Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 1 of 82 PageID #: 2009

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1 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 1 of 82 PageID #: 2009 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION SHERWIN JOHNSON, ) ) Plaintiff, ) CIVIL ACTION NO. ) 6:10CV1068 (LEAD) v. ) 6:10CV1170 (MEMBER) ) RICHARD WHITE, et al., ) JUDGE HAIK ) MAGISTRATE JUDGE HILL Defendants. ) ) STIPULATION OF SETTLEMENT This Stipulation and Agreement of Settlement (the Stipulation ), dated June 30, 2011, is entered into by and between Plaintiffs John E. Daigle, Jamie Daigle (collectively, Daigle ), and David M. Zimmer (Daigle and Zimmer collectively, Lead Plaintiffs ), on behalf of themselves and the Settlement Class (Lead Plaintiffs and the Settlement Class collectively, Plaintiffs ), and Defendants OMNI Energy Services Corp. ( OMNI ), Brian Recatto, Dennis Sciotto, Richard White, Edward Colson, Barry Kaufman, Ronald Gerevas, Wellspring Capital Management LLC ( Wellspring ), Wellspring Omni Holdings Corporation, and Wellspring Omni Acquisition Corporation (collectively, Defendants ), by and through their respective counsel. This Stipulation is intended by Plaintiffs and Defendants (collectively, the Parties ) to fully and finally compromise, resolve, discharge, and settle the Released Claims, as defined herein, subject to the terms and conditions set forth below: WHEREAS, A. On June 4, 2010, OMNI announced that it had entered into an Agreement and Plan of Merger (the Merger Agreement ) pursuant to which an affiliate of Wellspring would 1

2 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 2 of 82 PageID #: 2010 acquire all of the outstanding shares of OMNI common stock for $2.75 per share in cash (the Merger ); B. On June 30, 2010, OMNI filed its Schedule 14(a) Preliminary Proxy Statement (the Preliminary Proxy Statement ) with the U.S. Securities and Exchange Commission (the SEC ) in connection with a proposed special meeting of its shareholders to vote upon the Merger Agreement; C. On July 1, 2010, and July 21, 2010, plaintiffs Sherwin Johnson ( Johnson ) and Daigle, respectively, filed class action complaints in the United States District Court for the Western District of Louisiana, Lafayette Division (the Court ), on behalf of a putative class of OMNI shareholders, seeking, among other things, injunctive relief and/or rescission of the Merger on the alleged basis that the Board breached their state law fiduciary duties to the Company s shareholders and violated Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder; D. On or about July 23, 2010, plaintiff Johnson served his First Request for Production of Documents on OMNI and the Individual Defendants and third-party discovery on OMNI s financial advisors; E. On July 29, 2010 and August 3, 2010, plaintiffs Johnson and Daigle, respectively, moved for expedited proceedings and discovery in order to move for injunctive relief on a developed record; F. On August 5, 2010, Defendants moved, among other things, to consolidate the Johnson and Daigle actions into a single action; G. On September 2, 2010, the Court entered an order consolidating the Johnson and Daigle actions under the action bearing Docket No. 6:10-CV-1068 (the Consolidated Action ); 2

3 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 3 of 82 PageID #: 2011 H. Also on or about September 2, 2010, the Parties entered into an agreement governing the production of confidential, non-public materials concerning the Merger, and Defendants began producing such documents shortly thereafter; I. On September 23, 2010, OMNI filed its Schedule 14(a) Definitive Proxy Statement (the Definitive Proxy Statement ) with the SEC, which contained certain information concerning the Merger and announced that a special meeting of the Company s shareholders was to be held on Tuesday, October 26, 2010 to vote on the Merger Agreement; J. After the Johnson and Daigle actions were consolidated, the Parties respective counsel entered into arm s-length negotiations with a view toward a possible resolution of Plaintiffs claims, with Plaintiffs Counsel seeking supplemental disclosures concerning the Merger to be made to OMNI shareholders in advance of the shareholder meeting to vote on the Merger; K. On September 15, 2010, Lead Plaintiffs demanded that OMNI make additional disclosures to the shareholders of OMNI in advance of the stockholder meeting to vote on the Merger; L. On October 1, 2010, plaintiffs in the Consolidated Action filed their First Supplemental and Amended Complaint on behalf of a putative class of OMNI shareholders, seeking, among other things, injunctive relief and/or rescission of the Merger on the alleged basis that the Board breached their state law fiduciary duties to the Company s shareholders and violated Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder; M. Throughout the course of the Parties negotiations, Lead Plaintiffs continued to research and investigate their claims and even interviewed Richard C. White, a member of the 3

4 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 4 of 82 PageID #: 2012 Special Committee, one of the Individual Defendants, on October 12, 2010 concerning the sales process leading up to the Merger Agreement; N. On October 14, 2010, after extensive arm s-length settlement negotiations and review of discovery materials, the Parties reached an agreement in principle to settle the Consolidated Action which contemplated a settlement on behalf of a class consisting of all record or beneficial holders of OMNI s common stock, pursuant to which OMNI agreed to make certain supplemental disclosures via a Form 8-K, which settlement was memorialized in the Parties Memorandum of Understanding ( MOU ). The MOU was entered into only after the examination by the Lead Plaintiffs of certain discovery materials, the interview of Richard C. White, and arm s-length negotiations between the Parties, represented by counsel with extensive experience and expertise in shareholder litigation. During the negotiations, the Parties had clear views of the strengths and weaknesses of their respective claims. However, the MOU also was made conditional upon Plaintiffs Counsel conducting further confirmatory discovery to confirm the fairness and adequacy of the Settlement and the disclosures related to the Merger; O. On October 18, 2010, pursuant to the Parties agreement, OMNI filed a Form 8-K with the SEC containing the agreed upon supplemental disclosures (the Supplemental Disclosures ), a true and correct copy of which is attached as Exhibit A; P. On October 24, 2010, OMNI also filed a Form 8-K with the SEC providing supplemental disclosures in connection with the Merger pursuant to an agreement with Domenick Nasuti, Kenneth and Aldona Olsen, Kevin Jeansonne and Ted Moreno, who had filed state court actions on behalf of the same purported class in the 15 th Judicial District Court, Parish of Lafayette, State of Louisiana; 4

5 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 5 of 82 PageID #: 2013 Q. On October 26, 2010, OMNI s shareholders approved the Merger Agreement at a special shareholders meeting: 93.6% of OMNI s voting outstanding shares voted in favor of the Merger; R. On October 27, 2010, Wellspring completed its acquisition of OMNI and the Merger was consummated; S. On January 25, 2011, the Court, pursuant to Section 21D(a)(3)(B) of the Exchange Act: (i) appointed plaintiffs Daigle and Zimmer as Lead Plaintiffs in the Consolidated Action; (ii) approved their selection of the law firms of Bull & Lifshitz, LLP ( Bull & Lifshitz ) and Levi & Korsinsky, LLP ( Levi & Korsinsky ) to serve as Co-Lead Counsel; and (iii) approved their selection of the law firms of Broussard & David, LLC ( Broussard and David ) and Pugh, Accardo, Haas, Radecker, Carey & Hymel, LLC ( Pugh Accardo ) to serve as Co-Liaison Counsel; T. Lead Plaintiffs, through their counsel, have undertaken and completed a thorough investigation of the claims and allegations asserted in the Consolidated Action, as well as the underlying events and transactions relevant to those claims and allegations; U. In connection with this investigation, Plaintiffs Counsel has conducted factual and legal research concerning the validity of Lead Plaintiffs claims, carefully reviewed thousands of pages of documents produced by Defendants, and taken the depositions of: (1) Brian Recatto, OMNI s President and CEO and a member of the Board; (2) Ronald S. Montalbano, a representative of Stephens Inc., the Board s financial advisor in connection with the Merger; and (3) Steward Chip Cureton, a representative of GulfStar Group, the Company retained by the Board to study the proposed Merger and render a fairness opinion with respect thereto; 5

6 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 6 of 82 PageID #: 2014 V. All Parties recognize the time and expense that would be incurred by further litigation in this matter and the uncertainties inherent in such litigation and agree that the interests of the Parties would best be served by a settlement of the litigation herein; W. Lead Plaintiffs entry into the Settlement set forth in this Stipulation is not an admission as to the lack of merit of any of the claims asserted in the Consolidated Action. In evaluating the Settlement, Lead Plaintiffs and Plaintiffs Counsel have considered: (i) the substantial benefits to the members of the Settlement Class from the Settlement, including the disclosure of additional information to the Company s shareholders concerning the Merger; (ii) the facts developed during discovery; (iii) the attendant risks of continued litigation and the uncertainty of the outcome of the Consolidated Action, especially litigation of this complexity; (iv) the difficulties and delays inherent in such litigation; (v) the probability of success on the merits of the allegations contained in the Consolidated Action, including the uncertainty relating to the proof of those allegations; (vi) the desirability of permitting the Settlement to be consummated as provided by the terms of this Stipulation; and (vii) the conclusion of Lead Plaintiffs and their counsel that the terms and conditions of the Settlement are fair, reasonable, adequate, and in the best interests of the Class; X. Defendants have maintained and continue to maintain that they have entered into the Settlement and made the Supplemental Disclosures solely to eliminate the burden and risks of further litigation. Defendants have denied and continue to deny each and all of the claims and contentions alleged in the Consolidated Action. Defendants have expressly denied and continue to deny all charges of wrongdoing or liability against them arising out of any of the conduct, statements, acts, or omissions alleged, or that could have been alleged, in the Consolidated Action. Defendants also have denied and continue to deny, inter alia, the allegations that the 6

7 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 7 of 82 PageID #: 2015 disclosures originally made relating to the Merger were deficient in any respect and that they breached their fiduciary duties or aided and abetted any breach of fiduciary duties and that the Lead Plaintiffs or the Settlement Class have suffered damage. Nonetheless, the Defendants have concluded that it is desirable that the Consolidated Action be fully and finally settled in the manner and upon the terms and conditions set forth in this Stipulation; NOW, THEREFORE, IT IS STIPULATED AND AGREED, by and between the Parties hereto, through their respective attorneys, subject to the approval of the Court, pursuant to Fed. R. Civ. P. 23, and for good and valuable consideration set forth below, that the Consolidated Action and the Released Claims shall be finally and fully compromised, settled and released, and the Consolidated Action shall be dismissed with prejudice and on the merits, as to all Parties on the following terms and conditions: 1. DEFINITIONS 1.1. As used herein, the following terms shall have the meanings set forth below: Co-Lead Counsel' means Bull & Lifshitz, LLP and Levi & Korsinsky, LLP Co-Liaison Counsel' means Broussard & David, LLC and Pugh, Accardo, Haas, Radecker, Carey & Hymel, LLC Court' means the United States District Court for the Western District of Louisiana, Lafayette Division Final' means, with respect to any court order or judgment, when the last of the following shall occur: (i) the expiration of the time to file a motion to alter or amend the court order has passed without any such motion having been filed; (ii) the expiration of the time in which to appeal the court order has passed without any appeal having been taken; and (iii) if a 7

8 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 8 of 82 PageID #: 2016 motion to alter or amend is filed or if an appeal is taken, the determination of that motion or appeal in such a manner that is consistent with the original court order. For purposes of this paragraph, an appeal shall include any petition for a writ of certiorari or other writ that may be filed in connection with an order, but shall not include any appeal which concerns only the issue of attorneys fees and expenses Final Approval Hearing means the hearing to be scheduled by the Court at which the Court will consider, among other things, whether the Settlement should receive the Court s final approval Individual Defendants or the Board means Brian Recatto, Dennis Sciotto, Richard White, Edward Colson, Barry Kaufman, and Ronald Gerevas Lead Plaintiffs means plaintiffs John E. Daigle, Jamie Daigle (collectively, Daigle ), and David M. Zimmer ( Zimmer ) Notice means the Notice of Pendency and Proposed Settlement of Class Action that is to be sent to members of the Settlement Class substantially in the form of Exhibit C attached hereto or as modified pursuant to agreement of the Parties or order of the Court Notice Administrator means RG/2 Claims Administration LLC Order and Final Judgment means the proposed Order and Final Judgment substantially in the form of Exhibit E attached hereto or as modified pursuant to agreement of the Parties or order of the Court OMNI or the Company means OMNI Energy Services Corp Parties means, collectively, Plaintiffs and Defendants. 8

9 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 9 of 82 PageID #: Person means: (i) an individual, corporation, partnership, limited partnership, association, joint stock company, estate, legal representative, trust, unincorporated association, government or any political subdivision or agency thereof, and any business or legal entity; (ii) his, her or its spouses, heirs, predecessors, successors, representatives, trustees, executors, administrators, heirs, assignees, or transferees, immediate and remote; and (iii) any person or entity acting for or on behalf of, or claiming under any of them, and each of them Plaintiffs Counsel means Co-Lead Counsel and Co-Liaison Counsel Plaintiffs means Lead Plaintiffs, on behalf of themselves and the Settlement Class Preliminary Approval Order means the proposed Order substantially in the form of Exhibit B Released Claims means all claims, demands, rights, liabilities, allegations or causes of action of every nature and description, whether known or unknown, accrued or unaccrued, foreseen or unforeseen, matured or not matured, suspected or unsuspected, that were asserted or could have been asserted in the Consolidated Action or in any forum directly, derivatively, or in any other capacity against the Released Parties (including, but not limited to, all claims under the Securities Exchange Act of 1934, the Securities Act of 1933, or any other federal, state or local statute or common law, or the law of any other jurisdiction, whether foreign or domestic) arising out of or relating in any way to the Merger, including without limitation any claims arising out of, or relating to, in whole or in part, (i) the claims or facts and circumstances asserted or that could have been asserted in the Consolidated Action; (ii) the claims or facts and circumstances asserted or that could have been asserted in the State Actions; and (iii) any claims arising out of or relating to the proxy statements, supplemental 9

10 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 10 of 82 PageID #: 2018 proxy statements, financial statements, press releases, public filings, or other public disclosures made or issued by the Released Parties concerning the Merger. The Released Claims do not include claims for statutory appraisal rights, if any, in connection with the Merger by OMNI shareholders who properly perfect and do not otherwise waive such appraisal rights Released Parties means Defendants and each of their present or former parents, subsidiaries, affiliates, successors and assigns, and each of their present or former officers, directors, employees, members, principals, agents, attorneys, accountants, advisors, consultants, fiduciaries, auditors, commercial bank lenders, insurers, investment bankers, representatives, and general and limited partners and partnerships, and the heirs, estates, executors, administrators, trusts, trustees, successors and assigns of each of them Releasing Parties means: the Lead Plaintiffs and any and all members of the Settlement Class and all of their respective present or former parents, subsidiaries, affiliates, successors and assigns, and each of their present or former officers, directors, employees, members, principals, agents, attorneys, accountants, advisors, consultants, fiduciaries, auditors, commercial bank lenders, insurers, investment bankers, representatives, and general and limited partners and partnerships, and the heirs, estates, executors, administrators, trusts, trustees, successors and assigns of each of them Settlement means the settlement contemplated by this Stipulation Settlement Class means all Persons who were the record or beneficial holders of the common stock of OMNI at any time during the period beginning on and including the close of business on June 4, 2010, through and including October 27, 2010, excluding Defendants, their immediate families, legal representatives, heirs, successors and assigns, any entity in which the Defendants have or had a controlling interest, and any person, firm, trust, 10

11 Case 6:1 0-cv RTH-CMH Document 60 Filed 07/05/11 Page 11 of 82 PageID #: 2019 corporation, or other entity who is an affiliate of any of the Defendants as the term affiliate is defined in the Securities Exchange Act of 1934, as amended, and SEC Rule 12b-2 promulgated thereunder) Settlement Class Member means any person who falls within the definition of the Settlement Class as set forth in the preceding paragraph State Actions means actions brought in the 15th Judicial District Court for the Parish of Lafayette in the State of Louisiana in connection with, arising out of, or relating to the Merger, including, without limitation, Nasuti v. Colson et al., No. C C (La. 15th JDC), Jeansonne v. Colson et al., No. C C (La. 15th JDC), Moreno v. OMNI Energy Svcs. Corp., et al. No. C C (La. 15th JDC), Olsen et al. v. OMNI Energy Svcs. Corp., et al. No I (La. 15th JDC), Flowers v. OMNI Energy Svcs. Corp., et al., No I (La. 15th JDC), and King v. OMNI Energy Svcs. Corp., No G (La. 15th JDC) Summary Notice means the publication of a summary notice substantially in the form attached hereto as Exhibit D Unknown Claims means any Released Claims that the Lead Plaintiffs or any Settlement Class Member does not know or suspect to exist in his, her, or its favor at the time of the release of the Released Parties that, if known by him, her, or it, might have affected his, her or, its settlement with and release of the Released Parties, or might have affected his, her, or its decision not to object to this Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date, the Lead Plaintiffs shall expressly, and each of the Settlement Class Members shall be deemed to have, and by operation of the Order 11

12 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 12 of 82 PageID #: 2020 and Final Judgment shall have, expressly waived to the fullest extent permitted by law, the provisions, rights and benefits of California Civil Code 1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The Lead Plaintiffs shall expressly and each of the Settlement Class Members shall be deemed to have, and by operation of the Order and Final Judgment shall have, expressly waived any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent in whole or in part to California Civil Code The Lead Plaintiffs and Settlement Class Members may hereafter discover facts in addition to or different from those which he, she, or it now knows or believes to be true with respect to the Released Claims, but the Lead Plaintiffs shall expressly, and each Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation of the Order and Final Judgment shall have, expressly acknowledged that this Stipulation was entered into with full knowledge of the possible subsequent discovery of such facts and have fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, that now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct that is negligent, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts. The Lead Plaintiffs acknowledge, and each of the Settlement Class Members shall be deemed to have, and by operation of the Order and Final Judgment shall have, acknowledged, that the foregoing waiver was separately bargained for and a key element and cause of the Settlement of which this release is a part. 12

13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 13 of 82 PageID #: Wellspring Entities means Wellspring Capital Management LLC ( Wellspring ), Wellspring Omni Holdings Corporation ( Holdings ), and Wellspring Omni Acquisition Corporation ( Acquisition ). 2. TERMS OF THE SETTLEMENT 2.1. In consideration for the dismissal and release of the Released Claims against the Released Parties, and pursuant to the Parties agreement, as memorialized in the MOU, and as a result of the pendency of the Consolidated Action and the efforts of Plaintiffs Counsel, the Defendants agreed to, and on October 18, 2010 OMNI did, supplement the Definitive Proxy Statement by adding the Supplemental Disclosures demanded by Plaintiffs Counsel regarding the sales process leading up to the Merger Agreement and the fairness opinion and related financial analyses of GulfStar Group, one of OMNI s financial advisors The Parties agree, pursuant to Federal Rule of Civil Procedure 23(b)(2), for settlement purposes only, that the Consolidated Action shall proceed as a non-opt-out class action on behalf of the Class In the event that the Stipulation is not approved or the Stipulation is terminated, canceled, or fails to become effective for any reason, there shall be no obligation to pay any attorneys fees or expenses provided for in the Stipulation Pending final approval of the Court of the Stipulation and its Exhibits (the Exhibits ), the Releasing Parties shall be barred and enjoined from litigating, commencing, prosecuting, instigating or in any way participating in the litigation, commencement, prosecution, or instigation of any action asserting any of the Released Claims, either directly, representatively, derivatively or in any other capacity, against any of the Released Parties. 13

14 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 14 of 82 PageID #: RELEASE 3.1. Upon the Effective Date of this Settlement, the Releasing Parties shall have, fully, finally, and forever released, relinquished, and discharged: (i) all Released Claims against the Released Parties; and (ii) against each and all of the Released Parties, all claims (including Unknown Claims) arising out of, relating to, or in connection with, the defense, settlement, or resolution of the Consolidated Action or the Released Claims Upon the Effective Date of the Settlement, the Releasing Parties shall be permanently barred and enjoined from the assertion, institution, maintenance, prosecution, or enforcement against the Released Parties, in any state or federal court or arbitral or other forum, or in the court of any foreign jurisdiction, of any and all Released Claims, and any and all claims (including Unknown Claims) arising out of, relating to, or in connection with, the defense, settlement, or resolution of the Consolidated Action or the Released Claims Upon the Effective Date of this Settlement, each of the Defendants will completely release all claims relating to the subject matter of the Consolidated Action that they have or may have against Lead Plaintiffs, Plaintiffs Counsel, and the Settlement Class, including any claims based upon or arising out of the institution, prosecution, assertion, settlement or resolution of the Consolidated Action, provided, however, that the Released Parties shall retain the right to enforce the terms of this Stipulation. 4. PRELIMINARY APPROVAL, CLASS NOTICE, AND FINAL APPROVAL 4.1. As soon as practicable after execution of this Stipulation, the Parties shall jointly submit the Stipulation together with the Exhibits to the Court and shall apply to the Court for entry of the Preliminary Approval Order, which shall conditionally: (i) certify the Class; (ii) schedule the Final Approval Hearing; (iii) approve the Notice substantially in the form attached 14

15 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 15 of 82 PageID #: 2023 hereto as Exhibit C to be disseminated to Settlement Class Members in advance of the Final Approval Hearing; and (iv) approve the Summary Notice substantially in the form attached hereto as Exhibit D. The Notice shall include the general terms of the Settlement, the general terms of the Fee and Expense Application, and the date of the Final Approval Hearing Plaintiffs Counsel shall retain a notice administrator for the purpose of providing notice to the Settlement Class through the mailing of the Notice and publication of the Summary Notice, as set forth in the Preliminary Approval Order. Plaintiffs Counsel shall consult with Defendants prior to hiring a notice administrator if that notice administrator is any entity other than RG/2 Claims Administration LLC Defendants shall bear all costs relating to the administration and publication of the Notice and Summary Notice, respectively. Defendants shall compensate the Notice Administrator for services rendered in connection with the administration and the provision of notice to the Settlement Class through the mailing of the Notice and publication of the Summary Notice, as set forth in the Preliminary Approval Order. Payments by Defendants to the Notice Administrator are separate and apart from the Plaintiffs Fee and Expense Application (discussed herein in paragraphs 5.1 to 5.4) and shall not be conditioned upon the Court s approval of the Settlement and/or the Fee and Expense Application Plaintiffs Counsel shall request that the Court hold the Final Approval Hearing as soon as practicable following the mailing of the Notice and publication of the Summary Notice, for the Court to consider approval of the Settlement. At or after the Settlement Hearing, Lead Plaintiffs may request that the Court approve the proposed Fee and Expense Application. 15

16 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 16 of 82 PageID #: As soon as practicable after the submission to the Court of the Stipulation, Lead Plaintiffs shall move the Court for an order certifying the Class as provided for in Exhibit B, the Preliminary Approval Order If the Settlement (including any modification thereto made with the written consent of the Parties as provided herein) and all transactions preparatory or incident thereto shall be approved by the Court following the Final Approval Hearing as fair, reasonable, and adequate, and in the best interests of the Class, the Parties shall jointly request the Court to enter the Order and Final Judgment substantially in the form attached hereto as Exhibit E. 5. PAYMENT OF PLAINTIFFS COUNSEL S ATTORNEYS FEES AND EXPENSES 5.1. In connection with the approval of the Settlement, Plaintiffs Counsel may submit an application or applications for an award of attorneys fees and actual expenses incurred in connection with prosecuting the Consolidated Action not to exceed, in the aggregate, a total of $375,000 (the Fee and Expense Application ). Defendants will take no position with regard to such an application. The Fee and Expense Application is separate from payments to the Notice Administrator referenced in paragraph 4.3 above The attorneys fees and expenses awarded by the Court, not to exceed, in the aggregate, a total of $375,000, shall be paid to Bull & Lifshitz LLP by Defendants within thirty (30) business days after the Effective Date of the settlement as defined in paragraph 6.1 herein. Bull & Lifshitz LLP shall thereafter allocate the attorneys fees amongst other Plaintiffs Counsel in a manner that Plaintiffs Counsel in good faith believe reflects the contributions of such counsel to the prosecution and settlement of the Consolidated Action. Defendants shall have no obligation or responsibility to make any payment with respect to attorneys fees, expenses, or costs to Plaintiffs Counsel or any Settlement Class Member s counsel, other than as 16

17 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 17 of 82 PageID #: 2025 expressly provided in this paragraph and in paragraph 4.3 above. Defendants also shall have no obligation or responsibility with respect to the allocation of attorneys fees amongst Plaintiffs Counsel or any Settlement Class Member s Counsel, or any other Person who may assert some claim thereto In the event that the Order and Final Judgment is reversed or modified, or if the Settlement is canceled or terminated for any reason, or if the judgment or the order awarding fees and expenses to Plaintiffs Counsel pursuant to paragraphs 5.1 and 5.2 is reversed or modified, then Plaintiffs Counsel shall, in an amount consistent with such reversal or modification, refund such fees, expenses, and costs to the Defendants, plus interest thereon at 5%, within thirty (30) business days from receiving notice from the Defendants or from a court of appropriate jurisdiction. Any such refund shall be the joint and several obligations of all Plaintiffs Counsel, such that the failure of any Plaintiffs Counsel to make a required refund shall be the responsibility and obligation of any and all Plaintiffs Counsel The procedure for and the allowance or disallowance by the Court of the Fee and Expense Application are not part of the Settlement, and are to be considered by the Court separately from the Court s consideration of the fairness, reasonableness, and adequacy of the Settlement. Any order or proceeding relating to the Fee and Expense Application, or any appeal from any order relating thereto or reversal or modification thereof, shall not operate to or provide grounds for Lead Plaintiffs, Plaintiffs Counsel or any Settlement Class Member to terminate or cancel the Stipulation, or affect or delay the finality of the Order and Final Judgment approving the Stipulation and the Settlement. Notwithstanding any stipulation, order or judgment with respect to attorneys fees, expenses, or costs, the Parties shall be bound by, and the Released Parties shall be entitled to all of the benefits of, the Settlement. 17

18 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 18 of 82 PageID #: CONDITIONS OF SETTLEMENT 6.1. The Parties Settlement, as embodied by this Stipulation, is expressly conditioned upon the occurrence of the Effective Date. The Effective Date means the first day immediately after the date on which all of the following events have occurred: execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Parties; the Court entering the Preliminary Approval Order; the Court entering the Order and Final Judgment that, inter alia, certifies the Settlement Class, approves the Notice and Summary Notice, dismisses with prejudice the Consolidated Action and provides for the release by the Releasing Parties of the Released Claims; and the Order and Final Judgment becoming Final In the event that the Effective Date does not occur, or the Settlement is not consummated for any reason, then the Stipulation shall be canceled and terminated pursuant to paragraph 6.3 hereof In the event that the Stipulation is not approved by the Court or the Settlement is terminated or fails to become effective in accordance with its terms, neither the existence nor contents of the Stipulation (with the exception of paragraphs , 4.3 and hereof), the MOU, nor anything done or disclosed by any person or party in connection with the Stipulation or the MOU shall be deemed to prejudice in any way the positions of any party with respect to the Consolidated Action. In such event, neither the existence of the Stipulation or the MOU nor their contents shall be admissible in evidence or shall be referred to for any purpose in 18

19 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 19 of 82 PageID #: 2027 the Consolidated Action or in any other litigation or proceeding, except litigation or proceedings relying on paragraphs , 4.3 and hereof. Further, in such event, the Stipulation, with the exception of paragraphs , 4.3 and hereof, and the MOU, shall be of no further force and effect If the Settlement is not consummated for any reason, any Order and Final Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the parties in the Consolidated Action shall be deemed to return to their status as of October 13, 2010, and shall agree upon and present an amended schedule to the Court. 7. MISCELLANEOUS PROVISIONS 7.1. In the event of any dispute or disagreement with respect to the meaning, effect, or interpretation of the Stipulation or any attached exhibit, or in the event of a claimed breach of the Stipulation or an attached exhibit, the Parties hereto agree that such dispute will be adjudicated only by the Court. The Court shall retain jurisdiction with respect to implementation and enforcement of the terms of the Stipulation, and all Parties hereto submit to the jurisdiction of the Court for purposes of implementing and enforcing the Settlement The Parties and their counsel agree, and the Order and Final Judgment will contain a finding that, during the course of the Consolidated Action, all Parties and their counsel complied with Rule 11 of the Federal Rules of Civil Procedure, and that the Consolidated Action is being settled voluntarily by the Parties after consultation with competent legal counsel. None of the Parties and none of their counsel shall make any application for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure or other court rule or statute. 19

20 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 20 of 82 PageID #: The Parties agree that the terms of the Settlement were negotiated in good faith by the Parties and reflect a settlement that was reached voluntarily after consultation with competent legal counsel Except as agreed to by the Parties, neither Lead Plaintiffs nor Plaintiffs Counsel shall issue any public press release concerning the Settlement This Stipulation may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument The Stipulation and the Exhibits shall be considered to have been negotiated, executed, and delivered, and to be wholly performed, in the State of Louisiana, and the rights and obligations of the parties to the Stipulation shall, except to the extent that federal law governs, be construed and enforced in accordance with, and governed by, the internal, substantive laws of the State of Louisiana without giving effect to Louisiana s choice-of-law principles Each counsel or other Person executing the Stipulation or any of its Exhibits on behalf of any Party hereby warrants that such Person has the full authority to do so All of the Exhibits are material and integral parts hereof and are fully incorporated herein by reference This Stipulation may be modified or amended only by a writing signed by or on behalf of all Parties or their respective successors-in-interest Without further order of the Court, the Parties may agree in writing to reasonable extensions of time to carry out any of the provisions of this Stipulation This Stipulation shall be binding on, and inure to the benefit of, the Parties and their respective agents, executors, heirs, successors and assigns. 20

21 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 21 of 82 PageID #: Neither Plaintiffs nor Defendants shall be bound by the Stipulation if the Court modifies material terms thereof, subject to paragraph 5.4 hereof Plaintiffs and their counsel represent and warrant that none of the Settlement Class Members claims or causes of action referred to in this Consolidated Action have been assigned, encumbered, or in any manner transferred in whole or in part The Parties acknowledge that it is their intent to consummate the Stipulation and agree (a) to use their best efforts to achieve the Settlement, as set forth herein, and the dismissal of this Consolidated Action with prejudice in accordance with the terms of the Settlement; (b) to cause the timely occurrence of all events, or other circumstances described herein; and (c) to use their best efforts to have any collateral attack on this Settlement promptly dismissed based upon, among other things, the res judicata effect of this Settlement Plaintiffs Counsel, on behalf of the Settlement Class, are expressly authorized by Lead Plaintiffs to take all appropriate action required or permitted to be taken by Plaintiffs pursuant to the Stipulation to effectuate its terms and also are expressly authorized to enter into any modifications or amendments to the Stipulation on behalf of the Lead Plaintiffs and the Settlement Class that they deem appropriate The Stipulation and the Exhibits constitute the entire agreement among the Parties and no representations, warranties, or inducements have been made to any Parties concerning the Stipulation or its Exhibits, other than the representations, warranties, and covenants contained and memorialized in such documents The Parties intend this Settlement to be a final and complete resolution of all disputes between them with respect to the Consolidated Action. 21

22 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 22 of 82 PageID #: Neither the Stipulation nor the Settlement, nor any act performed or document executed pursuant to or in furtherance of the Stipulation or the Settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any wrongdoing or liability of the Released Parties; (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the Released Parties in any civil, criminal, or administrative proceeding in any court, administrative agency, or other tribunal; or (c) is or may be deemed to be or may be used as an admission that Plaintiffs, Plaintiffs Counsel, or any member of the Settlement Class has or has not suffered any damage as a result of the facts described in the Consolidated Action, or as to the merit or lack of merit of any claim asserted or any that could have been asserted in the Consolidated Action The Released Parties may file the Stipulation and/or the Order and Final Judgment in any action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim All agreements made and orders entered during the course of the Consolidated Action relating to the confidentiality of information shall survive the Stipulation Within thirty (30) calendar days after the Court has entered the Order and Final Judgment, any Person possessing any documents produced in connection with the Consolidated Action and governed by the Revised Letter Agreement dated September 17, 2010 shall return all such documents including all copies thereof, to the producing party, or their counsel, or, in lieu thereof, shall certify in writing that all such documents were destroyed. 22

23 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 23 of 82 PageID #: Except as expressly provided in paragraphs 4.3, hereof, each Party shall bear its own costs. 23

24 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 24 of 82 PageID #: 2032 IN WITNESS WHEREOF, the Parties hereto have caused the Stipulation to be executed, by their duly authorized attorneys, dated June 30,

25 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 25 of 82 PageID #: 2033 CORDON, ARATA, MCCOLLUM, DUPLANTIS & EAGAN, LLC Samuel E. Masur, T.A. Ashley S. Green 400 E. Kaliste Saloom Rd., Suite 4200 P.O.Box Lafayette, Louisiana (337) Attorneys for OWI Energy Services Corp., Ron Gerevas, Barry Kaufman, and Richard White 25

26 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 26 of 82 PageID #: 2034 BREA ^^: YE i F Alan K. Breaud Post Office Box 3448 Lafayette, Louisiana (337) Fax (337) Attorneys for Brian Recatto, Dennis Sciotto, and Edward Colson 26

27 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 27 of 82 PageID #: 2035 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joyce S. Huang 185 Avenue of the Americas New York, New York Tel: (212) JUNEAU DAVID Robert J. David, Jr. The Harding Center 1018 Harding Street Suite 202 Lafayette, LA Tel: (337) Attorneys for Defendants Wellspring Omni Holdings Corporation and Wellspring Omni Acquisition Corporation, and for Wellspring Capital Management LLC 27

28 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 28 of 82 PageID #: 2036 PUGH, ACCARDO, HAAS, RADECKER, CAREY & HYMEL, LLC By. Francis P. Accardo (La. Bar # 8349) 1100 Poydras Street, Suite 3200 New Orleans, LA Phone: (504) Fax: (504) FPA@pugh-law.com LEVI & KORSINSKY, LLP Eduard Korsinsky W. Scott Holleman 30 Broad Street, 15th Floor New York, NY Tel: (212) Fax: (212) Attorneys for Plaintiff David Zimmer 28

29 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 29 of 82 PageID #: 2037 BROUSSARD & DAVID, LLB By: i^^^ Bl., y David 60 erson Street, Suite 700 Mailing: P.D. Box 3524 Lafayette, Louisiana Telephone: Fax: blake@broussard-david.com BULL & LIFSHITZ, LLP Joshua M. Lifshitz Peter D. Bull 18 East 41 't Street New York, NY Tel: (212) Fax: (212) Attorneys for John E. and Jaime Daigle 29

30 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 30 of 82 PageID #: 2038 EXHIBIT A

31 FORM 8-K Page 1 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 31 of 82 PageID #: /30/ K 1 d8k.htm FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): October 14, 2010 OMNI ENERGY SERVICES CORP. (Exact name of registrant as specified in its charter) LOUISIANA (State or other jurisdiction of (Commission File Number) (I.R.S. Employer incorporation) Identification No.) 4500 N.E. Evangeline Thruway Carencro, Louisiana (Address of principal executive offices) (Zip Code) (337) (Registrant s telephone number, including area code) Not Applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): q Written communications pursuant to Rule 425 under the Securities Act (17 CFR ) q q q Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR a-12) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR d-2(b)) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR e-4(c))

32 FORM 8-K Page 2 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 32 of 82 PageID #: /30/2011 Item 8.01 Other Events. This Form 8-K is being filed pursuant to a memorandum of understanding regarding the settlement of certain litigation relating to the Agreement and Plan of Merger (the Merger Agreement ), dated as of June 3, 2010, by and among OMNI Energy Services Corp. (the Company ), a Louisiana corporation, Wellspring OMNI Holding Corporation, a Delaware corporation ( Parent ), and Wellspring OMNI Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of Parent ( Acquisition ), providing for the merger of Acquisition with and into the Company, with the Company continuing as the surviving corporation (the Merger ). As previously disclosed on pages 14 and 67 of the Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission (the SEC ) by the Company on September 23, 2010 (the Definitive Proxy Statement ), six purported class action lawsuits were originally filed in connection with the Merger in state courts in Lafayette Parish, Louisiana, and two purported class actions were filed in connection with the Merger in the federal district court for the Western District of Louisiana. Each court action named the Company and its directors as defendants, and the state court actions also named Wellspring Capital Partners IV, L.P. ( Wellspring ), Parent and Acquisition. One of the federal actions filed named Parent, Acquisition and Wellspring as defendants. The state court complaints allege, among other things, that the director defendants have breached their fiduciary duties to shareholders of the Company by entering into the Merger Agreement, failing to disclose certain information with respect to the Company and failing to maximize shareholder value. The Wellspring entities are claimed to have aided and abetted the alleged fiduciary duty breaches by the directors of the Company. The federal litigation similarly alleges that the director defendants have breached their fiduciary duties in connection with the Merger and that OMNI and Wellspring aided and abetted such breaches, but also alleges violations of federal law relating to the Company s proxy statement disclosures. One or more of the complaints seek injunctions against the Merger, rescission of the Merger if it is consummated, imposition of a constructive trust, damages, attorneys fees, expenses and other relief. The complaints request class action certification and rulings that the named complainants are representatives of the class. No class has been certified at present. Plaintiffs in certain of the state actions and both federal actions have moved for expedited discovery. Two of the state court proceedings have been dismissed, and the remaining cases have been consolidated. The two complaints filed in federal court have also been consolidated. A motion in the federal court to stay all proceedings until lead plaintiffs and plaintiffs counsel are appointed and defendants motion to dismiss is resolved in the federal proceedings is pending. A motion for expedited discovery filed by the plaintiffs in the federal proceedings was denied. The plaintiffs in the federal litigation filed a consolidated amended complaint that names, in addition to Parent and Acquisition, Wellspring. No hearing date has been set at this time with respect to any of the pending motions in the federal proceedings. Discovery is proceeding by court order in the state court action. A hearing was held on Exceptions filed by the Company and certain individual defendants on September 13, 2010 and were denied. A hearing on Exceptions filed by Wellspring and one Individual Defendant will take place on October 18, On October 14, 2010, we entered into a memorandum of understanding with the plaintiffs regarding the settlement of the consolidated actions in Sherwin Johnson v. Brian Recatto, et al, Civil Action No. 6:10-CV-01068, and John E. and Jamie Daigle v. Dennis R. Sciotto, et al, Civil Action No filed in the United States District Court for the Western District of Louisiana, Lafayette Division (the Federal Court ). The Company believes that no further supplemental disclosure is required under applicable laws; however, to avoid the risk of the putative shareholder actions delaying or adversely affecting the Merger and to minimize the expense of defending such actions, the Company has agreed, pursuant to the terms of the proposed settlement, to make certain supplemental disclosures related to the proposed Merger, all of

33 FORM 8-K Page 3 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 33 of 82 PageID #: /30/2011 which are set forth below. Subject to completion of certain confirmatory discovery by counsel to the plaintiffs, the memorandum of understanding contemplates that the parties will enter into a stipulation of settlement. The stipulation of settlement will be subject to customary conditions, including court approval following notice to the Company s shareholders. In the event that the parties enter into a stipulation of settlement, a hearing will be scheduled at which the Federal Court will consider the fairness, reasonableness and adequacy of the settlement. If the settlement is finally approved by the court, it will resolve and release all claims in all actions that were or could have been brought challenging any aspect of the proposed Merger, the Merger Agreement, and any disclosure made in connection therewith (but excluding claims for fair cash value of shares made by dissenting shareholders who comply with the procedural requirements of Louisiana Business Corporation Law), pursuant to the terms that will be disclosed to shareholders prior to final approval of the settlement. In addition, in connection with the settlement, the parties contemplate that plaintiffs counsel will file a petition in the Federal Court for an award of attorneys fees and expenses to be paid by the Company or its successor, which the defendants may oppose. The Company or its successor shall pay or cause to be paid those attorneys fees and expenses awarded by the Federal Court. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the Federal Court will approve the settlement even if the parties were to enter into such stipulation. In such event, the proposed settlement as contemplated by the memorandum of understanding may be terminated.

34 FORM 8-K Page 4 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 34 of 82 PageID #: /30/2011 SUPPLEMENT TO DEFINITIVE PROXY STATEMENT In connection with the settlement of certain outstanding shareholder suits described in this Form 8-K, the Company has agreed to make these supplemental disclosures to the Definitive Proxy Statement. This supplemental information should be read in conjunction with the Definitive Proxy Statement, which should be read in its entirety. Defined terms used but not defined herein have the meanings set forth in the Definitive Proxy Statement. Background of the Merger The following disclosure supplements the discussion on page 22 of the Definitive Proxy Statement concerning the 49 financial buyers that contacted by Stephens. Of the 49 financial buyers contacted, 18 provided reasons for not pursuing a transaction with the Company. Three entities contacted indicated they were not comfortable with level of commodity price and rig count exposure. Five entities contacted indicated that the transaction value (the share price) was higher than they would be interested in pursuing. Three of the entities indicated that the Company was too small for them to invest in. Four of the entities contacted indicated that the Company was not a fit for their existing portfolio. One entity indicated that it was interested only in a leveraged recap. Another entity indicated that Seismic Services representing 30% of the Company s income was an issue, and the direct relationship to changes in rig count caused additional concern. Lastly, one entity indicated that it could not get comfortable with the equipment rental aspect of the Company and the capital expenditure requirements for the Company. The following disclosure supplements the discussion on page 22 of the Definitive Proxy Statement concerning the relationship of Stephens with the Company, the Individual Defendants, and Wellspring. Neither Wellspring nor the Individual Defendants have retained Stephens to provide services previously. Stephens provided financial advisory services to the Board of Directors and Special Committee in connection with the transaction. The Company has agreed to pay Stephens a fee for such services in the amount of approximately $2 million, approximately $1.9 million of which is contingent upon the closing of the transaction. The following disclosure supplements the discussion on page 22 of the Definitive Proxy Statement concerning the methodology Stephens used in contacting financial buyers for the Company. Stephens selected potential financial buyers to be contacted based on a review of numerous factors including the potential financial buyer s business description, stated investment preferences (e.g., industries of interest, geographies of interest, stages of interest, and investment type), access to capital, history and geographic location, among others. Stephens considered these factors relative to the characteristics of the Company to determine whether each fund might be interested in and capable of executing an acquisition of the Company. Stephens focused on middle market financial buyers that had current or prior investments in, or had expressed interest in (i) companies operating in the oilfield equipment and services sector of the energy industry; (ii) companies headquartered in the United States, and (iii) leveraged buyouts and take private investments in middle market companies. The possibility of acquiring OMNI in a transaction in which members of management of the Company might participate was not a consideration for determining which financial buyers were to be contacted. The following disclosure supplements the discussion on page 22 of the Definitive Proxy Statement concerning the selection process of the members of the Special Committee and its co-chairman. There are six members of the board of directors of the Company. Three of the directors, Richard C. White, Barry E. Kaufman, and Ronald E. Gerevas, are independent directors. They agreed to serve as the three members

35 FORM 8-K Page 5 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 35 of 82 PageID #: /30/2011 of the Special Committee and are members of the Special Committee because they are not officers or employees of the Company, they are independent of Wellspring and of the Rollover Participants and they have no economic interest in Parent or the surviving corporation. Richard C. White and Barry E. Kaufman, being the longest tenured board members, were designated as the co-chairman of the Special Committee. As of September 8, 2010, the other three members of the board of directors have the following beneficial ownership in the Company: NAME OF BENEFICIAL OWNER PERCENTAGE OF NUMBER OF SHARES OUTSTANDING BENEFICIALLY OWNED COMMON STOCK Dennis Sciotto 5,423,881 (1)21.5% 7315 El Fuerte Street Carlsbad, CA Dennis R. Sciotto Family Trust 5,398,284(2)21.4% 7315 El Fuerte Street Carlsbad, CA Edward E. Colson, III 807,153 (3)3.5% 2646 Marmol Court Carlsbad, CA Edward Colson, III Trust 805,153 (4)3.5% Brian J. Recatto 417,996(5)1.8% (1) Includes shares held by the Dennis R. Sciotto Family Trust referred to in footnote (2). Mr. Sciotto is the trustee for the Trust referred to in footnote (2). Also includes (i) 25,124 shares issuable upon the exercise of options currently exercisable or exercisable within 60 days of September 8, 2010, and (ii) 25,597 shares of common stock held by his wife. (2) Includes shared voting power with respect to 5,398,284 shares of common stock (which includes (i) 2,001,538 shares issuable upon conversion of Series C Stock and (ii) 336,923 shares issuable upon conversion of Series C Stock dividends paid in kind). (3) Includes shares held by the Edward Colson, III Trust referred to in footnote (4). Mr. Colson is the trustee for the Trust referred to in note (4) below. Also includes (i) 25,124 shares (issuable upon the exercise of options currently exercisable or exercisable within 60 days of September 8, 2010) and (ii) 2,000 shares owned by virtue of his 25% ownership in Carlsbad Equity Group. (4) Includes shared voting power with respect to 805,153 shares of common stock (which includes (i) 257,436 shares issuable upon conversion of Series C Stock and (ii) 35,382 shares issuable upon conversion of Series C Stock dividends paid in kind). (5) Includes (i) 30,256 shares issuable upon conversion of Series C Stock, (ii) 157,348 shares issuable upon exercise of options currently exercisable or exercisable within 60 days of September 8, 2010, (iii) 79,000 shares of restricted stock and (iv) 35,778 shares of restricted stock issued in conjunction with a note modification agreement. The following disclosure supplements the discussion on page 23 of the Definitive Proxy Statement concerning the relationship of GulfStar with the Company, the Individual Defendants, and Wellspring. GulfStar has never represented or provided services to Wellspring or any of the Individual Defendants. Prior to being retained by the Special Committee in connection with the engagement set out in the Definitive Proxy Statement, GulfStar had never represented or provided services to the Company. 2

36 FORM 8-K Page 6 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 36 of 82 PageID #: /30/2011 The following disclosure is to be added on page 27 of the Definitive Proxy Statement immediately before the paragraph entitled Developments After Execution of the Merger Agreement. : Negotiations With Rollover Participants. After Wellspring s initial contact with the Rollover Participants on or about May 5, 2010, Wellspring and the Rollover Participants began negotiating rollover terms. The Special Committee was aware that negotiations were occurring with the Rollover Participants, and Wellspring s advisors periodically provided the Special Committee s advisors information about the status generally of the negotiations with the Rollover Participants. Wellspring, the Rollover Participants and their respective advisors continued negotiations and had numerous telephone calls relating to the rollover terms until they reached a definitive agreement on such terms simultaneously with the execution of the merger agreement. Opinion of the Special Committee s Financial Advisor The following disclosure supplements the discussion beginning on page 34 of the Definitive Proxy Statement concerning the methodologies, assumptions, analysis, and review of GulfStar. Comparable Companies Analysis. GulfStar calculated the multiples of enterprise value to EBITDA for the selected companies described below. The comparable companies were selected because they were deemed to be similar to the Company based upon the industry served as well as one or more of the following criteria: nature of business, size, diversification, financial performance or geographic concentration. No specific numeric or other similar criteria were used to select the comparable companies, and all criteria were evaluated in their entirety without application of definitive qualifications or limitations to individual criteria. As a result, a significantly larger or smaller company with substantially similar lines of businesses and business focus may have been included while a similarly sized company with less similar lines of business and greater diversification may have been excluded. GulfStar identified a sufficient number of companies for purposes of its analysis but may not have included all companies that might be deemed comparable to the Company. GulfStar calculated enterprise value as a multiple of TTM EBITDA, enterprise value as a multiple of calendar year ending December 31, 2010 and enterprise value as a multiple of calendar year ending December 31, 2011 EBITDA for the selected companies. The selected companies and calculated multiples were: Enterprise Value Enterprise Enterprise to TTM Value Value EBITDA to 2010E to 2011E Company (1) EBITDA EBITDA Superior Energy Services, Inc. 7.9x 5.6x 4.7x Oil States International, Inc. 6.7x 6.0x 4.9x Key Energy Services, Inc. 16.5x 8.6x 5.3x Complete Production Services, Inc. 10.4x 6.2x 4.8x Superior Well Services, Inc x 10.5x 6.1x Basic Energy Services, Inc. 21.0x 9.1x 5.6x Allis-Chalmers Energy Inc. 9.3x 6.4x 4.5x Newpark Resources, Inc. 19.0x 7.9x 6.3x Geokinetics Inc. 7.0x 5.8x 3.0x TGC Industries, Inc. 4.6x 3.0x 2.5x Equity values used in the comparable companies analysis were calculated using the closing price of the common stock of the selected companies listed above as of May 28, 2010, multiplied by their fully diluted shares outstanding. The enterprise values used in the comparable companies analysis were calculated using their 3

37 FORM 8-K Page 7 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 37 of 82 PageID #: /30/2011 respective equity values plus the most recent publicly available balance sheet information. TTM EBITDA for the selected companies analysis was calculated for the TTM period ending March 31, 2010, and was based on publicly-filed SEC reporting documents. Estimates of EBITDA for the selected companies listed above for the calendar year ending December 31, 2010 and 2011 were based on average analyst estimates compiled by Capital IQ or Thomson Reuters as of May 28, The comparable companies analysis indicated the following: Enterprise Value Enterprise Enterprise to TTM Value Value EBITDA to 2010E to 2011E (1) EBITDA EBITDA Mean 7.7x 6.9x 4.8x Median 7.5x 6.3x 4.9x High 10.4x 10.5x 6.3x Low 4.6x 3.0x 2.5x The Company Based on Merger Consideration ($2.75/share) 7.6x 6.4x 5.2x (1) Enterprise Value to TTM EBITDA multiples greater than 15.0x were excluded from the summary table above; GulfStar noted that these multiples were not meaningful due to their outlier status relative to the other Comparable Company Valuations as well as their significant deviation from the 2010E and 2011E EBITDA multiples for the respective comparable companies. For the Company, GulfStar applied a range of subjectively selected multiples derived from the selected companies enterprise values to TTM and estimated 2010 and 2011 EBITDA to the corresponding financial data of the Company in order to derive implied per share equity value reference ranges for Company common stock. GulfStar selected enterprise value multiple ranges of 6.5x to 8.0x TTM EBITDA, 5.5x to 7.5x management s 2010E EBITDA, and 4.5x to 5.5x management s 2011E EBITDA. This analysis indicated the following implied per share equity value reference ranges for Company common stock, as compared to the Merger Consideration: Implied per Share Equity Value Reference Ranges for the Company Merger TTM EBITDA 2010E EBITDA 2011E EBITDA Consideration $2.09 $2.09 $2.15 $2.99 $3.51 $3.03 $2.75 No company utilized in the comparable companies analysis is identical to the Company. Accordingly, an evaluation of the results of this analysis is not entirely mathematical. Rather, this analysis involves complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the enterprise values, calculated as described above or other values of the companies to which the Company was compared. These qualitative judgments related primarily to the differing sizes, growth prospects, profitability levels and degrees of operational risk between the Company and the selected companies included in the comparable companies analysis. 4

38 FORM 8-K Page 8 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 38 of 82 PageID #: /30/2011 Precedent Transactions Analysis. GulfStar calculated multiples of enterprise value to TTM EBITDA and certain other financial data based on the purchase prices paid in selected publicly-announced transactions described below. In selecting the transactions used in its analysis, GulfStar searched selected databases and public filings for precedent transactions. GulfStar identified 11 transactions, including both private and public target companies, that were announced after June 1, 2006 and had closed prior to June 1, 2010 where the target companies were deemed to be similar to the Company upon the industry served as well as one or more of the following criteria: the nature of their business, size, diversification, financial performance or geographic concentration. No specific numeric or other similar criteria were used to select the precedent transactions, including the public company status of the target companies, and all criteria were evaluated in their entirety without application of definitive qualifications or limitations to individual criteria. As a result, a transaction involving the acquisition of a significantly larger or smaller company with substantially similar lines of businesses and business focus may have been included while a transaction involving the acquisition of a similarly sized company with less similar lines of business and greater diversification may have been excluded. GulfStar identified a sufficient number of transactions for purposes of its analysis, but may not have included all transactions that might be deemed comparable to the Merger. Valuation multiples for the selected precedent transactions were derived based on the transaction enterprise value at the date of announcement as a multiple of the target company s TTM EBITDA. The selected transactions and calculated multiples were: Enterprise Announced Closed Value to TTM Date Date Acquiror Target EBITDA 12/11/2009 1/26/2010 Superior Energy Services, Inc. Hallin Marine Subsea 5.6x International Plc 8/31/2009 4/28/2010 Baker Hughes Incorporated BJ Services Company 6.4x 4/29/2009 7/31/2009 Clean Harbors Canada, Inc. Eveready Inc. 4.9x 6/3/2008 8/18/2008 Smith International, Inc. W-H Energy Services, Inc. 10.2x 3/29/2008 5/20/2008 BJ Services Company Innicor Subsurface 9.9x Technologies Inc. 1/30/2008 4/4/2008 Essential Energy Services Trust Builders Energy Services Trust 5.3x 6/12/ /11/2007 Cal Dive International, Inc. Horizon Offshore, Inc. 6.2x 11/1/2006 2/14/2007 ValueAct Capital, LLC Seitel, Inc. 5.3x 10/23/2006 1/8/2007 National Oilwell Varco, Inc. NQL Energy Services Inc. 6.3x 9/25/ /12/2006 Superior Energy Services, Inc. Warrior Energy Services 11.2x Corporation 9/5/2006 1/12/2007 Compagnie Generale de Veritas DGC Inc. 6.9x Geophysique The enterprise values used in the precedent transactions analysis were calculated as of the announcement date of the transaction based on the publicly disclosed terms of the transaction and transaction information compiled by Capital IQ and/or other publicly available information. TTM EBITDA for the precedent transactions was calculated based on the target company s Form 10-K, Form 10-Q, or equivalent foreign securities report, as applicable, last filed prior to the announcement of the relevant transaction, financial information compiled by Capital IQ and/or other publicly available information. 5

39 FORM 8-K Page 9 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 39 of 82 PageID #: /30/2011 The selected precedent transactions indicated the following: Enterprise Value to TTM EBITDA Mean 7.1x Median 6.3x High 11.2x Low 4.9x OMNI Based on the Merger Consideration ($2.75/share) 7.6 x For the Company, GulfStar applied a range of subjectively selected multiples derived from the precedent transactions analysis of enterprise value to TTM EBITDA to the corresponding financial data of the Company in order to derive implied per share equity value reference ranges for OMNI s common stock[, irrespective of whether such per share equity value resulted implied a control premium relative to the Company stock price on May 28, 2010]. GulfStar selected enterprise value multiple ranges of 5.5x to 7.5x TTM EBITDA. This analysis indicated the following implied per share equity value reference ranges for Company Common stock, as compared to the merger consideration: Implied per Share Equity Value Reference Ranges for the Company Merger TTM EBITDA Consideration $1.49 $2.69 $ 2.75 No transaction utilized in the precedent transactions analysis is identical to the Merger nor are the target companies identical to the Company. Accordingly, an evaluation of the results of this analysis is not entirely mathematical. Rather, this analysis involves complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the enterprise values, calculated as described above or other values of the transaction to which the Merger was compared. These qualitative judgments related primarily to the differing sizes, growth prospects, profitability levels and degrees of operational risk between the Company and the target companies included in the precedent transactions analysis. Discounted Cash Flow Analysis. GulfStar performed a discounted cash flow analysis of the Company using OMNI Management Projections for the period beginning on June 1, 2010 to the calendar year ending December 31, GulfStar calculated a range of implied present values as of June 1, 2010 of unlevered, after-tax, cash flows that OMNI was forecasted to generate during the aforementioned period using discount rates ranging from 17.0% to 19.0% based on the Company s weighted average cost of capital calculated using the Capital Asset Pricing Model. GulfStar also calculated terminal values for the Company, as of December 31, 2015, using a range of implied perpetuity growth rates of 4.0% to 6.0%. The estimated terminal values were then discounted to present value as of June 1, 2010 using the aforementioned discount rates. 6

40 FORM 8-K Page 10 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 40 of 82 PageID #: /30/2011 The discounted cash flow analysis indicated the following implied equity value per share reference range of Company common stock, as compared to the merger consideration: Implied per Share Equity Value Reference Range for the Company Merger Consideration $ $3.34 $ 2.75 Premiums Paid Analysis. GulfStar analyzed the acquisition premium offered relative to target share price in selected transactions that were announced on or after June 1, 2006 and had closed prior to June 1, 2010, where 100% of the target s equity was acquired in connection with the transaction, the target was an oilfield service or related company whose common stock traded on the NYSE, Nasdaq or OTC Bulletin Board and the transaction equity value was less than $7.5 billion based on information obtained by Capital IQ, as of May 28, Transactions where there was no premium paid to the target s stock price on the last trading day prior to announcement were excluded. GulfStar calculated the premium offered at the announcement of the transaction to the target s closing stock price 1-day prior to announcement (defined as the percentage differential between the offer price and the last trading day before announcement), 1-week prior to announcement (defined as the percentage differential between the offer price and the target s closing stock price five trading days before announcement), and 1-month prior to announcement (defined as the percentage differential between the offer price and the target s closing stock price on the last trading day closest to 30 calendar days before announcement). The selected transactions and premiums used in GulfStar s analysis were: Premium Paid Relative to Announced Target Closing Price Stock Closed 1-Day 1-Week 1-Month Date Date Acquiror Target Prior to Announcement 8/31/2009 4/28/2010 Baker Hughes Inc BJ Services Company 16.3% 16.0% 26.5% 6/1/ /18/2009 Cameron International NATCO Group Inc. 30.8% 47.0% 45.8% Corporation 6/8/ /23/2008 Precision Drilling Trust Grey Wolf Inc. 9.1% 13.6% 19.0% 6/3/2008 8/18/2008 Smith International Inc. W-H Energy 9.4% 10.2% 24.5% Services, Inc. 12/16/2007 4/21/2008 National Oilwell Varco, Inc. Grant Prideco Inc. 22.2% 15.9% 23.2% 6/12/ /11/2007 Cal Dive International Inc Horizon Offshore Inc. 13.6% 10.1% 22.7% 3/28/2007 6/14/2007 United States Steel Corp. Lone Star 37.6% 38.7% 35.5% Technologies, Inc. 3/18/2007 7/11/2007 Hercules Offshore, Inc. TODCO 28.9% 25.4% 28.3% 2/11/2007 5/7/2007 Tenaris SA Hydril Company LP 16.8% 16.2% 40.5% 11/1/2006 2/14/2007 ValueAct Capital, LLC Seitel Inc. 5.5% 3.1% 2.0% 9/25/ /12/2006 Superior Energy Services Inc. Warrior Energy 85.1% 59.7% 35.0% Services Corporation 9/10/ /1/2006 IPSCO Inc. NS Group Inc. 43.0% 42.0% 41.0% 9/5/2006 1/12/2007 Compagnie Generale de Veritas DGC Inc. 20.6% 37.3% 33.4% Geophysique 6/12/ /5/2006 Tenaris SA Maverick Tube Corp. 36.6% 36.4% 19.8% 7

41 FORM 8-K Page 11 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 41 of 82 PageID #: /30/2011 The premiums paid analysis indicated the following: Premium Paid Relative to Target Closing Price Stock Day Week Month Prior to Announcement Mean 26.8% 26.5% 28.4% Median 21.4% 20.8% 27.4% High 85.1% 59.7% 45.8% Low 5.5% 3.1% 2.0% For the Company, GulfStar applied a range of subjectively selected premiums to the Company common stock closing stock price on May 28, 2010 derived from the premiums analysis to derive implied per share equity value reference ranges for Company common stock. GulfStar selected premium ranges of 9.1 % to 43.0% based on the 1-day premiums, 10.1 % to 47.0%, based on the 1-week premiums and 19.0% to 41.0% based on the 1-month premiums. This analysis indicated the following implied per share equity value reference ranges for Company common stock, as compared to the merger consideration: Implied per Share Equity Value Reference Ranges for the Company Merger 1-Day 1-Week 1-Month Consideration $2.24 $2.93 $2.26 $3.01 $2.44 $2.89 $2.75 Other Matters GulfStar was engaged to act as financial advisor to the Special Committee for the purpose of rendering a fairness opinion to the Special Committee in connection with the execution of the Merger Agreement. Under the terms of GulfStar s engagement, it received an aggregate fee of $325,000 for its services, $50,000 of which was payable on execution of GulfStar s engagement letter with the remaining $275,000 payable on delivery of its opinion to the Special Committee. This fee was not contingent upon the successful completion of the Merger. The Company has also agreed to reimburse GulfStar for its expenses and to indemnify it and certain related parties for certain potential liabilities arising out of its engagement. GulfStar s opinion was approved and authorized by a fairness review committee of GulfStar. The Special Committee selected GulfStar based upon GulfStar s experience and reputation in rendering financial opinions, its knowledge of the Company s industry, and its independence from both the management of the Company and the financial sponsor of the proposed Merger. GulfStar has issued multiple fairness opinions to public and private companies regarding mergers, acquisitions and equity investments and has extensive transaction experience and expertise in the oilfield service industry. GulfStar has not had any material relationship with the Company, its management or Wellspring or their respective affiliated entities over the past five years. 8

42 FORM 8-K Page 12 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 42 of 82 PageID #: /30/2011 Additional Information and Where to Find It In connection with the proposed Merger, the Company filed the Definitive Proxy Statement and a form of proxy with the SEC on September 23, 2010 and the Definitive Proxy Statement and a form of proxy were mailed to the shareholders of record of the Company as of September 15, BEFORE MAKING ANY VOTING DECISION, SHAREHOLDERS OF THE COMPANY ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT CAREFULLY BECAUSE THE DEFINITIVE PROXY STATEMENT CONTAINS IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. The shareholders of the Company will be able to obtain, without charge, a copy of the Definitive Proxy Statement and other relevant documents filed with the SEC from the SEC s website at The shareholders of the Company will also be able to obtain, without charge, a copy of the Definitive Proxy Statement and other relevant documents by written or telephonic request directed to OMNI Energy Services Corp., Attn: Corporate Secretary, 4500 N.E. Evangeline Thruway, Carencro, Louisiana 70520, telephone (337) , on the Investor Relations page of the Company s corporate website at The Company and its directors and officers may be deemed to be participants in the solicitation of proxies with respect to the transactions contemplated by the Merger Agreement. Information regarding OMNI s directors and executive officers is contained in the Definitive Proxy Statement, Amendment No. 3 to Schedule 13E-3 filed on September 23, 2010, and the preliminary proxy statement dated April 30, 2010, each of which is filed with the SEC. You can obtain free copies of these documents from OMNI using the contact information set forth above. 9

43 FORM 8-K Page 13 of 13 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 43 of 82 PageID #: /30/2011 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. OMNI ENERGY SERVICES CORP. Dated: October 18, 2010 By: /s/ Ronald D. Mogel Senior Vice President and Chief Financial Officer 10

44 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 44 of 82 PageID #: 2052 EXHIBIT B

45 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 45 of 82 PageID #: 2053 EXHIBIT B UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION SHERWIN JOHNSON, ) ) Plaintiffs, ) CIVIL ACTION NO. ) 6:10CV1068 (LEAD) v. ) 6:10CV1170 (MEMBER) ) RICHARD WHITE, et al., ) JUDGE HAIK ) MAGISTRATE JUDGE HILL Defendants. ) ) [PROPOSED] ORDER PRELIMINARILY APPROVING CLASS SETTLEMENT The parties having made an application for an order preliminarily approving the proposed settlement (the Settlement ) of the above-captioned consolidated action (the Consolidated Action ) in accordance with the Parties Stipulation of Settlement, dated June 30, 2011 (the Stipulation ), which (along with the defined terms therein) is incorporated herein by reference and which, together with the accompanying documents, sets forth the terms and conditions for the proposed Settlement of the Consolidated Action and for a judgment dismissing Plaintiffs claims in the Consolidated Action with prejudice upon the terms and conditions set forth therein; and the Court having read and considered the Stipulation and the accompanying documents; and all Parties having consented to the entry of this Order, IT IS HEREBY ORDERED that: 1. The Court preliminarily approves the Stipulation, including all exhibits attached thereto, and finds that the Settlement is sufficiently fair, reasonable, and adequate to warrant Notice to the Settlement Class (as defined below) and scheduling a fairness hearing at which time the Court will hear any objection (subject to the procedures described below) and consider whether to give final approval to the proposed Settlement.

46 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 46 of 82 PageID #: For settlement purposes only, and contingent upon the Settlement being finally approved, the Court finds that the Consolidated Action is maintainable as a non-opt out class action on behalf of a Settlement Class defined as follows: all Persons who were the record or beneficial holders of the common stock of OMNI at any time during the period beginning on and including the close of business on June 4, 2010, through and including October 27, 2010, excluding: Defendants, their immediate families, legal representatives, heirs, successors and assigns, any entity in which the Defendants have or had a controlling interest, and any person, firm, trust, corporation, or other entity who is an affiliate of any of the Defendants as the term affiliate is defined in the Securities Exchange Act of 1934, as amended, and SEC Rule 12b-2 promulgated thereunder). 3. Subject to the Court s final approval of the Settlement, and for settlement purposes only, the Court finds that the prerequisites of Rule 23 of the Federal Rules of Civil Procedure are met and hereby certifies the foregoing defined Settlement Class. With respect to the Settlement Class, and upon the stipulation of the Parties for the sole purpose of the Settlement, this Court finds that the Settlement Class satisfies the requisites of Federal Rule of Civil Procedure 23(a) and (b)(2) for the reasons set forth below: (a) The members of the Settlement Class are so numerous that joinder is impracticable. As of June 1, 2010, there were approximately 25.5 million shares of OMNI common stock outstanding. (b) There are questions of law and fact common to the Settlement Class including, but not limited to: (i) whether the members of OMNI s Board breached fiduciary duties owed by them to Lead Plaintiffs and the other members of the Settlement Class as alleged by Plaintiffs; (ii) whether the Board pursued a course of conduct that did not maximize OMNI s 2

47 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 47 of 82 PageID #: 2055 value in violation of their fiduciary duties as alleged by Plaintiffs; (iii) whether the Board misrepresented and omitted material facts in violation of federal securities laws, and/or the fiduciary duties owed to Lead Plaintiffs and the other members of the Settlement Class as alleged by Plaintiffs; (iv) whether OMNI and the Wellspring Entities aided and abetted the Board s alleged breaches of fiduciary duty as alleged by Plaintiffs; and (v) whether the Settlement Class is entitled to injunctive relief or damages as alleged by Plaintiffs as a result of Defendants alleged wrongful conduct. (c) The claims of the Lead Plaintiffs are typical of the claims of the other members of the Settlement Class in that they all arise from the same allegedly unlawful course of conduct and are based on the same legal theories. Lead Plaintiffs claim that they were damaged by the same alleged breaches and misrepresentations and omissions that affected the other Settlement Class members and by the same alleged course of conduct. Thus, Lead Plaintiffs would invoke the same legal theories to establish liability and damages that all other members of the Settlement Class would if they sued separately. (d) Lead Plaintiffs share the interests of the other members of the Settlement Class in remedying the alleged breaches of fiduciary duty identified above. Lead Plaintiffs have also retained experienced and well-qualified counsel to conduct this litigation. Because Lead Plaintiffs do not have interests that are antagonistic to the other members of the Settlement Class and have retained qualified experienced counsel, Lead Plaintiffs are fair and adequate representatives of the Settlement Class. (e) Defendants have allegedly acted or refused to act on grounds generally applicable to the Settlement Class, thereby making appropriate final injunctive relief or declaratory relief with respect to the whole Settlement Class. 3

48 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 48 of 82 PageID #: The Court hereby appoints Plaintiffs Counsel to represent the Settlement Class. 5. The Court approves, as to form and content, the Notice and Summary Notice specified in the Stipulation and attached as Exhibits C and D thereto, and finds that the mailing and distribution of the Notice and publishing of the Summary Notice in the manner and form set forth in paragraphs 6-7 of this Order meet the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, and are the best notice practicable to the Settlement Class under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto. 6. The firm of RG/2 Claims Administration LLC ( Notice Administrator ) is hereby appointed to supervise and administer the notice procedure as more fully set forth below: (a) Within five (5) business days of entry of this Order, Defendants shall, at their own expense, provide to the Notice Administrator records sufficient to identify the record holders of OMNI s common stock from June 4, 2010 through October 27, 2010 in a computerreadable format acceptable to the Notice Administrator; (b) Plaintiffs Counsel, along with the Notice Administrator, shall make reasonable efforts to identify all persons who are Settlement Class Members, and not later than ten (10) business days of Defendants providing the records set forth in paragraph (a) above, Plaintiffs Counsel, along with the Notice Administrator shall cause a copy of the Notice, substantially in the form annexed as Exhibit C to the Stipulation, to be mailed by first class mail to all Settlement Class Members who can be identified with reasonable effort; (c) Not later than, 2011, Plaintiffs Counsel, along with the Notice Administrator, shall cause the Summary Notice to be published once in the national edition of Investor s Business Daily, substantially in the form annexed as Exhibit D to the Stipulation; and 4

49 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 49 of 82 PageID #: 2057 (d) At least fourteen (14) calendar days prior to the Final Approval Hearing, Plaintiffs Counsel shall cause to be served on Defendants counsel and filed with the Court proof, by affidavit or declaration, of such mailing and publishing. 7. Nominees who were the record holders of OMNI s common stock at any time during the Class Period shall send the Notice to all beneficial owners of such stock within ten (10) calendar days after receipt thereof, or send a list of the names and addresses of such beneficial owners to the Notice Administrator within ten (10) calendar days of receipt thereof, in which event the Notice Administrator shall promptly mail the Notice to such beneficial owners. The Notice Administrator shall, if requested, reimburse banks, brokerage houses or other nominees solely for their reasonable out-of-pocket expenses incurred in providing notice to beneficial owners who are Settlement Class Members of the Settlement, which expenses would not have been incurred except for the sending of such Notice, subject to further order of this Court with respect to any dispute concerning such compensation. 8. A Final Approval Hearing shall be held by this Court on at, before the Honorable Richard T. Haik at the United States Courthouse, 800 Lafayette Street, Lafayette, Louisiana, to consider and finally determine: (a) Whether the proposed Settlement Class should be certified for the purposes of the proposed Settlement; (b) Whether the Settlement should be finally approved by the Court as fair, reasonable, adequate, and in the best interests of the Settlement Class; (c) (d) Whether the Order and Final Judgment should be entered; The amount of fees and expenses, if any, that should be awarded to Plaintiffs Counsel; 5

50 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 50 of 82 PageID #: 2058 (e) (f) Objections, if any, made to the Settlement or any of its terms; and To rule upon such other matters as the Court may deem appropriate. The Final Approval Hearing described in this paragraph may be postponed, adjourned, or continued by order of the Court, without further notice to Class Members. 9. Any member of the Settlement Class may enter an appearance in the Consolidated Action, at his, her or its own expense, individually or through counsel of his, her or its own choice. If any Settlement Class Member does not enter an appearance, he, she or it will be represented by Plaintiffs Counsel. 10. Any member of the Settlement Class may appear at the Final Approval Hearing, at his, her or its own expense, in person or through counsel, and show cause, if he, she or it has any, why the proposed Settlement should or should not be approved as fair, reasonable, adequate, and in the best interests of the Settlement Class; why the Order and Final Judgment should or should not be entered thereon; or why attorneys fees and expenses should or should not be awarded to Plaintiffs Counsel. However, no person (other than named parties to the Consolidated Action) may be heard at the Final Approval Hearing, or file papers or briefs in connection therewith, or be otherwise entitled to contest such matters, unless on or before fourteen (14) calendar days prior to the Final Approval Hearing, such person has filed with the Court and served on the list of counsel below, either by hand or by first class mail, a timely written objection and notice of intent to appear and has otherwise fully complied with all of the terms and procedures specified in the Notice. Any member of the Settlement Class who does not lodge an objection to the Settlement in the manner provided herein shall be deemed to have waived any such objection and shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed Settlement as set forth in the Stipulation, or to the award of 6

51 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 51 of 82 PageID #: 2059 attorneys fees and expenses to Plaintiffs Counsel, unless otherwise ordered by the Court. The list of counsel to be served for the purposes of this paragraph is: Bull & Lifshitz, LLP, Joshua M. Lifshitz, 18 East 41st Street, New York, NY 10017; Levi & Korsinsky, LLP, Eduard Korsinsky, W. Scott Holleman, 30 Broad Street, 15th Floor, New York, NY 10004; Breaud & Meyers, Alan K. Breaud, Post Office Box 3448, Lafayette, Louisiana 70502; Gordon, Arata, Mccollum, Duplantis & Eagan, LLC, Samuel E. Masur, 400 E. Kaliste Saloom Road, Suite 4200, Lafayette, Louisiana ; and Paul, Weiss, Rifkind, Wharton & Garrison LLP, Joyce S. Huang, 1285 Avenue of the Americas, New York, NY Plaintiffs Counsel, Defendants Counsel, and/or any counsel purportedly acting on behalf of the proposed Settlement Class shall promptly furnish to all other counsel copies of any objection that comes into such counsel s possession. 12. All papers in support of the Settlement, and any application by Plaintiffs Counsel for attorneys fees or expenses, shall be filed and served twenty one (21) calendar days prior to the Final Approval Hearing, and all reply memoranda in support of such motions shall be filed and served seven (7) calendar days prior to the Final Approval Hearing. 13. Neither Defendants, the Released Parties nor Defendants counsel shall have any responsibility for the application for attorneys fees or expenses submitted by Plaintiffs Counsel, and such matters will be considered separately from the fairness, reasonableness and adequacy of the Settlement. 14. Pending approval of the Court of the Stipulation and its Exhibits, all discovery and other proceedings in the Consolidated Action, other than those necessary to implement the Settlement and this Preliminary Approval Order, are stayed until further order of the Court. 7

52 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 52 of 82 PageID #: Pending final approval of the Court of the Stipulation and its Exhibits, the Releasing Parties are barred and enjoined from litigating, commencing, prosecuting, instigating, or in any way participating in the litigation, commencement, prosecution or instigation of any action asserting any of the Released Claims, either directly, representatively, derivatively or in any other capacity, against any of the Released Parties. 16. All Settlement Class Members shall be bound by all determinations and judgments in the Consolidated Action concerning the Settlement, whether favorable or unfavorable to the Class. 17. Neither the Stipulation, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, nor anything in this Order, shall be construed as an admission or concession by Defendants of the truth of any of the allegations in the Consolidated Action, or of any liability, fault, or wrongdoing of any kind, or an admission or concession by Lead Plaintiffs that liability against Defendants did not exist. 18. In the event that the proposed Settlement is not approved by the Court, or if the Order and Final Judgment is not entered for any reason, then the Stipulation, all drafts, negotiations, discussions, and documentation relating thereto, and all orders entered by the Court in connection therewith, including this Order and certification of the Settlement Class, shall become null and void and shall not be used or referred to for any purpose in the Consolidated Action or in any other proceeding except for the payment by Defendants to the Notice Administrator referenced in paragraph 4.3 of the Stipulation. In such event, the Stipulation and all negotiations and proceedings relating thereto shall be withdrawn without prejudice to the rights of any of the Parties thereto, who shall be restored to their respective positions as of October 13,

53 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 53 of 82 PageID #: The Court retains jurisdiction to consider all further applications arising out of or connected with the proposed Settlement. The Court may approve the Settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate, without further notice to the Class. SO ORDERED this day of, Hon. Richard T. Haik United States District Judge 9

54 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 54 of 82 PageID #: 2062 EXHIBIT C

55 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 55 of 82 PageID #: 2063 EXHIBIT C UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION SHERWIN JOHNSON, ) ) Plaintiff, ) CIVIL ACTION NO. ) 6:10CV1068 (LEAD) v. ) 6:10CV1170 (MEMBER) ) RICHARD WHITE, et al., ) JUDGE HAIK ) MAGISTRATE JUDGE HILL Defendants. ) ) NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED CLASS ACTION SETTLEMENT, CLASS ACTION SETTLEMENT HEARING, AND RIGHT TO APPEAR TO: ALL PERSONS WHO WERE RECORD OR BENEFICIAL HOLDERS OF OMNI ENERGY SERVICES CORP. S COMMON STOCK AT ANY TIME FROM JUNE 4, 2010 THROUGH OCTOBER 27, 2010 PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. THIS NOTICE RELATES TO A PROPOSED SETTLEMENT OF LITIGATION REFERRED TO IN THE ABOVE CAPTIONED ACTION AND CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, WHICH MAY BE AFFECTED BY PROCEEDINGS IN THIS LITIGATION. IF THE COURT APPROVES THE PROPOSED SETTLEMENT, YOU WILL BE BARRED FROM CONTESTING THE FAIRNESS, REASONABLENESS OR ADEQUACY OF THE PROPOSED SETTLEMENT AND FROM PURSUING ANY OF THE SETTLED CLAIMS. IF YOU HELD SHARES OF OMNI ENERGY SERVICES CORP. COMMON STOCK FOR THE BENEFIT OF OTHERS, PLEASE PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNERS. THE PURPOSE OF THIS NOTICE This Notice of Pendency and Proposed Settlement of Class Action (the Notice ) has been sent to you pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Western District of Louisiana, Lafayette Division (the Court ). The purpose of this Notice is to inform you of a proposed settlement (the Settlement ) of the above-captioned action (the Consolidated Action ) and of a hearing to be held before the Court at, on, 2011 at _.m. (the Final Approval Hearing ). The purpose of the Final Approval Hearing is to determine: (a) whether the Court should certify

56 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 56 of 82 PageID #: 2064 the Consolidated Action as a non-opt-out class action; (b) whether the Court should approve the proposed Settlement of the Consolidated Action; (c) whether the Court should enter final judgment dismissing the claims asserted in the Consolidated Action on the merits and with prejudice as against the Lead Plaintiffs and the Settlement Class; (d) the amount of fees and expenses, if any, that should be awarded to Plaintiffs Counsel; and (e) to consider such other matters as may properly come before the Court. The Court has the right to adjourn the Final Approval Hearing without further notice. The Court also has the right to approve the Settlement with or without modifications, and to enter its final judgment dismissing the Consolidated Action on the merits and with prejudice and to order the payment of attorneys' fees and expenses without further notice. THIS NOTICE SHOULD NOT BE UNDERSTOOD AS AN EXPRESSION OF ANY OPINION OF THE COURT AS TO THE MERITS OF ANY CLAIMS OR DEFENSES BY ANY OF THE PARTIES. IT IS BASED ON STATEMENTS OF THE PARTIES AND IS SENT FOR THE SOLE PURPOSE OF INFORMING YOU OF THE EXISTENCE OF THIS ACTION AND OF A HEARING ON A PROPOSED SETTLEMENT SO THAT YOU MAY MAKE APPROPRIATE DECISIONS AS TO STEPS YOU MAY WISH TO TAKE IN RELATION TO THIS LITIGATION. NOTICE TO NOMINEES If you were the record holder of any OMNI Energy Services Corp. ( OMNI or the Company ) common stock at any time during the period from June 4, 2010 through October 27, 2010 as nominee for a beneficial owner, then, within ten (10) calendar days after you receive this Notice, you must either: (1) send a copy of this Notice by first class mail to all such persons; or (2) provide a list of the names and addresses of such persons to the Notice Administrator: Omni Energy Services Corp. Litigation RG/2 Claims Administration LLC 1540 Broadway New York, NY If you choose to mail the Notice yourself, you may obtain from the Notice Administrator (without cost to you) as many additional copies of these documents as you will need to complete the mailing. Regardless of whether you choose to complete the mailing yourself or elect to have the mailing performed for you, you may obtain reimbursement for or advancement of reasonable administrative costs actually incurred or expected to be incurred in connection with forwarding the Notice and which would not have been incurred but for the obligation to forward the Notice, upon submission of appropriate documentation to the Notice Administrator. BACKGROUND AND DESCRIPTION OF THE LITIGATION On June 4, 2010, OMNI announced that it had entered into an Agreement and Plan of Merger (the Merger Agreement ) pursuant to which an affiliate of Wellspring Capital 2

57 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 57 of 82 PageID #: 2065 Management LLC ( Wellspring ) would acquire all of the outstanding shares of OMNI common stock for $2.75 per share in cash (the Merger ). On June 30, 2010, OMNI filed its Schedule 14(a) Preliminary Proxy Statement (the Preliminary Proxy Statement ) with the U.S. Securities and Exchange Commission (the SEC ) in connection with a proposed special meeting of its shareholders to vote upon the Merger Agreement. On July 1, 2010, and July 21, 2010, two OMNI shareholders filed class action complaints on behalf of a putative class of OMNI shareholders in this Court, seeking, among other things, injunctive relief and/or rescission of the Merger on the alleged basis that the Board breached their state law fiduciary duties to the Company s shareholders and violated Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder. On September 2, 2010, the Court entered an order consolidating various actions that had been filed in the Court under the Consolidated Action. Lead Plaintiffs actively litigated their claims. Among other things, Lead Plaintiffs attempted to obtain certain non-public documents from Defendants in order to better evaluate and prosecute their claims. The Parties ultimately entered into a confidentiality agreement, and Defendants produced certain confidential documents relating to the Merger. On September 23, 2010, OMNI filed its Schedule 14(a) Definitive Proxy Statement (the Definitive Proxy Statement ) with the SEC, which contained certain information concerning the Merger and announced that a special meeting of the Company s shareholders was to be held on Tuesday, October 26, 2010 to vote on the Merger Agreement. After the actions were consolidated, and while discovery was being conducted, the Parties counsel entered into arm s-length negotiations with a view toward a possible resolution of Lead Plaintiffs claims. Plaintiff s Counsel sought supplemental disclosures to be made to OMNI shareholders in advance of the shareholder meeting to vote on the Merger. On September 15, 2010, Lead Plaintiffs demanded that OMNI make additional disclosures to the shareholders of OMNI in advance of the shareholder meeting to vote on the Merger. On October 1, 2010, Plaintiffs in the Consolidated Action filed their First Supplemental and Amended Complaint on behalf of a putative class of OMNI shareholders, seeking, among other things, injunctive relief and/or rescission of the Merger on the alleged basis that the Board breached their state law fiduciary duties to the Company s shareholders and violated Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder. Throughout the course of the Parties negotiations, Lead Plaintiffs continued to research and investigate their claims, and even interviewed one of the Individual Defendants concerning the sales process leading up to the Merger Agreement. On October 14, 2010, after further arm s-length settlement negotiations, the Parties reached an agreement in principle to settle the Consolidated Action on the basis that OMNI would make certain supplemental disclosures via a Form 8-K. The settlement was memorialized in the Parties Memorandum of Understanding (the MOU ), which contemplated a settlement 3

58 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 58 of 82 PageID #: 2066 on behalf of a class consisting of all record or beneficial holders of OMNI s common stock at any time from June 4, 2010 through October 27, 2010 (the Settlement Class ). On October 18, 2010, pursuant to the Parties agreement, OMNI filed a Form 8-K with the SEC containing the agreed upon supplemental disclosures (the Supplemental Disclosures ), a true and correct copy of which is attached as Exhibit A. On October 26, 2010, OMNI s shareholders approved the Merger Agreement at a special shareholders meeting: 93.6% of OMNI s voting outstanding shares voted in favor of the Merger, and the Merger was consummated on October 27, On January 25, 2011, the Court appointed John E. Daigle, Jamie Daigle and David M. Zimmer as Lead Plaintiffs in the Consolidated Action ( Lead Plaintiffs ) and approved their selection of Plaintiffs Counsel and Co-Liaison Counsel. REASONS FOR THE SETTLEMENT Lead Plaintiffs, through their counsel, have undertaken and completed a thorough investigation of the claims and allegations asserted in the Consolidated Action, as well as the underlying events and transactions relevant to those claims and allegations. In connection with its investigation, Plaintiffs Counsel have conducted factual and legal research concerning the validity of Lead Plaintiffs claims, carefully reviewed thousands of pages of documents, and taken the depositions of: (1) Defendant Brian Recatto, OMNI s President and CEO and a member of the Board; (2) Ronald S. Montalbano, a representative of Stephens Inc., the Board s financial advisor in connection with the Merger; and (3) Steward Chip Cureton, a representative of GulfStar Group, the Company retained by the Board to study the proposed Merger and render a fairness opinion with respect thereto. Lead Plaintiffs and Defendants do not agree on the remedies that would have been available if Lead Plaintiffs were to have prevailed on each claim alleged. The issues on which the parties disagree include: (1) whether the statements made or facts allegedly omitted from the Definitive Proxy Statement filed by OMNI were material, false, misleading or otherwise actionable under the securities laws; (2) whether Defendants breached their fiduciary duties, and/or aided and abetted breaches of fiduciary duties; and (3) if applicable, the remedies that would have been available if Lead Plaintiffs were to have prevailed. In evaluating the Settlement, Lead Plaintiffs and Plaintiffs Counsel have considered: (i) the substantial benefits to the members of the Settlement Class from the Settlement, including the disclosure of additional information to OMNI s shareholders concerning the Merger; (ii) the facts developed during discovery; (iii) the attendant risks of continued litigation and the uncertainty of the outcome of the Consolidated Action, especially litigation of this complexity; (iv) the difficulties and delays inherent in such litigation; (v) the probability of success on the merits and the allegations contained in the Consolidated Action, including the uncertainty relating to the proof of those allegations; (vi) the desirability of permitting the Settlement to be consummated as provided by the terms of the Stipulation; and (vii) the conclusion of Lead Plaintiffs and their counsel that the terms and conditions of the Settlement are fair, reasonable, adequate, and in the best interests of the Settlement Class. 4

59 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 59 of 82 PageID #: 2067 Defendants have denied and continue to deny each and all of the claims and contentions alleged in the Consolidated Action. Defendants have expressly denied and continue to deny all charges of wrongdoing or liability against them arising out of any of the conduct, statements, acts, or omissions alleged, or that could have been alleged, in the Consolidated Action. Defendants also have denied and continue to deny, inter alia, the allegations that they breached their fiduciary duties or aided and abetted any breach of fiduciary duties and that the disclosures relating to the Merger were deficient in any respect and that Lead Plaintiffs or the Settlement Class have suffered damage. Nonetheless, the Defendants have concluded that it is desirable to eliminate the burden and risks of further litigation and that the Consolidated Action be fully and finally settled in the manner and upon the terms and conditions set forth in this Settlement and in the Stipulation. SUMMARY OF THE SETTLEMENT TERMS The principal terms of the Settlement are as follows: (a) Pursuant to the parties agreement, and as a result of the pendency of the Consolidated Action and the efforts of Plaintiffs Counsel, OMNI agreed to provide, and did provide, the Supplemental Disclosures requested by Plaintiffs Counsel regarding the fairness opinion and related financial analyses of OMNI s financial advisor GulfStar Group. The Supplemental Disclosures were provided via Form 8-K filed with the SEC on or about October 18, 2010 and are attached hereto as Exhibit A. (b) OMNI or its successors also agreed, subject to the terms herein, not to object to Plaintiffs Counsel s request for attorneys fees and expenses if awarded by the Court as described below. (c) Plaintiffs Counsel have completed confirmatory discovery and have confirmed their belief that the Settlement is fair, reasonable, adequate, and in the best interest of the Settlement Class. (d) The full terms of the Settlement are set forth in the Stipulation (see Scope of This Notice and Further Information, below). CLASS ACTION DETERMINATION The Court has ordered that, for purposes of the Settlement only, the Consolidated Action shall be temporarily maintained as a class action by Lead Plaintiffs as Settlement Class representatives and by their counsel on behalf of the Settlement Class, subject to the Court s final approval of the Settlement. DISMISSAL AND RELEASE OF CLAIMS The Settlement, broadly speaking, provides for the dismissal and release of any potential claim that any Settlement Class member might have against Defendants or their related parties relating to the Merger. More specifically, the Stipulation provides that upon final Court approval of the Settlement, and in consideration of the benefits provided by the Settlement: 5

60 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 60 of 82 PageID #: 2068 (a) Upon the Effective Date of the Settlement, as defined in the Stipulation, the Releasing Parties, shall have, fully, finally, and forever released, relinquished, and discharged: (i) all Released Claims against the Released Parties; and (ii) against each and all of the Released Parties, all claims (including Unknown Claims) arising out of, relating to, or in connection with, the defense, settlement, or resolution of the Consolidated Action or the Released Claims. (b) Released Claims means all claims, demands, rights, liabilities, allegations or causes of action of every nature and description, whether known or unknown, accrued or unaccrued, foreseen or unforeseen, matured or not matured, suspected or unsuspected, that were asserted or could have been asserted in the Consolidated Action or in any forum directly, derivatively, or in any other capacity against the Released Parties (including, but not limited to, all claims under the Securities Exchange Act of 1934, the Securities Act of 1933, or any other federal, state or local statute or common law, or the law of any other jurisdiction, whether foreign or domestic) arising out of or relating in any way to the Merger, including without limitation any claims arising out of, or relating to, in whole or in part, (i) the claims or facts and circumstances asserted or that could have been asserted in the Consolidated Action; (ii) the claims or facts and circumstances asserted or that could have been asserted in the State Actions; and (iii) any claims arising out of or relating to the proxy statements, supplemental proxy statements, financial statements, press releases, public filings, or other public disclosures made or issued by the Released Parties concerning the Merger. The Released Claims do not include claims for statutory appraisal rights, if any, in connection with the Merger by OMNI shareholders who properly perfect and do not otherwise waive such appraisal rights. (c) Released Parties means Defendants and each of their present or former parents, subsidiaries, affiliates, successors and assigns, and each of their present or former officers, directors, employees, members, principals, agents, attorneys, accountants, advisors, consultants, fiduciaries, auditors, commercial bank lenders, insurers, investment bankers, representatives, and general and limited partners and partnerships, and the heirs, estates, executors, administrators, trusts, trustees, successors and assigns of each of them. (d) Releasing Parties means: the Lead Plaintiffs and any and all members of the Settlement Class and all of their respective present or former parents, subsidiaries, affiliates, successors and assigns, and each of their present or former officers, directors, employees, members, principals, agents, attorneys, accountants, advisors, consultants, fiduciaries, auditors, commercial bank lenders, insurers, investment bankers, representatives, and general and limited partners and partnerships, and the heirs, estates, executors, administrators, trusts, trustees, successors and assigns of each of them. (e) Unknown Claims means any Released Claims that the Lead Plaintiffs or any Settlement Class Member does not know or suspect to exist in his, her, or its favor at the time of the release of the Released Parties that, if known by him, her, or it, might have affected his, her or, its settlement with and release of the Released Parties, or might have affected his, her, or its decision not to object to this Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date, the Lead Plaintiffs shall expressly, and each of the Settlement Class Members shall be deemed to have, and by operation of the Order and Final Judgment shall have, expressly waived to the fullest extent permitted by law, the provisions, rights and benefits of California Civil Code 1542, which provides: 6

61 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 61 of 82 PageID #: 2069 A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The Lead Plaintiffs shall expressly and each of the Settlement Class Members shall be deemed to have, and by operation of the Order and Final Judgment shall have, expressly waived any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent in whole or in part to California Civil Code The Lead Plaintiffs and Settlement Class Members may hereafter discover facts in addition to or different from those which he, she, or it now knows or believes to be true with respect to the Released Claims, but the Lead Plaintiffs shall expressly, and each Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation of the Order and Final Judgment shall have, expressly acknowledged that this Stipulation was entered into with full knowledge of the possible subsequent discovery of such facts and have fully, finally, and forever settled and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, that now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct that is negligent, intentional, with or without malice, or a breach of any duty, law, or rule, without regard to the subsequent discovery or existence of such different or additional facts. The Lead Plaintiffs acknowledge, and each of the Settlement Class Members shall be deemed to have, and by operation of the Order and Final Judgment shall have, acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement of which this release is a part. THE APPLICATION FOR ATTORNEYS FEES AND EXPENSES In connection with the approval of the Settlement, Plaintiffs Counsel may submit an application or applications for an award of attorneys fees and actual expenses incurred in connection with prosecuting the Consolidated Action not to exceed, in the aggregate, a total of $375,000. Defendants will take no position with regard to such an application. Neither Plaintiffs Counsel nor any member of the Settlement Class shall be entitled to terminate the Stipulation if the Court disapproves of or modifies the terms of this Stipulation with respect to attorneys fees or costs. Class Members are not personally liable for any such fees or expenses. The attorneys fees and expenses awarded by the Court, not to exceed, in the aggregate, a total of $375,000, shall be paid to Bull & Lifshitz LLP by Defendants within thirty (30) calendar days after the Effective Date of the Settlement. Bull & Lifshitz LLP shall thereafter allocate the attorneys fees amongst other Plaintiffs Counsel in a manner that Plaintiffs Counsel in good faith believe reflects the contributions of such counsel to the prosecution and settlement of the Consolidated Action. Defendants shall have no obligation to make any payment with respect to attorneys fees, expenses or costs to Plaintiffs Counsel or any Settlement Class Member s counsel, other than as expressly provided in this paragraph. Defendants also shall have no obligation or responsibility with respect to the allocation of attorneys fees amongst Plaintiffs Counsel or any Settlement Class Member s Counsel, or any other Person who may assert some claim thereto. In 7

62 Case 6:10-cv RTH-CMH Document 60 Filed 07/05/11 Page 62 of 82 PageID #: 2070 the event that the Order and Final Judgment is reversed or modified, of if the Settlement is cancelled or terminated for any reason, or if the judgment or the order awarding fees and expenses to Plaintiffs Counsel pursuant to this paragraph is reversed or modified, then Plaintiffs Counsel shall, in an amount consistent with such reversal or modification, refund such fees, expenses, and costs to Defendants, plus interest thereon at 5%, within thirty (30) calendar days from receiving notice from Defendants or from a court of appropriate jurisdiction. Any such refund shall by the joint and several obligations of all Plaintiffs Counsel, such that the failure of any Plaintiffs Counsel to make a required refund shall be the responsibility and obligation of any and all Plaintiffs Counsel. RIGHT TO APPEAR AND OBJECT If you are a Settlement Class Member, you will be bound by the terms of the proposed Settlement described in this Notice, if it is approved by the Court, together with any and all determinations or judgments in the Consolidated Action in connection with the Settlement entered into or approved by the Court, whether favorable or unfavorable to the Settlement Class. In particular, on the Effective Date, you shall be deemed to have, and by operation of the Judgment shall have, fully released all of the Released Claims against the Released Persons. You may not request exclusion from the Consolidated Action or the Settlement Class, although you may object to the Settlement if you wish (see below). You may, but are not required to, enter an appearance through counsel of your own choosing at your own expense. If you do not do so, you will be represented by Plaintiffs Counsel: Bull & Lifshitz, LLP, 18 East 41st Street, New York, NY 10017, Telephone: (212) ; Levi & Korsinsky, LLP, 30 Broad Street, 15th Floor, New York, NY 10004, Telephone: (212) IF YOU OBJECT TO THE PROPOSED CLASS ACTION SETTLEMENT, OR ANY OTHER MATTER THAT WILL BE CONSIDERED AT THE APPROVAL HEARING, YOU MUST FOLLOW THE PROCEDURES OUTLINED BELOW. Any member of the Settlement Class may appear at the Final Approval Hearing at his, her or its own expense, in person or through counsel, and show cause, if he, she or it has any, why the proposed Settlement should or should not be approved as fair, reasonable, adequate, and in the best interests of the Settlement Class; why the Order and Final Judgment should or should not be entered thereon; or why attorneys fees and expenses should or should not be awarded to Plaintiffs Counsel. However, no person (other than named parties) may be heard at the Final Approval Hearing, or file papers or briefs in connection therewith, or be otherwise entitled to contest such matters, except by Order of the Court for good cause shown, unless, no later than fourteen (14) calendar days prior to the Final Approval Hearing, copies of (a) a written notice of intention to appear, identifying the name, address, and telephone number of the person and, if represented, his counsel, provided at his own expense, (b) a written detailed statement of such person s specific objections to any matter before the Court, (c) a written statement certifying that the person is a member of the Settlement Class, including the number of shares of OMNI s common stock held by that person at any time from June 4, 2010 through October 27, 2010, (d) the grounds for such objection(s) or submission(s) and any reason(s) for such person s desire to 8