AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
EXHIBIT
10.33
AMENDMENT
NO. 1
TO
THIS AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT (this "Amendment Agreement") is made and entered into as of the 30th
day of December, 2008, by and between Integrated Service Company LLC, an
Oklahoma limited liability company (the "Company"), and Xxxx XxXxxxx (the
"Executive").
RECITALS
WHEREAS, on November 20, 2007, the
Executive and the Company entered into an Employment Agreement (the "Employment
Agreement") (terms used herein and not defined herein shall have the meanings
ascribed to them in the Employment Agreement); and
WHEREAS,
in connection with the Employment Agreement, while the operational requirements
of Section 409A ("Section 409A") of the Internal Revenue Code of 1986, as
amended (the "Code"), have been strictly followed, pursuant to Treasury
Regulations and notices issued by the Department of the Treasury, the Company
and the Executive have until December 31, 2008, to cause the Employment
Agreement to conform to the documentary requirements of Section 409A and
Treasury Regulations issued thereunder for those benefits that constitute
deferred compensation subject to Section 409A; and
WHEREAS,
the Company and the Executive wish to conform the Employment Agreement to the
documentary requirements of Section 409A for those benefits that constitute
deferred compensation subject to Section 409A;
NOW THEREFORE, in consideration of the
mutual covenants and representations contained herein, and the mutual benefits
derived herefrom, the parties agree as follows:
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1.
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Amendment: A
new Section 3.3(e) is added to the Employment Agreement, to
wit:
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"3.3(e) Notwithstanding
anything else in this Agreement, any payments to be made or benefits granted
(including the lapse of restrictions on the restricted stock shares awarded
pursuant to Section 1.4) under this Agreement to the Executive upon his
termination of employment with the Company, and the timing of such payments or
grant of such benefits, shall be made or granted only at such time the Executive
shall have realized a "separation from service" (as such term is defined in
Treasury Regulations prescribed under Section 409A of the Code) with the Company
and all entities which would be included with the Company as the "service
recipient" under the definition of such term in such Treasury
Regulations."
2. Entire
Agreement. This Amendment Agreement constitutes the entire
understanding of the Executive and the Company with respect to the subject
matter hereof and supersedes any and all prior understandings on the subjects
contained herein, written or oral, and all amendments.
3. Modification. Except
as provided in the following two sentences, this Amendment Agreement shall not
be varied, altered, modified, canceled, changed, or in any way amended, nor any
provision hereof waived, except by mutual agreement of the parties in a written
instrument executed by the parties hereto or their legal
representatives.
4. Severability. In
the event that any provision or portion of this Amendment Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions of this Amendment Agreement shall be unaffected thereby and shall
remain in full force and effect.
5. Governing
Law. The provisions of this Amendment Agreement shall be
construed and enforced in accordance with the laws of the State of Texas,
without regard to any otherwise applicable principles of conflicts of
laws.
IN
WITNESS WHEREOF, the parties have executed and delivered this Amendment
Agreement on the date first above written.
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INTEGRATED
SERVICE COMPANY LLC
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By:
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/s/ Xxxxxx X.
Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxx
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Its:
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Authorized
Representative
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EXECUTIVE
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/s/ Xxxx XxXxxxx
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Xxxx
XxXxxxx
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