PARKER DRILLING COMPANY PERFORMANCE UNIT AWARD INCENTIVE AGREEMENT
Exhibit 10.19
XXXXXX DRILLING COMPANY
THIS PERFORMANCE UNIT AWARD INCENTIVE AGREEMENT (this “Agreement”) is made and entered
into by and between Xxxxxx Drilling Company, a Delaware corporation
(the “Company”), and
_______________,
an individual and employee of the Company (“Grantee”), as of the ____
day of _______, 20__ (the
“Grant Date”), subject to the terms and provisions of the Xxxxxx
Drilling Company ___ Long-Term Incentive Program, effective as of January 1, ___, and as it may be
amended from time to time thereafter (the “Program”), which is a sub-plan of the Xxxxxx Drilling
Company 2010 Long-Term Incentive Plan, as it may be amended from time to time thereafter (the
“Plan”). The Program and the Plan are hereby incorporated herein in their entirety by this
reference. Capitalized terms not otherwise defined in this Agreement shall have the meaning given
to such terms in the Program or the Plan.
WHEREAS, Grantee is [title] of the Company, and in connection therewith, the Company
desires to grant a Performance-Based Stock-Based Award to Grantee, subject to the terms and
conditions of this Agreement and the Program, with a view to increasing Grantee’s interest in the
Company’s success and growth; and
WHEREAS, Grantee desires to be the holder of a Performance-Based Stock-Based Award subject to
the terms and conditions of this Agreement and the Program;
NOW, THEREFORE, in consideration of the premises, mutual covenants and agreements contained
herein, and such other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Grant of Performance Units. Subject to the terms and conditions of this Agreement and the
Program, the Company hereby grants to Grantee [number] Performance Units as described
herein (the “Performance Units”), which together constitute a Performance-Based Stock-Based Award
that is referred to as a Performance-Based Award under the Program. Each Performance Unit shall
initially have a nominal value of One Hundred Dollars ($100.00) as of the Grant Date, with the
actual payout amount to be determined under the terms and conditions of this Agreement. With
respect to the Performance Units granted under this Agreement, the Committee reserves the right and
authority, as exercised in its discretion, to (a) determine what percentage of such Award will be
paid in cash or in Shares and (b) increase or decrease the size of the Award by a percentage not to
exceed twenty percent (20%), in the form of either positive or negative discretion, at any time
before or after the Award becomes fully vested but prior to actual payment, but subject to
Section 6 for Detrimental Conduct. As a holder of Performance Units, the Grantee has the
rights of a general unsecured creditor of the Company unless and until the Performance Units are
converted to cash or shares of the Company’s common stock (“Shares”) upon vesting and transferred
to Grantee, as set forth herein.
2. Transfer Restrictions. Grantee shall not sell, assign, transfer, exchange, pledge,
encumber, gift, devise, hypothecate or otherwise dispose of
(collectively, “Transfer”) any
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Performance Units granted hereunder. Any purported Transfer of Performance Units in breach of
this Agreement shall be void and ineffective, and shall not operate to Transfer any interest
or title to the purported transferee.
3. Vesting of Performance Units.
(a) Performance Period. For purposes of this Agreement, the performance period
is the three-year period that begins on [January 1, 2010 and ends on December 31, 2012] (the
“Performance Period”). Subject to the terms and conditions of this Agreement, the
Performance Units shall vest and become payable to Grantee at the end of the Performance
Period, provided that (i) Grantee is still an Employee at that time and has continuously
been an Employee since the Grant Date (the “Service Requirement”) and (ii) the performance
criteria that are established for the Performance Period as described below (singularly, the
“Performance Criterion” and collectively, the “Performance Criteria”) have been satisfied.
All Performance Units that do not become vested during or at the end of the Performance
Period shall be forfeited. Subject to Section 5, the Performance Units shall become
vested upon the written certification by the Committee, in its discretion, of achievement of
the Performance Criteria. The Committee, in its discretion, may adjust the Performance
Criteria to recognize special or non-recurring situations or circumstances with respect to
the Company or any other company in the Peer Group for any year during the Performance
Period arising from the acquisition or disposition of assets, costs associated with exit or
disposal activities or material impairments. There are two Performance Criteria that have
been established for the Performance Units awarded under this Agreement, as described in
subsections (b) and (c) below.
(b) RTSR. The first Performance Criterion is the Company’s Relative Total
Shareholder Return (“RTSR”) as defined in the Program (the “RTSR Criterion”). The Company’s
RTSR for the Performance Period is compared to the RTSR of each of the peer group companies,
as listed on Exhibit A to this Agreement (the “Peer Group”), for the Performance Period to
determine where the Company ranks when compared to the Peer Group. For the purposes of this
Agreement, RTSR shall be calculated as described in the Program. The RTSR Criterion is fifty
percent (50%) of the total weighting for each Performance Unit.
(c) ROCE. The second Performance Criterion is the Company’s Return on Capital
Employed (“ROCE”) as defined in the Program (the “ROCE Criterion”). The Company’s ROCE for
the Performance Period is compared to the ROCE of each of the Peer Group companies for the
Performance Period to determine where the Company ranks when compared to the Peer Group. For
the purposes of this Agreement, ROCE shall be calculated as described in the Program. The
ROCE Criterion is fifty percent (50%) of the total weighting for each Performance Unit.
(d) Changes in Peer Group. When calculating RTSR or ROCE for the Performance
Period for the Company and the Peer Group, (i) the performance of a company in the Peer
Group will not be used in calculating the RTSR or ROCE of that member of the Peer Group if
the company is not publicly traded (i.e., has no ticker
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symbol) at the end of the Performance Period; (ii) the performance of any company in the
Peer Group that becomes bankrupt during the Performance Period will be included in the
calculation of Peer Group performance even if it has no ticker symbol at the end of the
measurement period; (iii) the performance of the surviving entities will be used in the
event there is a combination of any of the Peer Group companies during the measurement
period; and (iv) no new companies will be added to the Peer Group during the Performance
Period (including a company that is not a Peer Group member which acquires a member of the
Peer Group). Notwithstanding the foregoing provisions of this subsection (d), the Committee
may disregard any of these guidelines when evaluating changes in the membership of the Peer
Group during the Performance Period in any particular situation, as it deems reasonable in
the exercise of its discretion.
(e) Ranking of Company as Compared to the Peer Group. At the end of the
Performance Period, the ranking of the Company when compared to the Peer Group members,
which is based on a 50% weighting for each of the RTSR Criterion and the ROCE Criterion,
shall be made by the Committee, in its discretion, to determine the number of Performance
Units that become vested by multiplying the total Performance Units awarded hereunder by the
proper multiplier pursuant to the Payout Schedule in Exhibit B.
4. Termination of Employment. If Grantee’s Employment is voluntarily or involuntarily
terminated during the Performance Period, then Grantee shall immediately forfeit the outstanding
Performance Units, except as provided below in this Section 4. Upon the forfeiture of any
Performance Units hereunder, the Grantee shall cease to have any rights in connection with such
Performance Units as of the date of forfeiture.
(a) Termination of Employment. Except as provided in Section 4(c), if
the Grantee’s Employment is terminated for any reason, including Retirement, other than due
to death or Disability during the Performance Period, any non-vested Performance Units at
the time of such termination shall automatically expire and terminate and no further vesting
shall occur after the termination of Employment date. In such event, the Grantee will
receive no payment for unvested Performance Units.
(b) Disability or Death. Upon termination of Grantee’s Employment as the result
of Grantee’s Disability (as defined in the Plan) or death during the Performance Period,
then all of the outstanding Performance Units shall become 100% vested on such date at the
1.0 multiplier level as shown on the Payout Schedule in Exhibit B.
(c) Change in Control. If there is a Change in Control of the Company (as
defined in the Program) during the Performance Period, then in the event of the Grantee’s
Involuntary Termination Without Cause (as defined in the Program) within two (2) years
following the effective date of the Change in Control and during the same Performance
Period, all the outstanding Performance Units shall automatically become 100% vested on the
Grantee’s termination of Employment date at the 1.0 multiplier level as shown on the Payout
Schedule in Exhibit B.
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5. Payment for Performance Units. Payment for the vested Performance Units subject to this
Agreement shall be made to the Grantee as soon as practicable following the time
such Performance Units become vested in accordance with Section 3 or Section 4
prior to their expiration, but not later than sixty (60) days following the date of such vesting
event. The number of Performance Units that vest and are payable hereunder shall be determined by
the Committee, in its discretion, in accordance with the Payout Schedule in Exhibit B.
The amount payable to the Grantee pursuant to this Agreement shall be an amount equal to the
number of vested Performance Units multiplied by the product of (a) $100 and (b) the sum of the
percentages for the Performance Criteria, at a 50% weighting for each Performance Criterion, for
the level of achievement of each Performance Criterion as set forth in the Payout Schedule in
Exhibit B. The maximum payout for each Performance Unit is $200 because the maximum
multiplier on the Payout Schedule is 2.0 for each Performance Criterion that is weighted at 50%.
Any amount paid in respect of the vested Performance Units shall be payable in such
combination of cash and/or Shares (with the Shares valued at their Fair Market Value on the vesting
date), as determined by the Committee in its sole discretion. Prior to any payments under this
Agreement, the Committee shall certify in writing, by resolution or otherwise, the amount to be
paid in respect of the Performance Units as a result of the achievement of the Performance
Criteria.
Any Shares delivered to or on behalf of Grantee in exchange for vested Performance Units shall
be subject to any further transfer or other restrictions as may be required by securities law or
other applicable law, as determined by the Company.
6. Detrimental Conduct. Notwithstanding any provision herein to the contrary, if the Grantee
engaged in Detrimental Conduct (as defined in the Program), with such Detrimental Conduct occurring
either during Employment or within two (2) years after Employment terminates for any reason, then,
in such event, the following rules shall apply under this Agreement with respect to such
Detrimental Conduct. In the event that the Committee should determine, in its sole and absolute
discretion, that, during Employment or within two (2) years following Employment termination, the
Grantee engaged in Detrimental Conduct, the Committee may, in its sole and absolute discretion, if
Shares or cash have previously been transferred to the Grantee pursuant to Section 5 upon
vesting of his Performance Units, direct the Company to send a notice of recapture (a “Recapture
Notice”) to such Grantee. Within ten (10) days after receiving a Recapture Notice from the Company,
the Grantee will deliver to the Company either (i) the actual number of Shares that were
transferred to the Grantee upon vesting of Performance Units or (ii) a cash equivalent payment in
an amount equal to the Fair Market Value of such Shares at the time when transferred to the
Grantee, together with any cash payments that were made for the vested Performance Units, unless
the Recapture Notice demands repayment of a lesser sum. All repayments hereunder shall be net of
the taxes that were withheld by the Company when the Shares or cash were transferred to Grantee
following vesting of the Performance Units pursuant to Section 5.
7. Grantee’s Representations. Notwithstanding any provision hereof to the contrary, the
Grantee hereby agrees and represents that Grantee will not acquire any Shares, and
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that the Company will not be obligated to issue any Shares to the Grantee hereunder, if the issuance of such Shares
constitutes a violation by the Grantee or the Company of any law or
regulation of any governmental authority. Any determination in this regard that is made by the
Committee, in good faith, shall be final and binding. The rights and obligations of the Company and
the Grantee are subject to all applicable laws and regulations.
8. Tax Withholding. To the extent that the receipt of the payment of cash or Shares hereunder
results in compensation income to Grantee for federal, state or local income tax purposes, Grantee
shall deliver to Company at such time the sum that the Company requires to meet its tax withholding
obligations under applicable law or regulation, and, if Grantee fails to do so, Company is
authorized to (a) withhold from any cash or other remuneration (including any Shares), then or
thereafter payable to Grantee, any tax required to be withheld; or (b) sell such number of Shares
as is appropriate to satisfy such tax withholding requirements before transferring the resulting
net number of Shares to Grantee in satisfaction of its obligations under this Agreement.
9. Independent Legal and Tax Advice. The Grantee acknowledges that (a) the Company is not
providing any legal or tax advice to Grantee and (b) the Company has advised the Grantee to obtain
independent legal and tax advice regarding this Agreement and any payment hereunder.
10. No Rights in Shares. The Grantee shall have no rights as a stockholder in respect of any
Shares, unless and until the Grantee becomes the record holder of such Shares on the Company’s
records.
11. Conflicts with Program or Plan, Correction of Errors, and Grantee’s Consent. In the event
that any provision of this Agreement conflicts in any way with a provision of the Program or the
Plan, such provisions shall be reconciled, or such discrepancy shall be resolved, by the Committee
in the exercise of its discretion. In the event that, due to administrative error, this Agreement
does not accurately reflect the Performance Units properly granted to the Grantee pursuant to the
Program, the Committee reserves the right to cancel any erroneous document and, if appropriate, to
replace the cancelled document with a corrected document. All determinations and computations under
this Agreement shall be made by the Committee (or its authorized delegate) in its discretion as
exercised in good faith.
This Agreement and any award of Performance Units or payment hereunder are intended to comply
with or be exempt from Section 409A of the Internal Revenue Code and shall be interpreted
accordingly. Accordingly, Grantee consents to such amendment of this Agreement as the Committee may
reasonably make in furtherance of such intention, and the Company shall promptly provide, or make
available, to Grantee a copy of any such amendment.
12. Miscellaneous.
(a) No Fractional Shares. All provisions of this Agreement concern whole
Shares. If the application of any provision hereunder would yield a fractional Share, such
fractional Share shall be rounded down to the next whole Share if it is less than 0.5 and
rounded up to the next whole Share if it is 0.5 or more.
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(b) Transferability of Performance Units. The Performance Units are
transferable only to the extent permitted under the Program at the time of transfer (i) by
will or by the laws of descent and distribution, or (ii) by a domestic relations order
in such form as is acceptable to the Company. No right or benefit hereunder shall in any
manner be liable for or subject to any debts, contracts, liabilities, obligations or torts
of the Grantee or any permitted transferee thereof.
(c) Not an Employment Agreement. This Agreement is not an employment agreement,
and no provision of this Agreement shall be construed or interpreted to create any
Employment relationship between Grantee and the Company for any time period. The Employment
of Grantee with the Company shall be subject to termination to the same extent as if this
Agreement did not exist.
(d) Notices. Any notice, instruction, authorization, request or demand required
hereunder shall be in writing, and shall be delivered either by personal in-hand delivery,
by telecopy or similar facsimile means, by certified or registered mail, return receipt
requested, or by courier or delivery service, addressed to the Company at its then current
main corporate address, and to Grantee at the address indicated on the Company’s records, or
at such other address and number as a party has last previously designated by written notice
given to the other party in the manner hereinabove set forth. Notices shall be deemed given
when received, if sent by facsimile means (confirmation of such receipt by confirmed
facsimile transmission being deemed receipt of communications sent by facsimile means); and
when delivered and receipted for (or upon the date of attempted delivery where delivery is
refused), if hand-delivered, sent by courier or delivery service, or sent by certified or
registered mail, return receipt requested.
(e) Amendment, Termination and Waiver. This Agreement may be amended, modified,
terminated or superseded only by written instrument executed by or on behalf of the Grantee
and the Company (by action of the Committee or its delegate). Any waiver of the terms or
conditions hereof shall be made only by a written instrument executed and delivered by the
party waiving compliance. Any waiver granted by the Company shall be effective only if
executed and delivered by a duly authorized executive officer of the Company other than
Grantee. The failure of any party at any time or times to require performance of any
provisions hereof shall in no manner affect the right to enforce the same. No waiver by any
party of any term or condition herein, or the breach thereof, in one or more instances shall
be deemed to be, or construed as, a further or continuing waiver of any such condition or
breach or a waiver of any other condition or the breach of any other term or condition.
(f) No Guarantee of Tax or Other Consequences. The Company makes no commitment
or guarantee that any tax treatment will apply or be available to the Grantee or any other
person. The Grantee has been advised, and provided with ample opportunity, to obtain
independent legal and tax advice regarding this Agreement.
(g) Governing Law and Severability. This Agreement shall be governed by the
laws of the State of Texas without regard to its conflicts of law provisions, except as
preempted by controlling federal law. The invalidity of any provision of this Agreement
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shall not affect any other provision hereof or of the Program or the Plan, which shall
remain in full force and effect.
(h) Successors and Assigns. This Agreement shall bind, be enforceable by, and
inure to the benefit of, the Company and Grantee and any permitted successors and assigns
under the Program.
[Signature page follows.]
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IN WITNESS WHEREOF, this Agreement is hereby approved and executed as of the date first
written above.
| Xxxxxx Drilling Company | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Grantee | ||||||
| Signature | ||||||
| Grantee’s Address for Notices: | ||||||
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EXHIBIT A
Peer Group Companies
The following companies comprise the Peer Group to which the Company’s RTSR and ROCE
performance will be compared for the Performance Period:
1.
|
XXX | Xxxxx-Xxxxxxxx Energy, Inc. | ||
2.
|
BAS | Basic Energy Services, Inc. | ||
3.
|
HP | Helmerich & Xxxxx Inc. | ||
4.
|
HERO | Hercules Offshore, Inc. | ||
5.
|
KEG | Key Energy Services, Inc. | ||
6.
|
NBR | Xxxxxx Industries Ltd. | ||
7.
|
PDC | Pioneer Drilling Company | ||
8.
|
PDS | Precision Drilling Trust | ||
9.
|
TTI | Tetra Technologies, Inc. |
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EXHIBIT B
Performance Multipliers for Performance Criteria
| Company’s | 9 Peers | |||||
| Rank Against | Remaining | 8 Peers | 7 Peers | |||
| Peers | (initial case) | Remaining | Remaining | |||
1 |
2.00 | 2.00 | 2.00 | |||
2 |
1.75 | 1.70 | 1.70 | |||
3 |
1.45 | 1.40 | 1.35 | |||
4 |
1.20 | 1.00 | 1.00 | |||
5 |
1.00 | 1.75 | 0.65 | |||
6 |
0.75 | 0.50 | 0.35 | |||
7 |
0.50 | 0.25 | 0.00 | |||
8 |
0.25 | 0.00 | 0.00 | |||
9 |
0.00 | 0.00 | ||||
10 |
0.00 |
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