OMNI ENERGY SERVICES CORP.
AND
JOHN H. UNTEREKER
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT
(the "Agreement") is made and entered into on this twenty-first (21st) day
of July, 1998, by and between OMNI ENERGY SERVICES CORP., a Louisiana
corporation (hereinafter referred to as the "Company"), and JOHN H.
UNTEREKER, a resident of the State of Louisiana (hereinafter referred to as
"Employee").
WHEREAS, the Company desires to obtain the services of the Employee
upon the terms and conditions contained herein; and
WHEREAS, the Employee desires to provide his services to the Company
upon the terms and conditions contained herein.
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. EMPLOYMENT The Company has agreed to hire Employee and the Employee
has agreed to be employed by the Company upon the terms and conditions
hereinafter set forth.
2. TERM. Subject to the provisions for termination as hereinafter
provided, the term of Employee's employment with the Company shall commence
on August 4, 1998 and shall expire on August 4, 2001, except that the
provisions of Sections 7 and 8 of this Agreement shall survive the
termination of this Agreement for a period of two (2) years thereafter.
3. COMPENSATION. The Company shall compensate the Employee as
follows:
(a) Base salary of One Hundred Fifty Thousand Dollars
($150,000.00) per annum during the term of this Agreement.
(b) Guaranteed bonus of Seventy-five Thousand Dollars ($75,000)
per annum payable annually on or before the 30th day following each fiscal
year end of the Company during the term of this Agreement or, at the
Employee's option, payable in equal monthly installments of $6,250.
(c) Options to acquire 55,000 shares of common stock, $.01 par
value per share, of the Company (the "Common Stock"), which shall be
granted within three business days of August 4, 1998, shall have an
exercise price equal to the fair market value of such stock on the date of
grant, and shall be granted under the Stock Incentive Plan of the Company
and pursuant to that certain option agreement attached hereto as Exhibit
"A."
(d) Of the 55,000 options granted pursuant to paragraph 3(c),
5,000 will be designated guaranteed return options (the "Guaranteed Return
Options"). If on the third anniversary of the date of grant, the closing
price of the Common Stock, as reported on the Nasdaq National Market
System, or such other exchange on which the Common Stock is then traded, is
not at least $10.00 greater than the per share exercise price of such
Guaranteed Return Options, then as to each Guaranteed Return Option
remaining unexercised at such date, the Company shall pay Employee the
difference between $10.00 and such exercise price.
4. OTHER BENEFITS. Employee shall be entitled to participate in all
employee benefit plans or arrangements that the Company makes generally
available now or in the future to its executive officers, such as vacation,
sick leave, life insurance, health insurance, long-term disability
insurance, retirement and incentive bonus plans. Any payments or benefits
payable to Employee hereunder in respect of any calendar year during which
Employee is employed by the Company for less than the entire year shall,
unless otherwise provided in the applicable Benefit Plan, be prorated in
accordance with the number of days in such calendar year during which he is
so employed. For purposes of the Benefit Plans and to the extent
consistent with each such Benefit Plan, Employee's base salary shall be
considered the base salary and guaranteed bonus set forth in Sections 3(a)
and (b) of this Agreement.
Employee shall be entitled in each year, at a time convenient to the
Company, to a vacation of two weeks per year on the same policies as
applicable to employees of the Company generally and during which his
salary will be paid in full.
5. DUTIES. During the term of this Agreement, Employee shall serve
as Executive Vice President (with responsibilities which shall include but
shall not be limited to all accounting and financial reporting functions)
or in a more senior position, shall report to the Chairman and Chief
Executive Officer or Board of Directors, and shall perform such duties,
commensurate with such positions, as are assigned to him by the Chairman
and Chief Executive Officer or Board of Directors.
6. TERMINATION. This Agreement may be terminated at any time by the
Company, without prior notice, for cause or for breach of any obligation of
Employee to Company, in which case this Agreement shall terminate without
further obligation to the Company other than for obligations that have
accrued to the date of termination, which obligations shall be paid in a
lump sum in cash within 30 days of the date of termination. Upon
termination of this Agreement by the Company without cause or in the
absence of a breach of an obligation of Employee to the Company, the
Company shall pay to Employee, in addition to all amounts or compensation
to which he is entitled pursuant to the Company's termination policies and
plans then in effect, if any, as severance pay, an amount equal to the
remaining base salary and guaranteed bonus pursuant to Sections 3(a) and
(b) of this Agreement, for the remainder of the term set forth in Paragraph
2 hereof (but in no event less than $112,500) in one payment within 10
business days of such termination.
For purposes of this Agreement, the Company shall have "cause" for
termination of Employee's employment hereunder upon the occurrence of any
of the following: (i) the continued failure by Employee to substantially
perform his material duties hereunder according to objective written
standard(s) as provided from time to time by the Board of Directors
consistent with Employee's duties as set forth in Paragraph 5, and with
generally accepted industry standards for executive vice-presidents in
similar companies, after demand for substantial performance is delivered by
the Company to Employee in writing, which demand shall set forth the
objective standard(s) which the Company believes have not been met, and
after a reasonable period of time, not less than thirty (30) days, shall
have elapsed after said Notice during which Employee shall have an
opportunity to cure the alleged deficiency, (ii) the Employee's conviction
of a felony, (iii) any acts of dishonesty or deceit by the Employee
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 the Employee. Any act, or failure to act, by Employee
that is based upon authority given pursuant to instructions from the Chief
Executive Officer or 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 Employee's employment with the Company.
7. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION. Employee
agrees that the names of the Company's customers and its pricing structure,
processes, operations, marketing programs, sales techniques, designs,
specifications and other trade secrets which are not part of the public
domain and not reasonably discoverable except by virtue of employment with
the Company, (collectively referred to herein as "Proprietary Information")
are valuable, special and unique assets of the Company. Employee will not,
during the term of Employee's employment hereunder and for a period
expiring two (2) years after the termination of Employee's employment under
this Agreement (whether such termination occurs because of a breach of this
Agreement by the Company or by Employee, because of a termination of this
Agreement by the Company, or otherwise), directly or indirectly, utilize
for the benefit of any person, business, enterprise or entity other than
the Company or 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. Furthermore, it is agreed that all
data, lists, papers, memoranda, documents, and all products of Employee's
skill, resulting from Employee's employment hereunder, shall be and remain
the sole and exclusive property of the Company, and Employee shall execute
any and all agreements and instruments that may be necessary to evidence
the Company's ownership of such property.
8. COVENANT OF NON-COMPETITION. For the period beginning on the date
hereof and expiring two (2) years after the termination of Employee's
employment under this Agreement (whether such termination occurs because of
a breach of this Agreement by the Company or by Employee, because of a
termination of this Agreement by the Company, or otherwise), (a) Employee
will not, directly or indirectly, within any parish or municipality in
Louisiana set forth on Exhibit "B" or in any county or municipality of 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 any other purpose whatsoever which is detrimental to the
Company or its business; and (b) Employee will not, directly or indirectly,
within any parish or municipality in Louisiana set forth on Exhibit "B" 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, or participate in, any business, enterprise, or entity
(including a sole proprietorship of Employee) which owns, operates or
controls any geophysical services business, which business includes but is
not limited to the provision of seismic drilling, seismic surveying, and
services which are material and integral to those businesses, including
aviation operations.
9. REFORMATION/SAVINGS CLAUSE. The parties agree that if either the
length of time or the geographical area of Employee's covenants 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.
10. REMEDIES AND EQUITABLE PROVISIONS. The following provisions
shall apply in respect of Employee's covenants and agreements contained in
this Agreement:
(a) Employee acknowledges and agrees that Employee's covenants
contained in this Agreement are reasonable and necessary for the proper
protection of the Company and that the Employee's agreements herein not to
compete with the Company shall not hinder Employee in obtaining gainful
employment at the termination of this Agreement in the event Employee shall
desire such employment.
(b) Employee acknowledges and agrees that the Company does not
have an adequate remedy at law for the breach or threatened breach of
Employee's covenants contained in this Agreement, and Employee therefore
agrees that the Company, in addition to any other remedy which may be
available to it, shall be entitled to enforce Employee's covenants by
injunction or other equitable means.
11. COMPANY INDEMNIFICATION. Company agrees to defend, indemnify and
hold harmless Employee from any demand, loss, cost or expense, including,
but not limited to attorney's fees, arising from or related to any claim by
any former employer of Employee based on any alleged breach of any
purported covenant of confidentiality and/or non-competition agreement.
12. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by certified mail:
If to Employee: John H. Untereker
422 W. Farrel Road
Lafayette, LA 70508
If to Company: Omni Energy Services Corp.
4500 N.E. Evangeline Thruway
Carencro, LA 70520
13. WAIVER OF BREACH. The waiver or nonenforcement by the Company of
a breach of any provision of this Agreement by the Employee shall not
operate or be construed as a waiver of any subsequent breach by the
Employee.
14. ASSIGNMENT. Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Employee may not
assign any of his rights or delegate any of his duties or obligations under
this Agreement. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
15. SEVERABILITY. Every provision of this Agreement is entitled to
be severable. The parties agree that if any term or provision hereof 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 of the Agreement, and the remaining provisions
of this Agreement shall not be affected thereby.
16. 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.
17. 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.
18. COUNTERPART EXECUTION. This Agreement may be executed in 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.
19. APPLICABLE LAW. The Company and Employee acknowledge and agree
that 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 Louisiana
shall govern the construction, interpretation, validity and enforcement of
each term of this Agreement.
20. RIGHTS CUMULATIVE. The rights of the Company hereunder shall be
cumulative and the enforcement by Company of any right shall not affect in
any way the ability of the Company to enforce any other right hereunder or
any right or remedy of the Company at law or in equity.
21. 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.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Employee has hereunto set his hand as of the day and year
first above written.
COMPANY
OMNI ENERGY SERVICES CORP.
BY: /s/ David A. Jeansonne
------------------------
DAVID A. JEANSONNE
Chairman and Chief Executive Officer
EMPLOYEE
/s/ John H. Untereker
------------------------
JOHN H. UNTEREKER