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EXHIBIT 10.4
EXECUTION COPY
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT is executed
between Kenneth V. Huseman (the "Executive") and Sierra Well Service, Inc. (the
"Company") effective as of March 21, 2000.
WHEREAS, the Executive and the Company have entered into an
Employment Agreement dated as of March 16, 1999 (the "Employment Agreement");
and
WHEREAS, the Employment Agreement provides for the issuance to
the Executive of Bonus Shares on each of the first five anniversaries of the
Commencement Date, subject to the further provisions of the Employment
Agreement;
WHEREAS, the Company and the Executive desire to amend the
Employment Agreement to provide, in lieu of the future issuance of shares of
Bonus Stock, for the immediate issuance of restricted shares of Bonus Stock to
the Executive; and
WHEREAS, Executive and the Company with to clarify certain
additional terms of the Employment Agreement;
NOW, THEREFORE, the parties hereby amend the Employment
Agreement to provide as follows:
1. In lieu of the issuance of shares of Bonus Stock to the
Executive on each of the first five anniversaries of the
Commencement Date, as provided in Section 3(b) of the
Employment Agreement, the Company hereby grants to the
Executive 91.06 shares of Restricted Bonus Stock. Such shares
are nontransferable (other than by will and the laws of
descent and distribution) and are subject to vesting and
forfeiture on the same basis as provided in the Employment
Agreement with respect to the Bonus Stock, as in effect prior
to this First Amendment. For example, shares of Restricted
Bonus Stock shall become unrestricted, vested shares of Bonus
Stock on the dates that were provided for the issuance of
Bonus Stock under the provisions of the Employment Agreement
as in effect prior to this First Amendment and shall be
forfeited on the dates that the Executive's right to receive
additional shares of Bonus Stock would terminate under the
provisions of the Employment Agreement as in effect prior to
this First Amendment.
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2. Based upon shares of Common Stock reasonably anticipated to
be issued to Enron or its designees in accordance with the
conversion of Series B Convertible Preferred Stock, the
Company hereby grants to the Executive 39.02 shares of Bonus
Stock (the "JEDI Bonus Stock"), which shares shall be vested
as if issued pursuant to Section 3(a) of the Employment
Agreement but shall remain non-transferable by the Executive
and subject to forfeiture pursuant to Section 3(e) of the
Employment Agreement if shares of Common Stock are not in fact
issued in the future to Enron or its designees.
3. In addition, based upon shares of Common Stock reasonably
anticipated to be issued to Enron or its designees in
accordance with the conversion of Series B Convertible
Preferred Stock, the Company hereby grants to the Executive an
additional 39.02 shares of Common Stock (the "Restricted JEDI
Bonus Stock"), which shares shall be subject to vesting in the
same manner as shares of Restricted Bonus Stock as set forth
in Section 1 of this First Amendment and shall remain non-
transferable by the Executive and subject to forfeiture
pursuant to Section 3(e) of the Employment Agreement if shares
of Common Stock are not in fact issued in the future to Enron
or its designees.
4. Additional shares of Restricted Bonus Stock or vested Bonus
Stock shall be issued to, or forfeited by, the Executive on
the same basis as provided in Section 3(d) and (e) with
respect to the Bonus Stock as in effect prior to this First
Amendment.
5. All distributions made with respect to shares of Restricted
Bonus Stock (cash, stock or other property), and any shares
issued upon a stock split or stock dividend, shall be subject
to the same restrictions, and the same vesting and forfeiture
provisions, as are applicable to the shares of Restricted
Bonus Stock hereby granted to the Executive.
6. All distributions made with respect to shares of JEDI Bonus
Stock (cash, stock or other property), and any shares issued
upon a stock split or stock dividend, shall be subject to the
same restrictions, and the same forfeiture provisions, as are
applicable to the shares of JEDI Bonus Stock hereby granted to
the Executive.
7. All distributions made with respect to shares of JEDI
Restricted Bonus Stock (cash, stock or other property), and
any shares issued upon a stock split or stock dividend, shall
be subject to the same restrictions, and the same forfeiture
provisions, as are applicable to the shares of JEDI Restricted
Bonus Stock hereby granted to the Executive.
8. The Company may place such legends on the certificate(s)
for the shares of Restricted Bonus Stock, JEDI Bonus Stock and
JEDI Restricted Bonus Stock as the Company may determine to be
appropriate to evidence the above restrictions.
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9. The Company and the Executive hereby agree that 91.06
shares of Bonus Stock issued pursuant to the Employment
Agreement prior to the date hereof was, and is, the proper and
correct issuance of Bonus Stock pursuant to Section 3 of the
Employment Agreement. The Company and the Executive further
agree that if Enron and its designees are issued shares of
Common Stock upon conversion of the Company's Series B
Convertible Preferred Stock in accordance with Section
8.a.(ii) of the Certificate of Designations for the Company's
Series B Convertible Preferred Stock (i.e., into an aggregate
of 30% of the total number of fully diluted shares of Common
Stock, assuming no additional shares of Common Stock are
issued after the date hereof that will be included the formula
presented in this Certificate of Designations), these 91.06
shares of Bonus Stock, together with the shares of JEDI Bonus
Stock, the Restricted Bonus Stock and the Restricted JEDI
Bonus Stock shall represent all of the shares to which the
Executive is entitled pursuant to the Employment Agreement (in
each case subject to anti-dilution protection for stock
dividends, stock splits and other capital reorganization
events). Notwithstanding the foregoing, the Executive shall be
entitled to an adjustment to shares of Bonus Stock issuable
pursuant to Section 3 of the Employment Agreement in the event
the Company issues shares of Common Stock to Enron or its
affiliates other than upon conversion of the Series B
Convertible Preferred Stock in accordance with Section
8.a.(ii) of the Certificate of Designations related thereto.
All terms used herein that are defined in the Employment
Agreement shall have the same meanings given to such terms in the Employment
Agreement, except as otherwise expressly provided herein.
Except as amended and modified hereby, the Employment
Agreement shall continue in full force and effect and the Employment Agreement
and this First Amendment shall be read, taken and construed as one and the same
instrument.
This instrument may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute but one
and the same instrument which may be evidenced by any one counterpart.
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IN WITNESS WHEREOF, the parties have executed this First
Amendment to the Employment Agreement effective for all purposes as of the date
first above written.
SIERRA WELL SERVICE, INC.
By: /s/ H.H. WOMMACK III
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Name: H.H. Wommack III
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Title: Chairman
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Executive
/s/ KENNETH V. HUSEMAN
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Kenneth V. Huseman
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