 million for the
three months ended September 30, 2011 decreased $1.3 million compared to $12.3 million, for the
corresponding period of 2010. General and administrative expenses as a percentage of net revenues
for the three months ended September 30, 2011 and 2010 remained consistent at 10%.
Non-operating Items
Interest Expense, net
Interest expense, net, was $1.4 million for the three months ended
September 30, 2011 compared to $1.9 million for the three months ended September 30, 2010. We
expect interest expense, net, for the fourth quarter of 2011 to be consistent with interest expense
levels experienced during the first three quarters of 2011.
Equity in Losses of INOVA Geophysical
We account for our 49% interest in INOVA Geophysical
as an equity method investment and record our share of earnings of INOVA Geophysical on a one
fiscal quarter lag basis. Thus, our share of INOVA Geophysicals losses for the three months ended
June 30, 2011 are included in our financial results for the three months ended September 30, 2011.
For the three months ended September 30, 2011, we recorded approximately $4.8 million of equity in
losses of INOVA Geophysical compared to equity in losses of $8.0 million for the third quarter of
2010 (which represented our 49% share of equity in losses of INOVA Geophysical for the three months
ended June 30, 2010). The following table reflects the summarized financial information for INOVA
Geophysical for the three months ended June 30, 2011 and 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Three Months
|
|
|
Three Months
|
|
|
|
Ended
|
|
|
Ended
|
|
|
|
June 30, 2011
|
|
|
June 30, 2010
|
|
Total net revenues
|
|
$
|
33,756
|
|
|
$
|
18,586
|
|
Gross profit
|
|
$
|
2,241
|
|
|
$
|
(3,268
|
)
|
Loss from operations
|
|
$
|
(8,326
|
)
|
|
$
|
(14,393
|
)
|
Net loss
|
|
$
|
(9,811
|
)
|
|
$
|
(16,336
|
)
|
INOVA Geophysicals revenues for the second quarter of 2011 improved by more than 80% compared
to the prior year period. However, due to the political unrest in North Africa and the Middle East
during 2011 and the launch of INOVA Geophysicals next-generation cable and cableless land
acquisition systems, we do not expect significant positive improvements to INOVA Geophysicals
results of operations until 2012. Additionally, due to INOVA Geophysicals announced launch of its next-generation products, which are in process of field testing with plan of commercial introduction in
2012, we expect to see a one-time write-down of inventory based upon previous
technologies to occur in INOVA Geophysicals third quarter and then reflected in our
fourth quarter results. We estimate that our 49% share of this one-time write-down to be
in the range of $6 million to $8 million.
Other Income (Expense)
Other income (expense) for the three months ended September 30, 2011
was $0.2 million compared to ($3.2) million for the comparative period of 2010. This difference
primarily related to foreign currency exchange gains associated with our operations in the United
Kingdom.
Income Tax Expense
Income tax expense for the three months ended September 30, 2011 was
$3.5 million compared to a tax benefit of $1.9 million for the comparative period of 2010. Our
effective tax rates for the three months ended September 30, 2011 and 2010 were 27.9% (provision on
income) and 18.8% (benefit on income), respectively. For the three months ended September 30, 2010,
we recorded a benefit of $3.9 million related to alternative minimum tax. Excluding the benefit
related to alternative minimum tax included in the third quarter of 2010, our effective tax rate
would have been 22.2% (provision on income) for that quarter. The increase in our effective tax
rate for the three months ended September 30, 2011 was due to changes in the distribution of
earnings between U.S. and foreign jurisdictions.
20
Nine Months Ended September 30, 2011 Compared to Nine Months Ended September 30, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
Nine Months Ended
|
|
|
September 30, 2010
|
|
|
September 30, 2011
|
|
|
As Reported
|
|
|
As Adjusted
1
|
|
|
|
|
|
|
|
(
In thousands
)
|
|
|
|
|
|
Net revenues
|
|
$
|
294,738
|
|
|
$
|
285,699
|
|
|
$
|
269,188
|
|
Cost of sales
|
|
|
185,910
|
|
|
|
186,323
|
|
|
|
168,828
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
108,828
|
|
|
|
99,376
|
|
|
|
100,360
|
|
Gross margin
|
|
|
37
|
%
|
|
|
35
|
%
|
|
|
37
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Research, development and engineering
|
|
|
18,070
|
|
|
|
19,748
|
|
|
|
15,567
|
|
Marketing and sales
|
|
|
23,079
|
|
|
|
21,323
|
|
|
|
19,764
|
|
General and administrative
|
|
|
34,312
|
|
|
|
39,929
|
|
|
|
37,030
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
75,461
|
|
|
|
81,000
|
|
|
|
72,361
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
$
|
33,367
|
|
|
$
|
18,376
|
|
|
$
|
27,999
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
Excludes Legacy Land Systems (INOVA).
|
Our total net revenues of $294.7 million for the nine months ended September 30, 2011
increased $9.0 million, or 3%, compared to total net revenues for the nine months ended September
30, 2010. Excluding the effect of Legacy Land Systems (INOVA) operations, total net revenues
increased $25.6 million, or 9%, over revenues (as adjusted) for the comparable period in 2010. Our
overall gross profit percentage for the nine months ended September 30, 2011 was 37%, consistent
with the gross profit percentage (as adjusted) for the same period of 2010. Total operating
expenses as a percentage of net revenues for the nine months ended September 30, 2011 and 2010
were, respectively, 26% and 27%, as adjusted. For the nine months ended September 30, 2011, we
recorded income from operations of $33.4 million, compared to $28.0 million, as adjusted, for the
same prior-year period.
Net Revenues, Gross Profits and Gross Margins (excluding Legacy Land Systems)
Systems
Net revenues for the nine months ended September 30, 2011 increased by $14.1
million, or 20%, to $85.7 million, compared to $71.6 million for the nine months ended September
30, 2010. This increase was primarily due to higher revenues from towed streamer and other marine
products partially offset by weak sales of sensor geophones. Gross profit for the nine months ended
September 30, 2011 increased by $11.6 million to $40.8 million, representing a 48% gross margin,
compared to $29.1 million, representing a 41% gross margin, for the nine months ended September 30,
2010. The increase in gross margins in our Systems segment was primarily due to sales mix
including an increase in higher-margin marine positioning equipment sales.
Software
Net revenues for the nine months ended September 30, 2011 increased by $1.8
million, or 6%, to $29.0 million, compared to $27.2 million for the nine months ended September 30,
2010. The increase was principally due to the favorable impact of foreign exchange rate changes.
Excluding the effects of foreign currency translation, revenues were consistent between the periods
of comparison. Gross profit of $21.0 million for the nine months ended September 30, 2011 increased
$2.7 million over the comparative period and gross margins increased by 5% to 72% due to a relative
increase in software sales during the first nine months of 2011, which have higher margins than the
associated hardware sales.
Solutions
Net revenues for the nine months ended September 30, 2011 increased by $9.7
million, or 6%, to $180.0 million, compared to $170.3 million for the nine months ended September
30, 2010. This increase was predominantly driven by demand for access to our multi-client data
libraries in Greenland and Brazil and by increased marine new venture activity in Africa and
Greenland and new venture land activity in the Marcellus shale, partially offset by lower data
processing revenues resulting from the lagging effects of the slowdown in the Gulf of Mexico. Gross
profit decreased by $5.9 million to $47.1 million compared to $53.0 million in 2010, while gross
margins decreased 5% to 26% principally as a result of the lower volume of revenues from our data
processing services.
21
Operating Expenses (excluding Legacy Land Systems)
Research, Development and Engineering
Research, development and engineering expense was
$18.1 million, or 6% of net revenues, for the nine months ended September 30, 2011, an increase of
$2.5 million compared to $15.6 million, as adjusted, or 6% of net revenues, for the corresponding
period of 2010.
Marketing and Sales
Marketing and sales expense of $23.1 million, or 8% of net revenues,
for the nine months ended September 30, 2011 increased $3.3 million compared to $19.8 million, as
adjusted, or 7% of net revenues, for the corresponding period of 2010. The increase was primarily
due to higher employment-related expenses.
General and Administrative
General and administrative expenses of $34.3 million for the
nine months ended September 30, 2011 decreased $2.7 million compared to $37.0 million, as adjusted,
for the corresponding period of 2010. General and administrative expenses as a percentage of net
revenues for the nine months ended September 30, 2011 and 2010 were 12% and 14% (as adjusted),
respectively. This decrease was predominantly due to lower legal costs.
Non-operating Items
Interest Expense, net
Interest expense, net, was $4.2 million for the nine months ended
September 30, 2011 compared to $28.9 million for the nine months ended September 30, 2010. As a
result of our first quarter 2010 debt refinancing, our interest expense for the nine months ended
September 30, 2010 included a $10.1 million write-off of deferred financing charges and an $8.7
million non-cash debt discount (which was fully amortized by March 31, 2010). After excluding
these two non-cash items, our interest expense, net, for the nine months ended September 30, 2010
was $10.1 million. As of September 30, 2011, we had no amounts drawn on our revolving line of
credit under our Credit Facility, and we had cash on hand and short-term investments of $71.3
million. We expect interest expense, net, for the fourth quarter of 2011 to be consistent with
interest expense levels experienced during our first three quarters of 2011.
Loss on Disposition of Land Division
Due to the formation of INOVA Geophysical in March
2010, we recorded a $38.1 million loss on the disposition of our land systems division for the
first quarter of 2010. The majority of the loss recognized from this transaction related to
accumulated foreign currency translation adjustments (effect of exchange rates) of our foreign
subsidiaries, mainly in Canada.
Fair Value Adjustment of Warrant
In October 2009, we issued to BGP a warrant to purchase
shares of our common stock. BGP elected not to exercise the warrant and, on March 25, 2010, BGP
terminated the warrant and surrendered it to us. Prior to its termination, the warrant was required
to be accounted for as a liability at its fair value, resulting in a positive non-cash fair value
adjustment of $12.8 million in the first quarter of 2010.
Equity in Losses of INOVA Geophysical
For the nine months ended September 30, 2011, we
recorded approximately $9.8 million of equity in losses of INOVA Geophysical, which represented our
49% share of INOVA Geophysical for the nine-month period from October 1, 2010 to June 30, 2011,
compared to $8.2 million of equity in losses for the nine months ended September 30, 2010, which
represented our 49% share of equity in losses of INOVA Geophysical for the period from March 26,
2010 to June 30, 2010. The following table reflects the summarized financial information for INOVA
Geophysical for the nine month period from October 1, 2010 through June 30, 2011 and the period
from the formation of INOVA Geophysical on March 26, 2010 through June 30, 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
October 1, 2010
|
|
|
March 26, 2010
|
|
|
|
through
|
|
|
through
|
|
|
|
June 30, 2011
|
|
|
June 30, 2010
|
|
Total net revenues
|
|
$
|
111,747
|
|
|
$
|
19,655
|
|
Gross profit
|
|
$
|
17,680
|
|
|
$
|
(4,194
|
)
|
Loss from operations
|
|
$
|
(18,200
|
)
|
|
$
|
(15,579
|
)
|
Net loss
|
|
$
|
(20,589
|
)
|
|
$
|
(17,566
|
)
|
INOVA Geophysicals revenues for the first nine months of 2011 significantly improved compared
to the prior year period. However, due to the political unrest in North Africa and the Middle East
and the launch of INOVA Geophysicals next-generation
cable and cableless land acquisition systems, we do not expect significant positive
improvements to INOVA Geophysicals results of operations until 2012. Additionally, due to INOVA Geophysicals announced launch of its next-generation products, which are in process of field testing with plan of commercial introduction in
2012, we expect to see a one-time write-down of inventory based upon previous
technologies to occur in INOVA Geophysicals third quarter and then reflected in our
fourth quarter results. We estimate that our 49% share of this one-time write-down to be
in the range of $6 million to $8 million.
22
Other Expense
Other expense for the nine months ended September 30, 2011 was $2.3 million
compared to $0.8 million for the comparative period of 2010. This difference primarily related to
foreign currency exchange losses primarily associated with our operations in the United Kingdom.
Income Tax Expense
Income tax expense for the nine months ended September 30, 2011 was $4.7
million compared to $12.4 million for the comparative period of 2010. Our effective tax rate for
the nine months ended September 30, 2011 was 27.7%, a provision on income, compared to a provision
on a loss of 27.7%, for the nine months ended September 30, 2010. Income tax expense for the nine
months ended September 30, 2010, included $16.4 million of expense related to the transactions
involved in the formation of INOVA Geophysical, partially offset by a benefit related to
alternative minimum tax. Excluding the impact of these transactions, our effective tax rate for
the nine months ended September 30, 2010 would have been 29.7% (provision on a loss). The change
in our effective tax rate for the nine months ended September 30, 2011 as compared to the
corresponding period in 2010 was due to changes in the distribution of earnings between U.S. and
foreign jurisdictions.
Preferred Stock Dividends
The preferred stock dividend relates to our Series D Preferred
Stock. Quarterly dividends must be paid in cash. Dividends are paid at a rate equal to the greater
of (i) 5.0% per annum or (ii) the three month LIBOR rate on the last day of the immediately
preceding calendar quarter plus 2.5% per annum. The Series D Preferred Stock dividend rate was 5.0%
at September 30, 2011. The total amount of dividends paid on our preferred stock for the nine
months ended September 30, 2011 was less than the comparative period of 2010 due to the conversion
of 43,000 shares of preferred stock into 9,659,231 shares of common stock in April 2010.
Liquidity and Capital Resources
Capital Requirements and Sources of Capital
Our cash requirements include our working capital requirements, and cash required for our debt
service payments, seismic data acquisition projects for our seismic data libraries and capital
expenditures. As of September 30, 2011, we had working capital of $168.3 million, which included
$43.3 million of cash on hand and $28.0 million of short-term investments. Capital requirements are
primarily driven by our continued investment in our multi-client seismic data library ($91.6
million in the nine months ended September 30, 2011) and, to a lesser extent, our inventory
purchase obligations. Also, our headcount is a significant driver of our working capital needs.
Because a significant portion of our business is involved in the planning, processing and
interpretation of seismic data services, one of our largest investments is in our employees, which
involves cash expenditures for their salaries, bonuses, payroll taxes and related compensation
expenses. Our working capital requirements may change from time to time depending upon many
factors, including our operating results and adjustments in our operating plan required in response
to industry conditions, competition, acquisition opportunities and unexpected events. In recent
years, our primary sources of funds have been cash flows generated from our operations, our
existing cash balances, debt and equity issuances and borrowings under our revolving credit and
term loan facilities (see
Revolving Line of Credit and Term Loan Facility
below)
At September 30, 2011, our principal credit facility consisted of:
|
|
|
A revolving line of credit sub-facility providing for borrowings of up to $100.0 million;
and
|
|
|
|
A term loan sub-facility having an outstanding principal balance of $100.3 million.
|
As of September 30, 2011, we had no indebtedness outstanding under the revolving line of
credit.
Revolving Line of Credit and Term Loan Facility
In March 2010, we, our Luxembourg
subsidiary, ION International S.à r.l. (ION Sàrl), and certain of our other U.S. and foreign
subsidiaries entered into a new credit facility (the Credit Facility). The terms of the Credit
Facility are set forth in a credit agreement dated March 25, 2010 (the Credit Agreement), by and
among us, ION Sàrl and China Merchants Bank Co., Ltd., New York Branch (CMB), as administrative
agent and lender. Our obligations under the Credit Facility are guaranteed by certain of our
material U.S. subsidiaries and the obligations of ION Sàrl under the Credit Facility are
23
guaranteed by certain of our material U.S. and foreign subsidiaries, in each case that are
parties to the Credit Agreement. In addition, in June 2010, INOVA Geophysical entered into an
agreement to guarantee the indebtedness under the Credit Facility.
The Credit Facility provides us with a revolving line of credit of up to $100.0 million in
borrowings (including borrowings for letters of credit), and refinanced our outstanding term loan
with a new term loan in the original principal amount of $106.3 million.
The revolving credit sub-facility and term loan under the Credit Facility are each scheduled
to mature on March 24, 2015. The principal amount under the term loan is subject to scheduled
quarterly amortization payments of $1.0 million per quarter until the maturity date, upon which the
remaining unpaid principal amount of the term loan becomes due and payable. The indebtedness under
the Credit Facility may sooner mature on a date that is 18 months after the earlier of (i) any
dissolution of INOVA Geophysical, or (ii) the administrative agent determining in good faith that
INOVA Geophysical is unable to perform its obligations under its guarantee that it has provided
under the Credit Facility.
The interest rate per annum on borrowings under the Credit Facility will be, at our option:
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An alternate base rate equal to the sum of (i) the greatest of (a) the prime rate of CMB,
(b) a federal funds effective rate plus 0.50%, or (c) an adjusted LIBOR-based rate plus
1.0%, and (ii) an applicable interest margin of 2.5%; or
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For Eurodollar borrowings and borrowings in Euros, Pounds Sterling or Canadian Dollars,
the sum of (i) an adjusted LIBOR-based rate, and (ii) an applicable interest margin of 3.5%.
|
As of September 30, 2011, the $100.3 million in outstanding term loan indebtedness under the
Credit Facility accrued interest at a rate of 3.7% per annum.
The Credit Facility requires us to be in compliance with certain financial covenants. Certain
of these financial covenants became effective on June 30, 2011 and will continue in effect for each
fiscal quarter thereafter over the term of the Credit Facility. These financial covenants require
us and our subsidiaries to:
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Maintain a minimum fixed charge coverage ratio in an amount equal to at least 1.125 to 1;
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Not exceed a maximum leverage ratio of 3.25 to 1; and
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Maintain a minimum tangible net worth of at least 60% of IONs tangible net worth as of
March 31, 2010, as defined in the Credit Agreement.
|
The fixed charge coverage ratio is defined as the ratio of (i) our consolidated EBITDA less
cash income tax expense and non-financed capital expenditures, to the sum of (ii) scheduled
payments of lease payments and payments of principal indebtedness, interest expense actually paid
and cash dividends, in each case for the four consecutive fiscal quarters most recently ended. The
leverage ratio is defined as the ratio of (x) total funded consolidated debt, capital lease
obligations and issued letters of credit (net of cash collateral) to (y) our consolidated EBITDA
for the four consecutive fiscal quarters most recently ended. We were in compliance with these
financial covenants as of September 30, 2011, and we expect to remain in compliance with these
covenants throughout the remainder of 2011.
Interest Rate Caps
We use derivative financial instruments to manage our exposure to the
interest rate risks related to the variable rate debt under our term loan indebtedness. We do not
use derivatives for trading or speculative purposes and only enter into contracts with major
financial institutions based on their credit rating and other factors.
In August 2010, we entered into an interest rate cap agreement and purchased interest rate
caps having an initial notional amount of $103.3 million with a three-month average LIBOR cap of
2.0%. If and when the three-month average LIBOR rate exceeds 2.0%, the LIBOR portion of interest
owed by us would be effectively capped at 2.0%. This initial notional amount was set to equal the
projected outstanding balance under our term loan facility at December 31, 2010. The notional
amount was then set so as not to exceed the outstanding balance of our term loan facility over a
period that extends through March 29, 2013. We purchased these interest rate caps for
approximately $0.4 million and designated the interest rate caps as cash flow hedges.
24
In July 2011, we purchased additional interest rate caps related to our term loan facility.
The notional amounts of these interest rate
caps, together with the notional amounts of the interest rate caps purchased in August 2010,
were set so as not to exceed the outstanding balance of our term loan facility over a period that
extends through March 31, 2014. We purchased these interest rate caps for approximately $0.3
million and designated the interest rate caps as cash flow hedges. See further discussion
regarding these interest rate caps at Note 6
Long-term Debt, Lease Obligations
and Interest Rate Caps.
Meeting our Liquidity Requirements
As of September 30, 2011, our total outstanding indebtedness (including capital lease
obligations) was approximately $103.8 million, primarily consisting of approximately $100.3 million
outstanding under the term loan. As of September 30, 2011, we had no amounts drawn on our
revolving line of credit under our Credit Facility, and we had approximately $43.3 million of cash
on hand and $28.0 million in short-term investments.
For the nine months ended September 30, 2011, total capital expenditures, including
investments in our multi-client data library, were $100.6 million, and we are projecting additional
capital expenditures for the fourth quarter of 2011 to be between $20 million and $40 million. A
majority of our projected additional capital expenditures relate to our investment in our
multi-client data library, and we anticipate that most of this investment will be underwritten by
our customers.
Cash Flow from Operations
We have historically financed our operations from internally generated cash and funds from
equity and debt financings. Cash and cash equivalents were $43.3 million, which excludes $28.0
million of excess cash invested in short-term bank certificates of deposit, at September 30, 2011,
compared to $84.4 million at December 31, 2010. Net cash provided by operating activities was $86.1
million for the nine months ended September 30, 2011, compared to $54.8 million for the comparative
period of 2010. The increase in our cash flows from operations was primarily due to decreases in
unbilled receivables and increases in deferred revenues, offset partially by increased accounts
receivable and an increase in inventory in our Systems segment, which includes building inventory
related to our contract to outfit a BGP twelve-streamer vessel with our DigiSTREAMER data
acquisition system, announced in August 2010, and BGP is expected to deploy the system in the
fourth quarter of this year.
Cash Flow from Investing Activities
Net cash flow used in investing activities was $135.0 million for the nine months ended
September 30, 2011, compared to net cash provided by investing activities of $33.4 million for the
comparative period of 2010. The principal uses of cash in our investing activities during the nine
months ended September 30, 2011 were our net investment of $28.0 million of excess cash in
short-term bank certificates of deposit, $91.6 million of continued investment in our multi-client
data library and our $6.5 million investment in a convertible note (see Note 3
" Investments.)
.
The principal source of cash from our investing activities during the nine months ended September
30, 2010 was $99.8 million net proceeds received from BGP for their 51% interest in INOVA
Geophysical and the use of cash of $58.9 million on investment in our multi-client data library.
Cash Flow from Financing Activities
Net cash flow provided by financing activities was $7.8 million for the nine months ended
September 30, 2011, compared to $90.9 million of net cash flow used in financing activities for the
comparative period of 2010. The net cash flow provided by financing activities during the nine
months ended September 30, 2011 was primarily related to proceeds from stock option exercises of
$13.0 million, partially offset by payments on our long-term debt of $4.9
million. The net cash flow used in financing activities during the nine months ended September 30,
2010 was primarily related to net repayments on our prior revolving credit facility of $89.4
million and payments on our notes payable in connection with our long-term debt refinancing of
$143.8 million. This cash outflow was partially offset by proceeds of $38.0 million from the
issuance of our common stock to BGP in March 2010 and net proceeds of $105.7 million related to the
issuance of the term loan under the Credit Facility.
25
Inflation and Seasonality
Inflation in recent years has not had a material effect on our costs of goods or labor, or the
prices for our products or services. Traditionally, our business has been seasonal, with strongest
demand in the fourth quarter of our fiscal year.
Critical Accounting Policies and Estimates
Refer to our Annual Report on Form 10-K for the year ended December 31, 2010 for a complete
discussion of our significant accounting policies and estimates. There have been no material
changes in the current period regarding our critical accounting policies and estimates.
Recent Accounting Pronouncements
See Note 14 of
Notes to Unaudited Condensed Consolidated Financial Statements
.
Credit and Foreign Sales Risks
The majority of our foreign sales are denominated in United States dollars. Product revenues
are allocated to geographical locations on the basis of the ultimate destination of the equipment,
if known. If the ultimate destination of such equipment is not known, product revenues are
allocated to the geographical location of initial shipment. Service revenues, which primarily
relate to our Solutions division, are allocated based upon the billing location of the customer.
For the nine months ended September 30, 2011 and 2010, international sales comprised 65% and 51%,
respectively, of total net revenues.
A summary of net revenues by geographic area follows (in thousands):
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Nine Months Ended
|
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|
|
September 30,
|
|
|
|
2011
|
|
|
2010
|
|
North America
|
|
$
|
102,405
|
|
|
$
|
139,667
|
|
Europe
|
|
|
106,798
|
|
|
|
82,651
|
|
Asia Pacific
|
|
|
39,229
|
|
|
|
25,193
|
|
Middle East
|
|
|
21,784
|
|
|
|
6,292
|
|
Latin America
|
|
|
7,698
|
|
|
|
15,099
|
|
Africa
|
|
|
6,329
|
|
|
|
13,913
|
|
Commonwealth of Independent States (CIS)
|
|
|
10,495
|
|
|
|
2,884
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
294,738
|
|
|
$
|
285,699
|
|
|
|
|
|
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To the extent that world events or economic conditions negatively affect our future sales to
customers in certain geographic areas, the collectability of our existing receivables, our future
results of operations, liquidity, and financial condition may be adversely affected. We currently
require customers in higher risk countries to provide their own financing. We do not currently
extend long-term credit through promissory notes or similar credit agreements to companies in
countries we consider to be inappropriate for credit risk purposes.
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Item 3.
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Quantitative and Qualitative Disclosures about Market Risk
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Refer to Item 7A of our Annual Report on Form 10-K for the year ended December 31, 2010 for a
discussion regarding the Companys quantitative and qualitative disclosures about market risk.
There have been no material changes to those disclosures during the nine months ended September 30,
2011.
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Item 4.
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Controls and Procedures
|
Disclosure Controls and Procedures
. Disclosure controls and procedures are designed to ensure
that information required to be disclosed in the reports we file with or submit to the SEC under
the Exchange Act is recorded, processed, summarized and reported within the time period specified
by the SECs rules and forms. Disclosure controls and procedures, include, without limitation,
controls and procedures designed to ensure that information required to be disclosed under the
Exchange Act is accumulated and
26
communicated to management, including the principal executive officer and the principal
financial officer, as appropriate, to allow timely decisions regarding required disclosure.
Our management carried out an evaluation of the effectiveness of the design and operation of
our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of
September 30, 2011. Based upon that evaluation, our principal executive officer and our principal
financial officer concluded that our disclosure controls and procedures were effective as of
September 30, 2011.
Changes in Internal Control over Financial Reporting.
There was not any change in our internal
control over financial reporting that occurred during the three months ended September 30, 2011,
which has materially affected, or is reasonably likely to materially affect, our internal control
over financial reporting.
PART II OTHER INFORMATION
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Item 1.
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Legal Proceedings
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WesternGeco
In June 2009, WesternGeco L.L.C. (WesternGeco) filed a lawsuit against us in the United
States District Court for the Southern District of Texas, Houston Division. In the lawsuit, styled
WesternGeco L.L.C. v. ION Geophysical Corporation
, WesternGeco alleges that we have infringed
several United States patents regarding marine seismic streamer steering devices that are owned by
WesternGeco. WesternGeco is seeking unspecified monetary damages and an injunction prohibiting us
from making, using, selling, offering for sale or supplying any infringing products in the United
States. Based on our review of the lawsuit filed by WesternGeco and the WesternGeco patents at
issue, we believe that its products do not infringe any WesternGeco patents, that the claims
asserted against us by WesternGeco are without merit and that the ultimate outcome of the claims
against us will not result in a material adverse effect on our financial condition or results of
operations. We intend to defend the claims against us vigorously.
In June 2009, we filed an answer and counterclaims against WesternGeco, in which we deny that
we have infringed WesternGecos patents and assert that the WesternGeco patents are invalid or
unenforceable. We also asserted that WesternGecos Q-Marine system, components and technology
infringe upon a United States patent owned by us related to marine seismic streamer steering
devices. The claims by us also assert that WesternGeco tortiously interfered with our relationship
with our customers. In addition, we claim that the lawsuit by WesternGeco is an illegal attempt by
WesternGeco to control and restrict competition in the market for marine seismic surveys performed
using laterally steerable streamers. In our counterclaims, we are requesting various remedies and
relief, including a declaration that the WesternGeco patents are invalid or unenforceable, an
injunction prohibiting WesternGeco from making, using, selling, offering for sale or supplying any
infringing products in the United States, a declaration that the WesternGeco patents should be
co-owned by us, and an award of unspecified monetary damages.
In June 2010, WesternGeco filed a lawsuit against various subsidiaries and affiliates of Fugro
N.V. (Fugro), one of our seismic contractor customers, accusing Fugro of infringing the same
United States patents regarding marine seismic streamer steering devices by planning to use certain
equipment purchased from us on a survey located outside of U.S. territorial waters. The court
approved the consolidation of the Fugro case with the case against us. Fugro filed a motion to
dismiss the lawsuit, and in March 2011 the presiding judge granted Fugros motion to dismiss in
part, on the basis that the alleged activities of Fugro would occur more than 12 miles from the
U.S. coast and therefore are not actionable under U.S. patent infringement law.
Fletcher
In November 2009, Fletcher, the holder of shares of our outstanding Series D Preferred Stock,
filed a lawsuit against us and certain of our directors in the Delaware Court of Chancery. In the
lawsuit, styled
Fletcher International, Ltd. v. ION Geophysical Corporation, f/k/a Input/Output,
Inc., ION International S.à r.l., James M. Lapeyre, Bruce S. Appelbaum, Theodore H. Elliott, Jr.,
Franklin Myers, S. James Nelson, Jr., Robert P. Peebler, John Seitz, G. Thomas Marsh And Nicholas
G. Vlahakis,
Fletcher alleged, among other things, that we violated Fletchers consent rights
contained in the Series D Preferred Stock Certificates of Designation, by ION Sàrls issuance of a
convertible promissory note to the Bank of China, New York Branch, in connection with a bridge loan
funded in October 2009 by Bank of China, and that the directors violated their fiduciary duty to us
by allowing ION Sàrl to issue the
27
convertible note without Fletchers consent. A total of $10.0
million was advanced to ION Sàrl under the bridge loan, and ION Sàrl repaid $10.0 million on the
following day. Fletcher sought a court order requiring ION Sàrl to repay the $10 million advanced
to ION Sàrl under the bridge loan and unspecified monetary damages. On March 24, 2010, the
presiding judge in the case denied Fletchers
request for the court order. In a Memorandum Opinion issued on May 28, 2010 in response to a
motion for partial summary judgment, the judge dismissed all of Fletchers claims against our named
directors but also concluded that, because the bridge loan note issued by ION Sàrl was convertible
into ION common stock, Fletcher technically had the right to consent to the issuance of the note
and that we violated Fletchers consent right by ION Sàrl issuing the note without Fletchers
consent. In December 2010, the presiding judge in the case recused himself from the case and a new
presiding judge was appointed to the case. In March 2011, the judge dismissed certain of the
claims asserted by Fletcher. We believe that the remaining claims asserted by Fletcher in the
lawsuit are without merit. We further believe that the monetary damages suffered by Fletcher as a
result of ION Sàrl issuing the bridge loan note without Fletchers consent are nonexistent or
nominal, and that the ultimate outcome of the lawsuit will not result in a material adverse effect
on our financial condition or results of operations. We intend to defend the remaining claims
against us in this lawsuit vigorously.
Sercel
On January 29, 2010, the jury in a patent infringement lawsuit filed by us against seismic
equipment provider Sercel, Inc. in the United States District Court for the Eastern District of
Texas returned a verdict in our favor. In the lawsuit, styled
Input/Output, Inc. et al v. Sercel,
Inc., (5-06-cv-00236)
, we alleged that Sercels 408, 428 and SeaRay digital seismic sensor units
infringe our United States Patent No. 5,852,242, which is incorporated in our VectorSeis sensor
technology. Products of ION or INOVA Geophysical that use the VectorSeis technology include the
System Four, Scorpion, FireFly, and VectorSeis Ocean seismic acquisition systems. After a two-week
trial, the jury concluded that Sercel infringed our patent and that our patent was valid, and the
jury awarded us $25.2 million in compensatory past damages. In response to post-verdict motions
made by the parties, on September 16, 2010, the presiding judge issued a series of rulings that (a)
granted our motion for a permanent injunction to be issued prohibiting the manufacture, use or sale
of the infringing Sercel products, (b) confirmed that our patent was valid, (c) confirmed that the
jurys finding of infringement was supported by the evidence and (d) disallowed $5.4 million of
lost profits that were based on infringing products that were manufactured and delivered by Sercel
outside of the United States, but were offered for sale by Sercel in the United States and involved
underlying orders and payments received by Sercel in the United States. In addition, the judge
concluded that the evidence supporting the jurys finding that we were entitled to be awarded $9.0
million in lost profits associated with certain infringing pre-verdict marine sales by Sercel was
too speculative and therefore disallowed that award of lost profits. As a result of the judges
ruling, we are now entitled to be awarded an additional amount of damages equal to a reasonable
royalty on the infringing pre-verdict Sercel marine sales. After we learned that Sercel continued
to make sales of infringing products after the January 2010 jury verdict was rendered, we filed
motions with the court to seek additional compensatory damages for the post-verdict infringing
sales and enhanced damages as a result of the willful nature of Sercels post-verdict infringement.
On February 16, 2011, the Court entered a final judgment and permanent injunction in the case.
The final judgment awarded us $10.7 million in damages, plus interest, and the permanent injunction
prohibits Sercel and parties acting in concert with Sercel from making, using, offering to sell,
selling, or importing in the United States (which includes territorial waters of the United States)
Sercels 408UL, 428XL and SeaRay digital sensor units, and all other products that are only
colorably different from those products. The Court ordered that the additional damages to be paid
by Sercel as a reasonable royalty on the infringing pre-verdict Sercel marine sales and the
additional damages to be paid by Sercel resulting from post-verdict infringing sales would be
determined in a separate future proceeding. Sercel and we have each appealed portions of the final
judgment. We have not recorded any amounts related to this gain contingency as of September 30,
2011.
Other
We have been named in various other lawsuits or threatened actions that are incidental to
our ordinary business. Such lawsuits and actions could increase in number as our business expands
and we grow larger. Litigation is inherently unpredictable. Any claims against us, whether
meritorious or not, could be time consuming, cause us to incur costs and expenses, require
significant amounts of management time and result in the diversion of significant operational
resources. The results of these lawsuits and actions cannot be predicted with certainty. We
currently believe that the ultimate resolution of these matters will not have a material adverse
impact on our financial condition, results of operations or liquidity.
28
Item 1A.
Risk Factors
This report contains or incorporates by reference statements concerning our future results and
performance and other matters that are forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended (Securities Act), and Section 21E of the Securities
Exchange Act of 1934, as amended (Exchange Act). These statements involve known and unknown
risks, uncertainties, and other factors that may cause our or our industrys results, levels of
activity, performance, or achievements to be materially different from any future results, levels
of activity, performance, or achievements expressed or implied by such forward-looking statements.
In some cases, you can identify forward-looking statements by terminology such as may, will,
would, should, intend, expect, plan, anticipate, believe, estimate, predict,
potential, or continue or the negative of such terms or other comparable terminology. Examples
of other forward-looking statements contained or incorporated by reference in this report include
statements regarding:
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the effects of current and future worldwide economic conditions and demand for oil and
natural gas and seismic equipment and services;
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the effects of current and future unrest in the Middle East, North Africa and other
regions;
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future benefits to be derived from INOVA Geophysical;
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future increases of capital expenditures for seismic activities;
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the expected outcome of litigation and other claims against us;
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the timing of anticipated sales and associated realized revenues;
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future levels of spending by our customers;
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expected improved revenues and the timing of future revenue realization of anticipated
orders for seismic data processing work in our Solutions segment;
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future oil and gas commodity prices;
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the duration of the slowdown in exploration and development activities in the Gulf of
Mexico resulting from the April 2010 Deepwater Horizon incident, which affects us and our
customers;
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expected net revenues, income from operations and net income;
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expected improved revenues from data processing services in our Solutions segment;
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expected gross margins for our products and services;
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future benefits to our customers to be derived from new products and services;
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future benefits to be derived from our investments in technologies and acquired
companies;
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future growth rates for our products and services;
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the degree and rate of future market acceptance of our new products and services;
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our expectations regarding oil and gas exploration and production companies and
contractor end-users purchasing our more technologically-advanced products and services;
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29
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anticipated timing and success of commercialization and capabilities of products and
services under development and start-up costs associated with their development;
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future cash needs and future availability of cash to fund our operations and pay our
obligations;
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potential future acquisitions;
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future levels of capital expenditures;
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our ability to maintain our costs at consistent percentages of our revenues in the
future;
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future demand for seismic equipment and services;
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future seismic industry fundamentals;
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future opportunities for new products and projected research and development expenses;
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future success in integrating our acquired businesses;
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sufficient future profits to fully utilize our net operating losses;
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future compliance with our debt financial covenants;
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expectations regarding realization of deferred tax assets; and
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anticipated results regarding accounting estimates we make.
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These forward-looking statements reflect our best judgment about future events and trends
based on the information currently available to us. Our results of operations can be affected by
inaccurate assumptions we make or by risks and uncertainties known or unknown to us. Therefore, we
cannot guarantee the accuracy of the forward-looking statements. Actual events and results of
operations may vary materially from our current expectations and assumptions.
Information regarding factors that may cause actual results to vary from our expectations,
called risk factors, appears in our Annual Report on Form 10-K for the year ended December 31,
2010 in Part II, Item 1A. Risk Factors. There have been no material changes from the risk factors
previously disclosed in that Form 10-K.
Item 2
.
Unregistered Sales of Equity Securities and Use of Proceeds
(c) During the three months ended September 30, 2011, in connection with the vesting of (or
lapse of restrictions on) shares of our restricted stock held by certain employees, we acquired
shares of our common stock in satisfaction of tax withholding obligations that were incurred on the
vesting date. The date of cancellation, number of shares and average effective acquisition price
per share were as follows:
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(d) Maximum Number
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|
(or Approximate
|
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Dollar
|
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|
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|
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(c) Total Number of
|
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|
Value) of Shares
|
|
|
|
|
|
|
|
|
|
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Shares Purchased as
|
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That
|
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|
(a)
|
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|
(b)
|
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|
Part of Publicly
|
|
|
May Yet Be Purchased
|
|
|
|
Total Number of
|
|
|
Average Price
|
|
|
Announced Plans or
|
|
|
Under the Plans or
|
|
Period
|
|
Shares Acquired
|
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Paid Per Share
|
|
|
Program
|
|
|
Program
|
|
July 1, 2011 to July 31, 2011
|
|
|
|
|
|
$
|
|
|
|
Not applicable
|
|
Not applicable
|
August 1, 2011 to August 31, 2011
|
|
|
|
|
|
$
|
|
|
|
Not applicable
|
|
Not applicable
|
September 1, 2011 to September 30, 2011
|
|
|
526
|
|
|
$
|
6.78
|
|
|
Not applicable
|
|
Not applicable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
526
|
|
|
$
|
6.78
|
|
|
|
|
|
|
|
|
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|
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|
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30
Item 6.
Exhibits
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10.1
|
|
Employment Agreement dated August 2, 2011, to become effective on
January 1, 2012, between ION Geophysical Corporation and R. Brian
Hanson.
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31.1
|
|
Certification of Chief Executive Officer Pursuant to Rule 13a-14(a).
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31.2
|
|
Certification of Chief Financial Officer Pursuant to Rule 13a-14(a).
|
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|
|
32.1
|
|
Certification of Chief Executive Officer Pursuant to 18 U.S.C. §1350.
|
|
|
|
32.2
|
|
Certification of Chief Financial Officer Pursuant to 18 U.S.C. §1350.
|
|
|
|
101
|
|
The following materials are formatted in Extensible Business
Reporting Language (XBRL): (i) Condensed Consolidated Balance Sheets
at September 30, 2011 and December 31, 2010, (ii) Condensed
Consolidated Statements of Operations for the three-month and
nine-month periods ended September 30, 2011 and 2010, (iii) Condensed
Consolidated Statements of Cash Flows for the nine months ended
September 30, 2011 and 2010, and (iv) Notes to Condensed Consolidated
Financial Statements tagged as block text.*
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|
|
|
*
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|
In accordance with Rule 406T of Regulation S-T, the XBRL-related information in Exhibit
101 to this Quarterly Report on Form 10-Q is deemed not filed or part of a registration statement
or prospectus for purposes of sections 11 or 12 of the Securities Act, is deemed not filed for
purposes of section 18 of the Exchange Act, and otherwise is not subject to liability under these
sections.
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31
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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ION GEOPHYSICAL CORPORATION
|
|
|
By
|
/s/ R. Brian Hanson
|
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R. Brian Hanson
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President, Chief Operating Officer and Chief Financial Officer
(Duly authorized executive officer and principal financial officer)
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Date: November 3, 2011
32
EXHIBIT INDEX
|
|
|
Exhibit No.
|
|
Description
|
10.1
|
|
Employment Agreement dated August 2, 2011, to become effective on
January 1, 2012, between ION Geophysical Corporation and R. Brian
Hanson.
|
|
|
|
31.1
|
|
Certification of Chief Executive Officer Pursuant to Rule 13a-14(a).
|
|
|
|
31.2
|
|
Certification of Chief Financial Officer Pursuant to Rule 13a-14(a).
|
|
|
|
32.1
|
|
Certification of Chief Executive Officer Pursuant to 18 U.S.C. §1350.
|
|
|
|
32.2
|
|
Certification of Chief Financial Officer Pursuant to 18 U.S.C. §1350.
|
|
|
|
101
|
|
The following materials are formatted in Extensible Business
Reporting Language (XBRL): (i) Condensed Consolidated Balance Sheets
at September 30, 2011 and December 31, 2010, (ii) Condensed
Consolidated Statements of Operations for the three-month and
nine-month periods ended September 30, 2011 and 2010, (iii)
Condensed Consolidated Statements of Cash Flows for the nine months
ended September 30, 2011 and 2010, and (iv) Notes to Condensed
Consolidated Financial Statements tagged as block text.*
|
|
|
|
*
|
|
In accordance with Rule 406T of Regulation S-T, the XBRL-related information in Exhibit
101 to this Quarterly Report on Form 10-Q is deemed not filed or part of a registration statement
or prospectus for purposes of sections 11 or 12 of the Securities Act, is deemed not filed for
purposes of section 18 of the Exchange Act, and otherwise is not subject to liability under these
sections.
|
33
Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this Agreement) is made and entered into by and between ION
Geophysical Corporation, a Delaware corporation (hereinafter referred to as Employer or
Company), and R. Brian Hanson (hereinafter referred to as Employee), effective as of January 1,
2012 (the Effective Date).
WHEREAS, Employee desires to enter into the employment of Employer, and Employer desires
to employ Employee, subject to the terms set out in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Employer and Employee agree as follows:
Section 1.
General Duties of Employer and Employee
.
(a) Employer agrees to employ Employee, and Employee agrees to accept employment by Employer
and to serve Employer, as its President and Chief Executive Officer (CEO). Employee shall report
to the Board of Directors of the Employer (Board) throughout his employment with Employer. The
powers, duties, authority and responsibilities of Employee include those powers, duties, authority
and responsibilities that are the usual and customary powers, duties, authority and
responsibilities of the President and Chief Executive Officer in the year 2012 and thereafter,
including but not limited to those powers, duties, authority and responsibilities specified in
Employers Bylaws, and such other and further duties, authority and responsibilities appropriate to
such position as may from time to time be assigned to Employee by the Board. All aspects of
Employees positions and powers, duties, authority, responsibilities and reporting relationship to
the Board are material to this Agreement.
(b) While employed hereunder, Employee will devote substantially all reasonable and necessary
time, efforts, skills and attention for the benefit of and with Employees primary attention to the
affairs of Employer in order that he may faithfully perform his duties and obligations. The
preceding sentence will not, however, be deemed to restrict Employee from attending to matters or
engaging in activities not directly related to the business of Employer, provided that (i) such
activities or matters are reasonable in scope and time commitment and not otherwise in violation of
this Agreement, and (ii) Employee will not become a director or officer of (or hold any
substantially similar responsibility with) any corporation or other entity (excluding charitable or
other non-profit organizations) without prior written disclosure to, and consent of, Employer.
(c) At the commencement of Employees employment by Employer, Employee will be based at
Employers corporate headquarters located at 2105 CityWest Blvd, Suite 400, Houston, Texas
77042-2839 (the Place of Employment).
(d) Employee agrees and acknowledges that as an officer and employee of Employer, and
consistent with the terms hereof, he owes a fiduciary duty of loyalty, fidelity and allegiance to
act at all times in the best interests of Employer and to do no act which Employee knows at the
time of the act would injure Employers business, its interests or its reputation.
-1-
Section 2.
Compensation and Benefits
.
(a) Employer will pay to Employee during the term of this Agreement a base salary at the rate
of $450,000 per annum (such base salary as adjusted from time to time by the Board or the
Compensation Committee of the Board as hereinafter provided is referred to herein as the Base
Salary). The Compensation Committee of the Board will review the Base Salary at least annually
and, during the term of this Agreement, may increase, but may not decrease, the Base Salary as it
deems to be in the best interest of Employer. The Base Salary will be paid to Employee in equal
installments every two weeks or on such other schedule as Employer may establish from time to time
for its key executives.
(b) Employee will be eligible to participate in the incentive compensation plan established by
the Board or Compensation Committee for Employers key employees for the fiscal year 2012, with
target plan incentive compensation at 75% of Base Salary (Target Bonus) and with an opportunity
to earn plan incentive compensation up to 150% of Base Salary (Bonus). During each fiscal year
during the term of this Agreement, Employee will be eligible to participate in that years
incentive compensation plan or other replacement incentive or bonus plan the Board or Compensation
Committee establishes for Employers key executives, at the above target and maximum figures. If in
any fiscal year Employee is employed less than the full year, Employees Target Bonus shall be
prorated and paid based on Employees actual period of employment during such fiscal year. Employee
need not be employed at the time Bonuses are paid or determined to receive the Bonus, Target Bonus
or prorated Target Bonus, notwithstanding anything to the contrary.
(c) For each calendar year during the term of this Agreement, Employee shall be entitled to
receive grant(s) of options to purchase shares of common stock of Employer and shares of restricted
stock of Employer, in each case in the sole discretion of the Compensation Committee or the Board.
Such equity awards shall be granted on December 1 of each such year during the term, or such other
date each year that the other executive officers of the Employer are awarded annual equity grants.
For the avoidance of doubt, Employee will be eligible for participation in equity compensation
plans that are established for key executives of Employer; such grants to be made in the sole
discretion of the Compensation Committee or the Board.
(d) Employee will accrue vacation pay of 6.154 hours per two-week pay period. Vacation may be
taken by Employee at the time and for such periods as may be mutually agreed upon between Employer
and the Board.
(e) Employee will be reimbursed in accordance with Employers normal expense reimbursement
policies for all of the actual and reasonable costs and expenses incurred by him in the performance
of his services and duties hereunder, including, but not limited to, reasonable travel expenses.
Employee will furnish Employer with all invoices and vouchers reflecting amounts for which Employee
seeks Employers reimbursement.
(f) Employee will be entitled to participate in all insurance and retirement plans, incentive
compensation plans (at a level appropriate to his position) and such other benefit plans or
programs as may be in effect from time to time for the employees of Employer, including, without
limitation, those related to savings and thrift, retirement, welfare, medical,
-2-
dental, disability,
salary continuance, accidental death, travel accident, life insurance, incentive bonus, membership
in business and professional organizations, and reimbursement of business and entertainment
expenses.
(g) Employer, during the term of this Agreement and thereafter without limit of time, will
indemnify Employee for claims and expenses to the extent provided in Employers Certificate of
Incorporation and Bylaws. Employer will also provide Employee coverage under Employers policy or
policies of directors
and officers liability insurance to the same extent as other executive officers of Employer during
the term of this Agreement and thereafter.
(h) All Base Salary, bonus and other payments made by Employer to Employee pursuant to this
Agreement will be subject to such payroll and withholding deductions as may be required by law and
other deductions applied generally to employees of Employer for insurance and other employee
benefit plans in which Employee participates.
(i) Any incentive compensation pay or Bonus so determined under any such plan will be paid to
Employee not later than the date such pay or Bonus shall be paid to other participants in the plan.
(j) Compensation under this Section 2 shall be subject to recoupment in accordance with the
terms of Employers Compensation Recoupment Policy applicable to executive officers as such policy
shall be amended from time to time as required by applicable law or regulation or as otherwise
amended with regard to all covered executives in the discretion of the Board or a committee of the
Board.
(k) No reduction in Employees compensation and benefits as provided in this Agreement may be
made by the Compensation Committee or the Board (or any successor Board or committee) except in the
event of Employees approval or written consent or as otherwise permitted or provided for under the
terms of this Agreement.
Section 3.
Fiduciary Duty; Confidentiality
.
(a) In keeping with Employees fiduciary duties to Employer, Employee agrees that he will not
take any action that he knows at the time of the act would create a conflict of interest with
Employer, or upon discovery thereof, allow such a conflict to continue. In the event that Employee
discovers that such a conflict exists, Employee agrees that he will disclose to the Board any facts
which might involve a conflict of interest that has not been approved by the Board, said disclosure
to be made in writing by the Employee as soon as it is reasonably possible.
(b) As part of Employees fiduciary duties to Employer, Employee agrees to protect and
safeguard Employers information, ideas, concepts, improvements, discoveries, and inventions and
any proprietary, confidential and other information relating to Employer or its business
(collectively, Confidential Information) and, except as may be required by Employer, Employee
will not knowingly, at the time of the action, either during his employment by Employer or
thereafter, directly or indirectly, use for his own benefit or for the benefit of another, or
disclose to another, any Confidential Information, except (i) with the prior written consent of
Employer; (ii) in the course of the proper performance of Employees duties under
-3-
this Agreement;
(iii) for information that becomes generally available to the public other than as a result of the
unauthorized disclosure by Employee; (iv) for information that becomes available to Employee on a
non-confidential basis from a source other than Employer or its affiliated companies who is not
bound by a duty of confidentiality to Employer; or (v) as may be required by any applicable law,
rule, regulation or order.
(c) Upon termination of his employment with Employer, Employee will immediately (i) deliver to
Employer all paper and electronic documents and information in Employees possession or under his
control which embody any of Employers Confidential Information; and (ii) resign from any officer
or director positions of the Employer, to the extent the Employer at any time ever requests such
resignation.
(d) In addition to the foregoing provisions of this Section 3, and effective as of the
Effective
Date, Employee reaffirms the duties imposed upon Employee by that certain Employee Proprietary
Information Agreement (or similar agreement) by and between Employer and Employee signed in
conjunction with Employees commencement of employment.
(e) Employee will comply with Employers Code of Ethics, and any amendments or replacement
policies adopted by the Board (the Code of Ethics).
Section 4.
Term of Agreement
.
The term of this Agreement will commence effective as of the Effective Date, and, subject
to the terms and conditions hereof and except as may be affected by a Change in Control, will
continue for a three-year period ending on December 31, 2014 (the Initial Term), and thereafter
the term will be automatically extended for successive periods of two year(s) unless prior to the
end of the original three-year period (or, if applicable, any such successive two-year period),
Employer gives Employee at least ninety (90) days prior written notice that Employer has decided
not to extend the term of this Agreement. Notwithstanding any provision contained herein to the
contrary, Employee acknowledges that Employer may terminate his employment at any time and for any
reason or for no reason at the discretion of Employer, but subject to any rights Employee has under
Sections 2, 5, 6, 7, 8, 9, 10 and 11 of this Agreement.
Section 5.
Termination
.
(a) Employees employment with Employer hereunder will terminate upon the following:
(1) The death or Disability (as defined in Section 5(b) hereof) of Employee;
(2) Employer terminates such employment for Cause (as defined in Section 5(c)
hereof);
(3) Employee terminates such employment for Good Reason (as defined in Section
5(d) hereof);
(4) Employer terminates such employment for any reason other than
-4-
Cause, or for
no reason at all; or
(5) Employee terminates such employment for any reason other than Good Reason, or
for no reason at all.
(b) As used in this Agreement, Disability means a physical or mental incapacity or
disability which renders Employee unable to render the services required hereunder under this
Agreement for a period of at least 180 consecutive days.
(c) As used in this Agreement, Cause means:
(1) the willful and continued failure by Employee to substantially perform his
obligations under this Agreement (other than any such failure resulting from his
Disability) after a demand for substantial performance has been delivered to him by
the Board which specifically identifies the manner in which the Board believes
Employee has not substantially performed such provisions and Employee has failed to
remedy the situation within ten (10) days after such demand;
(2) Employees willfully engaging in conduct materially and demonstrably
injurious
to the property or business of Employer, including without limitation, fraud,
misappropriation of funds or other property of Employer, other willful misconduct,
gross negligence or conviction of a felony or any crime of moral turpitude; or
(3) Employees material breach of this Agreement or the Employers Code of Ethics
which breach has not been remedied by Employee within ten (10) days after receipt by
Employee of written notice from the Board that he is in material breach of the
Agreement or the Employers Code of Ethics, specifying the particulars of such breach.
For purposes of this Agreement, no act, or failure to act, on the part of Employee shall be deemed
willful or engaged in willfully if it was due primarily to an error in judgment or negligence,
but shall be deemed willful or engaged in willfully only if done, or omitted to be done, by
Employee not in good faith and without reasonable belief that his action or omission was in the
best interest of Employer. Notwithstanding the foregoing, Employee shall not be deemed to have
been terminated as a result of Cause hereunder unless and until there shall have been delivered
to Employee a copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the Board then in office at a meeting of the Board called and held for such
purpose (after reasonable notice of at least fifteen (15) days to Employee and an opportunity for
Employee, together with his counsel, to be heard before the Board), finding that, in the good faith
opinion of the Board of Directors, Employee has committed an act set forth above in this Section
5(c) and specifying the particulars thereof in detail. Nothing herein shall limit the right of
Employee or his or her legal representatives to contest the validity or propriety of any such
determination or the action of the Board or any committee thereof.
(d) As used in this Agreement, Good Reason means:
-5-
(1) Employers failure, or the failure of any successor, to comply with any of
the provisions of Sections 2, 4, 5, 6, 7, 8, 10, 11(c), or 13 of this Agreement, which
failure is not remedied within ten (10) days after the Chairman of the Boards receipt
of written notice from Employee specifying the particulars of such breach;
(2) Employers or a successors breach of any other material provision of this
Agreement which is not remedied within ten (10) days after receipt by the Chairman of
the Board of written notice from Employee specifying the particulars of such breach;
(3) the assignment to Employee by the Board, any committee of the Board, or any
successor or its board of any duties materially inconsistent with Employees
positions, duties, functions, responsibilities, authority or reporting relationship to
the Board, in each case as contemplated by Section 1 of this Agreement, or the
diminution in any respect of any of the positions, duties, functions,
responsibilities, authority or reporting relationship to the Board of Employee
pursuant to Section 1 and as assigned by the Board or any successor or successors
board;
(4) the relocation of Employees principal place of performance of his duties
and responsibilities under this Agreement to a location more than fifty (50) miles
from the Place of Employment, without Employees approval or agreement;
(5) any purported termination of Employees employment by Employer or a successor
which is not effected pursuant to a Notice of Termination satisfying the requirements
of Section 5(e) hereof;
(6) Employer elects not to extend the Initial Term or any subsequent term of this
Agreement under Section 4; or
(7) any material reduction by the Board, a successor of Employer or the
successors Board, in the budgetary authority of Employee not due to fiscal
circumstances of the Employer.
(e) Any termination by Employer or a successor or Employee of Employees employment with
Employer shall be communicated by written notice (a Notice of Termination) to the other party
that shall:
(1) indicate the specific provision of this Agreement relied upon for such
termination;
(2) indicate the specific provision of this Agreement pursuant to which Employee
is to receive compensation and other benefits as a result of such termination; and
(3) otherwise comply with the provisions of this Section 5 and Section 13(a).
-6-
If a Notice of Termination states that Employees employment with Employer has been terminated as a
result of Employees Disability, the notice shall (i) specifically describe the basis for the
determination of Employees Disability, and (ii) state the date of the determination of Employees
Disability, which date shall be not more than ten (10) days before the date such notice is given.
If the notice is from Employer and states that Employees employment with Employer is terminated by
Employer as a result of the occurrence of Cause, the Notice of Termination shall specifically
describe the action or inaction of Employee that Employer believes constitutes Cause and shall be
accompanied by a copy of the resolution satisfying Section 5(c). If the Notice of Termination is
from Employee and states that Employees employment with Employer is terminated by Employee as a
result of the occurrence of Good Reason, the Notice of Termination shall specifically describe the
action or inaction of Employer that Employee believes constitutes Good Reason, and shall be
communicated within ninety (90) days of the date when Employee learns of the facts constituting
Good Reason. Any purported termination by Employer of Employees employment with Employer shall be
ineffective unless such termination shall have been communicated by Employer to Employee by a
Notice of Termination that meets the requirements of Section 5 and the provisions of Section 13(a).
(f) As used in this Agreement, Date of Termination means:
(1) if Employees employment with Employer is terminated for Disability, at least
sixty (60) days after Notice of Termination is received by Employee or any date later
than sixty (60) days after receipt specified therein, provided that within such period
Employee shall not have returned to full-time performance of Employees duties;
(2) if Employees employment with Employer is terminated as a result of
Employees death, the date of death of Employee;
(3) if Employees employment with Employer is terminated for Cause, the date
Notice of Termination, accompanied by a copy of the resolution satisfying Section 5,
is received by Employee or any later date specified therein, provided that Employer
may, in its discretion, condition Employees continued employment upon such
considerations or requirements as may be reasonable under the circumstances and place
a reasonable limitation of no less than ten (10) days upon the time within which
Employee will comply with such considerations or requirements; or
(4) if Employees employment with Employer is terminated for any reason other
than Employees Disability, Employees death or Cause, or for no reason, the date that
is fourteen (14) days after the date of receipt of the Notice of Termination.
Section 6.
Effect of Termination of Employment
.
(a) Upon termination of Employees employment during the Initial Term, by Employer for Cause,
or by Employee for no reason or any reason other than Good Reason, all compensation and benefits
will cease upon the Date of Termination other than: (i) those benefits
-7-
that are provided by
retirement and benefit plans and programs specifically adopted and approved by Employer for
Employee that are earned and vested by the Date of Termination; (ii) as provided in Section 10;
(iii) Employees Base Salary through the Date of Termination; (iv) any incentive compensation due
Employee if, under the terms of the relevant incentive compensation arrangement, such incentive
compensation was due and payable to Employee on or before the Date of Termination; (v) medical and
similar benefits the continuation of which is required by applicable law or provided by the
applicable benefit plan; and (vi) any payments due Employee pursuant to Sections 2(d), (e), (f),
(g), and (i) of this Agreement.
(b) Upon termination of Employees employment due to the death of Employee or upon termination
by Employer due to the Disability of Employee, all compensation and benefits will cease upon the
Date of Termination other than: (i) those benefits that are provided by retirement and benefit
plans and programs specifically adopted and approved by Employer for Employee that are earned and
vested by the Date of Termination; (ii) as provided in Section 10; (iii) Employees Base Salary
through the Date of Termination; (iv) any incentive compensation due Employee if, under the terms
of the relevant incentive compensation arrangement, such incentive compensation was due and payable
to Employee on or before the Date of Termination; (v) medical and similar benefits the continuation
of which is required by applicable law or provided by the applicable benefit plan; and (vi) any
payments due Employee pursuant to Sections 2(d), (e), (f), (g), and (i) of this Agreement.
(c) If Employees employment with Employer is terminated (i) by Employer for no reason or for
any reason other than Cause, or (ii) by Employee for Good Reason, the obligations of Employer and
Employee under Sections 1 and 2 will terminate as of the Date of Termination and Employer will pay
or provide to Employee or his heirs the following:
(1) Employees Base Salary earned and payable through the Date of Termination;
(2) the pro rata portion of Employees unpaid Target Bonus for the year of the
Date of Termination;
(3) an aggregate amount (the Severance Payment) consisting of (i) two-times the
Employees annual Base Salary at the highest annual rate in effect on or before the
Date of Termination (but prior to giving effect to any reduction therein which
precipitated such termination); and (ii) two-times the Employees Target Bonus amount
in effect for the year of the Date of Termination. The Severance Payment shall be
payable to Employee in substantially equal installments in accordance with the
Employers normal payroll practices over the two-year period beginning on the Date of
Termination; provided, however, that (A) the portion of the Severance Payment for the
first six (6) months after the Date of Termination shall be paid to Employee in a lump
sum on the first business day following the expiration of the six-month
period following the Date of Termination and (B) the remaining portion of the
Severance Payment shall be paid on Employees regular payroll dates in substantially
equal installments over the remainder of the two-year period;
-8-
(4) if immediately prior to the Date of Termination, Employee (and, if
applicable, his spouse and/or dependents) was covered under Employers group medical,
dental, health and hospital plan in effect at such time, then Employer shall provide
to Employee for a 24-month period after the Date of Termination continuation coverage
under such plan at no cost or expense to Employee, provided that Employee has timely
elected to continue coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended (COBRA); and
(5) the vesting period for all of Employees unvested equity awards granted on or
after the Effective Date, however granted and in whatever form, with a remaining
vesting period of two years or less as of the Date of Termination, shall all
immediately accelerate to vest in full and all restrictions shall be immediately
removed, and the exercise period of all outstanding vested stock options (including
any accelerated stock option awards) granted on or after the Effective Date shall
continue for the earlier of (a) two years from the Date of Termination or (b) the
expiration of the full original term specified in each applicable stock option
agreement. Employees vesting and exercise rights with regard to stock options,
restricted stock, performance shares and other equity grants shall be controlled by
the LTIP (or other applicable equity plan) and by the governing grant agreement, and,
to the extent not inconsistent with the LTIP or such grant agreement, by this
Agreement.
Except as otherwise provided above and in Sections 2(d), (e), (f), (g), and (i) and Section 10, all
other compensation and benefits will cease upon the Date of Termination other than those benefits
that are provided by retirement and benefit plans and programs specifically adopted and approved by
Employer for Employee that are earned and vested by the Date of Termination. Notwithstanding any
other provision of this Agreement to the contrary, except for payments and benefits required to
made as provided by law or pursuant to the terms of a plan, the severance payments and benefits to
be paid and provided to Employee pursuant to this Section 6(c) shall be conditioned upon (I)
Employees execution and delivery of a valid waiver and release of all claims that Employee may
have against Employer prior to his receiving such payment or benefit, and (II) such release not
having been revoked within the time, if any, required by law for the revocation of a release (the
Release Requirements). Such severance payments and benefits shall be paid or provided beginning
on the later of (A) the 60
th
day following the Date of Termination or (B) the payment
date otherwise specified in this Section 6(c) (the Payment Start Date), provided that any
payments or benefits that are not subject to Section 409A of the Internal Revenue Code of 1986, as
amended (Section 409A) (after taking into account the foregoing payment provisions) may be paid
or provided as soon as practicable following the date on which the Release Requirements are
satisfied and such date shall be the Payment Start Date, and provided further that, in any case,
that the Release Requirements have been satisfied as of the Payment Start Date. If the Release
Requirements are not satisfied as of the Payment Start Date, all such payments and benefits shall
be forfeited and Employee shall have no further rights to such payments or benefits. The agreed
form of release is attached hereto as Exhibit A, except that such form shall be subject to such
changes as shall be necessary to render such form valid, binding and enforceable under then-current
applicable law.
-9-
Section 7.
Change in Control
.
(a) If (i) a Change in Control (as defined in Section 7(b) hereof) shall have occurred, and
(ii) within twelve (12) months following such Change in Control either (A) Employer or its
successor terminates Employees employment or (B) Employee terminates his employment with Employer
or its successor after Employer or such successor (1) elects not to extend the Initial Term or any
subsequent term of this Agreement under Section 4, (2) assigns to Employee any duties inconsistent
with Employees position, duties, functions, responsibilities, authority or reporting relationship
to the Board, in each case as contemplated by Section 1 of this Agreement, (3) is rendered a
privately-held company in a transaction in which Employee does not participate within the acquiring
group, (4) is rendered a subsidiary or division or other unit of another company; or (5) takes any
action that would constitute Good Reason under Section 5(d) of this Agreement, such termination
under (A) or (B) above shall be treated as a termination for Good Reason in accordance with Section
6(c) above. In the event a Severance Payment is due to Employee under this Section 7(a) after a
Change in Control, the payment schedule for such Severance Payment shall be as set forth in Section
6(c), except that promptly after the Date of Termination, Employer or its successor shall establish
a rabbi trust and deposit into the trust the amount, if any, that Employer reasonably believes in
good faith that Employee is entitled to receive as a Severance Payment under Section 6(c). In the
event of a Change in Control after the first anniversary of the Effective Date, the then remaining
term of this Agreement shall automatically adjust to three (3) years, commencing on the effective
date of the Change in Control.
(b) For purposes of this Agreement, a Change in Control shall mean the occurrence of any of
the following after the Effective Date:
(1) the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended from
time to time (the Exchange Act), or any successor statute) (a Covered Person) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 40% or more of either (i) the then outstanding shares of Common Stock (the
Outstanding Company Common Stock), or (ii) the combined voting power of the then
outstanding voting securities of Employer entitled to vote generally in the election
of directors (the Outstanding Company Voting Securities); provided, however, that
for purposes of this Section 7(b)(1), the following acquisitions shall not constitute
a Change in Control: (i) any acquisition directly from Employer or any subsidiary of
Employer, (ii) any acquisition by Employer or any subsidiary of Employer, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by
Employer or any entity controlled by Employer, or (iv) any acquisition by any
corporation pursuant to a reorganization, merger, consolidation or similar business
combination involving Employer (a Merger), if, following such Merger, the conditions
described in Section 7(b)(3)(i) and(ii) are satisfied; or
(2) individuals who, as of the Effective Date, constitute the Board of Directors
(the Incumbent Board) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director
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subsequent to the
Effective Date whose election, or nomination for election by Employers stockholders,
was approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest (a
solicitation by any person or group of persons for the purpose of opposing a
solicitation of proxies or consents by the Board with respect to the election or
removal of Directors at any annual or special meetings of stockholders) or other
actual or threatened solicitation of proxies or consents by or on behalf of a Covered
Person other than the
Board; or
(3) consummation of a Merger, unless immediately following such Merger, (i)
substantially all of the holders of the Outstanding Company Voting Securities
immediately prior to the Merger beneficially own, directly or indirectly, more than
50% of the common stock of the corporation resulting from such Merger (or its parent
corporation) in substantially the same proportion as their ownership of Outstanding
Company Voting Securities immediately prior to such Merger and (ii) at least a
majority of the members of the board of directors of the corporation resulting from
such Merger (or its parent corporation) were members of the Incumbent Board at the
time of the execution of the initial agreement providing for such Merger; or
(4) the sale or other disposition of all or substantially all of the assets of
Employer.
(c) The parties agree that the terms of this Section 7 shall be amended by the parties from
time to time to the extent required or advisable to comply with any applicable law or regulation
made effective during the term.
Section 8.
Section 409A
.
It is the intention of the parties to this Agreement that no payment or entitlement
pursuant to this Agreement will give rise to any adverse tax consequences to Employee under Section
409A. The Agreement shall be interpreted and administered to that end and, consistent with that
objective and notwithstanding any provision herein to the contrary, the Employer shall be required
to provide any payments or benefits hereunder in accordance with the terms of this Agreement and in
a manner that is consistent with Section 409A. Employer may take any action it deems necessary or
desirable to amend any provision herein to the minimum extent necessary avoid excise tax under
Section 409A and any such amendment shall preserve, to the extent possible, the intended benefits
of the Agreement to Employer and Employee. Notwithstanding any other provision of this Agreement
to the contrary, if (i) any payment or benefit hereunder is subject to Section 409A, (ii) such
payment or benefit is to be paid or provided on account of the Employees separation from service
within the meaning of Section 409A, (iii) Employee is a specified employee (within the meaning of
Section 409A), and (iv) any such payment or benefit is required to be made or provided prior to the
following Employees Date of Termination or
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other separation from service, such payment or benefit
shall be delayed until the first business day following the six-month anniversary of Employees
Date of Termination or other separation from service. The determination as to whether Employee has
had a separation from service within the meaning of Section 409A shall be made in accordance with
the provisions of Section 409A without application of any alternative levels of reductions of bona
fide services permitted thereunder. If and to the extent that any payment or benefit to Employee
is delayed pursuant to the foregoing provisions, such payment or benefit instead shall be made or
provided on the first business day following the expiration of the six-month period referred to
above. The Employer shall consult with Employee in good faith regarding implementation of this
Section 8 provided, however, that without limiting Employees rights under this Agreement or
applicable law, neither the Employer nor its employees or representatives shall have liability to
the Employee with respect hereto.
Section 9.
No Obligation to Mitigate; No Rights of Offset
.
(a) Employee shall not be required to mitigate the amount of any payment or other benefit
required to be paid to Employee pursuant to this Agreement, whether by seeking other employment or
otherwise, nor shall the amount of any such payment or other benefit be reduced on account of any
compensation earned by Employee as a result of employment by another person.
(b) Employers 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 Employer may have against Employee or others.
Section 10.
No Effect on Other Rights
.
Subject to Sections 2(k) and 2(l), nothing in this Agreement shall prevent or limit
Employees continuing or future participation in any plan, program, policy or practice of or
provided by Employer or any of its affiliates and for which Employee may qualify, nor shall
anything herein limit or otherwise affect such rights as Employee may have under any long term
incentive compensation plan, stock option or other agreements with Employer or any of its
affiliates. Amounts which are vested benefits or which Employee is otherwise entitled to receive
under any plan, program, policy or practice of or provided by, or any other contract or agreement
with Employer or any of its affiliates at or subsequent to the Date of Termination shall be payable
or otherwise provided in accordance with such plan, program, policy or practice or contract or
agreement except as explicitly modified by this Agreement.
Section 11.
Successors; Binding Agreement
.
(a) This Agreement is personal to Employee and without the prior written consent of Employer
shall not be assignable by Employee otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by Employees personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
(b) This Agreement shall inure to the benefit of and be binding upon Employer and its
successors and assigns.
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(c) Employer will require any successor (whether direct or indirect, by purchase, merger,
amalgamation, consolidation or otherwise) to all or substantially all of the shares, business
and/or assets of Employer, by agreement in form and substance reasonably satisfactory to Employee,
to expressly assume and agree to perform this Agreement in the same manner and to the same extent
that Employer would be required to perform it if no such succession had taken place. As used in
this Agreement, Employer shall mean Employer as hereinbefore defined and any successor to its
shares, business and/or assets as aforesaid which assumes and agrees to perform this Agreement by
execution and delivery of the agreement provided for in this Section 11(c) or which otherwise
becomes bound by the terms and provisions of this Agreement by operation of law or otherwise.
Section 12.
Non-Competition; Non-Solicitation; No Hire
.
(a) Employee agrees that, effective as of the Effective Date and for a period of twenty-four
(24) months after the Date of Termination (such applicable period being referred to herein as the
Non-Compete Period), Employee shall not, without the prior written consent of Employer, directly
or indirectly, anywhere in the world, engage, invest, own any interest, or participate in, consult
with, render services to, or be employed by any business, person, firm or entity that is in
competition with the Business (as defined in Section 12(d)) of Employer or any of its
subsidiaries or affiliates, except for the account of Employer and its subsidiaries and affiliates;
provided, however, that during the Non-Compete Period Employee may acquire, solely as a passive
investment, not more than two percent (2%) of the outstanding shares or other units of any security
of any entity subject to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended. Employee acknowledges that a remedy at law for any breach or attempted breach of
this covenant not to compete may be inadequate and further agrees that any breach of this covenant
not to compete may result in irreparable harm to Employer, and, accordingly, Employer may, in
addition to any other remedy that may be available to it, be entitled to seek specific performance
and temporary and permanent injunctive and other equitable relief in case of any such breach or
attempted breach. Employee acknowledges that this covenant not to compete is being provided as an
inducement to Employer to enter into this Agreement. Whenever possible, each provision of this
covenant not to compete shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this covenant not to compete shall be prohibited by or
invalid under
applicable law, such provision of this covenant not to compete shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remaining provisions of this covenant not to compete. If
any provision of this covenant not to compete shall, for any reason, be judged by any court of
competent jurisdiction or duly appointed arbitrator to be invalid or unenforceable, such judgment
shall not affect, impair or invalidate the remainder of this covenant not to compete but shall be
confined in its operation to the provision of this covenant not to compete directly involved in the
controversy in which such judgment shall have been rendered. In the event that the provisions of
this covenant not to compete should ever be deemed to exceed the time or geographic limitations
permitted by applicable laws, then such provision shall be reformed by the court or arbitrator to
the maximum time or geographic limitations permitted by applicable law.
(b) In addition to the restrictions set forth in Section 12(a), Employee agrees that, during
the Non-Compete Period, Employee will not, either directly or indirectly, (i) make
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known to any
person, firm or entity that is in competition with the Business of Employer or any of its
subsidiaries or affiliates the names and addresses of any of the suppliers or customers of Employer
or any of its subsidiaries or affiliates, potential customers of Employer or any of its
subsidiaries or affiliates upon whom Employer or any of its subsidiaries or affiliates has called
upon in the twelve (12) months preceding the Date of Termination, or (ii) call on, solicit, or take
away, or attempt to call on, solicit or take away any of the suppliers or customers of Employer or
any of its subsidiaries or affiliates, whether for Employee or for any other person, firm or
entity.
(c) Regardless of the reason for any termination of Employees employment, effective as of the
Effective Date and for twenty-four (24) months following the Date of Termination, Employee will
not, either on his or her own account or for any other person, firm, partnership, corporation, or
other entity (i) solicit or induce any employee of Employer or any of its subsidiaries or
affiliates to leave such employment or (ii) hire or participate in the hiring of any such employee
of Employer or any of its subsidiaries or affiliates.
(d) As used in this Agreement, Business means the business of (i) design, manufacture,
marketing and sale of equipment for seismic acquisition, (ii) seismic processing (iii) seismic
navigation and data management software or (iv) planning, performing or licensing multi-client
seismic surveys.
(e) In the event that Employee breaches or violates any of the terms and conditions of Section
12(a) during the Non-Compete Period, then in addition to the other rights and remedies available to
Employer hereunder, Employers obligations to pay to Employee any remaining installments of the
Severance Payment otherwise due and owing pursuant to Section 6(c)(3) or 7(a) hereof, shall cease
and terminate.
Section 13.
Miscellaneous
.
(a) All notices and other communications required or permitted hereunder or necessary or
convenient in connection herewith will be in writing and will be delivered by hand or by registered
or certified mail, return receipt requested to the addresses set forth below in this Section 13(a):
If to Employer, to:
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ION Geophysical Corporation
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2105 CityWest Blvd, Suite 400
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Attention: General Counsel
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If to Employee, to:
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c/o ION Geophysical Corporation
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2105 CityWest Blvd, Suite 400
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or to such other names or addresses as Employer or Employee, as the case may be, designate by
notice to the other party hereto in the manner specified in this Section.
(b) This Agreement supersedes, replaces and merges all previous agreements and discussions
relating to the same or similar subject matters between Employee and Employer and constitutes the
entire agreement between Employee and Employer with respect to the subject matter of this
Agreement, except for any other agreements expressly referred to in this Agreement, each of which
shall remain in full force and effect. This Agreement may not be modified in any respect by any
verbal statement, representation or agreement made by any employee, officer, or representative of
Employer or by any written agreement unless signed by an officer of Employer who is expressly
authorized by the Board to execute such document.
(c) If any provision of this Agreement or application thereof to any one or under any
circumstances should be determined to be invalid or unenforceable, such invalidity or
unenforceability will not affect any other provisions or applications of this Agreement which can
be given effect without the invalid or unenforceable provision or application. In addition, if any
provision of this Agreement is held by an arbitration panel or a court of competent jurisdiction to
be invalid, unenforceable, unreasonable, unduly restrictive or overly broad, the parties intend
that such arbitration panel or court modify said provision so as to render it valid, enforceable,
reasonable and not unduly restrictive or overly broad.
(d) The laws of the State of Texas will govern the interpretation, validity, enforcement and
effect of this Agreement without regard to the place of execution or the place for performance
thereof.
(e) The covenants, agreements, rights and obligations of Employer under this Agreement, and
the covenants, agreements, rights and obligations of Employee under this Agreement, shall survive
the termination of this Agreement for any reason including, but not limited to, the termination of
Employees employment with Employer. All covenants, agreements, indemnities, warranties, rights
and obligations contained herein shall continue for so long as necessary in order for Employer and
Employee to enforce their rights hereunder.
Section 14.
Arbitration
.
(a) Employer and Employee agree to submit to final and binding arbitration any and all
disputes or disagreements concerning the interpretation, enforcement or application of this
Agreement, including without limitation any claim by Employee against Employer or its successor
after a Change in Control to enforce or seek to enforce the payment of any amount or other benefit
to which Employee shall have become entitled under Section 7(a) of this Agreement. Any such dispute
or disagreement will be resolved by arbitration in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association (the AAA
Rules). Arbitration will take place in Houston, Texas, unless the parties mutually agree to a
different location. Within thirty (30) calendar days of the initiation of arbitration hereunder,
each party will designate an arbitrator. The appointed arbitrators will then appoint a third
neutral arbitrator.
Employee and Employer agree that the decision of the arbitrators will be final and binding on
both parties. Any court having jurisdiction may enter a judgment upon the award rendered by the
arbitrators. Each party shall be responsible for its own
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legal fees and expenses. Each party shall
share equally all AAA fees and expenses and all fees and expenses of the arbitrators, and for the
hearing room. In the event the arbitration is decided on balance in favor of Employee, Employer
will reimburse Employee for his reasonable costs and expenses of the arbitration (including
reasonable attorneys fees), unless Employee is otherwise entitled to advancement of fees under
Section 14(c) below or in connection with a proceeding pursuant to law or the bylaws of Employer or
a successor. In that event, those provisions shall control over the payment provisions in this
Section 14(a). In no event shall Employee be required to pay the litigation or arbitration costs,
expenses or attorneys fees of Employer or its successor.
(b) Notwithstanding the provisions of Section 14(a), Employer may, if it so chooses, bring an
action in any court of competent jurisdiction for injunctive relief to enforce Employees
obligations under Sections 3(b), 3(c), 3(d), and 3(e). The payment provisions of Section 14(a) will
control regarding such a proceeding.
(c) Reasonable costs and expenses (including reasonable attorneys fees) incurred by Employee
in an arbitration, suit or proceeding against Employer or its successor after a Change in Control
to enforce or seek to enforce the payment of any amount or other benefit to which Employee shall
have become entitled under Section 7(a) of this Agreement shall be paid by Employer or its
successor upon demand by Employee in advance of the final disposition of such action upon receipt
of a written undertaking by Employee to repay such amounts if it shall ultimately be determined
that he is not entitled to be reimbursed such amounts under Section 14(a).
Section 15.
Reimbursements
.
Notwithstanding any provision of this Agreement to the contrary,
t
o the extent
that any reimbursements to be provided to Employee hereunder are taxable to Employee, such
reimbursements shall be paid to Employee only if the expenses are incurred and reimbursable
pursuant to a reimbursement plan that provides an objectively determinable nondiscretionary
definition of the expenses that are eligible for reimbursement (to the extent not otherwise
specified herein). With respect to any expenses that are described in the preceding sentence, the
amount of the expenses that are eligible for reimbursement during one calendar year may not affect
the amount of reimbursements to be provided in any subsequent calendar year, the reimbursement of
an eligible expense shall be made on or before the last day of the calendar year following the
calendar year in which the expense was incurred, and the right to reimbursement of the expenses
shall not be subject to liquidation or exchange for any other benefit.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this
Agreement as to be effective as of the Effective Date.
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EMPLOYER
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ION GEOPHYSICAL CORPORATION
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By:
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/s/ James M. Lapeyre, Jr.
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Chairman of the Board
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EMPLOYEE
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/s/ R. Brian Hanson
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R. Brian Hanson
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EXHIBIT A
RELEASE
Mr. R. Brian Hanson
[Address]
Re: Separation Agreement
Dear Mr. Hanson:
This letter, upon your signature, will constitute the Agreement between you and ION
Geophysical Corporation (hereinafter Employer) regarding the terms of your separation from
employment with Employer. This Agreement acknowledges the parties desire to end the employment
relationship on amicable terms.
1. Your employment will be terminated effective on _______________.
2. You have received or will receive by separate cover information regarding your rights to health
insurance continuation and your retirement benefits. To the extent that you have such rights,
nothing in this Agreement will impair those rights; more specifically, you waive no rights to bring
an action pursuant to 29 U.S.C. §1132(a)(1)(B) of the Employee Retirement Income Security Act or
the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) related to
providing eligible employees the opportunity for continuation of participation in the employers
group health insurance plan under certain circumstances.
3. You have returned or will immediately return to Employer any company property and any trade
secrets or other confidential information belonging to Employer, including Employer computer
equipment, documents and electronic files, employee identification, keys, building access cards,
and other property.
4. In consideration of your acceptance of this Agreement, on or before __________, or a subsequent
date agreed by the parties, but in no event earlier than the effective date of this Agreement, the
Employer will provide you with payments and benefits (the Payments), minus applicable taxes and
withholdings, which Payments will be paid to you as determined by the circumstances of your
termination of employment and as described in Section 2 and Section 4 through 9 of that certain
Employment Agreement between you and Employer dated August 2, 2011 and effective January 1, 2012.
If you do not sign and return this Agreement, you will not receive any of the additional
consideration outlined above because you would not otherwise be entitled to such consideration,
except in the event that death or disability makes your signing this Agreement not possible, in
which event it may be signed by your legal representative.
5. Unless required or otherwise permitted by law, you will not disclose to others any information
regarding the following:
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A. Any information regarding Employers trade secrets or any other confidential information.
B. The terms of this Agreement, the benefit being paid under it and the fact of payment
(except that you may disclose this information to your spouse, attorney, accountant or other
professional advisor to whom you must make the disclosure in order for them to render
professional services to you, and as
required by law; provided that you instruct such persons to maintain the confidentiality of
the information just as you must).
6. Complete Release, Waiver of Claims and Covenant Not to Sue.
A. Release and Waiver: On behalf of yourself and your heirs, executors, successors and
assigns, except as provided in Section 6(D) of this Agreement, you hereby irrevocably and
unconditionally release Employer and its predecessors, subsidiaries, related entities,
officers, directors, shareholders, parent companies, agents, attorneys, employees, successors
and assigns (for purposes of this Section 6, hereinafter collectively referred to as
Employer), from all claims or demands you have, may have, or may have had based on or in
any way related to your employment with Employer, the termination of that employment, or
based on any previous act or omission by or on behalf of Employer. You further agree to
waive any right you may have with respect to the claims or demands from which Employer is
herewith released. This release and waiver includes, but is not limited to, any rights or
claims you may have under the Age Discrimination in Employment Act (which prohibits age
discrimination in employment), Title VII of the Civil Rights Acts of 1964, as amended (which
prohibits discrimination in employment based on race, color, national origin, religion or
sex, including claims of sexual harassment), 42 U.S.C. §1981 (which prohibits race
discrimination), claims under the Family and Medical Leave Act, and the federal Equal Pay
Act (which prohibits paying men and women unequal pay for equal work), the Rehabilitation Act
of 1973 and the Americans with Disabilities Act (which prohibit discrimination on the basis
of handicap or disability), the Employee Retirement Income Security Act, claims for
discrimination under the Texas Commission on Human Rights Act as codified in the Texas Labor
Code, claims for discrimination or retaliation under the Texas Workers Compensation Act,
and any other federal, state or local laws or regulations prohibiting employment
discrimination. This release and waiver also includes any claims for wrongful discharge,
whether based on claimed violations of statutes, regulations or public policy, or based on
claims in contract or tort. This release and waiver also includes any claims that you
suffered any harm by or through the actions or omissions of Employer, including, but not
limited to, negligence claims and any other tort or contract claims, including but not
limited to defamation, invasion of privacy, and wrongful discharge.
B. Scope of Release/Non-release of Future Claims based on subsequent acts or omissions: This
release and waiver, to which you voluntarily agree, covers all claims or demands based on any
facts or events, whether known or unknown by you that occurred on or before the effective
date of this release. You fully understand that if any of the facts or circumstances on which
you premise your execution of this release and waiver be found, suspected or claimed
hereafter to be other than or different from the facts and
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circumstances now believed by you
to be true, you nonetheless expressly accept and assume the risk of such possible differences
in fact or circumstances and agree that this release and waiver shall be and remain effective
notwithstanding any such difference in any such fact or circumstances. Employer acknowledges
that you have not released any rights or claims that you may have under the Age
Discrimination in Employment Act that arise after the date this release and waiver is
executed.
C. No Future Lawsuits, Complaints, or Claims: You hereby waive your right to file any claim
or complaint against Employer arising out of your employment with or separation from
employment before any federal, state or local court or any federal, state or local
administrative agency, except where such waivers are prohibited by law and except for breach
of this Agreement and your Employment Agreement. This Agreement does not prevent you from
filing a timely charge with the EEOC (or with
any other agency with similar provisions or regulations concerning the regulation of releases
between private parties) concerning claims of discrimination, including a challenge to the
validity of the waiver contained in this Agreement; although you hereby waive your right to
recover any damages or other relief in any claim or suit brought by or through the EEOC or
any other federal, state, or local agency on your behalf.
As part of this Agreement, you also promise not to make any disparaging remarks about
Employer, directly or indirectly. The officers of Employer and members of the Board of
Directors of Employer promise not to make any disparaging remarks about you.
D. Provided however, notwithstanding anything to the contrary is this Separation Agreement,
you do not release and you expressly preserve all your rights, payments and benefits and all
rights of, payments to and benefits of your spouse, family, heirs and devisees provided by
your Employment Agreement with ION Geophysical, as determined by that Employment Agreement
and the by circumstances of your termination from employment. Those rights, benefits and
payments may include cash payments at the time of termination and thereafter, existing rights
to vested welfare benefits and vested incentive compensation, including newly accelerated
vesting and newly defined exercise periods; and deferred compensation, if you have any, plus
business and travel expenses not yet paid at the time of your termination but incurred while
you were employed and that would have been paid under Employers procedures if you were still
employed; unpaid medical charges and expenses payable under the Employers plan despite your
termination, and payable pursuant to your Employment Agreement and COBRA; plus all your
rights to indemnity, contribution and a defense under any law, statute, agreement or Employer
document, and all insurance coverage relating to those rights, as well as all existing
continuing coverage under any liability insurance, including but not limited to directors and
officers coverage, fiduciary liability coverage, errors and omissions coverage, professional
liability insurance coverage, general and other liability coverage, pursuant to the terms of
those insurance policies, as well as your rights as a shareholder option holder and as a
holder of restricted stock and your right to unemployment compensation; your rights under
this Separation Agreement; and the rights and obligations under the Employment Agreement
relating to Tax code 409A; and claims for breach of this Agreement and breach of the
Employment Agreement; and rights pursuant
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to Art. 38.001
et sequitur
, Texas Civil Practices &
Remedies Code and similar provisions providing for the recovery of reasonable attorneys
fees, and your rights, if any, pursuant to the Employers retirement plan.
E. At the time of your termination, Employer shall consider whether to provide a full or
partial release to you, the decision on whether or not to provide said release being in
Employers sole discretion.
7. Period for Review and Consideration of Release and Waiver of Claims: You acknowledge receipt of
the original version of this Agreement, including release and waiver of claims and covenant not to
sue. You have been given up to 21 days to review and consider this Agreement, including the
release and waiver of claims and covenant not to sue, before signing it. You understand that you
can sign this Agreement at any time during the 21-day period or an extension thereof. You agree
that any changes to this Agreement restart the running of the 21-day consideration period.
8. Denial of Liability: The parties agree that no statement or consideration given in this
Agreement or the execution of this Agreement by any party is intended to or will constitute any
evidence of wrongdoing or liability by any of them, any such admission being expressly denied.
9. Encouragement to Consult with an Attorney: You are encouraged, at your own expense, to consult
with an attorney before signing this Agreement, including release and waiver of claims and covenant
not to sue.
10. Right to Revoke Release and Waiver of Claims: This Agreement, including release and waiver of
claims and covenant not to sue, will be effective on the eighth day after you sign the Agreement.
For a period of seven (7) days following the execution of this Agreement by you, you may revoke
this Agreement, including the release and waiver of claims and covenant not to sue, and this
Agreement will not become effective or enforceable until the revocation period has expired. You
may revoke this Agreement by delivering a written notice of revocation to Employer at 2105 CityWest
Blvd., Suite 400, Houston, TX 77042-2839. Attention General Counsel. If you revoke this Agreement,
including the release and waiver of claims and covenant not to sue, the Agreement shall not be
effective or enforceable and you will not receive the payment(s) and/or benefit(s) described herein
to which you are not otherwise entitled under the law, including, without limitation, the
Payment(s) and other benefits described in Section 4 of this Agreement. Revocation of this
Agreement will have no effect on your termination of employment.
11. Entire Agreement/Severability: This Agreement, including release, waiver and covenant not to
sue, and your Employment Agreement contain all of the promises and covenants exchanged by the
parties, and would not have been agreed upon but for the inclusion of every one of its conditions.
The terms and conditions of this Agreement and your Employment Agreement together constitute the
entire Agreement between Employer and you and supersede all other previous and contemporaneous
statements, communications, representations or agreements, either written or oral, by or between
Employer and you with respect to the subject matter hereof (except for the terms of any
confidentiality, non-competition, non-solicitation,
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no-hire and/or proprietary information
agreements entered by you with or for the benefit of Employer in connection with your employment).
No contemporaneous or subsequent agreement or understanding modifying, varying or expanding this
Agreement or your Employment Agreement shall be binding upon either party unless in writing and
signed by a duly authorized representative of Employer and you. The release and waiver of claims
and covenant not to sue contained in Paragraph 6 of this Agreement are essential and material parts
of this Agreement.
12. Applicable Law and Venue: This Agreement shall be interpreted and construed in accordance with
and shall be governed by the laws of the State of Texas, except to the extent that federal law may
apply and have preemptive effect. All disputes arising under or relating to this Agreement shall
be brought by the parties in a court of competent jurisdiction in Houston, Harris County, Texas.
I KNOWINGLY AND VOLUNTARILY CHOOSE TO ACCEPT THE TERMS OF THIS AGREEMENT AND MY EMPLOYMENT
AGREEMENT IN CONNECTION WITH THE TERMINATION OF MY EMPLOYMENT.
ION GEOPHYSICAL CORPORATION
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