EXHIBIT 10.10
OMNI GEOPHYSICAL, L.L.C. AND AMERICAN AVIATION L.L.C.
AND
AMERICAN AVIATION INCORPORATED, XXXXX XXXXXXXXX,
AND XXXXXXX XXXXXXX XXXXXX
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (hereinafter
referred to as the "Agreement") is made and entered into on the 6th
day of August, 1997, but effective as of July 1, 1997, by and between
OMNI GEOPHYSICAL, L.L.C., a Louisiana limited liability company
("Omni"), AMERICAN AVIATION L.L.C., a single-member limited liability
company owned 100% by the Company ("AA") (Omni and AA being
hereinafter collectively referred to as the "Company"), AMERICAN
AVIATION INCORPORATED, a Louisiana corporation ("American"), and XXXXX
XXXXXXXXX ("Xxxxxxxxx") and XXXXXXX XXXXXXX XXXXXX ("Xxxxxx"), each a
resident of the State of Louisiana (Xxxxxxxxx and Xxxxxx being
hereinafter collectively referred to as the "Shareholders").
WHEREAS, pursuant to the Intangible Asset Purchase Agreement (the
"Purchase Agreement") and the Exchange Agreement (the "Exchange
Agreement") both of even date herewith, by and among the Company and
AA, the Company acquired all of the Assets of the Business (as those
terms are defined in the Purchase Agreement and the Exchange
Agreement) of American;
WHEREAS, the agreements of American and the Shareholders
hereunder are an important aspect of the Purchase Agreement and the
Exchange Agreement, and the Company would not consummate the Purchase
Agreement and the Exchange 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 American, and
the Company and American 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. American
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
1
defined in the Purchase Agreement and the Exchange 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. American and each
of its Shareholders agrees that he (or it, in the case of American)
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 American or any of the
Shareholders of the provisions of this Section 1, American 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 American 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 American or any of the
Shareholders.
2. COVENANT OF NON-COMPETITION. For a period of six (6) years
beginning with the effective date of this Agreement, (a) American 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) American and Xxxxxxxxx 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 Xxxxxxxxx or
a partnership including Xxxxxxxxx) 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 aviation
company, or (iii) owns, operates or controls any business which
competes with the Company. For a period of three (3) years beginning
with the effective date of this Agreement, Xxxxxx 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
Xxxxxx or a partnership including Xxxxxx) 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 aviation
company, or (iii) owns, operates or controls any business which
competes with the
2
Company. In the event of any actual or threatened breach by American
or any of the Shareholders of the provisions of this Agreement,
American 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 American 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 American or any of the Shareholders.
3. REMEDIES AND EQUITABLE PROVISIONS. The following provisions
shall apply in respect of the covenants and agreements of American and
the Shareholders contained in this Agreement:
(a) American 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) American 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, American 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 American 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 American or any of the
Shareholders.
(c) The parties agree that if Company should institute
litigation against American 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.
4. REFORMATION/SAVINGS CLAUSE. The parties agree that if either
the length of time or the geographical area of the covenants of
American 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.
3
5. WAIVER OF BREACH. The waiver or nonenforcement by the
Company of a breach of any provision of this Agreement by American or
any of the Shareholders shall not operate or be construed as a waiver
of any subsequent breach by American or the Shareholders.
6. 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.
7. 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.
8. 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.
9. 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.
10. APPLICABLE LAW. The Company, American 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.
11. 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.
12. 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.
4
IN WITNESS WHEREOF, Omni has caused this Agreement to be executed
by its duly authorized manager, AA has caused this Agreement to be
executed by its sole member, American has caused this Agreement to be
executed by its duly authorized officer, and each of the Shareholders
has hereunto set his hand on the day and year first above written but
effective as of July 1, 1997.
OMNI GEOPHYSICAL, L.L.C.,
a Louisiana limited liability company
By:/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx, Manager
AMERICAN AVIATION L.L.C.,
a Missouri limited liability company
By: OMNI GEOPHYSICAL, L.L.C.,
a Louisiana limited liability company
By:/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx, Manager
AMERICAN AVIATION INCORPORATED
a Louisiana corporation
By:/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxxx, President
/s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx Xxxxxx
5
