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EXHIBIT 10.18
FORM OF AMENDMENT
TO
EXECUTIVE SEVERANCE AGREEMENT
AND TO
STOCK PLAN AGREEMENTS
THIS AMENDMENT TO EXECUTIVE SEVERANCE AGREEMENT AND TO STOCK PLAN
AGREEMENTS, made and entered into effective as of March 9, 1995 (the
"Agreement"), is by and between BJ SERVICES COMPANY, a Delaware corporation
(the "Company"), and (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and the Employee have previously entered into an
Executive Severance Agreement dated effective as of
(the "Severance Agreement"); and
WHEREAS, the Employee has outstanding certain stock options and
Performance Unit awards granted under the Company's 1990 Stock Incentive Plan
(the "Stock Plan"); and
WHEREAS, the Company and the Employee desire to amend the Severance
Agreement and the Employee's outstanding agreements under the Stock Plan
("Stock Plan Agreements") to reflect the parties' mutual agreements as to the
consequences of the consummation of the acquisition of The Western Company of
North America by the Company pursuant to the Agreement and Plan of Merger dated
as of November 17, 1994, as amended (the "Western Acquisition") with respect to
the same;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Company and the Employee
hereby agree that the Severance Agreement and Stock Plan Agreements are amended
as follows:
X. Xxxxxxxxx Agreement
1. Paragraphs (A), (C) and (D) of Section 2(iii) are
amended to read as follows:
"(A) The Employee is assigned any duties materially
inconsistent with the Employee's positions, duties, responsibilities
and status with the Company immediately prior to a Change in Control,
or the Employee's reporting responsibilities, titles or offices are
materially changed from those in effect immediately prior to such
Change in Control, or the Employee is removed from or is not
re-elected or appointed to any of such material responsibilities,
titles, offices or positions, except in each case other than (i) in
connection with the termination of the Employee's employment for Cause
or Disability, (ii) as a result of the Employee's death, (iii) by the
Employee for other than Good Reason, (iv) an isolated, insubstantial
and inadvertent action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Employee, or (v) any change, made following the Western Acquisition
and prior to any other Change in Control of the
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Company, that involves a reallocation or reassignment of the
Employee's responsibility with no material reduction in the overall
degree of the Employee's responsibility and no reduction in the
Employee's compensation or level of title (e.g., Vice President); or
* * * *
(C) the Company fails to continue the Company's
annual cash bonus plan for executives as the same may be modified from
time to time, but substantially in the form in effect prior to the
date of the Change in Control (the "Bonus Plan"), or fails to continue
the Employee as a participant in the Bonus Plan, or reduces the
Employee's "Expected Value" guideline percentage under the Bonus Plan
from that in effect immediately prior to a Change in Control or as
increased thereafter with respect to the Employee (the product of such
Expected Value percentage, as so increased, if applicable, but prior
to such reduction, and the Employee's Base Salary is referred to
hereinafter as the "Bonus Amount"), but excluding a modification or
termination of the Bonus Plan or a general change in the Expected
Value guidelines thereunder for a class or classes of participants
that (i) is made following the Western Acquisition and prior to any
other Change in Control of the Company, (ii) affects participants in
such plan in general and (iii) when combined with other Company plans,
does not result in any reduction in the overall possible incentive
compensation to the Employee; or
(D) the Company fails to continue in effect any
material benefit or compensation plan, including, but not limited to,
the Company's 1990 Stock Incentive Plan, 1995 Incentive Plan (after
its approval by the stockholders) (the "1995 Plan"), qualified
retirement plan, executive life insurance plan, and/or health and
accident plan, in which the Employee is participating immediately
prior to a Change in Control, or plans providing the Employee with
substantially similar benefits, or the Company takes any action that
would materially adversely affect the Employee's participation in or
reduce the Employee's benefits under any of such plans, excluding any
such action by the Company that (i) is required by law or (ii) is made
following the Western Acquisition and prior to any other Change in
Control of the Company, and affects participants in such plan in
general; or"
2. Subparagraph (D) of Section 3(iii) is amended as
follows:
"(D) if the Date of Termination occurs on or
following the Western Acquisition and prior to the date of any other
Change in Control, (1) an amount, with respect to all outstanding
unvested and unexercisable awards that have been granted the Employee
after January 1, 1995, under the Company's 1990 Stock Inventive Plan,
the 1995 Plan (excluding the stock options granted to the Employee on
February 15, 1995, under the 1995 Plan), or any successor or similar
stock compensation plan, equal to the sum of (a) the value of all such
unvested or unearned shares of Performance Stock, Performance Units
and any other performance awards thereunder, determined as if all
restrictions had lapsed and all performance goals had been achieved to
the fullest extent, and (b) the excess of the closing
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price of the common shares of the Company stock on the Date of
Termination as reported on the national exchange on which the trading
volume for such stock is highest over the exercise price of each such
unexercisable option and appreciation right; and (2) if the Date of
Termination occurs on or after the date of any Change in Control that
occurs before or after the Western Acquisition, an amount, with
respect to all outstanding unvested and unexercisable awards that have
been granted Employee after such Change in Control under the Company's
1990 Stock Incentive Plan, the 1995 Plan or any successor or similar
stock compensation plan, equal to the sum of (a) the value of all such
unvested (or unearned) shares of Performance Stock, Performance Units
and any other performance awards thereunder (determined as if all
restrictions had lapsed and all performance goals had been achieved
to the fullest extent) and (b) the excess of the closing price of the
common shares of the Company stock on the Date of Termination as
reported on the national exchange on which the trading volume for such
stock is highest over the exercise price of each such unexercisable
option and appreciation right; and"
3. Subparagraph (E) of Section 3(iii) is amended by
adding thereto a new sentence to read as follows:
"Notwithstanding anything in this subparagraph (E) to
the contrary, the continued welfare plan coverages provided hereunder,
including any COBRA coverage, shall be provided to the Employee (and
the Employee's dependents) by the Company without any cost (whether a
premium or otherwise)."
4. Section 8 is amended by adding thereto the following:
"Notwithstanding anything in this Agreement to the
contrary, the consummation of the acquisition of The Western Company
of North America by the Company pursuant to the Agreement and Plan of
Merger dated as of November 17, 1994, as amended, shall constitute a
Change in Control of the Company for all purposes under this
Agreement."
B. Stock Plan Agreements
Notwithstanding anything to the contrary in the Stock Plan or in any
Award Agreement of the Employee thereunder, the Western Acquisition shall not
constitute a Change in Control of the Company and effective with the Western
Acquisition:
(1) of the Employee's Performance
Units that are outstanding on the date of the Western
Acquisition shall be vested on that date and paid in shares as
soon as reasonably practicable thereafter and the remainder of
all such Performance Units of the Employee that are not vested
on the date of the Western Acquisition shall be immediately
canceled unpaid on that date; and
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(2) the tandem contingent income tax cash bonus granted to
Employee under the Company's Tax Reimbursement Plan with
respect to the above-vested Performance Units (the "Tax
Bonus") shall be paid at the time that withholding is required
with respect to the payment of the above- vested Performance
Units, to the extent payment is necessary to satisfy the
withholding obligation thereon and on the portion of the Tax
Bonus then paid, and the remainder of the Tax Bonus shall be
paid at such time or times as the Company determines to be
appropriate, but not later than the April 15th following the
calendar year in which the above-vested Performance Units
become taxable to the Employee; and
(3) all unexercisable stock options granted to the Employee
pursuant to the Stock Plan that are outstanding on the date of
the Western Acquisition shall continue to remain outstanding
thereafter in accordance with their terms unaffected by the
Western Acquisition; provided, however, in the event the
Employee's employment with the Company and its affiliates (or
any successor) is terminated for any reason, other than for
Cause, within twenty-four (24) months following the date of
the Western Acquisition, all stock options of the Employee
that were granted prior to January 1, 1995, under the Stock
Plan and which remain outstanding on the date of such
termination of employment shall be fully exercisable as of the
date of the employee's termination (to the extent not already
fully exercisable) and shall remain fully exercisable for the
one-year period following the date of the Employee's
termination, unless any other provision of the Stock Plan
provides a longer period for the exercise of such options (but
in no event later than the Nonqualified Option Expiration Date
or the Incentive Stock Option Expiration Date, as such terms
are defined in the Stock Plan, whichever is applicable).
IN WITNESS WHEREOF, the Company and the Employee have entered into
this Amendment, effective for all purposes as of the day and year first above
written.
BJ SERVICES COMPANY
By:
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EMPLOYEE
By:
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