EXHIBIT 10.8
OMNI GEOPHYSICAL, L.L.C.
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AND
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XXXXX X. XXXXX
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AMENDED AND RESTATED
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EMPLOYMENT AND NON-COMPETITION AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT (the
"Agreement") is made and entered into on the 31st day of October, 1997, but
effective as of October 1, 1997 (the "Effective Date") by and between OMNI
GEOPHYSICAL, L.L.C., a Louisiana limited liability company (hereinafter referred
to as "Company"), and XXXXX X. XXXXX, a resident of the State of Louisiana
(hereinafter referred to as "Employee").
WHEREAS, the Company and Employee entered into an Employment and Non-
Competition Agreement (the "Original Agreement") effective as of April 24, 1997
(the "Original Date"); and
WHEREAS, the Company and Employee desire to amend and restate the Original
Agreement effective as of October 1, 1997 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 has hired the Employee and the Employee agreed
to be employed upon the terms and conditions hereinafter set forth.
2. TERM. Unless Employee's employment is terminated at an earlier date
pursuant to Section 8 hereof, this Agreement shall continue in full force and
effect through the second anniversary of the Original Date and from year to year
thereafter subject to the right of Employee or the Company to terminate this
Agreement as of the second anniversary date or any subsequent anniversary date
by written notice given to the other party at least 60 days prior to such
anniversary date. Termination of this Agreement by either party in accordance
with the preceding sentence shall not require a statement of the reason
therefor.
3. COMPENSATION. For the period beginning on the Effective Date and
expiring on the termination of this Agreement, Company shall pay Employee
Eighty-Five Thousand Dollars ($85,000) per annum. All salary payable hereunder
may be increased from time to time by the Board or President, and, if so
increased, shall not thereafter be decreased during the term of this Agreement.
4. OTHER BENEFITS. Employee shall be entitled to participate in all
employee benefit plans or arrangements the Company makes available now or in the
future to its employees (collectively, the "Benefit Plans"). The Company shall
not directly or indirectly make any changes in any Benefit Plan that would
adversely affect Employee's rights or benefits thereunder, unless such
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changes do not result in a proportionately greater reduction in the rights of or
benefits to Employee compared with any other executive officer of the Company.
Any payments or benefits payable to Employee hereunder in respect of any
calendar year during which Employee is employed by the Company for less than the
entire year shall, unless otherwise provided in the applicable Benefit Plan be
prorated in accordance with the number of days in such calendar year during
which he is so employed.
Employee shall be entitled each year, at a time convenient to the Company,
to a vacation during which his salary will be paid in full. Employee shall be
entitled to a vacation of two weeks per year on the same policies as applicable
to employees of the Company generally.
5. REIMBURSEMENT FOR EXPENSES. Employee will be entitled to reimbursement
for ordinary and necessary business expenses incurred from time to time on
behalf of the Company in the performance of his duties hereunder, provided no
such expense will be reimbursed unless Employee will have properly accounted for
expenses to the extent necessary to substantiate the Company's federal income
tax deductions for such expenses under the Internal Revenue Code and the
regulations thereunder or equivalent subsequent legislation.
6. PLACE OF PERFORMANCE. In connection with Employee's employment by the
Company, Employee shall be based at the principal executive offices of the
Company in Lafayette, Louisiana, except for required travel relating to the
Company's business.
7. DUTIES. Employee shall serve as a Vice President and Chief Financial
Officer of the Company. Notwithstanding anything in this Agreement to the
contrary, Employee shall perform such duties and tasks as are customarily
performed by the chief financial officer of similar companies and such other
work as may be assigned to him by the Company's President and Board of
Directors.
8. TERMINATION. This Agreement may be terminated as follows:
(a) Death. Employee's employment shall terminate upon his death.
(b) Disability. If a physician chosen by the Company and reasonably
acceptable to Employee or his legal representatives certifies in writing that
Employee is incapable of discharging the essential functions of his job as the
Chief Financial Officer for a period of 120 consecutive days because of physical
or mental impairment, then the Employee shall be deemed disabled and the Company
shall have the continuing right and option during the period such disability
continues to terminate Employee's employment. Any such termination shall become
effective 30 days after notice of termination is given, unless within such 30-
day period such physician certifies in writing that Employee is no longer
impaired and is capable of discharging the essential functions of his job.
(c) With or Without Cause. The Company may terminate Employee's
employment with or without Cause. For purposes of this Agreement, the Company
shall have "Cause" for termination of Employee's employment hereunder upon the
occurrence of any of the following: (i) the continued
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failure by Employee to substantially perform his duties hereunder in the manner
and at the level as customarily performed by the chief financial officer of
similar companies after demand for substantial performance is delivered by the
Company that identifies the manner in which the Company believes Employee has
not substantially performed his duties, (ii) the Employee's conviction of a
felony, (iii) any acts of dishonesty or deceit by the Employee involving the
Company's business or his performance of his duties hereunder, or (iv) a
material breach of any fiduciary duty of loyalty owed to the Company by the
Employee. Any act, or failure to act, by Employee that is based upon authority
given pursuant to instructions from the President, pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the Company shall
not constitute "Cause" for termination of Employee's employment with the
Company.
(d) Termination by Employee. Employee may terminate his employment at
any time and for any reason, including (i) for Good Reason (as defined below) or
(ii) in the event of a Change in Control of the Company (as defined below).
For purposes of this Agreement, "Good Reason" shall mean:
(i) the adoption by the Board of any resolution during the term of
this Agreement failing to re-elect Employee as a Vice President and Chief
Financial Officer except in connection with a termination by the Company of
Employee's employment in accordance with the terms and conditions of Sections
8(a), (b) or (c);
(ii) a diminution in Employee's duties, responsibilities or position
in the management of the Company and its subsidiaries, including, without
limitation, (A) the assignment to Employee of duties or responsibilities that
are inconsistent with Employee's position as a Vice President and Chief
Financial Officer of the Company or (B) the demotion of Employee;
(iii) the failure by the Company to pay to Employee any
installment of his salary or to pay any other amounts owed under this Agreement,
which failure continues for a period of 10 days after the Employee gives the
Company notice thereof;
(iv) the failure by the Company to commence, continue or maintain in
effect any Benefit Plan that is required to be provided by the Company pursuant
to this Agreement, unless comparable benefits or compensation are provided in
lieu thereof;
(v) any directive requiring Employee to be based anywhere other than
Lafayette, Louisiana, except for required travel in the ordinary course of the
Company's business; or
(vi) the failure by the Company to obtain the assumption of its
obligations under this Agreement by any successor or assign as contemplated by
Section 15.
For purposes of this Agreement, a "Change in Control of the Company" shall
mean an event (other than an initial equity public offering by the Company or
its successor) with respect to the
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Company that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934 (the "Exchange Act") as in effect on the date hereof; provided that,
without limitation, a Change in Control of the Company shall be deemed to have
occurred if during any period of two consecutive years during the term of this
Agreement, individuals who at the beginning of such period constitute the
managers or Board of Directors cease for any reason to constitute at least fifty
percent (50%) thereof, unless the election of each manager or director who was
not a manager or director at the beginning of such period has been approved in
advance by managers or directors representing at least two-thirds of the
managers or directors then in office who were managers or directors at the
beginning of such period.
(e) Death. Until such time as the Company shall adopt a benefit plan
providing for the payment of death benefits to the Employee in accordance with
Section 4, upon termination of this Agreement as a result of Employee's death,
Employee's estate shall be paid an amount equal to the remaining salary due
under this Agreement, payable in a lump sum within 90 days following the date of
Employee's death.
(f) Disability. Until such time as the Company shall adopt a benefit plan
providing for the payment of disability benefits to the Employee in accordance
with Section 4, during any period that Employee is deemed to be disabled under
Section 8(b) ("disability period"), Employee shall continue to receive his full
salary at the rate then in effect for such period until his employment is
terminated pursuant to Section 8(b). Upon termination of Employee's employment
under Section 8(b), the Company shall pay to Employee in a lump sum in cash
within 30 days of the date of termination all accrued obligations hereunder, and
an amount equal to the remaining salary due under this Agreement and shall
timely furnish to Employee all benefits under any Benefit Plans.
(g) Cause; Other than Good Reason. If Employee's employment shall be
terminated for Cause by the Company, or voluntarily terminated by Employee other
than for Good Reason, this Agreement shall terminate without further obligation
to the Company other than for accrued obligations hereunder, which shall be paid
in a lump sum in cash within 30 days of the date of termination.
(h) Other than Death, Disability or Cause; Good Reason; Change in Control.
If during the term of this Agreement (i) the Company shall terminate Employee's
employment other than for death, disability or Cause or (ii) Employee shall
terminate his employment for Good Reason or following a Change in Control of the
Company, then, in addition to all amounts or compensation to which he is
entitled pursuant to the Company's termination policies and plans then in
effect, Employee shall receive as severance pay an amount equal to the remaining
salary due under this Agreement, payable in a lump sum within 30 days of the
date of termination;
9. 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
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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 9, 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.
10. COVENANT OF NON-COMPETITION. For a period during Employee's
employment and ending two (2) 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, the design and manufacture of such equipment and the provision of
seismic surveying services, 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 10 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.
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.
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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.
(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.
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. Xxxxx
2314 Xxxxxxx Xxxxxx
Apartment 1806
Xxxxxxxxx, 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. This
Agreement shall be binding upon and shall inure to the benefit of the Company
and any of its successors or assigns. In addition, the Company shall require
any successor or assign (whether direct or indirect, by purchase of all or
substantially all of the Company's assets or capital stock, merger,
consolidation or otherwise) to (i) assume unconditionally and expressly this
Agreement and (ii) agree to perform all of the obligations under this Agreement
in the same manner and to the same extent as would have been required of the
Company had no assignment or succession occurred. In the event of any such
assignment or succession, the term "Company" as used in this Agreement shall
refer also to such successor or assign.
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
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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.
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.
23. PROVISION RE: NON-LIQUIDITY OF COMMON UNITS SUBJECT TO OPTION. For
purposes of Section 23 of this Agreement, "Liquidity Event" means the first to
occur of (a) a merger, consolidation or sale of Omni or sale of all or
substantially all of its assets in exchange for cash and/or stock of a publicly
traded corporation; or (b) the first offering by Omni of its securities
representing its equity ownership to the public pursuant to an effective
registration statement under the Securities Act of 1933, as then in effect, or
any comparable statement under any similar federal statute then in force; or (c)
the sale of Omni or sale of all or substantially all of its assets to a
privately held company for cash. In the event no Liquidity Event has occurred
by the termination of the Vesting Period (as that term is defined in the Option
Agreement between Xxxxx and Omni), then commencing with the end of the Vesting
Period and until such time as a Liquidity Event occurs,
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Omni will pay Xxxxx as additional compensation hereunder one-half percent (0.5%)
of all distributions made during such period to Common Unitholders (as that term
is defined in Omni's Operating Agreement, as amended) pursuant to Sections
6.1(a)(ii) and 6.1(a)(v) of Omni's Operating Agreement, as amended.
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 X. Xxxxxx
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Xxxxx X. Xxxxxx, Manager
EMPLOYEE
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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