THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.2
THIRD AMENDMENT TO
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This Third Amendment to Employment Agreement (this “Amendment”), dated as of August 20, 2007,
is made and entered into by and between Input/Output, Inc., a Delaware corporation (hereinafter
referred to as “Employer”), and Xxxxxx X. Xxxxxxx, an individual currently residing in Xxxxxx
County, Texas (hereinafter referred to as “Employee”).
W I T N E S S E T H:
WHEREAS, Employer and Employee entered into an Employment Agreement effective on March 31,
2003, and amended by that certain First Amendment to Employment Agreement dated September 6, 2006,
and that certain Second Amendment to Employment Agreement dated February 16, 2007 (the
“Agreement”);
WHEREAS, the Agreement provided for Employee to have certain rights upon the “Change in
Control” of the Company, as defined in the Agreement;
WHEREAS, the parties desire to amend the Agreement to correct a typographical error in a
cross-reference and to clarify the effect of the expiration of the term of the Agreement on the
“Change in Control” provisions; and
WHEREAS, the parties further desire to amend the Agreement with the intention of complying
with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employer
and Employee agree as follows:
1. Section 2(b) of the Agreement is hereby amended by adding the following sentence at the end
of such Section:
Any incentive compensation pay or bonus so determined under any such plan will be
paid to Employee not later than March 15 of the year immediately following the year
with respect to which such bonus is based upon, calculated or determined.
2. Section 2(e) of the Agreement is hereby amended by adding the following two sentences at
the end of such Section:
The amount of any such reimbursement shall be payable to Employee in accordance with
Employer’s normal expense reimbursement policies. Notwithstanding the foregoing or
any provision contained in this Agreement to the contrary, (i) if any reimbursements
under this Section 2(e) are taxable to Employee, such reimbursements shall be made
no later than the end of the calendar year following the year the expense was
incurred, and (ii) the amount of
reimbursements made with respect to one calendar year shall not affect the amount of
reimbursements to be made hereunder for subsequent calendar years.
3. The last two sentences in Section 6(d) are hereby deleted in their entirety, and
substituted in lieu thereof is the following:
Except for those payments and benefits required to be made as provided by law or
pursuant to the terms of a plan, the severance payments and benefits to be paid and
provided to Employee pursuant to this Section 6(d) shall be conditioned upon (i)
Employee’s execution and delivery of a valid waiver and release of all claims that
Employee may have against Employer prior to his receiving such payments and
benefits, and (ii) such release not having been revoked within the time, if any,
required by law for the revocation of a release (the “Release Requirements”). Such
severance payments and benefits shall be paid or provided commencing as soon as
practicable after the Release Requirements are satisfied; provided, however, that
any such payments and benefits that are subject to Section 409A of the Code shall be
paid or provided beginning on the 60th day following the Date of Termination
provided that the Release Requirements have been satisfied on or before that date,
and, in the event the Release Requirements have not been so satisfied by that date,
then the severance payments and related benefits under Section 6(d) that are subject
to Section 409A of the Code shall be forfeited and Employee shall have no further
rights to such payments.
4. In Section 6(e) of the Agreement, the reference to “Section 6(g)” is hereby amended to read
“Section 6(f).”
5. Section 6 of the Agreement is hereby amended to add the following new Section 6(g), to
follow Section 6(f):
(g) Upon a Change in Control, Employer’s obligations to pay the benefits
described in Section 6(e) and the rights of the Employee to receive such benefits
(subject in each case, where applicable, to (i) Employee’s remaining employed by
Employer pursuant to Section 6(e) for the 18-month period following such Change in
Control, (ii) Employee’s having satisfied the Release Requirements as referred to in
Section 6(d) and (ii) Employer’s rights under Section 12(e) hereof) shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, the expiration of the Term of this Agreement or any
set-off, counterclaim, recoupment, defense or other right which the Employer may
have against Employee.
6. A new Section 7(j) is hereby added to the Agreement, to read in its entirety as follows:
(j) Notwithstanding any other provision of this Section 7, any payments to
Employee pursuant to this Section 7 shall be paid to Employee no later than December
31 of the year following the year in which Employee remits the related taxes to the
applicable taxing authority.
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7. Section 13 of the Agreement is hereby amended to add the following new Section 13(e):
(e) Except as otherwise expressly set forth in this Agreement, the respective
rights and obligations of the parties hereunder shall survive (i) the expiration of
the Term, (ii) any other termination of this Agreement and (iii) the termination of
Employee’s employment with Employer.
8. A new Section 15 is hereby added to the Agreement, to read in its entirety as follows:
Section 15. Additional Section 409A Provisions.
To the extent that any benefits payable under this Agreement are subject to
Section 409A of the Code, it is agreed that no party shall (i) accelerate into the
current year any amounts that would not otherwise be payable in the current year, or
(ii) defer past the current year any such payments that would otherwise be payable
in the current year. Notwithstanding any provision contained in this Agreement to
the contrary, if (a) any payment hereunder is subject to Section 409A of the Code,
(b) such payment is to be paid on account of Employee’s separation from service
(within the meaning of Section 409A of the Code) and (iii) Employee is a “specified
employee” (within the meaning of Section 409A(a)(2)(B) of the Code), then such
payment shall be delayed until the first day of the seventh month following
Employee’s separation from service (or, if later, the date on which such payment is
otherwise to be paid under this Agreement).
9. The Employment Agreement, as amended hereby, is in all respects ratified, approved and
confirmed.
10. If necessary to avoid potential adverse tax consequences to the parties, the parties agree
to amend the Agreement further in conformance with Section 409A of the Code, including the rules,
regulations, and guidance of general application issued by the Department of the
Treasury under Section 409A of the Code.
11. The Agreement, as amended hereby, is in all respects ratified, approved and confirmed.
12. This Amendment may be executed in any number of counterparts, all of which together make
and shall constitute one and the same instrument and either party may execute this Amendment by
signing any such counterpart.
13. This Amendment shall in all respects be governed by, and construed in accordance with, the
laws of the State of Texas, including all matters of construction, validity and performance.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this
Amendment as of the date set forth above.
| EMPLOYER: INPUT/OUTPUT, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx, Xx. | |||
| Title: Chairman of the Board | ||||
| EMPLOYEE: |
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| /s/ Xxxxxx X. Xxxxxxx | ||||
| Xxxxxx X. Xxxxxxx | ||||
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