Exhibit 10.1
EXECUTIVE
AGREEMENT
THIS EXECUTIVE
AGREEMENT (the "
Agreement
") is entered into as of
the 1st
day of June, 2008 by and
between ATWOOD OCEANICS,
INC ., a Texas
corporation (the " Company "), and ALAN QUINTERO (the " Executive ").
W I T N E S S E
T H :
WHEREAS, it is in the best interests of the Company and
its shareholders to assure that the Company will have the
continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as
defined in Section 2 below) of the Company; and
WHEREAS, it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change
of Control and to encourage the Executive's full attention and
dedication to the Company currently and in the event of any
threatened or pending Change of Control; and
WHEREAS, it is imperative to provide the Executive with
compensation and benefits arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of the
Executive will be satisfied and which are competitive with those of
other corporations.
NOW, THEREFORE, in order to accomplish these objectives, and in
consideration of the mutual covenants and agreements set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
1.
Certain
Definitions. The
following terms shall have the indicated meanings:
(a) The
" Change of Control
Date " shall mean the
first date during the Change of Control Period (as defined in
Section 1(b)) on which a Change of Control occurs. Notwithstanding
anything in this Agreement to the contrary, if a Change of Control
occurs and if the Executive's employment with the Company is
terminated prior to the date on which the Change of Control occurs,
and if it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third
party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with
or anticipation of the Change of Control, then for all purposes of
this Agreement the " Change
of Control Date " shall
mean the date immediately prior to the date of such termination of
employment.
(b) The
" Change of Control
Period " shall mean the
period commencing on the date hereof and ending on the third
anniversary of such date; provided that commencing on the date
hereof, the term of this Agreement shall be extended automatically
for one (1) additional day for each day that has then elapsed since
the date hereof, unless, at any time thereafter, the Board of
Directors of the Company, on behalf of the Company, gives written
notice to the Executive, in accordance with Section 13, below, that
such automatic extension of the term of this Agreement shall cease.
Any such notice shall be effective immediately upon delivery.
2.
Change of
Control. For the purposes of this Agreement, a
" Change of
Control " shall mean the
occurrence of any one or more of the following:
(a) The
acquisition or formal tender offer by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act
”)) (a “
Person ”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of either (i) the then outstanding shares of
common stock of the Company or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to
vote generally in the election of directors; provided, however,
that the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company; (ii) any
acquisition by the Company; (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company; or
(b) The
Company shall sell substantially all of its assets to another
corporation which is not a wholly owned subsidiary; or
(c) Individuals
who, as of the date hereof, constitute the Board (the
“ Incumbent
Board ”) cease for
any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Company’s shareholders, was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board.
For the purposes of this Agreement, ownership of voting securities
shall take into account and shall include ownership as determined
by applying the provisions of Rule 13d-3(d)(1)(i) promulgated under
the Exchange Act.
3.
Post-Change of Control
Employment Period. The Company hereby agrees to continue
the Executive in its employ, and the Executive hereby agrees to
remain in the employ of the Company, in accordance with the terms
and provisions of this Agreement, for the period commencing on the
Change of Control Date and ending on the expiration of one year and
six months thereafter (the " Post-Change of Control Employment
Period ").
4.
Terms of
Employment. The following terms shall govern the
Executive's employment during the Post-Change of Control Employment
Period:
(a)
Position and Duties
.
(i) During
the Post-Change of Control Employment Period, the Executive shall
be employed in a bona fide executive position with corresponding
authority, duties and responsibilities, and the Executive's
services shall be performed at the location where the Executive was
employed immediately preceding the Change of Control Date or any
office which is the headquarters of the Company and is within the
Greater Houston Statistical Metropolitan Area.
(ii) During
the Post-Change of Control Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of
the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Post-Change of
Control Employment Period, it shall not be a violation of this
Agreement for the Executive to serve on corporate, civic or
charitable boards or committees, deliver lectures, fulfill speaking
engagements, teach at educational institutions, and manage personal
investments, so long as such activities do not significantly
interfere with the performance of the Executive's responsibilities
as an employee of the Company in accordance with this Agreement. It
is expressly understood and agreed that to the extent that any such
activities have been conducted by the Executive prior to the Change
of Control Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto)
subsequent to the Change of Control Date shall not thereafter be
deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b)
Compensation
. During the Post-Change of
Control Employment Period, and prior to the termination of the
Executive's employment as described in Section 5 hereof, the
Executive shall be entitled to the following items of
compensation:
(i)
Base Salary
. During the Post-Change
of Control Employment Period, the Executive shall receive an annual
base salary (" Annual Base
Salary "), which shall be
paid in equal installments on a semi-monthly basis, at least equal
to twelve times the highest monthly base salary paid or payable to
the Executive by the Company and its affiliated companies in
respect of the twelve-month period immediately preceding the month
in which the Change of Control Date occurs. Any discretionary
increase in Annual Base Salary during the Post-Change of Control
Employment Period shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase, and the term
" Annual Base
Salary " as utilized in
this Agreement shall refer to Annual Base Salary as so increased.
As used in this Agreement, the term " affiliated companies " shall include any company controlled by,
controlling or under common control with the Company.
(ii) (
Annual Bonus
. In addition to Annual
Base Salary, the Executive shall be awarded, for each fiscal year
ending during the Post-Change of Control Employment Period, an
annual bonus (the " Annual
Bonus ") in cash at least
equal to the average annualized (for any fiscal year consisting of
less than twelve full months or with respect to which the Executive
has been employed by the Company for less than twelve full months)
bonus paid or payable, including by reason of any deferral, to the
Executive by the Company and its affiliated companies in respect of
the three fiscal years immediately preceding the fiscal year in
which the Effective Date occurs. Each such Annual Bonus shall be
paid no later than the end of the third month of the fiscal year
next following the fiscal year for which the Annual Bonus is
awarded, unless the Executive shall elect to defer the receipt of
such Annual Bonus.
(iii)
Incentive, Savings and Retirement
Plans . During
the Post-Change of Control Employment Period, the Executive shall
be entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated companies,
including without limitation, the Atwood Oceanics, Inc. 1996
Incentive Equity Plan, as amended and as may be further amended
from time to time (the " 1996 Incentive Equity Plan
"), the Atwood Oceanics, Inc. 2001
Stock Incentive Plan, as may be amended from time to time (the
" 2001 Stock Incentive
Plan "), the Atwood
Oceanics, Inc. 401(k) Savings Plan, as amended and as may be
further amended from time to time (the " 401(k) Plan "),and subject to Section 7 hereof, the Atwood
Oceanics, Inc. Retention Plan for Certain Salaried Employees, as
may be amended from time to time (the " Retention Plan "), but in no event shall such plans, practices,
policies and programs provide the Executive with incentive
opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and its affiliated companies for the Executive under such plans,
practices, policies and programs as in effect at any time during
the 90-day period immediately preceding the Change of Control Date
or, if more favorable to the Executive, those provided generally at
any time after the Change of Control Date to other peer executives
of the Company and its affiliated companies.
(iv)
Welfare Benefit Plans
. During the Post-Change
of Control Employment Period, the Executive and/or the Executive's
family, as the case may be, shall be eligible for participation in
and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical,
supplemental health, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable
generally to other peer executives of the Company and its
affiliated companies, but in no event shall such plans, practices,
policies and programs provide the Executive with benefits which are
less favorable, in the aggregate, than the most favorable of such
plans, practices, policies and programs in effect for the Executive
at any time during the 90-day period immediately preceding the
Change of Control Date or, if more favorable to the Executive,
those provided generally at any time after the Change of Control
Date to other peer executives of the Company and its affiliated
companies.
(v)
Executive Life Insurance
Plan . During
the Post-Change of Control Employment Period, the Company shall
continue to maintain the Atwood Oceanics, Inc. Executive Life
Insurance Plan, with its associated Salary Continuation Agreement,
as may be amended from time to time, or pay to the Executive a lump
sum representing the value of all benefits under such
plan.
(vi)
Indemnification
Arrangements . During the Post-Change of Control
Employment Period, those certain Indemnification Agreements entered
into between the Company and certain of its Executives shall remain
in full force and effect and the Executive shall remain entitled to
all of the benefits and protections afforded thereby.
(vii)
Expenses . During the Post-Change of Control
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable employment expenses
incurred by the Executive in accordance with the most favorable
policies, practices and procedures of the Company and its
affiliated companies in effect for the Executive at any time during
the 90-day period immediately preceding the Change of Control Date
or, if more favorable to the Executive, as in effect generally at
any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(viii)
Vacation . During the Post-Change of Control
Employment Period, the Executive shall be entitled to paid vacation
in accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in effect
for the Executive at any time during the 90-day period immediately
preceding the Change of Control Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated
companies.
5.
Termination of
Employment.
(a)
Death or Disability
. The Executive's
employment shall terminate automatically upon the Executive's death
during the Post-Change of Control Employment Period. If the Company
determines in good faith that the Disability of the Executive has
occurred during the Post-Change of Control Employment Period
(pursuant to the definition of Disability set forth below), it may
give to the Executive written notice in accordance with Section
13(b) hereof of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the
Company shall terminate effective on the 30th day after receipt of
such notice by the Executive (the " Disability Change of Control Date
"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of
this Agreement, " Disability " shall mean the absence of the Executive from
the Executive's duties with the Company o
