EXHIBIT 10.5
XXXXX X. XXXXXX
STOCK-BASED AWARD
INCENTIVE AGREEMENT
WHEREAS, Section 8 of the Fourth Amended and Restated Omni Energy Services
Corp. Stock Incentive Plan (the "Plan") authorizes the Compensation Committee of
the Board of Directors (or a subcommittee thereof) (the "Committee") to grant
stock-based awards to eligible participants in the Plan;
WHEREAS, Xxxxx X. Xxxxxx is such an eligible participant (the "Employee");
WHEREAS, under Section 10.6 of the Plan, a participant receiving a grant
of a stock-based award shall enter into an incentive agreement with OMNI Energy
Services Corp. (the "Company") setting forth the conditions of the grant; and
WHEREAS, the Committee has awarded the Employee the stock-based award set
forth below;
NOW, THEREFORE, the Company and the Employee hereby, for mutual good and
valuable consideration the receipt of which is hereby acknowledged, enter into
this Stock-Based Award Incentive Agreement (the "Agreement"):
1. Grant of Stock-Based Award
The Employee has been granted, effective October 1, 2003, the
following stock-based award ("Stock-Based Award"):
55% of 10% of the FMV greater than or equal to $1.00 but less than
$1.50, plus
55% of 15% of the FMV greater than or equal to $1.50 but less than
$2.50; plus
55% of 20% of the FMV greater than or equal to $2.50 but less than
$10.00; plus
55% of 15% of the FMV greater than or equal to $10.00 but less than
$20.00; plus
55% of 10% of the FMV greater than or equal to $20.00.
2. Payment of Stock-Based Award
The amount of the Stock-Based Award ("SBA") shall become fixed: (a)
on the date of the Employee's termination of employment (for any reason
other than resignation or Termination for Cause), (b) 90 days after the
Employee's death or Disability or (c) upon a Change of Control. The amount
of the SBA shall be paid in full, upon the occurrence of any of the events
described in subparagraphs (i), (ii) and (iii) below, as follows:
(i) In cash in the event of a Change of Control;
(ii) In cash in the event of receipt by the Company of a bona fide
fair value offer the acceptance of which (though rejected by
the Board and not submitted to the Shareholders for a vote)
would result in a Change of Control, provided that the offer
is supported by an independent fairness opinion;
(iii) In cash or on other mutually agreeable terms in the event of
Termination Without Cause; or
(iv) In the event of resignation or Termination for Cause, 100% of
the SBA shall be forfeited.
3. Definitions
For purposes of this Agreement:
(a) "FMV" shall mean Fair Market Value which shall be the average
closing price per Share on the NASDAQ National Market over the
five prior trading days times the number of issued and
outstanding Shares; provided however, that for purposes of a
death or Disability valuation, the FMV shall be the average
closing price per Share on the NASDAQ National Market over the
ten (10) trading days commencing with the ninetieth (90th) day
following the death or the Disability determination;
(b) "Share" shall mean a share of common stock, $.01 par value per
share, of the Company;
(c) The term "Change of Control" is defined to include:
(i) A tender offer or exchange offer made and consummated
for ownership of Company stock representing 80% or more
of the combined voting power of the Company's
outstanding securities;
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(ii) The sale or transfer of substantially all of the
Company's assets to another corporation which is not a
wholly-owned subsidiary of the Company;
(iii) Any merger or consolidation of the Company with another
corporation, where less than 20% of the outstanding
voting shares of the surviving or resulting corporation
are owned in the aggregate by the Company's stockholders
as of the record date entitling shareholders to vote on
a merger or consolidation; or
(iv) Any contested election or other event (including one or
more voluntary resignations) which results in a 50% or
greater change in the composition of the independent
members of the Company's board of directors during the
period commencing on the day after the Company's annual
shareholders' meeting and ending at the close of
business of the Company's next annual shareholders'
meeting.
(d) The term "Disability" shall mean 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 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 the Company 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 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;
(e) The term "Termination for Cause" shall mean termination of
employment of the Employee at the direction of the Board of
the Company upon occurrence of any of the following events:
(i) Employee's gross negligence or willful misperformance of
his duties for a period of thirty (30) days after
written notice of such determination by the Board and
Employee's failure to correct such conduct within such
thirty-day period;
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(ii) Employee's conviction of a felony;
(iii) Employee's conviction of any crime other than a felony
involving moral turpitude or dishonesty which, in the
reasonable opinion of the Board of the Company, after
consultation with the Employee, would impair Employee's
ability to perform his duties on a regular basis;
(iv) Employee's willful failure or refusal to comply with
written Company policies, standards or regulations after
publication thereof and for a period of thirty (30) days
after written notice of such failure or refusal and the
reasonable determination of the Board that such
continued failure or refusal is likely to have a
material adverse impact on the Company;
(v) Employee's breach of his duty of loyalty to the Company
where the Board of the Company determines that such
breach is reasonably likely to have a material adverse
impact on the Company and Employee fails to cure such
breach within thirty (30) days after written notice
thereof from the Company; or
(vi) Reasonable determination by the Board of the Company
that Employee has committed a crime of fraud against, or
theft or embezzlement from, the Company.
(f) The term "Termination Without Cause" shall mean any
termination of employment that is not the result of
resignation, death, Disability or Termination for Cause;
(g) All other defined terms (reflected by an initial
capitalization) shall have the same meaning as under the Plan.
4. No Voting Rights
The Employee shall have none of the rights of a shareholder with
respect to the SBA.
5. No Right to Assign
The SBA may not be assigned, pledged, alienated or transferred, but
are heritable.
6. Tax Benefit Rights
Any Tax Benefit Rights with respect to the SBA have been separately
negotiated and granted outside this Agreement.
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7. Other Terms and Conditions
This Agreement shall be subject to the terms of the Plan (including
tax withholding under Section 10 of the Plan), which shall be controlling.
8. Amendment
This Agreement may be amended by written agreement signed by all the
Signatories below.
9. Term
This Agreement and all rights granted herein shall terminate on
December 31, 2008 or upon termination of Employee's employment, whichever
occurs last.
EMPLOYEE:
June __, 2004 ____________________________
Xxxxx X. Xxxxxx
COMPENSATION COMMITTEE:
June___, 2004 By: _________________________
Name: _______________________
Title: ________________________
COMPANY:
Omni Energy Services Corp.
June___, 2004 By: _________________________
Name: _______________________
Title: ________________________
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