EXHIBIT 10.11
OMNI GEOPHYSICAL, L.L.C.
AND
XXXXX XXXXX
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement"or the "Agreement")
is made and entered into on the 24th day of April, 1997 by and between
OMNI GEOPHYSICAL, L.L.C., a Louisiana limited liability company
("Omni"), and XXXXX XXXXX ("Xxxxx").
W I T N E S S E T H:
WHEREAS, Omni desires to employ Xxxxx as a Vice President and its
Chief Financial Officer; and
WHEREAS, in order to attract and retain Xxxxx as its Chief
Financial Officer, Omni is willing to xxxxx Xxxxx options to acquire
516 of its Common Units upon the terms and conditions described
herein.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged, Xxxxx
and Omni hereby promise, covenant and agree as follows:
1. GRANT OF OPTION. Omni hereby irrevocably grants to Xxxxx the
right and option (the "Option") to purchase 516 of its Common Units
(the "Common Units") on the terms and conditions herein set forth. As
of the date of this Agreement, there are 103,263 Common Units
outstanding.
2. OPTION PRICE. The purchase price for each Common Unit
subject to the Option shall be Two Hundred Forty-Two and 25/100
Dollars ($242.25) per Common Unit.
3. TERM OF OPTION; TRANSFERABILITY. The term of the Option
shall be from the date of this Agreement through and including April
30, 2007. The right to purchase Common Units under the Option shall
vest and become effective as described in Section 5 of this Option
Agreement. Xxxxx shall not have any rights of a member of Omni with
respect to the Common Units subject to this Option until the option is
exercised and the sale of the Common Units subject to the Option is
closed as provided herein. The Option and all of Xxxxx' rights herein
are nontransferable. The Option and the right to acquire Common Units
pursuant to the Option shall be completely forfeited if Xxxxx attempts
or actually transfers, or otherwise disposes of the Option in
contravention of Section 8 of this Option Agreement.
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4. METHOD OF EXERCISING OPTION. Subject to the terms and
conditions of this Agreement, the Option may be exercised by written
notice to Omni, at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000. Such
written notice shall state the election of Xxxxx to exercise the
Option, shall set forth the number of Common Units he wishes to
purchase pursuant to the Option and shall be considered to be given by
Xxxxx for purposes of this Option Agreement when such notice is
deposited in the United States mail, certified mail, return receipt
requested, with postage prepaid, to the address described above. Such
written notice shall fix a closing date which is not more than thirty
(30) days from the date such notice shall be given by Xxxxx for the
payment of the full purchase price of any Common Units being acquired
pursuant to the exercise of the Option at a closing of the transaction
at Omni's principal offices at that time. Payment of such purchase
price shall be made by cashier's check or certified check payable to
the order of Omni or in immediately available funds. At the closing of
the transaction, Omni agrees to execute and, if deemed necessary by
Omni's counsel, to cause each of its members to execute, an amendment
to its Operating Agreement in order to effect the transfer of the
acquired Common Units to Xxxxx.
5. VESTING. The Options shall vest and become fully earned and
nonforfeitable during the period commencing with the date of this
Option Agreement and ending on the third (3rd) anniversary of the date
of this Agreement (the "Vesting Period") as described in this Section
5. Notwithstanding any other provision of this Agreement, unless Xxxxx
should remain in the continuous employ of Omni during the Vesting
Period, then the Option shall be forfeited, and Xxxxx' right to
acquire Common Units under the Option shall be null and void except to
the extent that such rights under the Option have vested as provided
in this Section 5.
(a) If Xxxxx ceases to be employed within the first year of
the Vesting Period, none of his rights under the Option shall be
vested, and he shall have no right to acquire Common Units of Omni;
(b) If Xxxxx ceases to be employed within the second year
of the Vesting Period (the period after the first anniversary but
prior to the second anniversary of this Option Agreement), one-third
of his rights under the Option shall be vested, and he shall have the
right to acquire 172 Common Units of Omni;
(c) If Xxxxx ceases to be employed within the third year of
the Vesting Period (the period after the second anniversary but prior
to the third anniversary of this Option Agreement), two-thirds of his
rights under the Option shall be vested, and he shall have the right
to acquire an additional 172 Common Units of Omni, for a total of 344
Common Units of Omni;
(d) If Xxxxx remains in the continuous employ of the
Company from the date of this Option Agreement through the end of the
Vesting Period, all of his rights under the Option shall be vested,
and he shall have the right to acquire an additional 172 Common Units
of Omni, for a total of 516 Common Units of Omni.
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(e) If Xxxxx' employment is terminated during the Vesting
Period (i) by Omni without Cause or (ii) by Xxxxx for Good Reason, as
the terms "Cause" and "Good Reason", as applicable, are defined in the
Employment Agreement dated of even date herewith between Omni and
Xxxxx (the "Employment Agreement"), the Option shall become
immediately exercisable in full for a period of one year after
termination of employment, after which time period the Option shall
terminate.
(f) If there is a change in control of Omni, as "Change in
Control of the Company" is defined in the Employment Agreement, the
Option shall become immediately exercisable in full for a period of
one year after termination of employment, after which time period the
Option shall terminate.
6. RIGHTS RELATED TO OPTION. The Option constitutes the right
to acquire Common Units of Omni, as such Common Units are more fully
described in Omni's Operating Agreement, or any security, instrument,
property, or amount of consideration into which Common Units of Omni
may be exchanged by reason of any merger, consolidation,
recapitalization, reorganization or other transaction. The Option does
not currently constitute equity in Omni, and Xxxxx shall not be
entitled to vote with the members of Omni on matters on which the
members are entitled to vote as a result of the grant of the Option
until such time as the Option is exercised and Xxxxx acquires Common
Units.
7. DUE AUTHORIZATION. The sale of Common Units of Omni pursuant
to the exercise of this Option Agreement has been duly authorized by
all necessary action of Omni. All members of Omni have consented to
the issuance of any Common Units pursuant to the exercise of the
Option, which consent shall be considered to be a consent for all
purposes of Section 7 of the Omni Operating Agreement.
8. RESTRICTION ON TRANSFERABILITY OF OPTION. The Option is not
assignable. Xxxxx shall not transfer, convey, sell, assign, dispose
of, pledge or otherwise convey the Option or any rights thereunder
other than transfers by will or the laws of descent and distribution.
Any such attempted disposition shall cause an immediate cancellation
of the Option and forfeiture of any and all rights to acquire Common
Units under the Option.
9. RESTRICTION ON TRANSFERABILITY OF COMMON UNITS. Both during
and after the Vesting Period, the Common Units acquired as a result of
exercise of the Option shall be subject to all transfer, admission and
other restrictions and conditions contained in Omni's Operating
Agreement. Any certificate representing Common Units shall bear a
legend setting forth the restrictions on transfer contained in Omni's
Operating Agreement. Xxxxx shall not transfer, convey, sell, assign,
dispose of, pledge or otherwise convey any Common Units acquired as a
result of exercise of the Option except as provided in Omni's
Operating Agreement. Any transferee of the Common Units shall agree to
be bound by the terms and conditions of Omni's Operating Agreement.
Any attempted disposition of the Common Units in contravention of this
section shall be null and void.
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10. RESTRICTION ON TRANSFERABILITY RELATED TO SECURITIES LAW.
Omni shall have the right to restrict any transfer of the Option or
the Common Units acquired as a result of exercise of the Option during
any such period as may be necessary or advisable to comply with the
Securities Exchange Act of 1934, as amended. Neither the Option nor
the Common Units acquired as a result of exercise of the Option have
been nor will be registered under the Securities Act of 1933, and
Xxxxx shall not transfer, convey, sell, assign, dispose of, pledge or
otherwise convey the Option or any Common Units acquired as a result
of exercise of the Option unless (i) such Option or Common Units have
been registered under the Act or (ii) an exemption from the
registration provisions of the Act is applicable to Xxxxx' proposed
sale, assignment, pledge, disposition or transfer of such Option or
Common Units.
11. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
12. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation hereof.
13. APPLICABLE LAW. This Agreement shall be construed,
interpreted and enforced under and in accordance with the internal
laws of the State of Louisiana.
14. ADDITIONAL ACTS. The parties hereto agree, one to the other,
that they will each, at any time and from time to time upon the
request of the other party, do, perform, execute, acknowledge and
deliver all such acts, deeds, assignments, transfers, conveyances,
powers of attorney, certificates and assurances as may be reasonably
required to consummate the transactions contemplated hereby.
15. NO WAIVERS OR MODIFICATION. No waivers or modifications of
any provisions of this Agreement shall be valid or binding unless in
writing and executed by all of the parties hereto.
16. MULTIPLE COUNTERPARTS. This Agreement may be executed in
multiple counterparts and all counterparts shall be considered to be
an original and enforceable as such.
17. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements,
warranties, representations and understandings, if any, relating to
the option and may be amended or supplemented only by an instrument in
writing executed by the party against whom the enforcement is sought.
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IN WITNESS WHEREOF, Omni and Xxxxx have executed this Option
Agreement as of the day and year first above written.
OMNI GEOPHYSICAL, L.L.C.
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
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