AMENDED AND RESTATED EXECUTIVE COMPENSATION AND RETENTION AGREEMENT
Exhibit
10.8
AMENDED
AND RESTATED EXECUTIVE COMPENSATION AND
RETENTION
AGREEMENT
THIS
AMENDED AND RESTATED EXECUTIVE COMPENSATION AND RETENTION AGREEMENT
("Agreement"), by and between COIL TUBING TECHNOLOGY HOLDINGS, INC., a Nevada
corporation, (referred to herein as the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (referred
to herein as "▇▇▇▇▇▇▇▇") (collectively “the“Parties”) is effective on the 1st day of
July 2007
(the “Effective Date").
The
parties previously entered into an Executive Compensation and Retention
Agreement on or around July 1, 2007 (the “Prior Agreement”), which Prior
Agreement is replaced and superseded in its entirety by this
Agreement.
In
consideration of the mutual covenants set forth herein, the Company and ▇▇▇▇▇▇▇▇
hereby agree as follows:
1. APPOINTMENT. The
Company hereby agrees to appoint and retain ▇▇▇▇▇▇▇▇ as its President and Chief
Executive Officer, and ▇▇▇▇▇▇▇▇ agrees to serve the Company, in the capacities
described herein during the Period of Appointment (as defined in Section 2
of
this Agreement), in accordance with the terms and conditions of this
Agreement.
2. PERIOD
OF APPOINTMENT. The term “Period of Appointment” shall mean the period which
commences on the Effective Date and, unless earlier terminated pursuant to
Section 6, ends on December 31, 2008; provided, however, that the Period of
Appointment may be extended for up to two additional years by
▇▇▇▇▇▇▇▇. Each annual extension shall occur automatically unless
▇▇▇▇▇▇▇▇ provides the Company in writing that he will not be exercising the
annual extension by December 1 of each year prior to the to-be-extended
year. For example, the Period of Appointment will
automatically extend to December 31, 2009 unless ▇▇▇▇▇▇▇▇ provides notice that
he will not be exercising the extension for 2009 on or before December 1,
2008.
3. DUTIES
DURING THE PERIOD OF APPOINTMENT.
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a.
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DUTIES.
During the Period of Appointment, ▇▇▇▇▇▇▇▇ shall be employed by the
Company and serve as its “President and Chief Executive
Officer.” In such capacities, ▇▇▇▇▇▇▇▇ will perform such
services as are customary for a president and chief executive
officer. Nothing herein is intended to restrict the duties of
▇▇▇▇▇▇▇▇ or limit him from serving in such other executive officer
positions as the Board of Directors deems
appropriate.
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b.
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SCOPE.
During the Period of Appointment, and excluding any periods of vacation
and sick leave to which the office of President is entitled, ▇▇▇▇▇▇▇▇
shall devote full time and attention to the affairs of the
Company.
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4. COMPENSATION
AND OTHER PAYMENTS.
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a.
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ANNUAL
SALARY. Annual salary shall be set at $120,000.00 per annum payable
in
regular installments but in no event less often than
monthly.
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b.
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ANNUAL
INCREASES. If the Period of Appointment is extended beyond
December 31, 2008 as provided in section 2 above, ▇▇▇▇▇▇▇▇'▇ annual
salary
will be increased in an amount to be determined by the Board of the
Company or a Committee of the Board of the Company, but in no event
shall
such increases be in an amount less than ten percent
(10%).
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c.
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BONUSES. ▇▇▇▇▇▇▇▇
may participate in any and all bonus plans established by the Board
or a
Committee of the Board.
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5. OTHER
BENEFITS.
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a.
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INCENTIVE
& RETENTION SHARES.
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i.
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RETENTION
SHARES. The Company will issue to ▇▇▇▇▇▇▇▇ one million
(1,000,000) shares of its common stock contemporaneously with ▇▇▇▇▇▇▇▇
entering into this Agreement.
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ii.
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INCENTIVE
SHARES. At the end of the initial Period of Appointment and the
end of each subsequent year or, at ▇▇▇▇▇▇▇▇'▇ option, within thirty
(30)
days thereafter, the Company will issue to ▇▇▇▇▇▇▇▇ the number of
shares
necessary to provide to ▇▇▇▇▇▇▇▇ five percent (5%) of the issued
and
outstanding common stock of the Company. As a result, on
December 31, 2008 or, at ▇▇▇▇▇▇▇▇'▇ option, within 30 days thereafter,
the
Company will issue the number of shares necessary to provide ▇▇▇▇▇▇▇▇
five
percent (5%) of the issued and outstanding common stock of the
Company. Further, if ▇▇▇▇▇▇▇▇ elects to extend the Period of
Appointment to December 31, 2009, on December 31, 2009 or, at ▇▇▇▇▇▇▇▇'▇
option, within 30 days thereafter, the Company will issue the number
of
shares necessary to provide ▇▇▇▇▇▇▇▇ an additional five percent (5%)
of
the issued and outstanding common stock of the
Company. Similarly, if ▇▇▇▇▇▇▇▇ elects to extend the Period of
Appointment to December 31, 2010, on December 31, 2010 or, at ▇▇▇▇▇▇▇▇'▇
option, within 30 days thereafter, the Company will issue the number
of
shares necessary to provide ▇▇▇▇▇▇▇▇ an additional five percent (5%)
of
the issued and outstanding common stock of the Company. Such
shares will be subject to any and all restrictions appropriate or
necessary to comply with state or federal registration
requirements.
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b.
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REGULAR
REIMBURSED BUSINESS EXPENSES. The Company shall promptly reimburse
▇▇▇▇▇▇▇▇ for all expenses and disbursements reasonably incurred by
▇▇▇▇▇▇▇▇ in the performance of his duties hereunder during the Period
of
Appointment.
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c.
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BENEFIT
PLANS. ▇▇▇▇▇▇▇▇ and his eligible family members shall be
entitled to participate immediately (except for any Company plan
which
includes or requires a waiting period, in which event ▇▇▇▇▇▇▇▇ shall
be
entitled to participate as soon as he is eligible under the terms
of such
plan), on terms no less favorable to ▇▇▇▇▇▇▇▇ than the terms offered
to
other employees, in any group and/or executive life, hospitalization
or
disability insurance plan, health program, vacation policy, pension,
profit sharing, ESOP, 401(k) and similar benefit plans (qualified,
non-qualified and supplemental) or other fringe benefits that may
be
offered by the Company as approved by the Board of Directors from
time to
time.
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d.
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HEALTH
INSURANCE. The Company shall provide ▇▇▇▇▇▇▇▇ and his wife,
whether or not he remains employed by the Company, health insurance
until
at least December 31, 2010.
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e.
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PERQUISITES.
The Company shall provide ▇▇▇▇▇▇▇▇ at least such perquisites as are
commonly provided to other executives of the Company and are commiserate
with his Appointment.
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6. TERMINATION.
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a.
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GENERAL. ▇▇▇▇▇▇▇▇'▇
employment hereunder shall commence on the Effective Date and continue
until the end of the term specified in section 2 above, except that
the
employment of ▇▇▇▇▇▇▇▇ hereunder shall terminate prior to such time
in
accordance with the following:
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i.
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DEATH
OR DISABILITY. Upon ▇▇▇▇▇▇▇▇’▇ death during the term of his
employment hereunder or, at the option of the Company, in the event
of
▇▇▇▇▇▇▇▇’▇ disability, upon thirty (30) days notice to
▇▇▇▇▇▇▇▇.
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ii.
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FOR
CAUSE. For “Cause” immediately upon written notice by the
Company to ▇▇▇▇▇▇▇▇. A termination for Cause shall
mean:
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(1)
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the
commission of an intentional act of dishonesty, fraud, misrepresentation,
misappropriation, or embezzlement by ▇▇▇▇▇▇▇▇ which has a material
detrimental impact on the Company;
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(2)
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▇▇▇▇▇▇▇▇’▇
unauthorized use or disclosure of any Confidential Information or
trade
secrets of the Company which has a material detrimental impact on
the
Company;
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(3)
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a
significant violation by ▇▇▇▇▇▇▇▇ of a law or regulation applicable
to the
Company’s business, which has a material detrimental impact on the Company
and which the Board of the Company reasonably determines does or
is
reasonably likely to cause material injury to the
Company;
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(4)
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▇▇▇▇▇▇▇▇’▇
indictment of, or conviction of, or plea of nolo contendere or
guilty to a felony or any other crime which involves moral
turpitude;
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(5)
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▇▇▇▇▇▇▇▇’▇
continued failure, in the reasonable discretion of the Board, to
perform
the principal duties, functions and responsibilities of his position
(other than any such failure resulting from ▇▇▇▇▇▇▇▇’▇ disability) or to
follow the directives of the Board after written notice from the
Company
identifying the deficiencies in performance and a reasonable cure
period
of not less than thirty (30) days of any breach capable of cure;
gross
negligence or willful misconduct in the performance of ▇▇▇▇▇▇▇▇’▇ duties;
or
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(6)
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a
material and willful breach of ▇▇▇▇▇▇▇▇’▇ fiduciary duties to the
Company.
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iii.
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WITHOUT
CAUSE. Without Cause upon thirty (30) days written notice by
the Board of Directors to ▇▇▇▇▇▇▇▇ or upon ▇▇▇▇▇▇▇▇ to the Board
of
Directors. If ▇▇▇▇▇▇▇▇ terminates the Agreement for any reason,
he shall have no liability to the Company or its subsidiaries or
affiliates as a result thereof.
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iv.
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CONSTRUCTIVE
TERMINATION. Upon ▇▇▇▇▇▇▇▇’▇ Constructive
Termination. Constructive Termination of ▇▇▇▇▇▇▇▇’▇ employment
with the Company will be deemed to have occurred if ▇▇▇▇▇▇▇▇ terminates
his employment with the Company within six (6) months following the
date
on which:
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(1)
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the
Company demotes ▇▇▇▇▇▇▇▇ to a lesser position, either in title or
responsibility;
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(2)
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the
Company decreases ▇▇▇▇▇▇▇▇’▇ pay below the highest level in effect at any
time ▇▇▇▇▇▇▇▇’▇ employment with the Company or reduces ▇▇▇▇▇▇▇▇’▇ benefits
below the levels in effect during ▇▇▇▇▇▇▇▇’▇ employment with the Company
(other than as a result of any amendment or termination of any group
or
other executive benefit plan, which amendment or termination is applicable
to all executives of the Company or any inadvertent reduction in
benefits
that Company cures within thirty (30) days after receiving written
notice
of such reduction);
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(3)
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the
Company requires ▇▇▇▇▇▇▇▇ to relocate to a principal place of business
more than fifty (50) miles from the principal place of business occupied
by Company as of the date hereof;
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(4)
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the
Company is subject to a Change in Control, unless ▇▇▇▇▇▇▇▇ accepts
an
appointment or employment with a successor to the Company;
or
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(5)
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the
Company breaches any material term of this Agreement which is not
cured by
the Company within ten (10) days after receiving written notice of
such
breach.
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b.
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OBLIGATIONS
OF THE COMPANY UPON TERMINATION. The following provisions
describe the obligations of the Company to ▇▇▇▇▇▇▇▇ under this Agreement
upon termination of his Appointment. However, except as
explicitly provided in this Agreement, nothing in this Agreement
shall
limit or otherwise adversely affect any rights which ▇▇▇▇▇▇▇▇ may
have
under applicable law, under any other agreement with the Company,
or under
any compensation or benefit plan, program, policy or practice of
the
Company.
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i.
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TERMINATION
BY THE COMPANY FOR CAUSE OR RESIGNATION WITHOUT CAUSE. In the
event this Agreement terminates by reason of the Company’s termination of
▇▇▇▇▇▇▇▇’▇ Appointment as President and Chief Executive Officer of the
Company for Cause or because of ▇▇▇▇▇▇▇▇’▇ resignation Without Cause, the
Company shall:
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(1)
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Pay
to ▇▇▇▇▇▇▇▇ within ten (10) days any amount of Compensation (as enumerated
in section 4 above) earned but not yet
paid;
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(2)
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Provide
▇▇▇▇▇▇▇▇’▇ health insurance as obligated in section 5(d) above, until
December 31, 2010; and
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(3)
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If
such termination occurs during the initial term of the Period of
Appointment, issue to ▇▇▇▇▇▇▇▇ the Incentive Shares provided for
in
section 5 above.
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ii.
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TERMINATION
BY THE COMPANY WITHOUT CAUSE, OR CONSTRUCTIVE TERMINATION. In
the event this Agreement terminates by reason of the Company’s termination
of ▇▇▇▇▇▇▇▇’▇ Appointment as President and Chief Executive Officer of the
Company Without Cause or ▇▇▇▇▇▇▇▇ is Constructively Terminated, the
Company shall:
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(1)
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Pay
to ▇▇▇▇▇▇▇▇ in a lump sum within ten (10) days the remaining amount
of
Compensation provided for in section 4 above through December 31,
2010
including any minimum annual increases and bonuses and an additional
one
hundred thousand dollars
($100,000);
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(2)
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Provide
▇▇▇▇▇▇▇▇’▇ health insurance as obligated in section 5(d) above, until
December 31, 2010; and
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(3)
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Issue
to ▇▇▇▇▇▇▇▇ the Incentive Shares provided for in section 5 above
for any
periods (2008, 2009 or 2010) on December 31 (or at ▇▇▇▇▇▇▇▇’▇ election,
within thirty (30) days thereafter) the appropriate number of shares
for
such period.
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iii.
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TERMINATION
BY DEATH OR DISABILITY OR ▇▇▇▇▇▇▇▇’▇ TERMINATION FOR CAUSE. In
the event this Agreement terminates by reason
of ▇▇▇▇▇▇▇▇’▇ Death or Disability or because of ▇▇▇▇▇▇▇▇’▇ resignation For
Cause, the Company shall:
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(1)
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Pay
to ▇▇▇▇▇▇▇▇ within ten (10) days any amount of Compensation (as enumerated
in section 4 above) earned but not yet
paid;
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(2)
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Provide
▇▇▇▇▇▇▇▇’▇ health insurance as obligated in section 5(d) above, until
December 31, 2010; and
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(3)
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Issue
to ▇▇▇▇▇▇▇▇ the Incentive Shares provided for in section 5 above
for any
periods (2008, 2009 or 2010) on December 31 (or at ▇▇▇▇▇▇▇▇’▇ election,
within thirty (30) days thereafter) the appropriate number of shares
for
such period.
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c.
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MITIGATION. In
no event shall ▇▇▇▇▇▇▇▇ be obligated to seek another appointment
or
employment or take any other action by way of mitigation of the amounts
payable to the ▇▇▇▇▇▇▇▇ under any of the provisions of this
Agreement. Any severance benefits payable to ▇▇▇▇▇▇▇▇ shall not
be subject to reduction for any compensation received from another
appointment or employment.
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d.
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CHANGE
OF CONTROL. For purposes of this Agreement,
Change of Control shall be deemed to have occurred (i) if more than
33% of
the voting shares of the Company are acquired by a third party in
a plan
of reorganization, merger and/or consolidation or (ii) if majority
voting
control of the Company is acquired by any person other than ▇▇▇▇▇▇▇▇,
but
does not include acquisition of majority voting control by a person
that
results from ▇▇▇▇▇▇▇▇ voluntarily transferring such voting control
to such
person including, but not limited to, ▇▇▇▇▇▇▇▇ transferring such
control
by proxy or by transferring some other interest to such
person.
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7. INDEMNIFICATION. To
the extent practical, the Company shall maintain, for the benefit of ▇▇▇▇▇▇▇▇
and other executives directors and/or officers liability
insurance. In addition, ▇▇▇▇▇▇▇▇ shall be indemnified by the Company
against liability as an officer and President and Chief Executive Officer of
the
Company and any subsidiary or affiliate of the Company to the maximum extent
permitted by applicable law. ▇▇▇▇▇▇▇▇’▇ rights under this Section
shall continue so long as he may be subject to such liability, whether or not
this Agreement may have terminated.
8. INVENTIONS;
ROYALTY FREE LICENSE.
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a.
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INVENTIONS
DEFINED. “Inventions” includes all rights to discoveries,
inventions, improvements, designs and innovations (including all
data and
records pertaining thereto) that relate to the business of the Company,
whether or not patentable, copyrightable or reduced to writing, that
▇▇▇▇▇▇▇▇ may discover, invent or originate during the term of his
employment hereunder, either alone or with others and whether or
not
during working hours or by use of the facilities of the
Company.
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▇.
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▇▇▇▇▇▇▇▇
TO RETAIN RIGHTS. ▇▇▇▇▇▇▇▇ is to retain or maintain any and all
rights to Inventions.
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c.
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COMPANY
TO LICENSE. ▇▇▇▇▇▇▇▇ will ▇▇▇▇▇ to the Company a license on
substantially the terms of the licensing agreement attached hereto
as
Exhibit A.
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d.
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WAIVER
OF ROYALTIES. Throughout his Appointment under this Agreement,
▇▇▇▇▇▇▇▇ will waive any and all royalties due to him by the Company
under
a Waiver of Royalties Agreement on substantially the terms of the
agreement attached hereto as Exhibit
B.
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9. CONFIDENTIAL
INFORMATION.
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a.
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ACKNOWLEDGMENT
OF PROPRIETARY INTEREST. ▇▇▇▇▇▇▇▇ agrees that all Confidential
Information learned by him during his employment with the Company,
whether
developed by ▇▇▇▇▇▇▇▇ or in conjunction with others or otherwise,
is and
shall remain the exclusive property of the
Company.
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b.
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CONFIDENTIAL
INFORMATION DEFINED. “Confidential Information” means all
confidential and proprietary information of the Company, to the extent
such property is the property of the Company and not the property
of
▇▇▇▇▇▇▇▇ or another, and that is not otherwise publicly
available. “Confidential Information” does not include the
“Inventions” referenced in section 8. Without limited the
foregoing, Confidential Information includes the
following:
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i.
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Information
derived from reports, investigations, experiments, research and work
in
progress,
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ii.
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Methods
of operation,
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iii.
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Marketing
data,
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iv.
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Proprietary
computer programs and codes,
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v.
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Drawings
designs, plans and proposals,
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vi.
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Marketing
and sales programs,
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vii.
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Client
lists,
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viii.
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Historical
financial information and financial
projections,
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ix.
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Pricing
formulae and policies,
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x.
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All
other concepts, ideas, materials and information prepared or performed
for
or by the Company, and
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xi.
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All
information related to the business, products, purchases or sales
of the
Company and any of its suppliers and
customers.
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c.
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COVENANT
NOT TO DIVULGE CONFIDENTIAL INFORMATION. The Company is
entitled to prevent the disclosure of Confidential
Information. The Company agrees to and will provide
Confidential Information to ▇▇▇▇▇▇▇▇ at the inception of his employment
and ▇▇▇▇▇▇▇▇ acknowledges and agrees that, during the course of his
employment he will be exposed to, have access to, and gain knowledge
of
Confidential Information. As a portion of the consideration for
the employment of ▇▇▇▇▇▇▇▇ and for the compensation being paid to
him
hereunder and thereafter to hold in strict confidence and not to
disclose
or allow to be disclosed or made available to any person, firm or
corporation, other than to his professional advisors (who
have the obligation to maintain the confidentiality of such information)
and to persons engaged by the Company to further the business of
the
Company, and not to use except in the pursuit of the business of
the
Company, the Confidential Information, without the prior written
consent
of the Company.
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d.
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RETURN
OF MATERIALS. In the event of any termination or cessation of
his employment with the Company for any reason, or request by the
Company
at anytime, ▇▇▇▇▇▇▇▇ shall promptly deliver to the Company all documents,
data and other information derived from or otherwise pertaining to
Confidential Information. ▇▇▇▇▇▇▇▇ shall not take or retain any
documents or other information, or any reproduction or excerpt thereof,
containing or pertaining to any Confidential
Information.
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10. GENERAL
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a.
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NOTICES. All
notices and other communications hereunder shall be in writing or
by
written telecommunication, and shall be deemed to have been duly
given
upon delivery if delivered personally or via written telecommunication,
or
five days after mailing if mailed by certified mail, return receipt
requested or by written telecommunication, to the relevant address
set
forth below, or to such other address as either of the parties shall
have
furnished to the other in writing in accordance
herewith:
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If
to the Company, addressed to:
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If to the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ addressed to: |
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▇▇▇▇▇
▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
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▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Notice
and communications shall be effective when actually received by the
addressee.
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b.
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WITHHOLDING. All
payments required to be made to ▇▇▇▇▇▇▇▇ by the Company under this
Agreement shall be subject to withholding, at the time payments are
actually made to ▇▇▇▇▇▇▇▇ and received by him, of such amounts, if
any, relating to federal, state and local taxes as may required
by law.
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c.
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TAXES. In
the event that the aggregate of all payments or benefits made or
provided
to, or that may be made or provided to, ▇▇▇▇▇▇▇▇ under this Agreement
and
under all other plans, programs and arrangements of the Company (the
"Aggregate Payment") are determined to constitute a "parachute payment"
or
some other category of payment which results in special tax treatment,
▇▇▇▇▇▇▇▇ and the Company shall cooperate with each other in connection
with any proceeding or claim relating to the existence or amount
of
liability for the payment, and all expenses incurred by ▇▇▇▇▇▇▇▇
in
connection therewith shall be paid by the Company promptly upon notice
of
demand from ▇▇▇▇▇▇▇▇.
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d.
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REIMBURSEMENT
OF LEGAL EXPENSES. In the event that ▇▇▇▇▇▇▇▇ is successful,
whether in mediation, arbitration or litigation, in pursuing any
claim or
dispute involving ▇▇▇▇▇▇▇▇’▇ Appointment with the Company, including any
claim or dispute relating to (a) this Agreement, (b) termination
of
▇▇▇▇▇▇▇▇’▇ Appointment with the Company or (c) the failure or refusal of
the Company to perform fully in accordance with the terms hereof,
the
Company shall promptly reimburse ▇▇▇▇▇▇▇▇ for all costs and expenses
(including, without limitation, attorneys' fees) relating solely,
or
allocable, to such successful
claim.
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e.
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LAW
GOVERNING. This Agreement shall be governed under the laws of
the State of Texas.
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f.
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SEVERABILITY. If
any provision hereof is held invalid or unenforceable by a court
of
competent jurisdiction, such invalidity shall not affect the validity
or
operation of any other provision and such invalid provision shall
be
deemed to be severed from the
Agreement.
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g.
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WAIVERS. No
delay or omission by either party in exercising any right, power
or
privilege hereunder shall impair such right, power or privilege,
nor shall
any single or partial exercise such right, power or privilege preclude
any
further exercise thereof or the exercise of any other right, power
or
privilege.
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h.
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COUNTERPARTS. This
Agreement may be executed in multiple counterparts, each of which
shall be
deemed an original, and all of which together shall constitute one
and the
same document.
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i.
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CAPTIONS. The
captions in this Agreement are for convenience of reference only
and shall
not limit or otherwise affect any of the terms of provisions
hereof.
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j.
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REFERENCE
TO AGREEMENT. Use of the words “herein, “hereof,” “hereto,”
“hereunder” and the like in this Agreement refer to this Agreement only as
a whole and not to any particular section or subsection of this Agreement,
unless otherwise noted.
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k.
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SUCCESSORS. This
Agreement shall be binding on and shall inure to the benefit of the
parties hereto, their heirs, administrators, successors, and
assigns.
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l.
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ASSIGNABILITY. This
Agreement and the rights and obligations thereunder may not be assigned
by
any act of either party or by operation of law without the prior
written
consent of each party. However, the Company may fulfill its
obligation to compensate ▇▇▇▇▇▇▇▇ through one or more of its wholly
owned
subsidiaries.
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m.
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GENDER
AND NUMBER. The masculine gender shall be deemed to denote the
feminine or neuter genders, the singular to denote the plural, and
the
plural to denote the singular, where the context so
permits.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement this 7th
day of September, 2007.
COIL
TUBING TECHNOLOGY HOLDINGS,
INC.
▇▇▇▇▇
▇▇▇▇▇▇▇▇
By: /S/
▇▇▇▇▇
▇▇▇▇▇▇▇▇ By: /S/
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇, President and Chief Executive
Officer
▇▇▇▇▇
▇▇▇▇▇▇▇▇