EXHIBIT 10.70
September 6, 2000
Xx. Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxx:
SECOND AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT (this "Second Amendment") is
executed on September 6, 2001, but is effective at the "Effective Time" (as
defined in Section 7 below), by and among Triton Exploration Services, Inc., a
Delaware corporation (the "Employer"), the individual signatory hereto
("Employee"), and Triton Energy Limited, a Cayman Islands company (the
"Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Employer, Employee and the Company entered into that certain
Employment Agreement dated as of June 28, 2000, which was amended by that
certain letter agreement dated December 19, 2000 (such Employment Agreement, as
amended and in effect immediately prior to the Effective Time, being hereinafter
referred to as the "Original Agreement"); and
WHEREAS, Amerada Xxxx Corporation, a Delaware corporation ("AHC"), Amerada Xxxx
(Cayman) Limited, a Cayman Islands company ("Sub"), and the Company entered into
that certain Acquisition Agreement dated as of July 9, 2001 (the "Acquisition
Agreement"), pursuant to which AHC acquired through Sub the Company by reason of
the "Offer" (as defined in the Acquisition Agreement) which may be followed by
either a "Compulsory Acquisition" (as defined in the Acquisition Agreement) or a
"Scheme of Arrangement" (as defined in the Acquisition Agreement); and
WHEREAS, the "Acceptance Date" (as defined in the Acquisition Agreement)
occurred on August 14, 2001, and on the Acceptance Date, a "change in control of
the Company" (as defined in the Original Agreement) occurred; and
WHEREAS, the Employer, Employee and the Company desire to amend the Original
Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The first sentence of Section 2 of the Original Agreement is hereby
amended to read in its entirety as follows:
"Except as otherwise provided in Section 15 of this Agreement, no benefits shall
be payable under this Agreement unless there shall have been a change in control
of the Company, as set forth below, and Employee's employment with the Employer
(or any other direct or indirect subsidiary of the Company) shall thereafter
have been terminated within two (2) years following the date of such change in
control of the Company in accordance with Section 3 below."
2. Section 3.4 of the Original Agreement is hereby amended to read in its
entirety as follows:
"3.4 "Notice of Termination. Any termination of Employee's employment
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shall be communicated by written Notice of Termination to the other party hereto
(the date such Notice of Termination is deemed given to the other party or
parties hereto under Section 7 is referred to herein as the "Notice Date.").
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific provision or provisions of this Agreement
pursuant to which Employee is to receive amounts and/or benefits as a result of
such termination, and if such notice states that Employee's employment is
terminated by the Employer for Cause or Disability or by Employee for Good
Reason or Just Reason, then such notice shall also set forth in reasonable
detail the facts and circumstances claimed to provide a basis for such
termination of Employee's employment under the provision or provisions so
indicated. In the event that Employee seeks to terminate Employee's employment
for Good Reason or for "Just Reason" (as defined in Section 15.6), Employee must
communicate Employee's written Notice of Termination to the Employer no later
than sixty (60) days after December 31, 2002."
3. Clause (iii) of Section 3.5 of the Original Agreement is hereby amended
to read in its entirety as follows:
"(iii) if Employee's employment is terminated pursuant to Section 3.3
above or for "Just Reason" (as defined in Section 15.6) pursuant to Section
15.4, the date that is specified in the Notice of Termination;"
4. Section 4.3-2 of the Original Agreement is hereby amended to read in its
entirety as follows:
"4.3-2 [INTENTIONALLY LEFT BLANK]."
5. The Original Agreement is hereby amended to add a new Section 15 that
reads in its entirety as follows:
"15. HESS CHANGE OF CONTROL AND RETENTION BONUS.
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15.1 Hess Change of Control. The Employer, Employee and
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the Company expressly acknowledge and agree that (i) on August 14, 2001, a
change in control of the Company occurred (the "Hess Change of Control"),
and (ii) all references in this Agreement to a "change in control of the
Company" (A) shall be deemed to be a reference only to the Hess Change
in Control, and (B) shall be read and construed on a basis consistent with
the fact that the Hess Change in Control has occurred.
15.2 Retention Bonus. Except as otherwise provided in Section
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15.5, Employee shall be entitled to a retention bonus in the amount of
$1,918,500(the "Retention Bonus"), consisting of $1,168,500 (the
"Base Amount") and $750,000 (the "Additional Amount"), without regard to
whether or not Employee's employment with the Employer (or any other direct
or indirect subsidiary of the Company) shall thereafter have been
terminated within two (2) years following the date of the Hess Change
in Control in accordance with Section 3.
15.3 Payment of Retention Bonus - In General. Except as otherwise
--------------------------------------------
provided in Section 15.4 and Section 15.5, the Employer shall pay the Retention
Bonus to Employee in cash as follows:
15.3-1 Twenty-five percent (25%) of the Base Amount and twenty-five
percent (25%) of the Additional Amount shall be paid within five (5) calendar
days after the "Execution Date" (as defined in the Second Amendment to this
Agreement);
15.3-2 Twenty-five percent (25%) of the Base Amount and twenty-five
percent (25%) of the Additional Amount shall be paid within five (5) calendar
days after December 31, 2001; and
15.3-3 Fifty percent (50%) of the Base Amount and fifty percent (50%)
of the Additional Amount shall be paid within five (5) calendar days after
December 31, 2002.
15.4 Acceleration of Payment of Retention Bonus in the Event of Certain
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Terminations. If Employee's employment with the Employer (or any other direct
------------
or indirect subsidiary of the Company) shall be terminated on or before
December 31, 2002 (i) by the Employer (or any such other direct or indirect
subsidiary of the Company) for no reason or for any reason other than Cause,
(ii) by Employee for "Just Reason" (as defined in Section 15.6), or (iii) as a
result of the death or Disability of Employee, then (x) the aggregate portion of
the Retention Bonus that has not previously been paid to Employee (the "Unpaid
Bonus") shall immediately become due and payable and the Employer shall pay to
Employee in a lump sum in cash not later than five (5) calendar days following
the Date of Termination the amount of the Unpaid Bonus, (y) Employee shall be
entitled to the amounts and benefits provided under Sections 4.3-1, 4.3-4, 4.4,
4.5 and 4.6, and (z) if such termination of employment is by reason of
Employee's Disability, Employee shall, in addition to the amounts and benefits
provided in clauses (x) and (y) of this sentence, receive any benefits to which
Employee is entitled under any plans providing for benefits in respect of such
Disability.
15.5 Certain Terminations. (a) If Employee's employment with the
---------------------
Employer (or any other direct or indirect subsidiary of the Company) shall be
terminated on or before December 31, 2002 (i) by the Employer for Cause, (ii) by
Employee other than for Good Reason or Just Reason, or (iii) by Retirement of
Employee, then Employee shall have no right to receive payment of any portion of
the Retention Bonus that remains unpaid as of the Notice Date (but Employee
shall be entitled to retain any portion of the Retention Bonus paid to Employee
before the Notice Date); provided, however, that if a dispute arises relating to
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a termination by the Employer for Cause and the Employee is the prevailing
party, the Employee shall be entitled to the portion of the Retention Bonus that
remained unpaid as of the Notice Date.
(b) If Employee's employment with the Employer (or any other direct or
indirect subsidiary of the Company) shall be terminated by Employee for Good
Reason after August 13, 2001, and on or before December 31, 2002, then (i)
Employee shall not receive payment of any portion of the Additional Amount that
remains unpaid on the Notice Date (but Employee shall be entitled to retain any
portion of the Additional Amount paid to Employee before the Notice Date), (ii)
the aggregate portion of the Base Amount that remains unpaid on the Notice Date
shall be paid to Employee in a lump sum in cash within five (5) calendar days
after the Date of Termination, and (iii) Employee shall be entitled to the
amounts and benefits provided under Sections 4.3-1, 4.3-4, 4.4, 4.5 and 4.6.
(c) If Employee's employment with the Employer (or any other direct or
indirect subsidiary of the Company) shall be terminated after December 31, 2002
and before August 14, 2003 (i) by the Employer (or any such other direct or
indirect subsidiary of the Company) for no reason or any reason other than
Cause, or (ii) by Employee for Good Reason, then Employee shall be entitled to
the amounts and benefits provided under Sections 4.3-1, 4.3-4, 4.4, 4.5 and 4.6.
(d) Notwithstanding anything to the contrary contained herein, in the event
of a dispute concerning termination of Employee's employment with the Employer
(or any other direct or indirect subsidiary of the Company), all future payments
of the Retention Bonus that would otherwise become due hereunder shall be
postponed until such date (if any) on which Employee is determined to be
entitled to such postponed payments as a result of a final determination of such
dispute either by mutual written agreement of the parties, by a binding and
final arbitration award or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected).
15.6 "Just Reason" Defined. For purposes of this Agreement, the term
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"Just Reason" shall mean any of the following events with respect to the
Employee:
(a) any reduction in the Employee's base salary as in effect at the
Effective Time or as the same may thereafter be increased from time to time;
(b) any change in Employee's principal work location of more than 35 miles
from his or her principal work location at the Effective Time or any requirement
that Employee perform a majority of Employee's duties outside Employee's
principal work location at the Effective Time (i) for a period of more than the
greater of (A) 14 consecutive calendar days, or (B) a number of consecutive
calendar days that would be substantially inconsistent with Employee's business
travel obligations during the twelve-month period immediately preceding August
14, 2001, or (ii) for more than 120 calendar days during the period from and
including August 14, 2001, through and including December 31, 2002;
(c) any failure by the Employer or the Company to pay the Retention Bonus to
Employee in accordance with the terms of this Section 15; or
(d) any commission by the Employer (or any other direct or indirect
subsidiary of the Company) of an act constituting bad faith in connection with
the Employee's positions, duties, responsibilities or status with the Employer
(or any other direct or indirect subsidiary of the Company) or the Company after
the Effective Date.
15.7 No Duplication of Benefits. (a) Notwithstanding anything
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contained in this Agreement to the contrary, the parties hereto acknowledge and
agree that if Employee becomes entitled to an amount or benefit under two or
more provisions of this Agreement by reason of the same or similar
circumstances, such amount or benefit will be paid or provided to Employee only
once pursuant to that single provision providing the greatest such amount or
benefit. Accordingly, to the extent Employee is paid or provided a specific
amount or benefit under one provision of this Agreement, Employee shall not be
paid or provided such amount or benefit under another similar provision of this
Agreement. Notwithstanding the foregoing, nothing contained in this Section
15.7 shall be construed to prevent Employee from receiving the maximum amounts
and benefits to which Employee becomes entitled under this Agreement.
(b) Notwithstanding anything contained in this Agreement to the contrary,
the parties hereto acknowledge and agree that (i) Employee has previously
received the amounts and benefits described in Section 4.3-3 and, therefore, no
further amounts or benefits are or will be due to Employee under Section 4.3-3,
and (ii) neither the Employer nor the Company has any claim or rights with
respect to such amounts and benefits or the return or retention thereof by
Employee.
15.8 No Mitigation. Employee shall not be required to mitigate the amount
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of any payment provided for in this Section 15 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 15
be reduced by any compensation earned by Employee as the result of employment by
another employer after the Date of Termination, or otherwise. The Employer's
obligation to make the payments and provide the benefits provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Employer may have against Employee or others.
15.9 No Effect on Other Provisions. Nothing contained in this Section 15
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shall amend, modify, alter, impair or otherwise affect in any way any of the
provisions of, or any of the respective rights and obligations of the Employer,
Employee and the Company under, Sections 4.7, 5, 6, 7, 8, 9, 10, 11, 12, 13 and
14 of this Agreement or the "Joinder of the Company" contained at the end of
this Agreement."
The parties hereto expressly acknowledge and agree that neither (i) the
execution, delivery, performance and/or provisions of this Second Amendment,
(ii) the fact that Employee remains or remained employed by the Employer (or any
other direct or indirect subsidiary of the Company) or the Company for any
period of time after the Effective Time, nor (iii) the Company's payment of, or
Employee's acceptance of, all or any portion of the Retention Bonus shall (w)
constitute or be deemed to constitute a waiver of any right of Employee under
the Original Agreement, as amended by this Second Amendment (including, but not
limited to, any right of Employee to assert any fact or circumstance which
constitutes or contributes to a showing of Good Reason or Just Reason), (x)
preclude Employee from asserting any such fact or circumstance in enforcing
Employee's rights under the Original Agreement, as amended by this Second
Amendment, (y) constitute or be deemed to constitute a consent by Employee to
any action or inaction constituting or contributing to a showing of Good Reason
or Just Reason under the Original Agreement, as amended by this Second
Amendment, or (z) constitute or be deemed to constitute an admission by the
Company of circumstances constituting or contributing to a showing of Good
Reason or Just Reason.
This Second Amendment shall be binding on each party hereto only on the date
(the "Execution Date") when it has been executed by all of the parties hereto,
but when so executed, shall be and become effective immediately prior to the
Acceptance Date (the "Effective Time").
All references to "Agreement" contained in the Original Agreement shall be
deemed to be a reference to the Original Agreement, as amended by this Second
Amendment. Terms defined in this Second Amendment shall be incorporated in the
Agreement with the same meanings as set forth herein.
This Second Amendment is made and will be performed under, and shall be governed
by and construed in accordance with, the law of the State of Texas.
Except as amended by this Second Amendment, the Original Agreement shall remain
in full force and effect.
This Second Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the Employer, Employee and the Company have executed
this Second Amendment on the date first written above, but is effective as of
the Effective Time.
TRITON EXPLORATION SERVICES, INC.
By:
Name:
Title:
______________________
________
TRITON ENERGY LIMITED
By:
Name:
Title:
Note: Similar amended employment agreements were
executed by certain Triton officers.
