EXHIBIT 10.7
EMPLOYMENT AGREEMENT
OF
G. XXXXX XXXX
This Employment Agreement (this "Agreement") is made effective as of April
1, 2004, between OMNI Energy Services Corp., Inc., a Louisiana corporation
("OMNI" or the "Company) and G. Xxxxx Xxxx, a resident of Lafayette Parish,
Louisiana ("Employee"). In order to protect the goodwill of OMNI and in
consideration of the premises and the mutual covenants contained herein, the
parties hereby agree as follows:
1. Employment. OMNI hereby agrees to employ Employee and Employee
hereby agrees to work for OMNI as its Executive Vice President. Employee shall
report directly to the Chief Executive Officer and shall perform such duties as
are commensurate with his position and as are assigned to him by the Chief
Executive Officer after consultation with the Board. So long as Employee is
employed by OMNI, Employee shall devote Employee's skill, energy and
substantially all of his business-related efforts to the faithful discharge of
Employee's duties as a salaried, exempt employee of OMNI. In providing services
hereunder, Employee shall comply with and follow all written directives,
policies, standards and regulations from time to time established by the Board
of Directors and applicable to executive officers of OMNI generally.
2. Term of Employment. Employee's employment by OMNI pursuant to this
Agreement shall continue in effect until December 31, 2008 (the "Initial
Period"). Employee's employment shall be automatically extended for additional,
successive one year periods (the "Additional Periods") commencing on January 1,
2009, unless either party gives notice of non-renewal as provided in Section
6(d) or otherwise terminates this Agreement in accordance with the other
provisions of Section 6.
3. Representations and Warranties. Employee represents and warrants
that Employee is under no contractual or other restrictions or obligations that
will limit Employee's activities on behalf of OMNI or will prohibit or limit the
disclosure or use by Employee of any information which directly or indirectly
relates to the business of OMNI or the services to be rendered by Employee under
this Agreement.
4. Compensation. Subject to the provisions of Section 6, Employee will
be entitled to the compensation and benefits set forth in this Section 4.
(a) During the Initial Period, OMNI shall pay Employee an Annual
Base Salary, payable semi-monthly, in equal semi-monthly installments at a rate
equal to $165,000.00 per year for the remainder of the 2004 calendar year. In
each subsequent calendar year during the term of this Agreement, OMNI shall pay
to Employee an Annual Base Salary (not less than $165,000.00 per year)
determined by the OMNI Board of Directors following its annual salary and
performance review. Employee's Annual Base Salary will be reviewed at least
annually in
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the first quarter of each fiscal year of Employee's employment hereunder,
commencing in the first quarter of fiscal year 2005.
(b) Employee shall be eligible to receive an annual bonus. The
bonus will be determined and if appropriate, awarded by the OMNI Board of
Directors during each calendar year beginning with the 2004 calendar year, but
will be paid following the closing of the books and records of OMNI for each
such calendar year, but not later than April 1 of the following calendar year.
The annual bonus will be calculated by the Company's auditors based upon the
bonus plan submitted by the Board.
(c) All payments of salary and other compensation to Employee
shall be made after deduction of any taxes required to be withheld with respect
thereto under applicable federal and state laws.
5. Fringe Benefits; Expenses.
(a) During the term of employment of Employee hereunder, Employee
shall be entitled to participate in all employee benefit plans sponsored by OMNI
and made available for OMNI salaried, exempt employees and executive officers,
including vacation, sick leave and disability leave, health insurance, life
insurance, disability insurance, retirement plans, benefit plans, incentive
plans and 401(k) plans.
(b) OMNI will reimburse Employee for all reasonable business
expenses incurred by Employee in the scope of Employee's employment; provided,
however, that Employee must file expense reports with respect to all such
expenses and otherwise comply with OMNI's policies as are in effect from
time-to-time and are made known to Employee. To the extent any such benefit is
considered a "non-accountable plan" reimbursement under the rules of the
Internal Revenue Code of 1986 as amended, then such amount will be included as
compensation to the Employee and reported on his Form W-2.
(c) During the term of employment of Employee hereunder, Employee
shall be entitled to paid vacation during each calendar year (prorated for any
partial year) and to paid holidays and other paid leave set forth in and in
accordance with OMNI's policies in effect from time-to-time for other salaried,
exempt employees. Any vacation not used during a calendar year may not be used
during any subsequent period. Employee shall be compensated for any unused
vacation upon termination of this Agreement for any reason.
6. Termination or Non-Renewal of Employment.
(a) Termination by Either Party. Either OMNI or Employee may
terminate Employee's employment hereunder at any time during the term of this
Agreement by delivery of thirty (30) days prior written notice by the
terminating party to the other party. Promptly after such termination of
employment, in addition to any other payments or benefits provided in this
Section 6, OMNI shall pay to Employee an amount equal to the sum of (i)
Employee's earned but unpaid Annual Base Salary through the date of termination
of employment at the rate in effect at
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the time of such termination, and (ii) vacation pay earned but not taken to the
date of such termination.
(b) Termination for Cause; Resignation. If OMNI terminates
Employee's employment for Cause (by delivering written notice of that
termination setting forth the event or events constituting Cause and the
effective date of such termination) or if the Employee terminates employment,
the payments due hereunder to Employee shall be limited to the amounts described
in Section 6(a).
(c) Termination Without Cause. If OMNI terminates Employee's
employment without Cause (except as provided in Section 6(d) below), then OMNI
shall, and only if and as long as Employee is not in breach of his obligations
under this Agreement, promptly pay or otherwise provide to Employee, in addition
to those amounts set forth in Section 6(a): (i) an amount equal to Employee's
monthly Annual Base Salary then in effect, payable semi-monthly and in
accordance with OMNI's normal payroll practices, for a period equal to the
lesser of thirty (30) months or the number of months remaining in the Initial
Period or the Additional Period; (ii) an annual bonus calculated on a daily
pro-rata basis to the bonus which would otherwise be payable under Section 4(b);
and (iii) an amount in cash equal to the Fair Market Value, on the date of
termination of employment, of the nonvested, if any, Restricted Shares granted
Employee and the amount of any nonvested Stock-Based Award granted to Employee
on November 4, 2003 pursuant to the Incentive Agreement of even date herewith.
Employee agrees that the above payment shall be a full settlement of OMNI's
obligations to Employee hereunder in the event of a termination without Cause.
(d) Non-Renewal of Employment. Either OMNI or Employee may elect
not to renew Employee's employment hereunder at the end of the Initial Period,
or at the end of any Additional Period thereafter, by delivery of sixty (60)
calendar days prior written notice by the electing party to the other party. At
the expiration of the employment term, OMNI shall pay to Employee an amount
equal to the sum of (i) Employee's earned but unpaid Annual Base Salary through
the date of termination of employment at the rate then in effect and (ii)
vacation pay earned but not taken to the date of such termination.
(e) Waiver of Claims. In the event this Agreement is terminated by
OMNI without Cause, Employee agrees to accept, in full settlement of any and all
claims, losses, damages and other demands that Employee may have hereunder
arising out of such termination or non-renewal, as liquidated damages and not as
a penalty, the payments, benefits and vesting of rights set forth in this
Agreement. Employee hereby waives any and all rights Employee may have to bring
any cause of action or proceeding contesting any such termination or
non-renewal; provided, however, that such waiver shall not be deemed to affect
Employee's rights to enforce any other obligations of OMNI unrelated to this
Agreement. Under no circumstances shall Employee be entitled to any compensation
or confirmation of any benefits under this Agreement for any period of time
following Employee's date of termination if Employee's termination is for Cause.
(f) Death. If Employee dies during his employment by OMNI under
this Agreement, (i) the Employee's employment will terminate on the date of his
death, (ii) OMNI
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will pay to Employee's estate the remainder of Employee's Annual Base Salary at
the rate then in effect and any accrued incentive bonus through the end of the
twelfth (12th) calendar month following the month in which such death occurred,
and (iii) Employee's estate shall be entitled to all rights and benefits that
Employee may have under the terms of this Agreement and under the terms of
OMNI's employee benefit plan(s), and stock incentive plan(s).
(g) Disability. If Employee becomes disabled during his employment
by OMNI under this Agreement (i) the Employee's employment will terminate on the
date of Disability, (ii) OMNI will pay to Employee the remainder of Employee's
Annual Base Salary at the rate then in effect and any accrued incentive bonus
through the end of the twelfth (12th) calendar month following the month in
which such Disability occurred, and (iii) Employee shall be entitled to all
rights and benefits that Employee may have under the terms of this Agreement and
under the terms of OMNI's employee benefit plan(s), stock incentive plan(s) and
disability policy(s).
(h) Offices; Directorships. Upon termination of Employee's
employment, Employee shall be deemed to have resigned from all offices,
directorships, and committee positions then held with OMNI, or any Affiliate.
7. Confidential Information. During the term of Employee's employment
hereunder, and for three (3) years after the last payment made under this
Agreement, Employee's termination of employment, Employee shall not use or
disclose, without the prior written consent of OMNI, Confidential Information
(as defined in Exhibit A attached hereto) relating to OMNI or any of its
Affiliates, and upon termination of Employee's employment will return to OMNI
all written materials in Employee's possession embodying such Confidential
Information. Employee will promptly disclose to OMNI all Confidential
Information, as well as any business opportunity related to OMNI which comes to
Employee's attention during the term of Employee's employment with OMNI.
Employee will not take advantage of or divert any such business opportunity for
the benefit of Employee or any other Person (as defined in Exhibit A attached
hereto) without the prior written consent of OMNI. Employee agrees that the
remedy at law for any breach by Employee of this Section 7 will be inadequate
and that OMNI shall also be entitled to injunctive relief. The provisions of
this Section 7 are intended solely to prohibit the unauthorized use or
disclosure of Confidential Information and not as restrictions on Employee's
ability to engage in a competing business or business activity generally (for
instance under a doctrine of "inevitable disclosure of trade secrets").
8. Intellectual Property.
(a) To the extent they relate to, or result from, directly or
indirectly, the actual or anticipated operations of OMNI or any of its
Affiliates, Employee hereby agrees that all patents, trademarks, copyrights,
trade secrets, and other intellectual property rights, all inventions, whether
or not patentable, and any product, drawing, design, recording, writing,
literary work or other author's work, in any other tangible form developed in
whole or in part by Employee during or prior to the term of this Agreement, or
otherwise developed, purchased or acquired by OMNI or any of its Affiliates,
shall be the exclusive property of OMNI or such Affiliate, as the case may be
("Intellectual Property").
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(b) Employee will hold all Intellectual Property in trust for OMNI
and will deliver all Intellectual Property in Employee's possession or control
to OMNI upon request and, in any event, at the end of Employee's employment with
OMNI.
(c) Employee shall assign and does hereby assign to OMNI all
property rights that Employee may now or hereafter have in the Intellectual
Property. Employee shall take such action, including, but not limited to, the
execution, acknowledgment, delivery and assistance in preparation of documents,
and the giving of testimony, as may be requested by OMNI to evidence, transfer,
vest or confirm OMNI's right, title and interest in the Intellectual Property.
(d) Employee will not contest the validity of any invention, any
copyright, any trademark or any mask work registration owned by or vesting in
OMNI or any of its Affiliates under this Agreement.
9. Mediation. Any controversy which may arise under this Agreement,
whether it be between Employee and the Company or any of its officers,
directors, shareholders, employees, agents, benefit plans, or affiliates, shall
first be heard before a mutually agreed upon mediator. Any mediation shall take
place in Lafayette, Louisiana, or as otherwise agreed upon by the parties within
90 days of a party's written request for mediation. However, employee retains
any and all rights he may have to complain to, and file charges with, any
administrative agency dealing with the rights of employees and to participate in
all administrative proceedings before those agencies. This provision shall not
preclude either party from seeking temporary injunctive relief from a court of
competent jurisdiction.
10. Definitions. As used in this Agreement, the terms defined in Exhibit
A have the meanings assigned to such terms in such exhibit.
11. Notices. All notices, requests, demands and other communications
required by or permitted under this Agreement shall be in writing and shall be
sufficiently delivered if delivered by hand, by courier service, or sent by
registered or certified mail, postage prepaid, to the parties at their
respective addresses listed below:
(a) If to Employee:
G. Xxxxx Xxxx
000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
(b) If to OMNI:
OMNI Energy Services Corp.
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: President
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Any party may change such party's address by furnishing notice to the
other party in accordance herewith, except that notices of changes of address
shall be effective only upon receipt.
12. Assignment. This Agreement is personal to Employee, and Employee
shall not assign any of Employee's rights or delegate any of Employee's duties
hereunder without the prior written consent of OMNI. OMNI shall have the right
to assign this Agreement to a successor in interest in connection with a merger,
sale of substantially all assets, or the like; provided however, that an
assignment of this Agreement to an entity with operations, products or services
outside of the industries in which OMNI or Omni is then active shall not be
deemed to expand the scope of Employee's covenant not to compete with such
operations, products or services without Employee's written consent. OMNI shall
require any Person who is the successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization, or otherwise) to all or
substantially all of the business and/or assets of OMNI to expressly assume and
agree to perform, by a written agreement, all of the obligations of OMNI under
this Agreement.
13. Survival. The provisions of this Agreement shall survive the
termination of Employee's employment hereunder in accordance with their terms.
14. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Louisiana without
regard to the choice-of-law principles thereof.
15. Choice of Forum; Consent to Jurisdiction. Any suit, action or
proceeding arising with respect to the validity, construction, enforcement or
interpretation of this Agreement, and all issues relating in any manner thereto,
shall be brought in the United States District Court for the Western District of
Louisiana, Lafayette Division, or in the event that federal jurisdiction does
not pertain, in the state court's of the State of Louisiana in Lafayette Parish.
Each of the parties hereto hereby submits and consents to the jurisdiction of
such courts for the purpose of any such suit, action or proceeding and hereby
irrevocably waives (a) any objection which any of them may now or hereafter have
to be laying of venue in such courts, and (b) any claim that any such suit,
action or proceeding brought in such court has been brought in an inconvenient
forum.
16. Binding Upon Successors. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns.
17. Entire Agreement. The parties acknowledge the existence of
outstanding Stock Option Agreements as well as an outstanding Incentive
Agreement and a Stock-Based Award Incentive Agreement. Otherwise, this Agreement
constitutes the entire agreement between OMNI and Employee with respect to the
terms of employment of Employee by OMNI and supersedes all prior agreements and
understandings, whether written or oral, between them concerning such terms of
employment. OMNI agrees that the benefits and protections afforded Employee
pursuant to the exculpation and indemnity provisions of OMNI's bylaws and
articles of incorporation will not be diminished during the term of this
Agreement.
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18. Amendments and Waivers. This Agreement may be amended, modified or
supplemented, and any obligation hereunder may be waived, only by a written
instrument executed by the parties hereto. The waiver by either party of a
breach of any provision of this Agreement shall not operate as a waiver of any
subsequent breach. No failure on the part of any party to exercise, and no delay
in exercising, any right or remedy hereunder shall operate as a waiver hereof,
nor shall any single or partial exercise of any such right or remedy by such
party preclude any other or further exercise thereof or the exercise of any
other right or remedy.
19. Cumulative Rights And Remedies. All rights and remedies hereunder
are cumulative and are in addition to all other rights and remedies provided by
law, agreement or otherwise. Employee's obligations to OMNI and OMNI's rights
and remedies hereunder are in addition to all other obligations of Employee and
rights and remedies of OMNI created pursuant to any other agreement.
20. Construction. Each party to this Agreement has had the opportunity
to review this Agreement with legal counsel. This Agreement shall not be
construed or interpreted against any party on the basis that such party drafted
or authored a particular provision, parts of or the entirety of this Agreement.
21. Severability. In the event that any provision or provisions of this
Agreement is held to be invalid, illegal or unenforceable by any court of law or
otherwise, the remaining provisions of this Agreement shall nevertheless
continue to be valid, legal and enforceable as though the invalid or
unenforceable parts had not been included therein. In addition, in such event
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible with respect
to those provisions which were held to be invalid, illegal or unenforceable.
22. Attorneys' Fees and Costs. If any action at law or in equity is
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which it may be entitled.
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IN WITNESS WHEREOF, OMNI and Employee have executed this Agreement as of
the date first above written.
COMPANY
OMNI ENERGY SERVICES CORP.
BY:__________________________________
NAME:________________________________
TITLE:_______________________________
EMPLOYEE
_____________________________________
G. XXXXX XXXX
OMNI COMPENSATION COMMITTEE
BY:__________________________________
NAME:________________________________
TITLE:_______________________________
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EXHIBIT A
DEFINITIONS
"Annual Base Salary" means the salary of Employee in effect at the
relevant time determined in accordance with Section 4(a) hereof.
"Affiliate" means, with respect to any Person, each other Person who
controls, is controlled by, or is under common control with the Person
specified.
"Cause" when used in connection with the termination of employment with
OMNI, means termination of employment at the direction of the Board of the
Company upon conviction of Employee of any felony involving moral turpitude,
including any felony for theft or embezzlement of Company property, or
conviction of a violation of federal securities laws.
"Confidential Information" includes information conveyed or assigned to
OMNI or any of its Affiliates by Employee or conceived, compiled, created,
developed, discovered or obtained by Employee from and during Employee's
employment relationship with OMNI, whether solely by Employee or jointly with
others, which concerns the affairs of OMNI or its Affiliates and which OMNI
could reasonably be expected to desire be held in confidence, or the disclosure
of which would likely be embarrassing, detrimental or disadvantageous to OMNI or
its Affiliates and without limiting the generality of the foregoing includes
information relating to inventions, and the trade secrets, technologies,
algorithms, methods, products, services, finances, business plans, marketing
plans, legal affairs, supplier lists, client lists, potential clients, business
prospects, business opportunities, personnel assignments, contracts and assets
of OMNI or any of its Affiliates and information made available to OMNI or any
of its Affiliates by other parties under a confidential relationship.
Confidential Information, however, shall not include information (a) which is,
at the time in question, generally known in the industry or in the public domain
through no wrongful act of Employee, (b) which is later disclosed to Employee by
one not under obligations of confidentiality to OMNI or any of its Affiliates or
Employee, (c) which is required by court or governmental order, law or
regulation to be disclosed, or (d) which OMNI has expressly given Employee the
right to disclose pursuant to written agreement.
"Disability" means that Employee (i) has become physically or mentally
incapable (excluding infrequent and temporary absences due to ordinary
illnesses) of properly performing the services required of him in accordance
with his employment obligations, (ii) such incapacity shall exist or be
reasonably expected to exist for more than 180 days in the aggregate during any
period of 12 consecutive months, and (iii) either Employee or the Compensation
Committee shall have given the other 60 days written notice of his or its
intention to terminate Employee's active employment because of such Disability.
Notwithstanding the foregoing definition, Employee shall be deemed to have
become disabled for purposes of this Agreement, if the insurer providing OMNI's
Disability policy shall find, during the term of such policy and pursuant to the
provisions of such policy, that Employee is so mentally or physically disabled
as to be unable to reasonably engage in his job responsibility and that such
Disability is permanent and will be continuous during the remainder of
Employee's life, and either the Employee or the
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Compensation Committee shall have given the other 60 days written notice of his
or its intention to terminate Employee's active employment because of such
Disability.
"Fair Market Value" means the average closing price per share of Company
common stock on the NASDAQ National Market over the five trading days prior to
the date of termination times the number of nonvested Restricted Shares granted
Employee and the amount of the nonvested Stock-Based Award on November 4, 2003
pursuant to the Incentive Agreement dated of even date herewith.
"Person" means any individual, corporation, trust, partnership, limited
partnership, foundation, association, limited liability company, limited
liability partnership, joint stock association or other legal entity.
"Without Cause" when used in connection with the termination of employment
with OMNI, means the termination of Employee's employment by OMNI for any reason
that is not the result of death, Disability or termination for Cause.
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