MARK E. STIPE
This Employment Agreement (this Agreement) is made effective as of October 1, 2008, between OMNI Energy Services Corp., a Louisiana corporation (OMNI) and Mark E. Stipe, a resident of Lafayette, LA (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 General Counsel or such other salaried, executive position as OMNI and Employee shall mutually agree upon. So long as Employee is employed by OMNI, Employee shall devote Employees skill, energy and substantially all of his business-related efforts to the faithful discharge of Employees duties as a salaried, exempt employee of OMNI. In providing services hereunder, Employee shall comply with and follow all directives, policies, standards and regulations from time to time established by the Board of Directors of OMNI.
2. Term of Employment. Employees employment by OMNI pursuant to this Agreement shall continue in effect until December 31, 2011 (the Initial Period), which shall be automatically extended for additional, successive one year periods (the Additional Periods) commencing on January 1, 2012, unless either party gives notice of non-renewal as provided for 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 Employees 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 bi-weekly, in equal bi-weekly installments at a rate equal to $180,000.00 per year. Employees Annual Base Salary will be reviewed annually in the second quarter of each fiscal year of Employees employment hereunder, commencing in the second quarter of fiscal year 2009.
(b) Employee shall be eligible to receive an annual bonus. For 2008, the bonus will be at the sole discretion of the Board of Directors. Bonus criteria and goals for subsequent years will be developed by the Company CEO, approved by the OMNI Board of Directors, and presented to Employee before April 1st of each bonus year. If a bonus is awarded by the Board, it will be paid following the closing of the books and records of OMNI for the calendar year, but not later than April 1 of the following calendar year.
(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 his Term of Employment, Employee shall be entitled to participate in all employee benefit plans sponsored by OMNI and made available for salaried, exempt employees, including sick leave and disability leave, health insurance and 401(k) plans.
(b) OMNI will reimburse Employee for all reasonable business expenses incurred by Employee in the scope of Employees employment; provided, however, that Employee must file expense reports with respect to such expenses and otherwise comply with OMNIs policies.
(c) Employee shall be entitled to three (3) weeks 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 OMNIs policies in effect 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.
(d) Upon execution of this Agreement, Employee shall be granted non-qualified options to purchase 20,000 shares of OMNI Common Stock, pursuant to the Seventh Amended and Restated OMNI Energy Services Corp. Stock Incentive Plan (the Plan). The 20,000 options shall vest as follows: 1,666 at the close of each Quarter in the Initial Period beginning on December 31, 2008, through September 30, 2010, and 1,668 beginning on December 31, 2010, through September 30, 2011. The exercise price per share shall be the Fair Market Value of a share of common stock on the date this Agreement is executed. All options granted hereunder shall vest immediately upon termination by OMNI without cause (see Section 6(a) hereof), and upon a Change of Control as defined in Section 10.11(A) of the Plan. The Options may be exercised as provided in Section 6.4 of the Plan. All options granted hereunder shall expire 10 years after the date of grant, provided however that all options must be exercised within ninety (90) days of termination of Employment for whatever reason.
(e) Employee shall be eligible to participate in the OMNI Long Term Incentive Compensation Plan beginning October 1, 2008.
(f) Employee shall be entitled to $750 per month car allowance.
6. Termination or Non-Renewal of Employment.
(a) Termination by OMNI Without Cause. OMNI may terminate Employees employment at any time during the term of this Agreement Without Cause by delivery of thirty (30) days prior written notice to Employee. After such termination of employment, OMNI shall
pay: (i) the Annual Base Salary then in effect in semi-monthly payments and in accordance with OMNIs normal payroll practices for the remainder of the contract period or twelve months, whichever is less, and (ii) vacation pay earned but not taken to the date of such termination. If an annual bonus is awarded pursuant to Section 4(b) hereof, it shall be prorated through the date of termination and paid in accordance with Section 4(b). Upon termination of Employees employment, Employee shall be deemed to have resigned from all offices, directorships, and committee positions then held with OMNI or any Affiliate. Upon termination of Employees employment, all options granted hereunder shall vest immediately.
(b) Termination by Employee. Employee may terminate his employment at any time during the term of this Agreement by obtaining the concurrence of OMNI, and by delivery of thirty (30) days prior written notice by Employee to OMNI. Promptly after such termination of employment, OMNI shall pay to Employee an amount equal to the sum of: (i) Employees earned but unpaid Annual Base Salary through the date of termination of employment at the rate in effect at the time of termination and (ii) pay for vacation earned but not used through the date of termination. If an annual bonus is awarded pursuant to Section 4(b) hereof, it shall be prorated through the date of termination and paid in accordance with Section 4(b). Upon termination of Employees employment, Employee shall be deemed to have resigned from all offices, directorships, and committee positions then held with OMNI or any Affiliate.
(c) Termination for Cause. If OMNI terminates Employees employment for Cause (by delivering written notice of termination setting forth the event or events constituting Cause and the effective date of such termination) the payments due to Employee shall be limited to the amounts described in Section 6(b)(i) and (ii). Upon termination of Employees employment, Employee shall be deemed to have resigned from all offices, directorships, and committee positions then held with OMNI or any affiliate.
(d) Non-Renewal of Employment. Either OMNI or Employee may elect not to renew Employees 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. At the expiration of the employment term, OMNI shall pay to Employee an amount equal to the sum of: (i) Employees earned but unpaid Annual Base Salary through the date of termination of employment at the rate then in effect, and (ii) pay for vacation earned but not used through the date of termination. If an annual bonus is awarded pursuant to Section 4(b) hereof, it shall be prorated through the date of termination and paid in accordance with Section 4(b). Upon termination of Employees employment hereunder, Employee shall be deemed to have resigned from all offices, directorships, and committee positions then held with OMNI or any affiliate.
(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 arising out of such termination or non-renewal, as liquidated damages and not as a penalty, the payments and benefits 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 Employees rights to enforce any other obligations of OMNI unrelated to employment. Under no circumstances shall Employee be entitled to any compensation or confirmation of any benefits under this Agreement for any period of time following Employees date of termination if Employees termination is for Cause.
(f) Death. If Employee dies during his employment by OMNI under this Agreement, (i) the Employees employment will terminate on the date of his death, (ii) OMNI will pay to Employees estate the remainder of Employees 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) Employees estate shall be entitled to all rights and benefits that Employee may have under the terms of OMNIs Employee Benefit Plans.
(g) Change in Control. Notwithstanding the provisions of Section 6(a), in the event of (i) OMNIs merger, sale of substantially all assets, or a similar change in control, and (ii) Employees employment with the Company terminates under Section 6(a) of this Agreement, OMNI will pay to Employee (i) in one lump sum the equivalent of twelve months of Employees Annual Base Salary at the rate then in effect within thirty (30) days of the date of termination, and (ii) any accrued incentive bonus to be paid following the closing of the books and records of OMNI for the calendar year, but not later than April 1 of the following calendar year.
7. Non-solicitation. During Employees employment with OMNI or any of its Affiliates and thereafter during the Restricted Period, whether on his own behalf or on behalf of any other Person, Employee will not (A) solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any Person who is an employee of OMNI or any of its Affiliates or in any manner induce or attempt to induce any employee of OMNI and any such Affiliate to terminate his employment with OMNI or such Affiliate or (B) interfere with OMNIs or any of its Affiliates relationship with any Person, including any Person who at any time during the Employees employment with OMNI was an employee, contractor, supplier, or customer of OMNI or any such Affiliate.
8. Confidential Information; Business Opportunity. During the term of Employees employment hereunder, and for five (5) years after Employees 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 Employees employment will return to OMNI all written materials in Employees possession embodying such Confidential Information. Employee will promptly disclose to OMNI all Confidential Information, as well as any domestic business opportunity related to OMNI which comes to Employees attention during the term of Employees 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.
9. 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 authors work, in any other tangible form developed in whole or in part by Employee during 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).
(b) Employee will hold all Intellectual Property in trust for OMNI and will deliver all Intellectual Property in Employees possession or control to OMNI upon request and, in any event, at the end of Employees employment with OMNI.
(c) Employee shall 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 OMNIs right, title and interest in the Intellectual Property.
(d) Employee will not contest the validity of any invention, any copyright, any patent, or any trademark registration owned by or vesting in OMNI or any of its Affiliates under this Agreement.
10. Arbitration. Any controversy or claim arising out of or relating to this Agreement shall be submitted to and settled by arbitration administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This provision shall not preclude either party from seeking injunctive relief from a court of competent jurisdiction to enforce the provisions of paragraphs 7, 8, or 9 of this Agreement.
11. Definitions. As used in this Agreement, the terms defined in Exhibit A have the meanings assigned to such terms in such exhibit.
12. 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:|
|Mark E. Stipe|
|Lafayette, LA 70503|
|(b)||If to OMNI:|
|OMNI Energy Services Corp.|
|P.O. Box 3761|
|Lafayette, LA 70502-3761|
Any party may change such partys address by furnishing notice to the other party in accordance herewith, except that notices of changes of address shall be effective only upon receipt.
13. Assignment. This Agreement is personal to Employee, and Employee shall not assign any of Employees rights or delegate any of Employees 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 is then active shall not be deemed to expand the scope of Employees covenant not to compete with such operations, products or services without Employees 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.
14. Survival. The provisions of this Agreement shall survive the termination of Employees employment hereunder in accordance with their terms.
15. 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.
16. Choice of Forum; Consent to Jurisdiction. Subject to paragraph 10, 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 courts 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 the placing 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.
17. 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.
18. Entire Agreement. 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.
19. 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.
20. 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. Employees obligations to OMNI and OMNIs 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 and to applicable law.
21. 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.
22. Severability. In the event that any provision or provisions of this Agreement are 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 affect the original intent of the parties as closely as possible with respect to those provisions which were held to be invalid, illegal or unenforceable.
24. 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.
25. Management/Employment Agreements. By execution hereof, Employee represents and warrants that he has no current employment agreements, management agreements or consulting agreements with any third party.
IN WITNESS WHEREOF, OMNI and Employee have executed this Agreement on the date first above written.
|Mark E. Stipe|
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 the termination of Employees employment by OMNI by reason of: (i) the conviction of, the indictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to, any felony, the equivalent thereof, or any crime or offense causing harm to OMNI or any of its Affiliates (whether or not for personal gain) or involving acts of theft, fraud, embezzlement, moral turpitude or similar conduct; (ii) the commission (or attempted commission) by Employee of an act of fraud upon OMNI or any of its Affiliates; (iii) the misuse or diversion (or attempted misuse or diversion) of OMNIs or any of its Affiliates funds or property; (iv) fraudulent or willful and material misrepresentation or concealment on any written report submitted to OMNI or any of its Affiliates; (v) misconduct, failure by Employee to adhere to any written policy of OMNI or any of its Affiliates, breach of this Agreement, or failure to perform material duties assigned to Employee hereunder or the habitual neglect thereof, in each case described in this clause (v), after reasonable written notice and opportunity to cure has been given by OMNI; (vi) the appropriation (or attempted appropriation) of a material business opportunity of OMNI or any of its Affiliates, including attempting to secure or securing personal profit in connection with any transaction entered into on behalf of OMNI or any of its Affiliates; (vii) the engagement by Employee in any conflict of interest with OMNI or any of its Affiliates (except as provided in Section 7(b) of this Agreement) without compliance with OMNIs conflict of interest policy, if any, then in effect; (viii) the engagement by Employee, without the prior written approval of the Board of Directors of OMNI, in any activity or venture which competes with the domestic business of OMNI or any of its Affiliates; (ix) the engagement in any behavior or conduct which would constitute a material violation of the provisions of OMNIs insider trading policy or business ethics policy, if any, then in effect; or (x) the engagement in any behavior or conduct which, in the judgment of the Board of Directors, is detrimental to or harms the business or reputation of OMNI or any of its Affiliates, after reasonable notice and opportunity to cure has been given by OMNI; or (xi) the engagement by or acceptance of employment with another company or entity.
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 Employees 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, 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.
Person means any individual, corporation, trust, partnership, limited partnership, foundation, association, limited liability company, limited liability partnership, joint stock association or other legal entity.
Restricted Period means the period beginning on the effective date of the termination of Employees employment with OMNI and its Affiliates for any reason (including non-renewal) and ending two (2) years after the termination of Employees employment.