Exhibit 10.1
SECOND AMENDED AND RESTATED
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT (“Agreement”) is entered into as of the __ day of February, 2016 (the “Effective Date”), between Offshore Group Investment Limited (“Company”), and Linda J. Ibrahim (“Employee” or “Executive”).
RECITALS:
WHEREAS, Vantage Drilling Company and Executive entered into an Employment Agreement dated as of February 1, 2015 (as amended and/or restated, the “Previous Agreement”), providing for Executive’s employment by the Company and setting forth the terms and conditions for such employment; and
WHEREAS, the Company and Executive agree that the Previous Agreement should be amended to replace Vantage Drilling Company as a party to the agreement with the Company and to make such other changes as the Company and Executive agree are necessary and in the Parties’ mutual best interests; and
WHEREAS, the Company and Executive desire to amend and restate the Previous Agreement to reflect the amendments reflected in this Agreement; and
WHEREAS, Executive is employed as an integral part of the Company’s management and participates in the decision-making process relative to short and long-term planning and policy for the Company; and
WHEREAS, the Company desires to obtain assurances from Executive that she will devote her best efforts to the Company and will not enter into competition with the Company, solicit its customers, or solicit employees of the Company after termination of her employment; and
WHEREAS, Executive serves as a key employee with special and unique talents and skills of peculiar benefit and importance to the Company; and
WHEREAS, Executive is desirous of committing herself to serve on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and agreements set forth below, the Parties agree to this Agreement as follows:
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unfavorably upon the Company or any of its subsidiaries, in each case other than a minor vehicular offense; or
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assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
Notwithstanding the foregoing provisions of this definition of Change of Control, for purposes of this Agreement other than the vesting of Stock Awards under Sections 2.9 and 3.4.2, a Change of Control shall not be deemed to occur unless such event or events would also be a “change in the ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation” under Treasury Regulation Section 1.409A-3(i)(5).
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replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company.
Notwithstanding any other provision of this Agreement, Executive's employment under this Agreement may be terminated during the Employment Period by Executive for Good Reason, if
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one of the forgoing events shall occur without the written consent of Executive. Any such termination pursuant to this Section shall be made by Executive providing written notice to the Company specifying the event relied upon for such termination and given within sixty (60) days after such event. Any termination pursuant to this Section shall be effective thirty (30) days after the date Executive has given the Company such written notice setting forth the grounds for such termination with specificity. However, Good Reason shall exist with respect to an above specified matter only if such matter is not corrected by the Company within thirty (30) days of its receipt of such written notice of such matter from Executive, and in no event shall a termination by Executive more than ninety (90) days following the date of the event described above be a termination for Good Reason due to such event.
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If Executive’s employment is terminated either by the Company without Cause, but not because of Executive’s Disability or death, or by Executive for Good Reason, if Executive executes and delivers to the Company a Release Agreement in accordance with Section 3.9.4, Executive shall receive the payments and benefits described in this Section 3.4 unless Executive is entitled to benefits under Section 3.8 below.
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reimbursed in accordance with the Company’s reimbursement policy, the timely payment or provision of Other Benefits through the date of death, one (1) year’s Base Salary, and such cash bonus or Stock Award, other than the Initial Award, as Executive would otherwise have been awarded in that calendar year if Executive’s death had not occurred. Such Base Salary shall be paid to Executive’s estate or beneficiary, as applicable, in a lump sum in cash within ninety (90) days after the date of death. Such cash bonus, if any, shall be paid to Executive’s estate or beneficiary, as applicable, at such time that such cash bonus would have been paid if Executive had remained employed. Such Stock Award, if any, shall be granted to Executive’s estate or beneficiary, as applicable, as of Executive’s date of death. With respect to the provision of Other Benefits, the term Other Benefits as used in this Section shall include, without limitation, and Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Company to the estates and beneficiaries of other executive level employees of the Company under such plans, programs, practices, and policies relating to death benefits, if any, as in effect with respect to other executives and their beneficiaries at any time during the one hundred twenty (120) day period immediately preceding the date of death. Additionally, all Stock Awards, other than the Initial Award (which shall be governed by the applicable award agreement), shall be vested immediately and shall be exercisable for the lesser of one year after the date of such vesting or the remaining term of such option.
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compensation, unreimbursed expenses and the Other Benefits through the Termination Date. Such amounts shall be paid to Executive in a lump sum in cash within thirty (30) days after the Termination Date. In addition, all unvested stock options shall terminate and all vested options will terminate one hundred twenty (120) days after the Termination Date or, if sooner, upon the expiration of the remaining term of such option.
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it to become exercisable or nonforfeitable. This Section 3.8.1(ii) shall not apply to the Initial Award, which shall be governed by the terms of the applicable award agreement.
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Section 3.5) shall be communicated by written Notice of Termination to the other party. For purposes of this Agreement, a “Notice of Termination” shall mean a notice indicating the specific termination provision in this Agreement relied upon and setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under that provision.
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Company to execute the Release Agreement (as provided in the preceding sentence), no Termination Benefits shall be payable or provided by the Company unless and until the Release Agreement has been executed by Executive, has not been revoked, and is no longer subject to revocation by Executive. The Termination Benefits shall be paid or provided by the Company at the end of such 60-day period, but only if the Release Agreement has been properly executed by Executive and is not revocable, and has not been revoked, at that time, regardless of the date on which the Release Agreement was actually executed by Executive. If the conditions set forth in the preceding sentence are not satisfied by Executive, the Termination Benefits hereunder shall be forfeited.
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Executive agrees that upon termination of employment, for any reason, at the request of the Chairman of the Board, she will immediately tender her resignation from any and all Board and other positions held with the Company and/or any of its subsidiaries and affiliates. If
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Executive remains as a director, at the election of the Board, after such termination, Executive shall be compensated as an outside director.
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the last twelve (12) months of Executive’s employ, engage in or contribute Executive’s knowledge to any work which is competitive with or similar to a product, process, apparatus, services, or development on which Executive worked or with respect to which Executive had access to while employed by the Company.
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Agreement not to use or to disclose Confidential Information of the Company so long as it shall not be publicly available. Executive's obligations under this Section with respect to any specific Confidential Information and proprietary information shall cease when that specific portion of the Confidential Information and proprietary information becomes publicly known, in its entirety and without combining portions of such information obtained separately. It is understood that such Confidential Information and proprietary information of the Company include matters that Executive conceives or develops, as well as matters Executive learns from other employees of Company. Confidential Information is defined to include information: (1) disclosed to or known by Executive as a consequence of or through her employment with the Company; (2) not generally known outside the Company; and (3) which relates to any aspect of the Company or its business, finances, operation plans, budgets, research, or strategic development. “Confidential Information” includes, but is not limited to the Company’s trade secrets, proprietary information, financial documents, long range plans, customer lists, employer compensation, marketing strategy, data bases, costing data, computer software developed by the Company, investments made by the Company, and any information provided to the Company by a third party under restrictions against disclosure or use by the Company or others.
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and/or removed from the premises of the Company, except in pursuit of the business of the Company, and shall be delivered to the Company, without Executive retaining any copies, upon notification of the termination of Executive’s employment or at any other time requested by the Company. The Company shall have the right to retain, access, and inspect all property of Executive of any kind in the office, work area, and on the premises of the Company upon termination of Executive’s employment and at any time during employment by the Company upon termination of Executive’s employment and at any time during employment by the Company to ensure compliance with the terms of this Agreement.
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way affect the right of the Company to the relief provided above in the courts of any other jurisdiction within the geographical scope of such Restrictive Covenants, as to breaches of such Restrictive Covenants in such other respective jurisdictions, such Restrictive Covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.
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If any contest or dispute shall arise between the Company and Executive regarding any provision of this Agreement, the Company shall reimburse Executive for all legal fees and expenses reasonably incurred by Executive in connection with such contest or dispute, but only if Executive prevails to a substantial extent with respect to Executive’s claims brought and pursued in connection with such contest or dispute. Such reimbursement shall be made as soon as practicable following the resolution of such contest or dispute (whether or not appealed) to the extent the Company receives reasonable written evidence of such fees and expenses. The Company shall advance Executive reasonable attorney’s fees during any arbitration proceedings if brought by Executive, up to but not to exceed Three Hundred Thousand Dollars ($300,000).
Executive agrees that any breach of restrictive covenants above cannot be remedied solely by money damages, and that in addition to any other remedies the Company may have, the Company is entitled to obtain injunctive relief against Executive. Nothing herein, however, shall be construed as limiting the Company’s right to pursue any other available remedy at law or in equity, including recovery of damages and termination of this Agreement and/or any payments that may be due pursuant to this Agreement.
Executive represents and covenants to Company that she has full power and authority to enter into this Agreement and that the execution of this Agreement will not breach or constitute a default of any other agreement or contract to which she is a party or by which she is bound.
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Separation from Service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s termination benefits shall not be provided to Executive prior to the earlier of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service or (ii) the date of Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this Section 10 (including interest on any such payments, at the prime interest rate, as published in The Wall Street Journal, over the period such payments are deferred) shall be paid in a lump sum to Executive (or Executive’s estate).
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The agreements contained in the restrictive covenant provisions of Section 5 this Agreement are independent of the other agreements contained herein. Accordingly, failure of the Company to comply with any of its obligations outside of such Sections do not excuse Executive from complying with the agreements contained herein.
The agreements contained in Section 5 shall survive the termination of this Agreement for any reason.
This Agreement cannot be assigned by Executive. The Company may assign this Agreement only to a successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and assets of the Company provided such successor expressly agrees in writing reasonably satisfactory to Executive to assume and perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession and assignment had taken place. Failure of the Company to obtain such written agreement prior to the effectiveness of any such succession shall be a material breach of this Agreement.
Executive understands that her obligations under this Agreement are binding upon Executive’s heirs, successors, personal representatives, and legal representatives.
All notices pursuant to this Agreement shall be in writing and sent certified mail, return receipt requested, addressed as set forth below, or by delivering the same in person to such party, or by transmission by facsimile to the number set forth below. Notice deposited in the United States Mail, mailed in the manner described hereinabove, shall be effective upon deposit. Notice given in any other manner shall be effective only if and when received:
If to Executive:
Linda J. Ibrahim
12906 Waters Edge Place
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Houston, TX 77041
If to Company:
Offshore Group Investment Limited
c/o Vantage Energy Services, Inc.
777 Post Oak Blvd., Suite 800
Houston, TX 77056
Executive, on behalf of himself and his heirs, executors, administrators, successors and assigns, irrevocably and unconditionally releases, waives and forever discharges Vantage Drilling Company and its present and former agents, employees, managers, officers, directors, attorneys, stockholders, plan fiduciaries, assigns, representatives, executives and all other persons or entities acting by, through or in concert with any of them (the “Released Parties”) from all claims, demands, actions, causes of action, charges, complaints, liabilities, obligations, promises, sums of money, agreements, representations, controversies, disputes, damages, suits, right, sanctions, costs (including attorneys’ fees), losses, debts and expenses of any nature whatsoever, whether known or unknown, fixed or contingent, which Executive has, had or may ever have against the Released Parties arising out of, concerning or related to his employment with Vantage Drilling Company and its affiliates, from the beginning of time and up to and including the date Executive executes this Agreement. This includes, without limitation, (i) law or equity claims; (ii) contract (express or implied) or tort claims; (iii) claims arising under any federal, state or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation or any other form of discrimination, harassment, hostile work environment or retaliation (including, without limitation, the Older Workers Benefit Protection Act, the Americans with Disabilities Act of 1990, the Americans with Disabilities Act Amendments of 2008, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights Acts of 1866 and/or 1871, 42 U.S.C. Section 1981, the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act, the Employee Polygraph Protection Act, the Worker Adjustment and Retraining Notification Act, the Equal Pay Act of 1963, the Lilly Ledbetter Fair Pay Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, Section 1558 of the Patient Protection and Affordable Care Act of 2010, the Consolidated Omnibus Budget Reconciliation Act of 1985, the “Texas Commission on Human Rights Act” or Chapter 21 of the Texas Labor Code, or any other federal, state or local laws of any jurisdiction); (iv) claims under any other federal, state, local, municipal or common law whistleblower protection, discrimination, wrongful discharge, anti-harassment or anti-retaliation statute or ordinance; (v) claims arising under ERISA; or (vi) any other statutory or common law claims related to Executive’s employment with Vantage Drilling Company and its affiliates. Executive further represents that, as of the date of his execution of this Agreement, he has not been the victim of any illegal or wrongful acts by any of the Released Parties, including, without limitation, discrimination, retaliation, harassment or any other wrongful act based on sex, age, or any other legally protected characteristic. Notwithstanding the foregoing, this Agreement specifically does
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not release any claim or cause of action by or on behalf of Executive (or his beneficiary) with respect to (a) Executive’s right to indemnification or to be held harmless pursuant to applicable corporate governance documents, director and officer indemnification agreements and/or applicable laws, (b) any outstanding restricted stock award, other outstanding equity award or equity interest in Vantage Drilling Company, or (c) any claim for accrued compensation or employee benefits from Vantage Drilling Company that have not been assumed by the Company.
No waiver by either party to this Agreement of any right to enforce any term or condition of this Agreement, or of any breach hereof, shall be deemed a waiver of such right in the future or of any other right or remedy available under this Agreement. Executive’s or the Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this Agreement or the failure to assert any right Executive or the Company may have hereunder, including, without limitation, the right of Executive to terminate employment for Good Reason pursuant to Section 3.1.E. hereof (subject to the requirements of Section 3.1.E. hereof), shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
If any provision of this Agreement is determined to be void invalid, unenforceable, or against public policy, such provisions shall be deemed severable from the Agreement, and the remaining provisions of the Agreement will remain unaffected and in full force and effect. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
In the event any dispute arises out of Executive’s employment with or by the Company, or separation/termination therefrom, whether as an employee, which cannot be resolved by the Parties to this Agreement, such dispute shall be submitted to final and binding arbitration. The arbitration shall be conducted in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“AAA”). If the Parties cannot agree on an arbitrator, a list of seven (7) arbitrators will be requested from AAA, and the arbitrator will be selected using alternate strikes with Executive striking firm. The cost of the arbitration will be shared equally by Executive and the Company; provided, however, the Company shall promptly reimburse Executive for all costs and expenses incurred in connection with any dispute in an amount up to, but not exceeding 20 percent of Executive’s Base Salary unless such termination was for Cause in which event Executive shall not be entitled to reimbursement unless and until it is determined she was terminated other than for Cause. Arbitration of such disputes is mandatory and in lieu of any and all civil causes of action and lawsuits either party may have against the other arising out of Executive’s employment with the Company, or separation therefrom. Such arbitration shall be held in Houston, Texas. This provision shall not, however,
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preclude the Company from obtaining injunctive relief in any court of competent jurisdiction to enforce Section 5 of this Agreement.
The terms and provisions contained herein shall constitute the entire agreement between the parties with respect to Executive’s employment with the Company during the Employment Period. This Agreement replaces and supersedes the Previous Agreement and any and all existing agreements entered into between Executive and the Company relating generally to the same subject matter, if any, and shall be binding upon Executive’s heirs, executors, administrators, or other legal representatives or assigns.
The section headings in this Agreement are for convenience of reference only, and they form no part of this Agreement and shall not affect its interpretation.
This Agreement may not be changed or modified or released or discharged or abandoned or otherwise terminated, in whole or in part, except by an instrument in writing signed by Executive and an officer or other authorized executive of the Company.
Executive represents and warrants that she has read and understood each and every provision of this Agreement, and Executive understands that she has the right to obtain advice from legal counsel of choice, if necessary and desired, in order to interpret any and all provisions of this Agreement, and that Executive has freely and voluntarily entered into this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
All payments hereunder shall be subject to any required withholding of Federal, state and local taxes pursuant to any applicable law or regulation.
With respect to any litigation regarding this Agreement, Executive agrees to venue in the state or federal courts in Harris County, Texas and agrees to waive and does hereby waive any defenses and/or arguments based upon improper venue and/or lack of personal jurisdiction. By
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entering into this Agreement, Executive agrees to personal jurisdiction in the state and federal courts in Harris County, Texas.
This Agreement has been negotiated, drafted, edited and reviewed by the respective parties, and therefore, no provision arising directly or indirectly herefrom shall be construed against any party as being drafted by said party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.
OFFSHORE GROUP INVESTMENT LIMITED
By:
Title:
EXECUTIVE
Linda J. Ibrahim
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