EXHIBIT 10.9
OMNI GEOPHYSICAL, L.L.C.
AND
OMNI GEOPHYSICAL CORPORATION, XXXXX XXXXXXXXX,
MAX XXXXX XXXX, XXX X. XXXX, AND XXXXXX XXX XXXX
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS CONFIDENTIALITY 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"), OMNI GEOPHYSICAL
CORPORATION, a Louisiana corporation, and XXXXX XXXXXXXXX, MAX XXXXX
XXXX, XXX X. XXXX, and XXXXXX XXX XXXX, each a resident of the State
of Louisiana (hereinafter collectively referred to as the
"Shareholders").
WHEREAS, pursuant to that certain Asset Purchase Agreement (the
"Purchase Agreement") of even date herewith, by and among the Company,
Omni Corporation and the Shareholders, the Company acquired all of the
Assets (as that term is defined in the Purchase Agreement) of the
Business (as that term is defined in the Purchase Agreement) of Omni
Corporation;
WHEREAS, the agreements of Omni Corporation and the Shareholders
hereunder are an important aspect of the Purchase Agreement and the
Company would not consummate the Purchase Agreement absent the
execution and delivery of this Agreement, including the covenants set
forth in Sections 1 and 2 of this Agreement; and
WHEREAS, the Company considers the goodwill of the Business
acquired by the Company pursuant to the Purchase Agreement to be an
essential component of the business and operations of Omni
Corporation, and the Company and Omni Corporation desire the Company
to continue to have and to enjoy the full benefit of said goodwill;
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. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION. Omni
Corporation and each of the Shareholders hereby recognize, acknowledge
and agree that confidential information of any kind, nature or
description concerning any matters affecting or relating to the
Business (as that term is defined in the Purchase Agreement),
including but not limited to the names of customers, 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. Omni Corporation
and each of its Shareholders agrees that he
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(or it, in the case of Omni Corporation) will not, without the prior
written consent of the Company, directly or indirectly, in any
individual or representative capacity whatsoever (a) utilize for the
benefit of any person, business, enterprise or entity other than
Company or (b) 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. In the event of
any actual or threatened breach by Omni Corporation or any of the
Shareholders of the provisions of this Xxxxxxx 0, Xxxx Xxxxxxxxxxx and
each of the Shareholders agree that the Company shall not have an
adequate remedy at law, and the Company shall be entitled to an
injunction restraining Omni Corporation and/or any or all of the
Shareholders from breaching the provisions of this Agreement. Nothing
herein stated shall be construed as prohibiting the Company from
pursuing any other remedies available to the Company for such breach
or threatened breach including the recovery of damages from Omni
Corporation or any of the Shareholders.
2. COVENANT OF NON-COMPETITION. For a period of seven (7) years
beginning with the effective date of this Agreement, (a) Omni
Corporation and each of the Shareholders 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 for any other purpose whatsoever which is
detrimental to the Company or its business; and (b) Omni Corporation
and each of the Shareholders will not, directly or indirectly, within
any parish or municipality in Louisiana 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,
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 any of the Shareholders or
a partnership including any of the Shareholders) 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 Omni Corporation or any of the Shareholders of
the provisions of this Agreement, Omni Corporation and each of the
Shareholders agree that the Company shall not have an adequate remedy
at law, and the Company shall be entitled to an injunction restraining
Omni Corporation and/or any or all of the Shareholders 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 2 and/or the solicitation of any business on his or
its behalf or on behalf of others from any customer. Nothing herein
stated shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company for such breach or threatened
breach including the recovery of damages from Omni Corporation or any
of the Shareholders.
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3. PERMITTED BUSINESS. The parties acknowledge that one of the
Shareholders, Xxxxx Xxxxxxxxx, owns and operates American Aviation,
Inc., a Louisiana corporation ("American Aviation"), which utilizes
its fleet of helicopters to provide seismic drilling and support
services. Notwithstanding the provisions of Section 2 of this
Agreement, the Company acknowledges and agrees that Xxxxx Xxxxxxxxx
may continue to own and operate American Aviation as set forth in this
Section 2 without violating the non-competition restrictions and
covenants contained in this Agreement.
4. REMEDIES AND EQUITABLE PROVISIONS. The following provisions
shall apply in respect of the covenants and agreements of Omni
Corporation and the Shareholders contained in this Agreement:
(a) Omni Corporation and each of the Shareholders acknowledge
and agree that the covenants and restrictions contained in this
Agreement are reasonable and necessary for the proper protection of
the legitimate interests of the Company.
(b) Omni Corporation and each of the Shareholders further
acknowledge and agree that any breach or threatened breach of any
agreement contained in Sections 1 and 2 above will cause such damage
to the Company as to be irreparable and which would be difficult to
ascertain and for which the Company does not have an adequate remedy
at law, and accordingly, Omni Corporation and each of the Shareholders
agree that the Company, in addition to any other remedy which may be
available to it, shall be entitled to enforce the covenants of Omni
Corporation and the Shareholders by injunction or other equitable
means. 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
Omni Corporation or any of the Shareholders.
(c) The parties agree that if Company should institute
litigation against Omni Corporation or any of the Shareholders 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.
5. REFORMATION/SAVINGS CLAUSE. The parties agree that if either
the length of time or the geographical area of the covenants of Omni
Corporation and the Shareholders 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.
6. WAIVER OF BREACH. The waiver or nonenforcement by the
Company of a breach of any provision of this Agreement by Omni
Corporation or any of the Shareholders shall not operate or be
construed as a waiver of any subsequent breach by Omni Corporation or
the Shareholders.
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7. SEVERABILITY. Every provision of this Agreement is entitled
to be severable. The parties agree that if any term or provision of
the Agreement 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.
8. 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.
9. 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.
10. 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.
11. APPLICABLE LAW. The Company, Omni Corporation and each of
the Shareholders acknowledge and agree that under applicable conflicts
of laws rules, 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 Missouri shall govern the construction,
interpretation, validity and enforcement of each and every term of
this Agreement. The parties to this Agreement have chosen the law of
the State of Missouri after careful consideration and reflection upon
the desirability of the stability and certainty of result which will
occur if the internal laws of the State of Missouri are chosen in the
manner described to govern the construction, interpretation,
enforcement, termination and validity of the rights and duties of the
parties under this Agreement.
12. 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.
13. 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.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized managers, Omni Corporation has caused
this Agreement to be executed by its duly authorized officer, and each
of the Shareholders has hereunto set his hand as of the day and year
first above written.
OMNI GEOPHYSICAL, L.L.C.,
a Louisiana limited liability company
By:/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, Manager
By:/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx, Manager
OMNI GEOPHYSICAL CORPORATION,
a Louisiana corporation
By:/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxxx, President
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
/s/ Max Xxxxx Xxxx
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Max Xxxxx Xxxx
/s/ Xxx X. Xxxx
-----------------------------------------
Xxx X. Xxxx
/s/ Xxxxxx Xxx Xxxx
-----------------------------------------
Xxxxxx Xxx Xxxx
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