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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: TESCO CORP | Tesco Corporation You are currently viewing:
This Employment Agreement involves

TESCO CORP | Tesco Corporation

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Title: EMPLOYMENT AGREEMENT
Governing Law: Texas     Date: 8/7/2009
Industry: Oil Well Services and Equipment     Sector: Energy

EMPLOYMENT AGREEMENT, Parties: tesco corp , tesco corporation
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Exhibit 10.4

EMPLOYMENT AGREEMENT

This Employment Agreement (the “Agreement”) is made effective May 11, 2009 by and between Tesco Corporation, a corporation organized under the laws of the Province of Alberta, Canada (hereinafter referred to as “Employer” or the “Company”) and Fernando Assing (hereinafter referred to as “Executive”). Employer and Executive are collectively referred to herein as the “Parties,” and individually referred to as a “Party.”

RECITALS:

WHEREAS, Employer desires to employ Executive on a continuing basis;

WHEREAS, Executive desires to be employed by Employer pursuant to all of the terms and conditions hereinafter set forth; and

WHEREAS, Executive will have access to Employer’s Confidential Information as a result of his employment with Employer.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is AGREED as follows:

AGREEMENT:

 

1.

Purpose . The purpose of this Agreement is to formalize the terms and conditions of Executive’s employment with Employer. The recitals contained herein represent both Parties’ intentions with respect to the terms and conditions covered and cannot be amended during the term of the Agreement except by written addendum to the Agreement signed by both Parties.

 

2.

Definitions . For the purposes of this Agreement, the following words shall have the following meanings:

 

 

(a)

Affiliate ” shall mean any Person, or any other Person that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, another Person. The term “control” includes, without limitation, the possession, directly or indirectly, of the power to direct the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. With respect to any amount under this Agreement that is deferred compensation subject to Code Section 409A, for the purposes of Code Section 409A only, Affiliate shall mean all Persons with whom the Employer would be considered a single employer under Code Section 414(b) or 414(c) and for the purposes of a Separation of Service and determining the controlled group but using 50% instead of 80% pursuant to Treasury Regulation 1.409A-1(h)(3).

 

 

(b)

Annual Cash Compensation ” with respect to a Change of Control, means Executive’s Base Annual Salary received or receivable by Executive during the year in which the Change of Control occurs, plus the current maximum bonus which could be payable to Executive under the STIP for the calendar year in which the Change of Control occurs calculated on the basis of Executive having fully met all individual performance criteria (financial, personal or otherwise) and annualized for the purpose of this calculation; provided, however, that if the performance criteria for a STIP bonus has not been established for the year of the Change of Control, the STIP amount under this definition shall be calculated using the performance criteria from the immediately preceding calendar year.

 

 

(c)

Base Annual Salary ” shall mean only the amount specified in Section 5(a) hereof.

 

 

(d)

Board of Directors ” shall mean the board of directors of Tesco Corporation.

 

 

(e)

Cause ,” in connection with a termination by Employer, shall mean: (1) embezzlement or theft by Executive of any property of the Company or its Affiliates; (2) any breach by Executive of any material provision of this Agreement; (3) any act by Executive constituting a felony or otherwise involving theft, fraud, gross dishonesty, or moral turpitude; (4) negligence or willful misconduct on the part of Executive in the performance of his duties as an employee, officer, or director of the Company or its Affiliates; (5) Executive’s breach of his fiduciary obligations to the Company or its Affiliates;

 

EMPLOYMENT AGREEMENT

 

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(6) Executive’s material violation or breach of the policies or procedures of the Company and its Affiliates (including but not limited to blackout periods for trading Common Shares); or (7) any chemical dependence of Executive which adversely affects the performance of his duties and responsibilities to the Company or its Affiliates.

 

 

(f)

Change of Control ” means: a “Change in Control Event” within the meaning of Treasury Regulation 1.409A-3(i)(5) and described in items 1-3 below or any combination thereof as permitted in the Treasury Regulations with respect to the Company.

 

 

(1)

A change in ownership that occurs when one person or a group (as determined for the purposes of Code Section 409A) acquires stock that, combined with stock previously owned controls more than 50% of the value or voting power of the stock of the Company (incremental increases in ownership by a person or group that already owns fifty percent (50%) of the Company do not result in a change in ownership);

 

 

(2)

A change in effective control that occurs on the date that, during any 12-month period, either (x) any person or group acquires stock possessing more than 50% of the voting power of the Company, or (y) the majority of the board of directors of the Company is replaced by persons whose appointment or election is not endorsed by a majority of the board of directors of the Company prior to the date of the appointment or election; or

 

 

(3)

A change in ownership of a substantial portion of the assets that occurs on the date that a person or a group acquires, during any 12-month period, assets of the Company having a total gross fair market value equal to more than 50% of the total gross fair market value of all of the Company’s assets; provided, however, that there is no change in control event under this subsection when there is a transfer to: (w) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to its stock; (x) an entity, 50 percent or more of the total value or voting power of which is owned, directly or indirectly, by the Company immediately after the asset transfer; (y) a person, or more than one person acting as a group, that owns immediately after the asset transfer, directly or indirectly, 50 percent or more of the total value or voting power of all the outstanding stock of the Company; or (z) an entity, at least 50 percent of the total value or voting power of which is owned, directly or indirectly, by a person described in item (y) within the meaning of Code Section 409A . For the purposes of this paragraph (3) “gross fair market value” shall have the meaning as provided in Code Section 409A.

 

 

(g)

Code ” means the Internal Revenue Code of 1986, as amended and the applicable notices, rulings and regulations thereunder.

 

 

(h)

Common Shares ” means common shares of the Company, or any successor security issued in lieu therefor.

 

 

(i)

Confidential Information ” means information (1) disclosed to or known by Executive as a consequence of or through his employment with Employer; (2) not generally known outside Employer; and (3) which relates to any aspect of Employer, its Affiliates or their business, research, or development. “Confidential Information” includes, but is not limited to, Employer’s and its Affiliates trade secrets, proprietary information, business plans, marketing plans, financial information, compensation and benefit information, cost and pricing information, customer contacts, suppliers, vendors, and information provided to Employer or its Affiliates by a third party under restrictions against disclosure or use by Employer, its Affiliates or others.

 

 

(j)

Conflict of Interest ” means any activity which might adversely affect Employer or its Affiliates, including ownership of a material interest in any supplier, contractor, distributor, subcontractor, customer, or other entity with which Employer or its Affiliates does business.

 

 

(k)

Copyright Works ” are materials for which copyright protection may be obtained including, but not limited to: literary works (including all written material), computer programs, artistic and graphic works (including designs, graphs, drawings, blueprints, and other works), recordings, models, photographs, slides, motion pictures, and audio-visual works, regardless of the form or manner in which documented or recorded.

 

EMPLOYMENT AGREEMENT

 

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(l)

Company ” or “ Employer ” means Tesco Corporation.

 

 

(m)

Date of Termination ” shall mean the date of termination of Executive’s employment by Employer and shall mean a “Separation from Service” within the meaning of Code Section 409A, which means a termination of the Executive’s employment with the Company (and its controlled group within the meaning of Treasury Regulation 1.409A-1(h)(3)) in accordance with the Company’s policies and procedures; provided that the Company and Executive reasonably anticipate that no further services will be performed after the termination date or that the level of bona fide services Executive will perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Company if Executive has been providing services to the Company for less than 36 months).

 

 

(n)

Disability ” or “ Disabled ” means any physical or mental incapacity, disease or affliction, as determined by a legally qualified medical practitioner selected by the Company which prevents Executive to a substantial degree from performing his obligations after reasonable accommodation from Employer.

 

 

(o)

Equity-Based Awards ” include stock options, restricted stock, restricted stock units, performance vesting stock, performance stock units, and any other award granted by the Employer which derives its value based upon an equity security of the Employer, regardless whether such award is ultimately intended to be settled in stock or cash.

 

 

(p)

Good Reason ,” in connection with a termination by Executive means the occurrence of any of the following without Executive’s written consent (except in connection with the termination of the employment of Executive by the Employer for Cause or Disability):

 

 

(i)

a material diminution in the Executive’s Base Annual Salary;

 

 

(ii)

a material diminution in the Executive’s authority, duties, or responsibilities;

 

 

(iii)

a material change in geographic location at which the Executive must perform the services; or

 

 

(iv)

any other action or inaction that constitutes a material breach by the Company of the terms of this Agreement.

 

 

(q)

Inventions ” means inventions (whether patentable or not), discoveries, improvements, designs, and ideas (whether or not shown or described in writing or reduced to practice) including, and in addition to any such Confidential Information or Copyright Works.

 

 

(r)

LTIP ” or “ Long Term Incentive Plan ” means the plan designated by the Company as the Company’s Long-Term Incentive Plan pursuant to which Executive receives Equity Based Awards, as in effect and as amended from time to time.

 

 

(s)

Person ” for the purposes of the term Affiliate in Section 2(a) hereof shall mean any partnership, corporation, limited liability company, group, trust or other legal entity.

 

 

(t)

Retirement ” means a termination of Executive’s employment under circumstances as shall constitute retirement from the Company for age as determined by the Board of Directors or compensation committee thereof in its sole discretion in accordance with written policies as may be adopted by the Board of Directors or compensation committee thereof from time to time; in absence of the adoption of such policy, the Executive’s resignation after age 65 shall be deemed to be Retirement.

 

 

(u)

STIP ” or “ Short Term Incentive Plan ” means any Company’s annual short term cash bonus plan in which Executive participates, as in effect and as amended from time to time.

 

3.

Duration . The relationship of employment established by this Agreement shall become effective on May 11, 2009 (the “Effective Date”), and shall continue unless terminated as hereinafter provided.

 

4.

Duties and Responsibilities . Upon the Effective Date of employment under this Agreement, Executive shall diligently render his services to Employer as Senior Vice President, Marketing and Business Development in a manner customary for such offices or equivalent positions and in accordance with Employer’s directives, and shall use his best efforts and good faith in fulfilling such responsibilities and in accomplishing such

 

EMPLOYMENT AGREEMENT

 

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directives. Executive agrees to devote his full-time efforts, abilities, and attention to the business of Employer, and shall not engage in any activities which will interfere with such efforts. Executive shall well and faithfully serve Employer during the continuance of his employment hereunder and shall use his best efforts to promote the interests of Employer. Executive’s home office will be in Houston, Texas. Executive shall report to the Employer’s President and the Executive Officer or the Employer’s Chief Operating Officer as determined by the President and Chief Executive Officer or the Board of Directors in their sole discretion. Executive hereby acknowledges that he is fiduciary with respect to the Company and its Affiliates and shall act in accordance and otherwise comply with his fiduciary obligation to the Company and its Affiliates.

 

5.

Compensation and Benefits . In return for the services to be provided by Executive pursuant to this Agreement, Employer agrees to pay Executive as follows:

 

 

(a)

Base Annual Salary . Executive shall receive a Base Annual Salary annually of Two Hundred Forty thousand U.S. dollars and no cents ($240,000 U.S.) payable in bi-weekly pay periods, subject to deduction of statutorily required amounts, including but not limited to, withholding for federal, state and local income taxes, and amounts payable by employees of Employer for employee benefits. The annual salary to be paid by Employer to Executive shall be reviewed at least annually and may from time to time be increased (but may not be materially decreased) as approved by Employer (any such increase or immaterial decrease shall then be referred to as “Base Annual Salary” for the purposes of this Agreement).

 

 

(b)

Short Term Incentive Plan . Executive may be eligible to be receive an annual Short Term Incentive Plan bonus subject to the terms of the STIP as determined by the Board of Directors or compensation committee thereof in its sole discretion. The components, target and maximum amounts of any STIP bonus shall be a percentage of Executive’s Base Annual Salary as determined by the Board of Directors or compensation committee thereof in its sole discretion. Subject to the foregoing, a portion of the annual STIP bonus may be based upon Employer’s financial performance and a portion of the STIP may be based upon achievement of individual performance objectives, all as may be determined by the Board of Directors or compensation committee thereof in its sole discretion. STIP bonuses for each calendar year shall be payable in the following calendar year as determined by the Board or compensation committee thereof, provided that payment, if any, shall be no later than March 15 th of the following year. The Company’s adoption of a STIP bonus for a year does not require the Company to adopt a STIP bonus for any other year. If the Company adopts a STIP bonus for Company employees for a particular year, Executive shall be eligible to participate in such year subject to the foregoing.

 

 

(c)

Long Term Incentive Plan . As a member of executive management team, Executive may participate annually in Employer’s Long Term Incentive Plan as determined by and on such terms approved by the Company, the Board of Directors or the compensation committee thereof in its sole discretion. The LTIP may include stock options, restricted stock, stock performance units and/or other types of compensation. The Company’s adoption of a LTIP award for one year does not require the Company to adopt an award or the LTIP in any other year.

 

 

(d)

Legal Expenses . Employer shall pay Executive’s reasonable attorneys’ fees incurred in negotiating and finalizing this Agreement up to a maximum of $10,000. Upon reasonable documentation, as determined by the Company, such expenses shall be paid in a cash lump sum payment as soon as administratively feasible but no later than March 15 th of the year following the year the expenses are incurred.

 

 

(e)

Benefits . Executive shall be entitled to participate in Employer’s various employee benefit plans as same may be constituted from time to time, including without limitation Employer’s 401(k) Plan and Employee Stock Savings Plan, in the same manner as other senior management employees of Employer, subject to the terms and conditions of the plans, as same may be amended or terminated pursuant to their terms from time to time as determined by the Company in its sole discretion.

 

 

(f)

Expenses . Executive shall be reimbursed by Employer for all reasonable business expenses incurred by Executive in performance of his duties hereunder upon the submission of appropriate vouchers, bills or receipts for such expenses in accordance with the Employer’s policy, and upon Executive’s reasonable documentation of such expenses, the expenses shall be paid in a cash lump sum payment as soon as reasonably possible but no later than March 15 th in the year following the year in which the expenses are incurred.

 

EMPLOYMENT AGREEMENT

 

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(g)

Vacation . Executive will be provided four (4) weeks paid vacation in each calendar year, to be accrued at a prorata monthly rate. Vacation shall be subject to the Employer’s policy and vacation days must be taken in accordance with Employer’s policy, as may be amended from time to time.

 

6.

Termination .

 

 

(a)

Death, Disability or Retirement . Employer may terminate Executive’s employment if he is Disabled for six (6) consecutive months, or for a total of six (6) months during any twelve (12) month period. Executive’s employment will be automatically terminated upon his death or Retirement.

 

 

(b)

Termination for Cause . Employer may terminate Executive’s employment by written notice immediately for Cause.

 

 

(c)

Termination without Cause . Employer may terminate Executive’s employment without Cause and for any reason upon written notice to Executive.

 

 

(d)

Termination by Executive Without Good Reason . Executive may terminate his employment upon thirty (30) days’ written notice to Employer. In the event Executive terminates his employment in this manner, he shall remain in Employer’s employ subject to all terms and conditions of this Agreement for the entire thirty (30) day period unless instructed otherwise by Employer in writing.

 

 

(e)

Termination by Executive for Good Reason . Executive may terminate his employment for “Good Reason” by giving the Employer advance written notice of such intent and the grounds thereof within a period not to exceed thirty (30) days after the existence of the event constituting Good Reason. After Executive gives such notice, Employer shall have thirty (30) days to correct the Good Reason event, and if the Employer does not correct the Good Reason event within the prescribed time, the Executive must terminate his employment within sixty-one (61) days of the date of the event constituting Good Reason in order to be entitled to any benefits under Section 7(d) of this Agreement. In addition, once an event constitutes Good Reason, if Employer does not correct the event and if Executive does not give notice (as described above) and terminate his employment within sixty-one (61) days of the event, such specific instance of the event shall no longer constitute Good Reason under this Agreement.

 

 

(f)

Resignation of All Positions . Executive agrees that after any termination of his employment, he will tender his resignation from any position he may hold as an officer or director of the Company or any Affiliate or otherwise associated companies.

 

7.

Severance . Executive shall be entitled to the following compensation upon termination of his employment under the following circumstances:

 

 

(a)

Death, Disability or Retirement . In the event Executive’s employment is terminated as a result of his death, Disability or Retirement, Executive’s rights under any Equity-Based Awards or other compensation rights or awards shall be determined in accordance with the controlling plan documents and award agreements and his unpaid Base Annual Salary shall be paid through to the Date of Termination in accordance with the Company’s normal payroll practices. Any unpaid STIP bonus for a calendar year preceding the calendar year of Executive’s Date of Termination shall be paid when the STIP bonus for other participants is paid but in no event later than March 15 th following the end of the calendar year of the applicable STIP bonus. Executive’s award under any STIP to which he would otherwise be entitled in the calendar year of his Date of Termination shall be prorated for the period of his participation in the STIP during the relevant calendar year, and payable at the same time other participants in the STIP receive payment but in any event no later than March 15 th after the end of the calendar year of the Date of Termination. Executive shall not otherwise be entitled to receive any further compensation under this Agreement. Executive shall be reimbursed for all expenses incurred and in accordance with Section 5(f) ; Executive shall be paid all accrued unused vacation in accordance with the Company’s vacation policy, as amended from time to time and Executive shall be entitled to all benefits under Section 5(e) subject to the terms and conditions of the applicable plan documents and arrangements, as amended from time to time.

 

EMPLOYMENT AGREEMENT

 

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(b)

Termination for Cause or Resignation of Executive Without Good Reason . If Executive is terminated by the Company for Cause or if Executive resigns or otherwise terminates without Good Reason, no STIP bonus for the calendar year of his Date of Termination will be paid, all other benefits and rights, including Equity-Based Awards shall be determined under the then governing plans and award agreements, and his unpaid Base Annual Salary shall be paid through to the Date of Termination in accordance with the Company’s normal payroll practices. Any unpaid STIP bonus for a calendar year preceding the calendar year of Executive’s Date of Termination shall be paid in accordance with the terms of the applicable STIP and when the STIP bonus for other participants is paid but in no event later than March 15 th following the end of the calendar year of the applicable STIP bonus. Executive shall be reimbursed for all expenses incurred and in accordance with Section 5(f) ; Executive shall be paid all accrued unused vacation in accordance with the Company’s vacation policy, as amended from time to time and Executive shall be entitled to all benefits under Section 5(e) subject to the terms and conditions of the applicable plan documents and arrangements, as amended from time to time.

 

 

(c)

Without Cause . In the event Executive’s employment with Employer is terminated by the Company without Cause, the Company shall pay Executive an amount equal to one (1) times his Base Annual Salary in a lump sum cash payment as soon as administratively feasible but no later than March 15 th following the calendar year of the Date of Termination. Executive’s rights under any Equity-Based Awards or other compensation rights or awards shall be determined according to the controlling plan documents and award agreements and his unpaid Base Annual Salary shall be paid through to his Date of Termination in accordance with the Company’s normal payroll practices. Any unpaid STIP bonus for a year preceding the calendar year of Executive’s Date of Termination shall be paid when the STIP bonus for other participants is paid but in no event later than March 15 th following the calendar year of the applicable STIP bonus. The Company shall pay Executive the Executive’s award under any STIP for the calendar year of his Date of Termination (a) calculated on the basis of Executive having fully met all individual performance criteria (financial, personal or otherwise) for a target bonus (which will not include any multiplier that may be applicable to result in a maximum bonus), (b) paid on the basis of a deemed twelve (12) month calendar year participation in the plan, and (c) payable at the same time other participants in the plan receive payment but no later than March 15 th after the end of the calendar year of the Date of Termination. Executive shall be reimbursed for all expenses incurred and in accordance with Section 5(f) ; Executive shall be paid all accrued unused vacation in accordance with the Company’s vacation policy, as amended from time to time and Executive shall be entitled to all benefits under Section 5(e) subject to the terms and conditions of the applicable plan documents and arrangements, as amended from time to time.

 

 

(d)

Termination by Executive for Good Reason . In the event that Executive terminates his employment with Employer for Good Reason, the Company shall pay Executive an amount equal to one (1) times his Base Annual Salary in cash lump sum as soon as administratively feasible but no later than March 15 th following the calendar year of the Date of Termination. Executive’s rights under any Equity-Based Awards or other compensation rights or awards or benefits shall be determined according to the controlling plan documents and award agreements and his unpaid Base Annual Salary through to the Date of Termination in accordance with the Company’s normal payroll practices. Any unpaid STIP bonus for a year preceding the calendar year of Executive’s Date of Termination shall be paid when the STIP bonus for other participants is paid but in no event later than March 15 th following the calendar year of the applicable STIP bonus. The Company shall pay Executive the Executive’s award under any STIP for the calendar year of his Date of Termination (a) calculated on the basis of Executive having fully met all individual performance criteria (financial, personal or otherwise) for a target bonus (which will not include any multiplier that may be applicable to result in a maximum bonus), (b) paid on the basis of a deemed twelve (12) month calendar year participation in the plan, and (c) payable at the same time other participants in the plan receive payment but no later than March 15 th after the end of the calendar year of the Date of Termination. Executive shall be reimbursed for all expenses incurred and in accordance with Section 5(f) ; Executive shall be paid all accrued unused vacation in accordance with the Company’s vacation policy, as amended from time to time and Executive shall be entitled to all benefits under Section 5(e) subject to the terms and conditions of the applicable plan documents and arrangements, as amended from time to time.

 

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(e)

Change of Control . Notwithstanding the foregoing provisions (a) – (d) of this Section 7 and in lieu thereof, in the event of a Change of Control and within 12 months following the Change of Control (1) Executive’s employment is terminated by Employer other than for Cause, Disability or death, or (2) Executive’s employment is terminated by Executive for Good Reason, then:

 

 

(i)

The Company shall pay Executive as soon as administratively feasible after the Date of Termination but no later than March 15 th following the calendar year of the Date of Termination, a lump sum amount equal to two (2) times Executive’s Annual Cash Compensation;

 

 

(ii)

Executive’s rights under any Equity-Based Awards or other compensation rights, benefits or awards shall be as provided in the governing plan and/or award agreements an


 
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