OMNI ENERGY SERVICES CORP.
AND
XXXXXX X. XXXX
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT
(the "Agreement") is made and entered into on this 17th day of August 1998,
by and between OMNI ENERGY SERVICES CORP., a Louisiana corporation (the
"Company"), and XXXXXX X. XXXX, a resident of the State of Texas (the
"Employee").
WHEREAS, the Company desires to obtain the services of the Employee
upon the terms and conditions contained herein; and
WHEREAS, the Employee desires to provide his services to 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 has agreed to hire Employee and the
Employee has agreed to be employed by the Company upon the terms and
conditions hereinafter set forth.
2. TERM. Subject to the provisions for termination as hereinafter
provided, the term of Employee's employment with the Company shall commence
on September 1, 1998 and shall expire on September 7, 1999, except that the
provisions of Paragraphs 8 and 9 of this Agreement shall survive the
termination of this Agreement for the periods set forth therein.
3. COMPENSATION. Subject to adjustment pursuant to Paragraph 5
hereof, the Company shall compensate the Employee as follows (which
compensation shall be in addition to any additional compensation otherwise
available to Employee pursuant to Paragraph 4 hereof):
(a) Base salary of One Hundred Fifty Thousand Dollars ($150,000)
per annum during the term of this Agreement.
(b) Guaranteed bonus of Seventy-five Thousand Dollars ($75,000)
per annum payable in equal monthly installments of $6,250 during the term
of this Agreement.
(c) Options to acquire 150,000 shares of common stock, $.01 par
value per share, of the Company (the "Common Stock"), which shall be
granted within three business days of September 1, 1998, shall have an
exercise price equal to the fair market value of such stock on the date of
grant, and shall be granted under the Stock Incentive Plan of the Company
and pursuant to that certain option agreement attached hereto as Exhibit
"A."
4. OTHER BENEFITS. Employee shall be entitled to participate in all
employee benefit plans or arrangements that the Company makes generally
available now or in the future to its executive officers, such as vacation,
sick leave, life insurance, health insurance, long-term disability
insurance, retirement and incentive bonus plans. 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. To the extent consistent with each such Benefit Plan,
Employee's base salary shall be considered the base salary and guaranteed
bonus set forth in Sections 3(a) and (b) of this Agreement for purposes of
the Benefit Plans.
Employee shall be reimbursed all usual and customary out-of-pocket,
third party expenses of relocation to the Carencro-Lafayette, Louisiana
area in an amount up to $25,000 and shall be reimbursed for living expenses
in the Carencro-Lafayette area, including the costs of an apartment,
utilities and phone service; all upon presentation of documentation
sufficient for federal income tax purposes.
Employee shall be entitled in each year, at a time convenient to the
Company, to a vacation of four weeks on the same policies as applicable to
employees of the Company generally and during which his salary will be paid
in full.
5. CHIEF EXECUTIVE OFFICER AND ADDITIONAL BENEFITS. If on or before
August 31, 1999 Employee is named Chief Executive Officer by the Board of
Directors, Employee and the Company will enter into a new agreement, the
terms and conditions of which shall be identical to this Agreement, except
that (i) the term of such agreement shall be extended so as to expire on
the third anniversary of the effective date of the naming of Employee as
Chief Executive Officer (the "Promotion Date"), (ii) unless earlier
terminated, the term of such agreement will be automatically extended by
one year on each anniversary of the Promotion Date and (iii) Employee's
combined base salary and guaranteed bonus shall be increased to $300,000
per annum.
6. DUTIES. During the term of this Agreement, Employee shall serve
as Chief Operating Officer and Executive Vice President with powers,
authority and functions commensurate with such positions, shall report to
the Chairman and the Chief Executive Officer or Board of Directors, and
shall perform such duties, commensurate with such positions, as are
assigned to him by the Chairman and the Chief Executive Officer or Board of
Directors.
7. 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, in which case this Agreement shall terminate without
further obligation to the Company other than for obligations that have
accrued to the date of termination, which obligations shall be paid in a
lump sum in cash within 30 days of the date of termination. Upon
termination of this Agreement by the Company without cause or in the
absence of a breach of an obligation of Employee to the Company, the
Company shall pay to Employee, in addition to all amounts or compensation
to which he is entitled pursuant to the Company's termination policies and
plans then in effect, if any, as severance pay, an amount equal to the
greater of (i) the remaining base salary and guaranteed bonus pursuant to
Paragraphs 3(a) and (b) of this Agreement for the remainder of the term set
forth in Paragraph 2 hereof or (ii)$112,500 in one payment within 10
business days of such termination.
This Agreement may be terminated at any time by the Employee on four
weeks prior written notice, in which case this Agreement shall terminate
without further obligation to the Company other than for obligations that
have accrued to the date of termination, which obligations shall be paid in
a lump sum in cash within 30 days of the date of termination.
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 failure by Employee to substantially
perform his material duties hereunder according to objective written
standard(s) as provided from time to time by the Board of Directors
consistent with Employee's duties as set forth in Paragraph 6, and with
generally accepted industry standards for chief operating officers of
similar companies, after demand for substantial performance is delivered by
the Company to Employee in writing, which demand shall set forth the
objective standard(s) which the Company believes have not been met, and
after a reasonable period of time, not less than thirty (30) days, shall
have elapsed after said Notice during which Employee shall have an
opportunity to cure the alleged deficiency, (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 Chief
Executive Officer or 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.
8. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION. Employee
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 which are not part of the public
domain and not reasonably discoverable except by virtue of employment with
the Company, (collectively referred to herein as "Proprietary Information")
are valuable, special and unique assets of the Company. Employee will not,
during the term of Employee's employment hereunder and for a period
expiring two (2) years after the termination of Employee's employment under
this Agreement (one (1) year if terminated without cause or absent a breach
of any obligation of Employee to the Company), directly or indirectly,
utilize for the benefit of any person, business, enterprise or entity other
than the 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 hereunder, 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.
9. COVENANT OF NON-COMPETITION. For the period beginning on the
date hereof and expiring two (2) years after the termination of Employee's
employment under this Agreement (one (1) year if terminated without cause
or absent a breach of any obligation of Employee to the Company), (a)
Employee will not, directly or indirectly, within any parish or
municipality in Louisiana set forth on Exhibit "B" or in any county or
municipality of 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; and (b) Employee will not, directly or
indirectly, within any parish or municipality in Louisiana set forth on
Exhibit "B" or in any other state or foreign jurisdiction in which the
Company engages in or has engaged in business, own, manage, operate,
control, be employed by, consult with, or participate in, any business,
enterprise, or entity (including a sole proprietorship of Employee) which
owns, operates or controls any geophysical services business, which
business includes but is not limited to the provision of seismic drilling,
seismic surveying, and services which are material and integral to those
businesses, including aviation operations. Notwithstanding the foregoing,
the Employee shall not be prohibited from owning not more than five percent
(5%) of the outstanding shares of capital stock of a publicly-held
corporation engaged in the business of the Company, which shares are listed
for trading on a national securities exchange.
10. 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.
11. 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 the 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 the 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 the 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.
12. COMPANY INDEMNIFICATION. Company agrees to defend, indemnify and
hold harmless Employee from any demand, loss, cost or expense, including,
but not limited to attorney's fees, arising from or related to any claim by
any former employer of Employee based on any alleged breach of any
purported covenant of confidentiality and/or non-competition agreement.
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: Xxxxxx X. Xxxx
00000 Xxxxxx Xxxx
Xxxx, XX 00000
If to Company: Omni Energy Services Corp.
0000 X.X. Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 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 the Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the 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 of 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. PARAGRAPH HEADINGS. Paragraph 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 in 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. The 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 the construction, interpretation, validity and enforcement of
each term of this Agreement.
21. RIGHTS CUMULATIVE. The rights of the Company hereunder shall be
cumulative and the enforcement by Company of any right shall not affect in
any way the ability of the Company to enforce any other right hereunder or
any right or remedy of the 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.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Employee has hereunto set his hand as of the day and year
first above written.
COMPANY
OMNI ENERGY SERVICES CORP.
BY: /S/ XXXXX X. XXXXXXXXX
________________________
XXXXX X. XXXXXXXXX
Chairman of the Board
and Chief Executive Officer
EMPLOYEE
/s/ XXXXXX X. XXXX
_______________________
XXXXXX X. XXXX
