EXHIBIT 10.5
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This Amendment, dated as of June 24, 2002, by and among Xxxxxx
Industries, Inc. ("Xxxxxx Delaware"), Xxxxxx Industries Ltd. ("Nabors Bermuda")
and Xxxxxxx X. Xxxxxxxx (the "Employee" and, collectively with Xxxxxx Delaware
and Nabors Bermuda, the "Parties").
WHEREAS, Xxxxxx Delaware and the Employee have entered into an
Employment Agreement effective as of October 1, 1996 (the "Employment
Agreement");
WHEREAS, Nabors Delaware, Nabors Bermuda, Nabors US Holding Inc. and
Nabors Acquisition Corp. VII have entered into an Agreement and Plan of Merger
dated as of January 2, 2002 (the "Merger Agreement"), pursuant to which Nabors
Delaware will become an indirect wholly-owned subsidiary of Nabors Bermuda (the
"Inversion");
WHEREAS, the Employment Agreement makes certain provisions in respect
of a "Change in Control" of Nabors Delaware (as defined in the Employment
Agreement);
WHEREAS, because of the risk that the definition of "Change in Control"
in the Employment Agreement could be read to include the Inversion;
WHEREAS, pursuant to Section 17(d) of the Employment Agreement, Nabors
Delaware and the Employee may amend or waive any provision of the Employment
Agreement by writing signed by the Employee and Nabors Delaware;
WHEREAS, the Parties wish to provide that the Inversion shall not be
treated as a "Change in Control" within the meaning of the Employment Agreement;
and
WHEREAS, the Parties wish to provide that, effective as of the
consummation of the Inversion, Nabors Delaware shall continue to employ the
Employee on the terms and subject to the conditions of the Employment Agreement,
as amended in accordance herewith, and to provide that Nabors Bermuda shall
become a party to the Employment Agreement for the purpose of facilitating and
further ensuring the performance of the obligations of Nabors Delaware under the
Employment Agreement as amended in accordance herewith.
NOW, THEREFORE, in consideration of the foregoing, subject to the
consummation of the Inversion, the Employment Agreement is amended by adding a
new Section 18 immediately following Section 17 thereof to read in its entirety
as follows, effective as of the consummation of the Inversion:
"18. Reincorporation in Bermuda.
(a) Background. On January 2, 2002, Xxxxxx Industries, Inc.
(for purposes of this Section 34, "Xxxxxx Delaware"), Xxxxxx Industries
Ltd. ("Nabors Bermuda"), Nabors US Holding Inc. and Nabors Acquisition
Corp. VII entered into an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which Nabors Delaware will become an indirect
wholly-owned subsidiary of Nabors Bermuda (the "Inversion"). The
purpose of
this Section 18 is to provide special rules that shall apply under this
Agreement upon and after the consummation of the Inversion. No
provision in this Section 18 shall become effective unless and until
the Inversion is consummated.
(b) Change in Control. Neither the Inversion nor any of the
other transactions contemplated by the Merger Agreement shall be
treated as a Change in Control (as defined in Section 11(a)(i)) for
purposes of this Agreement. Upon and after the Inversion, whether a
Change in Control has occurred will be determined by reference to
Nabors Bermuda and not Nabors Delaware.
(c) References to the Nabors Delaware. Except as otherwise
provided below in this subsection (c) or as manifestly required under
the terms of the Agreement in light of the nature and purposes of the
Inversion, upon and after the Inversion, references in the Agreement to
the "Corporation" or the "Company" shall continue to refer to Nabors
Delaware (and its successors and assigns permitted under the
Agreement):
(i) References to a "Party" or the "Parties" shall
mean each of the Executive, Nabors Bermuda and Nabors
Delaware, and references to "both Parties" or "either Party"
and the like shall be deemed a reference to any of the
Executive, Nabors Bermuda and Nabors Delaware.
(ii) The term "Board" as defined in Section 2 shall
continue to mean the Board of Directors of Nabors Delaware,
except that the term shall mean the Board of Directors of
Nabors Bermuda for purposes of determining whether there has
been a "Change in Control" as defined in Section 11(a)(i) and
for such other purposes described in this subsection (c).
(iii) For purposes of the penultimate paragraph of
Section 2, "Board" shall be deemed to refer to the Board of
Directors of both Nabors Bermuda and Nabors Delaware, and for
purposes of the final two paragraphs of Section 2,
"Corporation" shall be deemed to refer to both Nabors Delaware
and Nabors Bermuda.
(iv) The reference in Section 3(a) to the "Board of
Directors or its Compensation Committee" shall be a reference
to the Board of Directors or the Compensation Committee of the
Board of Directors of Nabors Bermuda, and the reference in
Section 3(b) to the "Compensation Committee" shall be a
reference to the Compensation Committee of the Board of
Directors of Nabors Bermuda.
(v) The reference in Section 4(a)(v)(C) to the
"Board" shall be a reference to the Board of Directors of both
Nabors Bermuda and Nabors Delaware, and the reference in
Section 4(a)(v)(D) shall be a reference to each of Nabors
Delaware, Nabors Bermuda and their subsidiaries.
(vi) The references to the Corporation in Section 10
shall be references to both Nabors Delaware and Nabors
Bermuda.
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(vii) The term "Corporation" shall mean Nabors
Bermuda for purposes of determining whether a Change in
Control has occurred as defined in Section 11(a)(i), except
that the term "Corporation" as used in Section 11(a)(i)(A)
shall refer to each of Nabors Delaware, Nabors Bermuda and
their subsidiaries.
(viii) For purposes of Sections 11 through 16, the
Employee shall be deemed to act in a Corporate Status when
acting as a director, officer or fiduciary of Nabors Bermuda,
and the term "Enterprise" shall be deemed to include Nabors
Bermuda.
(ix) The provisions of Section 11(d) shall apply to
any Proceeding brought by or in the right of either Nabors
Delaware or Nabors Bermuda.
(d) Miscellaneous.
(i) This Agreement, including this Section 18, shall
be binding upon and inure to the benefit of the successors and
assigns of Nabors Bermuda. No rights or obligations of Nabors
Bermuda under this Agreement may be assigned or transferred
except that such rights or obligations may be assigned or
transferred pursuant to a merger or consolidation in which
Nabors Bermuda is not the continuing entity, or the sale or
liquidation of all or substantially all of the assets of
Nabors Bermuda, provided that the assignee or transferee is
the successor to all or substantially all of the assets of
Nabors Bermuda and such assignee or transferee assumes the
liabilities, obligations and duties of Nabors Bermuda, as
contained in this Agreement, by written contract. Nabors
Bermuda further agrees that, in the event of a sale of assets
or liquidation as described in the preceding sentence, it
shall take whatever action it legally can in order to cause
such assignee or transferee to expressly assume the
liabilities, obligations and duties of Nabors Bermuda
hereunder.
(ii) Notwithstanding the provisions of Section 17(d),
no provision in this Agreement may be amended unless such
amendment is agreed to in writing and signed by the Employee
and an authorized officer of each of Nabors Delaware and
Nabors Bermuda. Any waiver of any provision of this Agreement
must be in writing and signed by the Employee, an authorized
officer of Nabors Delaware, and an authorized officer of
Nabors Bermuda, as the case may be.
(iii) Nabors Bermuda agrees to take, and agrees to
cause Nabors Delaware to take, any and all actions required of
either Nabors Bermuda or Nabors Delaware to carry out the
provisions of this Agreement, including this Section 18."
The Parties further agree that this Amendment may be executed in several
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President & Chief Operating Officer
XXXXXX INDUSTRIES LTD.
By: /s/ Xxxxxx XxXxxxxxx
-----------------------------------
Xxxxxx XxXxxxxxx
Vice President
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
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