EXHIBIT 10.6
OMNI GEOPHYSICAL, L.L.C.
AND
XXXXX X. XXXXXXX
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT is made and entered
into as of the 19th day of July, 1996 (the "Agreement") by and between
OMNI GEOPHYSICAL, L.L.C., a Louisiana limited liability company
(hereinafter referred to as "Company") and XXXXX X. XXXXXXX, a
resident of the State of Louisiana (hereinafter referred to as
"Employee").
WHEREAS, the Company is desirous of obtaining the services of the
Employee upon the terms and conditions contained herein; and
WHEREAS, the Employee is desirous of providing services for the
Company upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements herein contained, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1. EMPLOYMENT. The Company hereby hires the Employee and the
Employee hereby agrees to be employed upon the terms and conditions
hereinafter set forth.
2. TERM. Subject to the provisions for termination as
hereinafter provided, the term of this Agreement shall be for a period
of thirty-six (36) months.
3. COMPENSATION. For the period beginning on the mutual
execution of this Agreement and expiring on the termination of this
Agreement, Company shall pay Employee One Hundred Thousand Dollars
($100,000) per annum.
4. DUTIES. Employee shall serve as the Chief Operating Officer
of the Company and as a member of the Company's Board of Directors.
Notwithstanding anything in this Agreement to the contrary, Employee
shall perform such other duties, tasks and other work as may be
assigned to him by the Company's officers and Board of Directors.
5. TERMINATION. This Agreement may be terminated at any time
by the Company, without prior notice, for cause or for breach of any
obligation of Employee to Company.
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6. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION. Employee
recognizes, acknowledges and agrees that the names of the Company's
customers and its pricing structure, processes, operations, marketing
programs, sales techniques, designs, specifications and other trade
secrets (collectively referred to herein as "Proprietary Information")
are valuable, special and unique assets of the Company. Employee will
not, during or after the term of Employee's employment, directly or
indirectly, utilize for the benefit of any person, business,
enterprise or entity other than Company, or disclose any portion or
part of the Company's Proprietary Information to any person, firm,
corporation, association or other entity for any reason or purpose
whatsoever. Furthermore, it is agreed that all data, lists, papers,
memoranda, documents, and all products of Employee's skill, resulting
from Employee's employment herein, shall be and remain the sole and
exclusive property of the Company, and Employee shall execute any and
all agreements and instruments that may be necessary to evidence the
Company's ownership of such property. In the event of a breach or
threatened breach by the Employee of the provisions of this Section 6,
the Company shall be entitled to an injunction restraining the
Employee from breaching the terms of this Agreement. Nothing herein
shall be construed as prohibiting the Company from pursuing any other
remedy available to the Company for such breach or threatened breach,
including the recovery of damages from the Employee.
7. COVENANT OF NON-COMPETITION. For a period during Employee's
employment and ending five (5) years after termination of Employee's
employment under this Agreement (whether such termination occurs
because of a breach of this Agreement by the Company or by Employee or
because of a termination of this Agreement by Company or Employee):
(a) the Employee will not, directly or indirectly, within any parish
or municipality in Louisiana or in any other state or foreign
jurisdiction in which customers of the Company are located or reside,
solicit, induce or otherwise contact customers of the Company for the
purpose of soliciting business from the Company's customers, or any
other purpose whatsoever which is detrimental to the Company or its
business; (b) the Employee will not, directly or indirectly, within
any parish or municipality in Louisiana or in any other state or
foreign jurisdiction in which Company engages in or has engaged in
business, own, manage, operate, control, be employed by, consult with,
participate in, or be connected in any manner with the ownership,
management, operation or control of any business, enterprise, or
entity (including a sole proprietorship of Employee) which: (i) owns,
operates or controls any geophysical services business, which business
includes but is not limited to the provision of seismic drilling and
support services, the transportation of equipment used in connection
with seismic drilling and support services, and the design and
manufacture of such equipment, or (ii) owns, operates or controls any
business which competes with the Company. In the event of any actual
or threatened breach by the Employee of the provisions of this
Agreement, Employee agrees that Company shall not have an adequate
remedy at law and the Company shall be entitled to an injunction
restraining the Employee from owning, managing, operating,
controlling, being employed by, participating in, or being in any way
so connected with any activity which is prohibited in this Section 7
and/or the solicitation of any business on his behalf or on behalf of
others from any customer. Nothing herein stated shall be construed as
prohibiting Company from pursuing any other remedies available to the
Company for such breach or threatened breach including the recovery of
damages from the Employee.
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8. PERMITTED BUSINESS. The parties acknowledge that Employee
has a fifty percent (50%) ownership interest in the stock of
Birthright Investment Group, Inc. d/b/a Xxxxx Equipment Company, a
Louisiana corporation ("Xxxxx Equipment"), which designs, manufactures
and sells equipment that can be used to provide seismic drilling and
support services. Notwithstanding the provisions of Section 7 of this
Agreement, the Company acknowledges and agrees that Employee may
continue to own the interest in Xxxxx Equipment set forth in this
Section 8 without violating the non-competition restrictions and
covenants contained in this Agreement.
9. COMPANY'S OPTION TO PURCHASE XXXXX EQUIPMENT. At any time
during the term of this Agreement, the Company shall have the option
to purchase all (but not less than all) of Employee's right, title and
interest in and to the stock of Xxxxx Equipment for a purchase price
of Twenty Thousand Dollars ($20,000) (the "Company's Option"). The
Company's Option shall be exercisable by delivery of a written notice
to the Employee. The closing date for the exercise of the Company's
Option shall be as mutually agreed upon by the Company and the
Employee, but shall not be later than thirty (30) days after delivery
of the written notice referred to in this Section 9.
10. EMPLOYEE'S PUT OF XXXXX EQUIPMENT. At any time during the
term of this Agreement, the Employee shall have the right to sell, and
to require the Company to purchase all (but not less than all) of
Employee's right, title and interest in and to the stock of Xxxxx
Equipment for a purchase price of Twenty Thousand Dollars ($20,000)
(the "Employee's Put"). The Employee's Put shall be exercisable by
delivery of a written notice to the Company. The closing date for the
exercise of the Employee's Put shall be as mutually agreed upon by the
Company and the Employee, but shall not be later than thirty (30) days
after delivery of the written notice referred to in this Section 10.
11. REFORMATION/SAVINGS CLAUSE. The parties agree that if
either the length of time or the geographical area of Employee's
covenants contained herein are deemed too restrictive by any court of
competent jurisdiction in any proceeding involving the validity of
said covenants, then the court may reduce the offending restriction to
the maximum restriction it deems reasonable under the circumstances so
as to give the maximum permissible effect to the intentions of the
parties as set forth herein, and the court may enforce such provisions
as so reformed.
12. REMEDIES AND EQUITABLE PROVISIONS. The following provisions
shall apply in respect of Employee's covenants and agreements
contained in this Agreement:
(a) Employee acknowledges and agrees that Employee's covenants
contained in this Agreement are reasonable and necessary for the
proper protection of Company and that the Employee's agreements herein
not to compete with the Company shall not hinder Employee in obtaining
gainful employment at the termination of this Agreement in the event
Employee shall desire such employment.
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(b) Employee acknowledges and agrees that Company does not have
an adequate remedy at law for the breach or threatened breach of
Employee's covenants contained in this Agreement and Employee
therefore agrees that Company, in addition to any other remedy which
may be available to it, shall be entitled to enforce Employee's
covenants by injunction or other equitable means.
(c) The parties agree that if Company should institute
litigation against Employee to enforce any provisions of this
Agreement, then the prevailing party in such litigation shall be
entitled to receive, in addition to any other relief awarded such
party, reasonable attorneys' fees in respect of the prosecution or
defense of such litigation.
13. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and if sent by
certified mail
If to Employee: Xxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxxx 00000
If to Company: Omni Geophysical, L.L.C.
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
14. WAIVER OF BREACH. The waiver or nonenforcement by the
Company of a breach of any provision of this Agreement by the Employee
shall not operate or be construed as a waiver of any subsequent breach
by the Employee.
15. ASSIGNMENT. Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Employee may not
assign any of his rights or delegate any of his duties or obligations
under this Agreement. The rights and obligations of Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Company.
16. SEVERABILITY. Every provision of this Agreement is entitled
to be severable. The parties agree that if any term or provision
hereof is held to be illegal, invalid, against public policy or
unenforceable for any reason whatsoever, such illegality or invalidity
shall not affect the validity of the remainder to the Agreement, and
the remaining provisions of this Agreement shall not be affected
thereby.
17. AMENDMENTS. No alterations, modifications, amendments or
changes herein shall be effective or binding upon the parties unless
the same shall have been agreed in writing by all the parties.
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18. SECTION HEADINGS. Section and other headings in this
Agreement are for reference purposes only, and are in no way intended
to describe, interpret, define or limit the scope or extent of any
provision hereof.
19. COUNTERPART EXECUTION. This Agreement may be executed by
any number of counterparts with the same effect as if all parties
hereto had signed the same document. All counterparts shall be
construed together and shall constitute one agreement.
20. APPLICABLE LAW. Company and Employee acknowledge and agree
that the law of several states could, conceivably, apply to the terms
of this Agreement. In order to provide certainty with respect to the
construction, interpretation and enforcement of this Agreement, it is
the intention of the parties that the internal laws of the State of
Louisiana shall govern only the construction, interpretation, validity
and enforcement of each term of the Agreement which relates to
obligations which are intended to be performed or restrictions upon
the activities or conduct of the parties within the State of
Louisiana. The construction, interpretation, validity and enforcement
of each term of the Agreement which relates to obligations to be
performed or restrictions upon the activities or conduct of the
parties outside of the State of Louisiana shall be governed by the law
of the State of Texas. The parties to this Agreement have agreed to
this bifurcated choice of law after careful consideration and
reflection.
21. RIGHTS CUMULATIVE. The rights of Company hereunder shall be
cumulative and the enforcement by Company of any right shall not
affect in any way the ability of Company to enforce any other right
hereunder or any right or remedy of Company at law or in equity.
22. ENTIRE AGREEMENT. This instrument contains the entire
agreement of the parties and may not be changed orally but only by
agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
[Remainder of this page intentionally blank]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized managers, and the Employee has
hereunto set his hand as of the day and year first above written.
COMPANY
OMNI GEOPHYSICAL, L.L.C.,
a Louisiana limited liability company
By:/s/ Xxxxx Xxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxx, Manager
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, Manager
EMPLOYEE
/s/Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
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