EXHIBIT 10.6
OMNI GEOPHYSICAL, L.L.C.
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AND
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XXXXX X. XXXXXXX
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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. XXXXXXX, 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") as of July 19, 1997 (the
"Original Date"); and
WHEREAS, the Company and Employee desire to amend and restate the Original
Agreement effective as of the Effective Date 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. Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall be for a period of thirty-six (36)
months from the Original Date.
3. COMPENSATION. For the period beginning on the Effective Date 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 Vice-President - Marketing and
Business Development and Secretary 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. This Agreement may be terminated at any time by Employee
with or without cause. Upon termination of this Agreement, Employee shall be
entitled to receive from the Company a cash payment or payments from time to
time after such termination upon exercise of any options (the "Options") to
acquire common stock of the Company to which Employee is at the time of such
termination entitled to exercise, pursuant to that certain Option Agreement
dated September 25, 1997 by and between the Company and Employee (the "Option
Agreement"), whether such Options become exerciseable as a result of such
termination, change of control of the Company, passage of time or otherwise.
Such payment or payments shall be made to Employee by the Company no later than
15 business days following any exercise of such Options by Employee and shall be
equal to the product of (i) the number of Options exercised, multiplied by (ii)
the excess of the fair market value of the shares received upon exercise of such
Options on the date of exercise over the Option Price (as defined in the Option
Agreement), multiplied by (iii) 20%.
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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.
(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.
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(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.
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.
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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.
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. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Manager
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Manager
EMPLOYEE
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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