EXHIBIT 10.12
OMNI ENERGY SERVICES CORP.
AND
XXXXX X. XXXXXX
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement" or the "Agreement") is made
and entered into effective as of the 25th day of September, 1997 by and between
OMNI ENERGY SERVICES CORP., a Louisiana corporation ("Omni"), and XXXXX X.
XXXXXX ("Xxxxxx" or "Employee"). This Option Agreement is subject to the terms
of the Company's Stock Incentive Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, Omni has employed Xxxxxx as its President; and
WHEREAS, in order to retain Xxxxxx as its President, Omni is willing to
xxxxx Xxxxxx options to acquire 300,000 shares of its common stock upon the
terms and conditions described herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and legal sufficiency
of which is hereby acknowledged, Xxxxxx and Omni hereby promise, covenant and
agree as follows:
1. Grant of Option. Omni hereby irrevocably grants to Xxxxxx the right
and option (the "Option") to purchase 300,000 shares of its common stock (the
"Common Shares") on the terms and conditions herein set forth. As of the date
of this Agreement, there are 1,000 Common Shares outstanding.
2. Option Price. The purchase price for each Common Share subject to the
Option shall be the purchase price per share at which Omni Common Shares are
sold to the public at the initial public offering, which is equal to or greater
than the fair market value of the Common Stock on the date hereof.
3. Term of Option; Transferability. The term of the Option shall be from
the date of this Agreement through and including April 30, 2007. The right to
purchase Common Shares under the Option shall vest and become effective as
described in Section 5 of this Option Agreement. Xxxxxx shall not have any
rights of a shareholder of Omni with respect to the Common Shares subject to
this Option until the Option is exercised and the sale of the Common Shares
subject to the Option is closed as provided herein. The Option and all of
Xxxxxx' rights herein are nontransferable, except as provided in Section 9
hereof. The Option and the right to acquire Common Shares pursuant to the
Option shall be completely forfeited if Xxxxxx attempts or actually transfers,
or otherwise disposes of the Option in contravention of Section 9 of this Option
Agreement.
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4. Method of Exercising Option. The Option may also be exercised as
provided in Section 6.4 of the Plan.
5. Vesting. The Options shall vest and become fully earned and
nonforfeitable during the period commencing with the date of this Option
Agreement and ending on July 18, 1999 (the "Vesting Period") as described below:
(a) If Xxxxxx ceases to be employed prior to July 18, 1998, except as
provided in Section 5(d), none of his rights under the Option shall be vested,
and he shall have no right to acquire Common Shares of Omni;
(b) If Xxxxxx remains in the continuous employ of the Company from the
date of this Option Agreement through July 18, 1998, one-half of his rights
under the Option shall be vested, and he shall have the right to acquire 150,000
Common Shares of Omni;
(c) If Xxxxxx remains in the continuous employ of the Company from the
date of this Option Agreement through the end of the Vesting Period, all of his
rights under the Option shall be vested, and he shall have the right to acquire
an additional 150,000 Common Shares of Omni, for a total of 300,000 Common
Shares of Omni;
(d) If Xxxxxx' employment is terminated during the Vesting Period (i)
by Omni without Cause or (ii) by Xxxxxx for Good Reason, as the terms "Cause"
and "Good Reason," as applicable, are defined in Section 6 herein, the Option
shall become immediately exercisable in full for a period of one year after
termination of employment, after which time period the Option shall terminate.
(e) If there is a change in control of Omni, as "Change in Control of
the Company" is defined in Section 10.11 of the Plan, the Option shall become
exercisable as provided in the Plan.
6. Definitions
(a) Cause. For purposes of this Agreement, the Company shall have
"Cause" for Termination of Xxxxxx' employment hereunder upon the occurrence of
any of the following: (i) the continued failure by Employee to substantially
perform his duties hereunder in the manner and at the level as customarily
performed by the president of similar companies after demand for substantial
performance is delivered by the Company that identifies the manner in which the
Company believes Xxxxxx has not substantially performed his duties, (ii) Xxxxxx'
conviction of a felony, (iii) any acts of dishonesty or deceit by Xxxxxx
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
Xxxxxx. Any act, or failure to act, by Xxxxxx 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 Xxxxxx' employment with the Company.
(b) Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
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(i) the adoption by the Board of any resolution during the term
of this Agreement failing to re-elect Xxxxxx as the
President except in connection with a termination by the
Company of Xxxxxx' employment on account of his death,
disability or for Cause;
(ii) a diminution in Xxxxxx' duties, responsibilities or position
in the management of the Company and its subsidiaries,
including, without limitation, (A) the assignment to Xxxxxx
of duties or responsibilities that are inconsistent with
Xxxxxx' position as the President of the Company or (B) the
demotion of Xxxxxx;
(iii) the failure by the Company to pay to Xxxxxx any installment
of his salary, which failure continues for a period of 10
days after Xxxxxx gives the Company notice thereof; or
(iv) any directive requiring Xxxxxx to be based anywhere other
than within a thirty-five mile radius of Lafayette,
Louisiana, except for required travel in the ordinary course
of the Company's business.
7. Rights Related to Option. The Option constitutes the right to acquire
Common Shares of Omni, as such Common Shares are more fully described in Omni's
Articles of Incorporation, or any security, instrument, property, or amount of
consideration into which Common Shares of Omni may be exchanged by reason of any
merger, consolidation, recapitalization, reorganization or other transaction.
The Option does not currently constitute equity in Omni, and Xxxxxx shall not be
entitled to vote with the shareholders of Omni on matters on which the
shareholders are entitled to vote as a result of the grant of the Option until
such time as the Option is exercised and Xxxxxx acquires Common Shares.
8. Restriction on Transferability of Option. The Option is not
assignable. Xxxxxx shall not transfer, convey, sell, assign, dispose of, pledge
or otherwise convey the Option or any rights thereunder other than transfers by
will or the laws of descent and distribution. Any such attempted disposition
shall cause an immediate cancellation of the Option and forfeiture of any and
all rights to acquire Common Shares under the Option.
9. Restriction on Transferability Related to Securities Law. Omni shall
have the right to restrict any transfer of the Common Shares acquired as a
result of exercise of the Option during any such period as may be necessary or
advisable to comply with the Securities Act of 1933, as
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amended. The Common Shares acquired as a result of exercise of the Option have
not been registered under the Securities Act of 1933, and Xxxxxx shall not
transfer, convey, sell, assign, dispose of, pledge or otherwise convey any
Common Shares acquired as a result of exercise of the Option unless (i) such
Common Shares have been registered under the Act or (ii) an exemption from the
registration provisions of the Act is applicable to Xxxxxx' proposed sale,
assignment, pledge, disposition or transfer of such Common Shares.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
11. Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
hereof.
12. Applicable Law. This Agreement shall be construed, interpreted and
enforced under and in accordance with the internal laws of the State of
Louisiana.
13. Additional Acts. The parties hereto agree, one to the other, that
they will each, at any time and from time to time upon the request of the other
party, do, perform, execute, acknowledge and deliver all such acts, deeds,
assignments, transfers, conveyances, powers of attorney, certificates and
assurances as may be reasonably required to consummate the transactions
contemplated hereby.
14. No Waivers or Modification. No waivers or modifications of any
provisions of this Agreement shall be valid or binding unless in writing and
executed by all of the parties hereto.
15. Multiple Counterparts. This Agreement may be executed in multiple
counterparts and all counterparts shall be considered to be an original and
enforceable as such.
16. Entire Agreement. This Agreement embodies the entire agreement
between the parties and supersedes all prior agreements, warranties,
representation and understandings, if any, relating to the option and may be
amended or supplemented only by an instrument in writing executed by the party
against whom the enforcement is sought.
IN WITNESS WHEREOF, Omni and Xxxxxx have executed this Option Agreement as
of the day and year first above written.
OMNI Energy Services Corp.
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx,
Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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