EXHIBIT 10.28
AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDMENT ("Amendment") is made and entered into to be effective
April 1, 1998, by and between XXXXXX PRODUCTION SERVICES, INC. (together with
its successors, the "Company") and XXXXXXX X. XXXXXX ("Executive").
WHEREAS, Executive and the Company entered into an Executive Employment
Agreement, dated April 1, 1996 ("Agreement"); and
WHEREAS, Executive and the Company desire to amend the Agreement; and
WHEREAS, both the Company and Executive have read and understand the terms
and provisions set forth in this Amendment, and have been afforded a reasonable
opportunity to review this Amendment with their respective legal counsel;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth in this Amendment, Executive and the Company agree as follows:
1. The second sentence of Section 2(a), entitled BASE SALARY, is hereby amended
as follows:
Such salary shall increase to an annual rate of $300,000.00 on April 1,
1997 and shall remain at an annual rate of $300,000 for each year
thereafter, unless modified by agreement between Executive and the
Company.
2. A new second sentence is added to Section 2(b), entitled BUSINESS EXPENSES,
as follows:
The Company shall also reimburse all reasonable automobile expenses, as
per the standard employment manual for the Company, as such manual may be
amended from time to time by the Company.
3. Section 2(c), entitled DISCRETIONARY INCENTIVE BONUS, is hereby amended in
its entirety as follows:
Executive may from time to time be awarded an annual cash bonus during the
term of his employment under this Agreement, in an amount of up to one
hundred percent (100%) of the Executive's then current Base Salary.
Executive shall be considered for this bonus under the benefit plan
entitled "Compensation Program, Board of Directors Summary" dated and
approved by the Board of Directors on July 31, 1997, or any other benefit
plan the Company may have in effect from time to time, consistent with the
terms of any such program and with Executive's status and position with
the Company.
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4. The second sentence of Section 2(d), entitled EMPLOYEE BENEFITS, is hereby
amended as follows:
During the term of this Agreement, Executive shall be entitled to receive
such benefits (which shall include vacation as per the standard employment
manual for the Company, as such manual may be amended from time to time by
the Company) as are made available to other personnel of the Company in
comparable positions, with comparable duties and responsibilities.
5. A new second sentence is added to Section 3(a), entitled INITIAL TERM, as
follows:
If on March 31, 1999, this Agreement has not been replaced with a new
employment agreement between Executive and the Company or terminated in
accordance with Section 3(c), then this Agreement shall have the
termination date extended to March 31, 2000, under the same terms and
conditions which were in effect for the period from April 1, 1998 to March
31, 1999.
6. A new first sentence is added to Section 3(c)(5)(a), entitled RESIGNATION FOR
GOOD REASON, as follows:
Executive shall have the right to resign for any "Good Reason," as defined
herein, and such resignation shall be deemed to be a termination by the
Company "Without Good Cause," except as set forth in Section 5(c) with
respect to the resignation of the Executive for a "Good Reason" during the
one-year period following a Change of Control.
7. Section 3(c)(5)(a)(iv) is hereby amended in its entirety, as follows:
The Company's directing the Executive to work at a location other than San
Antonio, Texas.
8. A new Section 3(c)(5)(a)(v), is hereby added, as follows:
After a Change of Control, any material change which, in the sole but
reasonable discretion of the Executive, impacts detrimentally upon
Executive's position within the Company.
9. Section 3(c)(5)(b), entitled RESIGNATION WITHOUT GOOD REASON, is hereby
amended in its entirety, as follows:
Any resignation by the Executive for any reason other than "Good Reason,"
as defined above, shall be deemed to be a resignation "Without Good
Reason." Other than as provided in Section 5(c) with respect to the
resignation of the Executive "Without Good Reason" during the 60-day
period following a Change of Control, in the event of a Resignation
Without Good Reason, the "Change in Control"
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provisions in Section 4 and the Severance provisions in Section 5 shall be
inapplicable.
10. Section 5(a) is hereby amended in its entirety, as follows:
If, during the first two years of this Agreement, the Company terminates
this Agreement Without Good Cause as that term is defined in Section
3(c)(4)(b) of this Agreement, except as provided in Section 5(b) herein,
the Company agrees to pay to Executive a cash payment equal to the sum of:
(i) 14 (if terminated during the first year) or 15 (if terminated during
the second year) months' salary of the Executive's then current,
annualized Base Salary, respectively, less statutory payroll deductions;
(ii) all accrued benefits; and (iii) a prorated amount of any incentive
compensation paid to Executive for the prior year. After the first two
years of this Agreement, if the Company terminates this Agreement Without
Good Cause as that term is defined in Section 3(c)(4)(b) of this
Agreement, except as provided in Section 5(b) herein, the Company agrees
to pay to Executive a cash payment equal to the sum of: (i) 24 months'
salary of Executive's then current, annualized Base Salary, less statutory
payroll deductions; (ii) all accrued benefits; and (iii) a prorated amount
of any incentive compensation paid to Executive for the prior year.
11. Section 5(c) is hereby amended in its entirety, as follows:
If Executive terminates this Agreement Without Good Reason within 60 days
after a Change of Control, the Company shall pay to Executive a cash
payment equal to the sum of: (i) three (3) years' salary of the
Executive's then current, annualized Base Salary less statutory payroll
deductions; (ii) all accrued benefits; and (iii) a prorated amount of any
incentive compensation paid to Executive for the prior year. If Executive
terminates this Agreement for Good Reason within 12 months after a Change
of Control, Company shall pay to Executive a cash payment equal to the sum
of: (i) three (3) years' salary of the Executive's then current,
annualized Base Salary less statutory payroll deductions; (ii) all accrued
benefits; and (iii) a prorated amount of any incentive compensation paid
to Executive for the prior year.
12. Section 5(h)(3) is hereby amended in its entirety, as follows:
In the event that Executive communicates a Notice of Resignation Without
Good Reason as defined in Section 3(c)(5)(b), other than as provided in
Section 5(c).
13. Section 6, entitled STOCK OPTIONS, is hereby amended in its entirety, as
follows:
The Company may grant Executive options to purchase from the Company
shares of the Company's common stock (the "Option Stock") during the terms
of his employment under this Agreement. Executive shall be considered for
the grant of
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options under the benefit plan entitled "Compensation Program, Board of
Directors Summary" dated and approved by the Board of Directors on July
31, 1997, or any other benefit plan the Company may have in effect from
time to time, consistent with the terms of any such program and with
Executive's status and position with the Company.
14. Section 9(d) is hereby amended in its entirety, as follows:
In the event that the Executive's employment with the Company is
terminated for any reason except by the Company for Good Cause without a
Change of Control, Executive covenants and agrees not to compete with the
Company by engaging in the business of providing: (i) workover rig
services, including completion of new xxxxx, maintenance and recompletion
of existing xxxxx (including horizontal recompletions) and plugging and
abandonment of xxxxx at the end of their useful lives; (ii) liquid
services, including vacuum truck services, frac tank rental and salt water
injection; and/or (iii) production services, including well test analysis,
pipe testing, slickline wireline services and fishing and rental tool
services, for the period of time by which the Executive's severance
payment, if any, is measured. The geographic scope of this non-compete
provision shall be: (i) in Texas south of a line from the following Texas
towns: Del Rio, Bryan, and Jasper; and (ii) within 50 miles from Iraan,
Texas and from Pampa, Texas.
In the event that Executive's employment with the Company is terminated by
the Company for Good Cause without a Change of Control, Executive
covenants and agrees not to compete with the Company by engaging in the
business of providing: (i) workover rig services, including completion of
new xxxxx, maintenance and recompletion of existing xxxxx (including
horizontal recompletions) and plugging and abandonment of xxxxx at the end
of their useful lives; (ii) liquid services, including vacuum truck
services, frac tank rental and salt water injection; and/or (iii)
production services, including well test analysis, pipe testing, slickline
wireline services and fishing and rental tool services, for a period of
one year from the date of termination. The geographic scope of this
non-compete provision shall be: (i) in Texas south of a line from the
following Texas towns: Del Rio, Bryan, and Jasper; and (ii) within 50
miles from Iraan, Texas and from Pampa, Texas.
In the event that Executive's employment with the Company is terminated
for any reason after a Change of Control, Executive shall not be subject
to any obligation not to compete with the Company after his termination of
employment with the Company.
15. All of the provisions of the Agreement which are not amended as set forth
herein shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
XXXXXXX X. XXXXXX
/s/ XXXXXXX X. XXXXXX
XXXXXX PRODUCTION SERVICES, INC.
By: /s/ P. XXXX XXXXX
Name: P. Xxxx Xxxxx
Title: Chief Financial Officer
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