SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.14
WHEREAS, AirComp LLC (the “Company”) and Xxxxxxxx X. Xxxxx (the “Executive”) entered into that
certain Executive Employment Agreement dated as of July 1, 2007, as amended by the Company, the
Executive and Xxxxx-Xxxxxxxx Energy Inc. (“Xxxxx-Xxxxxxxx”) effective as of April 1, 2008 (the
“Agreement”); and
WHEREAS, Xxxxx-Xxxxxxxx and the Executive desire to amend the Agreement to comply with Code
Section 409A and regulations issued thereunder;
NOW, THEREFORE, the Agreement is hereby amended, effective as of the original effective date
of the Agreement, as follows:
1. The fourth sentence in Section 5(b) of the Agreement is hereby amended and
restated as follows:
“Such bonus shall be paid annually within 30 days following Xxxxx-Xxxxxxxx’
release of its audited financial statements for each year during the term hereof,
but in no event earlier than January 1 of, and no later than December 31 of, the
calendar year following the calendar year with respect to which such bonus is
earned.”
2. Section 7(b)(ii) of the Agreement is hereby amended to add the following sentence
to the end thereof:
“Allis-Chalmer’s obligation to provide continued medical insurance shall be
intended to be an obligation to reimburse the Executive the amount of the premium
paid by the Executive for such medical insurance, and to the extent that any such
reimbursement is received or to be received by Executive, such reimbursements shall
be administered consistent with the following requirements set forth in Treas. Reg.
§1.409A-3(i)(1)(iv): (i) Executive’s eligibility for reimbursements in one year
will not affect Executive’s eligibility for reimbursements in any other year, (ii)
any reimbursement of eligible expenses will be made on or before the last day of the
year following the year in which the expense was incurred, and (iii) Executive’s
right to reimbursement is not subject to liquidation or exchange for another
benefit.”
3. A new Section 7(c) is hereby added to the Agreement as follows:
“(c) Section 409A Limits on Payments to Specified Employees. Notwithstanding
any other provision of the Agreement to the contrary, if Executive is a “specified
employee,” as defined in Section 409A of the Code, except to the extent permitted
under Section 409A of the Code, no benefit or payment that is subject to Section
409A of the Code (after taking into account all applicable exceptions to Section
409A of the Code, including but not limited to the exceptions for short-term
deferrals and for “separation pay only upon an
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involuntary separation from service”) shall be made under this Agreement on account
of Executive’s “separation from service,” as defined in Section 409A of the Code,
until the later of the date prescribed for payment in this Agreement and the 1st day
of the 7th calendar month that begins after the date of Executive’s separation from
service (or, if earlier, the date of death of Executive). Any such benefit or
payment payable pursuant to this Agreement within the period described in the
immediately preceding sentence will accrue and will be payable in a lump sum cash
payment, without interest, on the payment date set forth in the immediately
preceding sentence.”
4. Except as modified herein, the Agreement is specifically ratified and affirmed.
IN WITNESS WHEREOF, Xxxxx-Xxxxxxxx and the Executive have executed this Amendment to the
Agreement as of this 31st day of December, 2008, to be effective as herein provided.
| XXXXX-XXXXXXXX ENERGY INC.: | ||||||
| By: | /s/ Xxxxxxxx X. Pound III
|
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| Printed Name: Xxxxxxxx X. Pound III | ||||||
| Title: General Counsel and Secretary | ||||||
| EXECUTIVE: | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxx | |||||
| Xxxxxxxx X. Xxxxx | ||||||
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