AMENDMENT NO. 2 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT between SUPERIOR ENERGY SERVICES, INC. and TERENCE E. HALL Dated as of December 29, 2008
Exhibit 10.1
between
SUPERIOR ENERGY SERVICES, INC.
and
XXXXXXX X. XXXX
Dated as of December 29, 2008
This Amendment No. 2 to Amended and Restated Employment Agreement (this “Amendment”) is
entered into as of December 29, 2008, between Superior Energy Services, Inc., a Delaware
corporation (the “Company”), and Xxxxxxx X. Xxxx (the “Executive”).
WITNESSETH:
WHEREAS, the Company and the Executive entered into an Amended and Restated Employment
Agreement effective as of July 15, 1999, as amended effective November 12, 2004 (as amended, the
“Agreement”);
WHEREAS, the American Jobs Creation Act of 2004 imposed new requirements on deferred
compensation arrangements via new Internal Revenue Code Section 409A (“Section 409A”); and
WHEREAS, the Company and Executive desire to amend the Agreement to comply with Section 409A.
NOW, THEREFORE, the Agreement is amended as follows:
1. Section 2 of the Agreement is deleted in its entirety and restated as follows:
2. Term. The employment of Executive by the Company under this
Agreement shall continue, unless terminated in accordance with the terms of this
Agreement, in effect on a rolling three-year basis, such that at any time during the
term of this Agreement there will be three years remaining; provided, however, that
for a thirty (30) day period each year, commencing December 1, 2010, either
Executive or the Company may give written notice to the other that the automatic
extension of Executive’s employment under this Agreement shall cease, in which
event, the term of employment shall become fixed and terminate on December
31st of the third year following the year in which such notice is given.
2. The second sentence of Section 5(b) of the Agreement is amended to read as follows:
The Bonus shall be paid at such time as Bonuses are paid to Superior’s executives
generally, commencing with the fiscal year ending December 31, 1999.
3. Section 6(f) of the Agreement is amended by adding the following at the end:
Notwithstanding clauses (ii), (iii), and (iv) of the previous sentence, if a payment
is triggered by a termination of employment of Executive, the Date of Termination
shall be the date of Executive’s “separation from service” pursuant to Treasury
Regulation §1.409A-1(h).
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4. Section 7(f) of the Agreement is amended to delete the reference to “this Section 6(f)” and
replace it with “this Section 7(f)” and to add the following at the end:
Gross-up payments made pursuant to this Agreement shall be paid no later than the
end of the calendar year following the calendar year in which Executive remits the
related taxes, as required by Treasury Regulation §1.409A-3(i)(1)(v).
5. New Section 7(g) is added to the Agreement, to read as follows:
(g) Section 409A. Notwithstanding any provision of the Agreement to
the contrary, in order to comply with Section 409A of the Internal Revenue Code and
applicable Treasury Regulations and guidance thereunder (“Section 409A”), the
following provisions shall apply:
(i) If Executive is a “specified employee,” as such term is defined in
Section 409A and determined as described below in this Section 7(g)(i), any
payments payable as a result of Executive’s termination that represent
deferred compensation under Section 409A shall not be paid before the
earliest of: (1) the date that is six months after Employee’s Date of
Termination, (2) the date of Executive’s death, or (3) the date that
otherwise complies with the requirements of Section 409A. If this
Section 7(g) applies, all payments that otherwise would have been paid
within six months of Executive’s termination shall be accumulated and paid
at the earliest date that complies with the requirements of Section 409A.
Executive shall be a “specified employee” for the twelve month period
beginning on April 1st of a calendar year if Executive is a “key employee”
as defined in Section 416(i) of the Code (without regard to
Section 416(i)(5)) as of December 31 of the preceding year, or if Executive
is a specified employee as a result of final and binding action taken by the
Board or the Compensation Committee by December 31 of the preceding year, in
accordance with Treasury Regulation §1.409A-1(i).
(ii) If Section 7(g)(i) applies, then: (1) any taxable benefits
provided to Executive under Section 7(d)(ii) (with the exception of health
insurance benefits) during the six month period following Executive’s Date
of Termination shall be limited to the amount specified by Code
§402(g)(1)(B) for the year of the termination; (2) Executive shall pay
Superior for the costs of any benefits that exceed the amount specified in
the prior clause during the six month period following Executive’s Date of
Termination; and (3) Executive shall be reimbursed for such costs by
Superior during the seventh month after Executive’s Date of Termination.
Furthermore, in-kind benefits and reimbursements shall be provided in
accordance with Treasury Regulation §1.409A-3(i)(l)(iv).
(iii) Health insurance shall be provided via the Company’s payment of
the monthly cost of COBRA coverage elected by
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the Executive, or an equivalent amount for periods of coverage after
the applicable COBRA period, at such time as the COBRA premiums would be due
under such plan. Such premiums, including any premiums paid on Executive’s
behalf beyond the COBRA period, will be imputed to Executive as income, as
required by law.
(iv) If any provision of the Agreement is capable of being interpreted
in more than one manner, to the extent feasible, the provision shall be
interpreted in a manner that does not result in an excise tax under
Section 409A.
6. All capitalized terms used herein but not defined herein shall have the meanings ascribed
to them in the Agreement.
7. Except as specifically amended by this Amendment, the Agreement shall remain in full force
and effect.
8. Any reference to the Agreement shall be deemed to be a reference to the Agreement, as
amended hereby.
9. The validity of this Amendment, the construction of its terms and the determination of the
rights and duties of the parties hereto hereunder shall be governed by and construed in accordance
with the laws of the State of Louisiana.
10. This Amendment may be executed by the parties in counterparts, all of which shall be
deemed an original, but all of which taken together shall constitute one and the same instrument.
11. Except as expressly set forth herein, this Amendment shall not by implication or otherwise
alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Agreement, all of which are ratified and affirmed by the Company and
the Executive in all respects and shall continue in full force and effect.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.
| SUPERIOR ENERGY SERVICES, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxxxx | ||||||
| Title: President and Chief Operating Officer | ||||||
| /s/ Xxxxxxx X. Xxxx | ||||||
| XXXXXXX X. XXXX | ||||||
