Exhibit 10.11
FIRST AMENDMENT
TO
CHANGE IN CONTROL AGREEMENT BETWEEN PATTERSON-UTI ENERGY, INC.
AND KENNETH N. BERNS
This First Amendment To
Change In Control Agreement (this “ First
Amendment ”) between Patterson-UTI Energy, Inc., a
Delaware corporation (the “Company”), and Kenneth N.
Berns (the “Employee”) is executed on November 1, 2007
(the “Execution Date”), but is effective as set forth
herein.
W I T N
E S S E
T H :
Whereas , the
Company and the Employee entered into that certain Change in
Control Agreement dated as of January 29, 2004 (the
“Original Agreement”); and
Whereas , the
Company and the Employee 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:
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1. |
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The reference to “Section 21” in the preamble
of the Original Agreement shall be deleted and a reference to
“Section 22” shall be substituted in its
stead. |
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2. |
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Effective as of the Execution Date, the prefecatory language of
Section 7(a)(iii)(3) of the Original Agreement is hereby amended to
read in its entirety as follows: |
(3) the Company shall pay to the
Employee, as a lump sum, an amount (the “Severance
Payment”) equal to two (2) times the sum of:
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3. |
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Paragraph b of Section 7 of the Original Agreement is
hereby amended to read in its entirety as follows: |
(b) Each payment required to be made
to the Employee pursuant to the foregoing provisions of Section
7(a) above shall be subject to the following rules:
(i) such payments shall be made by
check drawn on an account of the Company at a bank located in the
United States of America;
(ii) such payments shall be paid
(x) if the Employee’s employment by the Company was
terminated as a result of the Employee’s death or Disability
not more than thirty (30) days immediately following the date
of the occurrence of that event or (y) if the Employee’s
employment by the Company was terminated for any other reason, not
more than ten (10) days immediately following the Termination
Date; and
(iii) notwithstanding any provision
of this Agreement to the contrary, in accordance with
Section 409A of the Code, (x) any payments due with
respect to Employee’s (or his dependents’) COBRA
continuation
- 1 -
coverage
following the first 18 months of such coverage shall be paid
on or before the last day of each month thereafter and (y) if
the Employee is determined to be a “specified employee”
(as defined in Section 409A of the Code) for the year in which
such Termination Date occurs, any payments due under
Section 7(a) above that are not permitted to be paid on such
date without the imposition of additional taxes, interest and
penalties under Section 409A of the Code shall be paid on the
first business day following the six-month anniversary of the
Termination Date or, if earlier, Employee’s death;
provided, however , that to the extent such six
(6) month delay is imposed by Section 409A of the Code,
such payments shall be irrevocably contributed into a rabbi trust
established by the Company for the benefit of Employee with an
independent bank trustee as selected by the Employee not more than
ten (10) days immediately following the Termination Date and
distributed to Employee as soon as permissible under
Section 409A of the Code; and provided further , that
to the extent any payments are paid into a rabbi trust such amounts
shall be invested in a short-term oriented fund invested in U.S.
government securities and repurchase agreements for those
securities, as well as obligations of
