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:
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1.
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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.
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2.
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Definitions . For
the purposes of this Agreement, the following words shall have the
following meanings:
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(a)
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“
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).
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(b)
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“
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.
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(c)
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“ Base
Annual Salary ” shall mean only the amount specified in
Section 5(a) hereof.
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(d)
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“
Board of Directors ” shall mean the board of directors
of Tesco Corporation.
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(e)
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“ 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;
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EMPLOYMENT
AGREEMENT
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Page 1
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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.
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(f)
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“
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.
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(1)
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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);
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(2)
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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
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(3)
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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.
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(g)
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“
Code ” means the Internal Revenue Code of 1986, as
amended and the applicable notices, rulings and regulations
thereunder.
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(h)
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“
Common Shares ” means common shares of the Company, or
any successor security issued in lieu therefor.
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(i)
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“
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.
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(j)
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“
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.
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(k)
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“
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.
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EMPLOYMENT
AGREEMENT
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Page 2
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(l)
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“
Company ” or “ Employer ” means
Tesco Corporation.
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(m)
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“ 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).
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(n)
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“
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.
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(o)
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“
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.
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(p)
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“ 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):
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(i)
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a material
diminution in the Executive’s Base Annual Salary;
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(ii)
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a material
diminution in the Executive’s authority, duties, or
responsibilities;
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(iii)
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a material
change in geographic location at which the Executive must perform
the services; or
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(iv)
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any other
action or inaction that constitutes a material breach by the
Company of the terms of this Agreement.
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(q)
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“
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.
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(r)
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“
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.
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(s)
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“
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.
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(t)
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“
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.
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(u)
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“
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.
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3.
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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.
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4.
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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
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EMPLOYMENT
AGREEMENT
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Page 3
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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.
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5.
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Compensation and Benefits
. In return for the services to be provided by
Executive pursuant to this Agreement, Employer agrees to pay
Executive as follows:
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(a)
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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).
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(b)
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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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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EMPLOYMENT
AGREEMENT
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Page 4
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(g)
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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.
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(a)
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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.
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(b)
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Termination
for Cause . Employer may
terminate Executive’s employment by written notice
immediately for Cause.
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(c)
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Termination
without Cause . Employer
may terminate Executive’s employment without Cause and for
any reason upon written notice to Executive.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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7.
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Severance . Executive shall be entitled to the following
compensation upon termination of his employment under the following
circumstances:
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(a)
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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.
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EMPLOYMENT
AGREEMENT
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Page 5
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(b)
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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.
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(c)
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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.
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(d)
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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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EMPLOYMENT
AGREEMENT
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Page 6
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(e)
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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:
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(i)
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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;
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(ii)
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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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