Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into between Vantage Drilling International (the “Company”) and Derek Massie (“Executive”) as of January 1, 2018 (the “Effective Date”).
R E C I T A L S:
WHEREAS, Executive desires to be employed by the Company effective as of the Effective Date and the Company desires to employ Executive as an integral part of the Company’s management as the Vice President – Human Resources of the Company; and
WHEREAS, the Company desires to obtain assurances from Executive that he will devote his 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 his employment; and
WHEREAS, Executive is expected to serve 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 himself 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 hereto agree to this Agreement as follows:
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Notwithstanding the foregoing provisions of this definition of Change of Control, for purposes of this Agreement, 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).
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 one of the forgoing events shall occur without the prior consent of Executive. Any such termination by Executive for Good Reason 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 by Executive for Good Reason 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
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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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Executive agrees that upon termination of employment, for any reason, at the request of the Chairman of the Board, he will immediately tender his resignation from any and all Board and other positions held with the Company and/or any of its subsidiaries and affiliates. The Board is hereby empowered to remove Executive from any such position if Executive fails to resign as required by the immediately preceding sentence.
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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 he 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 he is a party or by which he is bound.
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The agreements contained in the restrictive covenant provisions of this Agreement are independent of the other agreements contained herein. Accordingly, failure of the Company to comply with any of its obligations outside of Section 5 does not excuse Executive from complying with the agreements contained herein.
The agreements contained in Section 5, and any other obligations of Executive which by their nature require performance or satisfaction following termination of Executive’s employment, 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 to assume and perform this Agreement in the same manner and to the same extent that the Company would have been required to perform it if no such succession and assignment had taken place. Except in instances of assignment by operation of law, 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 his 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
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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:
At Executive’s most recent home address as set forth in the employment records of the Company
If to the Company:
Vantage Drilling International
Attn: General Counsel
777 Post Oak Blvd., Suite 800
Houston, TX 77056
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. Except as otherwise provided herein, 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, 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.
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 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.
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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 he has read and understood each and every provision of this Agreement, and Executive understands that he has the right (and has been afforded the opportunity) to obtain advice from legal counsel of choice, 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, other than the conflicts of law provisions thereof.
All payments hereunder shall be subject to any required withholding of Federal, state and local taxes pursuant to any applicable law or regulation.
The parties hereto consent to the exclusive jurisdiction of all state and federal courts located in Harris County, Texas, as well as to the jurisdiction of all courts of which an appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising out of, or in connection with, this Agreement or that otherwise arise out of the employment relationship. Each party hereto hereby expressly waives (i) any and all rights to bring any suit, action or other proceeding in or before any court or tribunal other than the courts described above, and covenants that it will not seek in any manner to resolve any dispute other than as set forth in this paragraph, and (ii) any and all objections either may have to venue, including the inconvenience of such forum, in any of such courts. In addition, each party hereto consents to the service of process by personal service or any manner in which notices may be delivered hereunder in accordance with this Agreement. This provision shall not, however, preclude the Company from obtaining injunctive relief in any court of competent jurisdiction to enforce Section 5 of this Agreement.
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.
Notwithstanding any other provisions in this Agreement to the contrary, any compensation paid to Executive pursuant to this Agreement or any other agreement or arrangement with the
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Company or any of its subsidiaries will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation or stock exchange listing requirement, or pursuant to any clawback or recoupment policy adopted by the Company or any of its subsidiaries. In no event will the application of any such clawback or recoupment requirement or policy be deemed to constitute or contribute to the existence of Good Reason.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.
Vantage Drilling International
By:
Title:
EXECUTIVE
Derek Massie
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