Exhibit 10.1


 


EXECUTION COPY


 


WILLIAM M. AUSTIN EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT (as from time to time amended in accordance with the
provisions hereof, this “Agreement”),
is entered into as of the 1st day of March, 2005, by and between WILLIAM M.
AUSTIN (the “Executive”),
and KEY ENERGY SERVICES, INC., a Maryland corporation with executive offices at
6 Desta Drive, Suite 4400, Midland, Texas 79705 (the “Company”).


 


WHEREAS, the Chief
Executive Officer of the Company (the “Chief Executive Officer”) and the Board of
Directors of the Company (the “Board”) are each of the view that employing Executive to
serve as Senior Vice President and Chief Financial Officer is essential to the
continued growth and success of the Company and is in the best interests of the
Company and its shareholders;


 


WHEREAS, the Company
desires to enter into this written Employment Agreement with the Executive,
effective as of March 1, 2005 (the “Commencement Date”); and


 


WHEREAS, the Executive is willing to serve as the Company’s
Senior Vice President and Chief Financial Officer pursuant to the terms and
conditions set forth herein, effective as of the Commencement Date.


 


NOW THEREFORE, in consideration of the covenants and
agreements herein contained, the Company and the Executive hereby agree as
follows:


 


1.             Employment; Term.


 


(a)           Effective
as of the Commencement Date, the Company hereby agrees to employ the Executive,
and the Executive hereby accepts employment by the Company, as the Company’s
Senior Vice President and Chief Financial Officer, and the Executive shall hold
such position and continue employment with the Company hereunder until the
close of business on March 1, 2008, unless sooner terminated in accordance with
Section 5 hereof (the “Initial
Employment Period”). The above notwithstanding, at the close of
business on each anniversary of the conclusion of the Initial Employment Period
(an “Anniversary Date”),
commencing with March 1, 2008, the term of the Executive’s employment hereunder
shall be automatically extended for twelve (12) months (unless sooner
terminated in accordance with Section 5 hereof) unless either the Executive or
the Company shall have given written notice (in each case, a “Non-Renewal Notice”)
to the other that such automatic extension shall not occur, which Non-Renewal
Notice shall have been given no later than the December 1 next preceding the
relevant Anniversary Date (the Initial Employment Period, together with any
extensions, until termination in accordance herewith, is referred to hereby as
the “Employment Period”).


 





















 


(b)           The
Executive shall have the responsibilities, duties and authority commensurate
with his positions as the Senior Vice President and Chief Financial Officer of
the Company, including without limitation the general supervision and control
over, and responsibility for, the overall financial and related activities of
the Company and its subsidiaries, and such other responsibilities, duties,
functions and authority as the Chief Executive Officer or, in certain circumstances,
the Board shall from time to time designate that do not effect a material
decrease in the responsibilities, importance, scope or dignity of the Executive’s
position with the Company compared with those of such position as of the
Commencement Date, subject, however, to the supervision of the Chief Executive
Officer or, in certain circumstances, the Board. The Executive will report to
the Chief Executive Officer or, in certain circumstances, the Board.


 


(c)           The
Executive will devote his full time and his best efforts to the business and
affairs of the Company and its Subsidiaries; provided, however, that nothing
contained in this Section 1 shall be deemed to prevent or limit the Executive’s
right to: (i) make investments in the securities of any publicly-owned
corporation; or (ii) make any other investments with respect to which he is not
obligated or required to, and to which he does not in fact, devote managerial
efforts that interfere with his fulfillment of his duties hereunder; or (iii)
to serve on boards of directors and to serve in such other positions with
non-profit and for-profit organizations as to which the Board may from time to
time consent, which consent shall not be unreasonably withheld or delayed.
Reference is made to Section 6 hereof, which contains limitations on some of
the above activities.


 


(d)           The
principal location at which the Executive will substantially perform his duties
will be the Company’s Houston, Texas offices.


 


2.             Salary; Bonuses; Expenses.


 


(a)           During
the Employment Period, the Company will pay base compensation to the Executive
at the annual rate of Four Hundred Thousand Dollars ($400,000) per year (the “Base Salary”),
payable in substantially equal installments in accordance with the Company’s
existing payroll practices, but no less frequently than monthly. The Company
will review the Base Salary on a yearly basis promptly following the end of
each fiscal year of the Company to determine if an increase is advisable, and
the Base Salary may be increased (but not decreased) at the discretion of the
Chief Executive Officer and the Compensation Committee (the “Compensation Committee”)
of the Board, taking into account, among other factors, the Executive’s
performance and the performance of the Company.


 


(b)           The
Executive shall be eligible to participate in all of the Company’s cash
performance compensation plans (collectively, the “Performance Cash Compensation Plans”) for the Company’s
executives providing for the payment of cash bonuses or other cash incentives
payable upon the achievement of goals set forth in the Company’s strategic plan
as developed by the Compensation Committee after consultation with the Chief
Executive Officer and the Executive, payable in accordance with the provisions
thereof.  The performance goals for the
Performance Cash Compensation Plans will be based on objective criteria
specified in good faith in advance by the Compensation Committee after
consultation with the Chief Executive Officer and the Executive. The Executive
shall also receive such bonuses other than pursuant to the


 


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Performance Cash Compensation Plans in such amounts and at such times
as the Compensation Committee, after consultation with the Chief Executive
Officer, in its discretion determines are appropriate to recognize
extraordinary performance by the Executive. 
The Executive’s target bonus for each fiscal year will be one hundred
percent (100%) of Base Salary, prorated for the portion of the 2005 fiscal year
following the Commencement Date.


 


(c)           Notwithstanding
any contrary terms in the Performance Cash Compensation Plans, the Executive
shall receive a bonus under such plans of the greater of the amount provided
under such plans with respect to January through July 2005 or Two Hundred
Thousand Dollars ($200,000), assuming continued employment until the end of
that period (except as otherwise provided under Section 5(g)(iv)).


 


(d)           The
Executive shall be reimbursed by the Company for reasonable travel, lodging,
meal, entertainment and other expenses incurred by him in connection with
performing his services hereunder in accordance with the Company’s
reimbursement policies from time to time in effect.


 


3.             Equity-Based Incentives.


 


(a)           The
Company will ask the Compensation Committee to grant the Executive, pursuant to
the Key Energy Group, Inc. 1997 Incentive Plan (the “1997 Plan”),
nonqualified stock options for 100,000 shares of Company’s common stock, with
the exercise price set as provided under that plan based on the date of grant and
with vesting over three years, assuming continued employment.  Such grant shall otherwise be on the terms
and conditions generally applicable to options as reasonably determined by the
Compensation Committee.


 


(b)           The
Executive shall be eligible to participate in awards of stock options,
restricted stock, deferred stock and other equity-based incentives
(collectively, “Equity-Based
Incentives”), at the discretion of the Board or the Compensation
Committee. The performance goals for the grant of such Equity-Based Incentives
will be based on objective criteria mutually negotiated and agreed upon in good
faith in advance by the Board or the Compensation Committee after consultation
with the Executive and the Chief Executive Officer.


 


(c)           The
Compensation Committee has indicated that it intends to grant shares of
restricted stock (or unit equivalents) equal to a target of 100,000 shares to
the Executive upon the future approval by the stockholders of a restricted
stock program for the Company and the satisfaction of performance goals under
such program.  The program will track the
requirements of the 2003 Long-Term Share Incentive Plan, adjusted as the
Compensation Committee may consider appropriate so long as the Executive is
treated in a manner consistent with that generally applicable to other senior
vice presidents.  Nothing in this
Agreement shall give the Executive any rights to receive such shares or share
equivalents if his employment ends for any reason before they are granted.


 


4.             Benefit Plans; Vacations.


 


In connection with the Executive’s employment
hereunder, he shall be entitled during the Employment Period (and thereafter to
the extent provided in Section 5(f) hereof) to the following additional
benefits:


 


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(a)           At
the Company’s expense, such fringe benefits as the Company may provide from
time to time for its senior management, but in any case, at least the benefits
described on EXHIBIT A hereto.


 


(b)           The
Executive shall be entitled to no less than the number of vacation days in each
fiscal year determined in accordance with the Company’s vacation policy as in
effect from time to time, but not less than twenty (20) business days in any
fiscal year (prorated in any fiscal year during which he is employed hereunder
for less than the entire year in accordance with the number of days in such
fiscal year in which he is so employed) and subject to the Company’s policies
on carryovers and cashouts. The Executive shall also be entitled to all paid
holidays and personal days given by the Company to its senior management.


 


(c)           Nothing
herein contained shall preclude the Executive, to the extent he is otherwise
eligible, from participation in all group insurance programs or other fringe
benefit plans which the Company may from time to time in its sole and absolute
discretion make available generally to its personnel, or for personnel
similarly situated, but the Company shall not be required to establish or
maintain any such program or plan except as may be otherwise expressly provided
herein.


 


5.             Termination, Change in Control and Reassignment of
Duties.


 


(a)           Termination
by the Company. The Company shall have the right to terminate the Executive’s
employment under this Agreement and the Employment Period for Cause (as defined
below) at any time without obligation to make any further payments to the
Executive hereunder except the compensation described in Section 5(g) hereof.
Except as otherwise provided in Section 5(b) hereof, which Section shall apply
in the event the Executive becomes unable to perform his obligations hereunder
by reason of Disability (as defined below), the Company shall have the right to
terminate the Executive’s employment hereunder and the Employment Period for
any reason other than for Cause (including, without limitation, by giving the
Executive a Non-Renewal Notice pursuant to Section 1(a) hereof) only upon at
least ninety (90) days’ prior written notice to him (provided that, in the
event the Company gives the Executive a Non-Renewal Notice pursuant to Section
1(a) hereof, only the 90-day notice period therein provided shall be required).
In the event the Company terminates the Executive’s employment hereunder for
any reason other than for Disability or Cause (including, without limitation, by
giving the Executive a Non-Renewal Notice pursuant to Section 1(a) hereof),
then for the purpose of effecting a transition during the ninety (90) day
notice period of the Executive’s management functions from the Executive to
another person or persons, during such period the Company may reassign the
Executive’s duties hereunder to another person or other persons. Such
reassignment shall not reduce the Company’s obligations hereunder to make
salary, bonus and other payments to the Executive and to provide other benefits
to him during the remainder of his employment and, if applicable, following the
termination of employment. 
Notwithstanding a notice of termination that does not, when made,
specify Cause, the Company may, during the 90 day notice period (the “Cause Review Period”),
convert the termination to a Cause termination, subject to the procedural
safeguards specified in the next paragraph.


 


As used in this Agreement, the term “Cause” shall
mean (i) the failure by the Executive to substantially perform the major
functions of his position in a satisfactory manner (other than


 


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(A) any such failure resulting from his incapacity due to physical or
mental illness or physical injury or (B) any such actual or anticipated failure
after the issuance of a notice of termination by the Executive for Good Reason
(as defined below)), after a written demand for substantial performance is
delivered by the Company to the Executive that specifically identifies the manner
in which the Company believes the Executive has not substantially performed his
duties; or (ii) the engaging by the Executive in misconduct that is, or is
reasonably likely to be, materially injurious to the Company, monetarily or
otherwise; or (iii) the Executive’s conviction or plea of guilty or no contest
to a felony (or to a felony charge reduced to misdemeanor), or, with respect to
his employment, to any misdemeanor (other than a traffic violation) or, with
respect to his employment, knowing violation of any federal or state securities
or tax laws; or (iv) willful violation of the Key Energy Services, Inc. Amended
and Restated Policy Regarding Acquisition, Ownership and Disposition of Company
Securities, as amended from time to time. 
Notwithstanding the foregoing, the Executive’s employment shall not be
deemed to have been terminated for Cause unless (A) reasonable notice shall
have been given to him setting forth in detail the reasons for the Company’s
intention to terminate for Cause, and if such termination is pursuant to clause
(i) or (ii) above and any damage to the Company is curable, only if Executive
has been provided a period of ten (10) business days from receipt of such
notice to cease the actions or inactions and otherwise cure such damage, and he
has not done so (provided that only one such period needs to be provided in any
period of three (3) consecutive months); (B) an opportunity shall have been
provided for the Executive to be heard before the Board; and (C) if such
termination is pursuant to clause (i) or (ii) above, delivery shall have been
made to the Executive of a notice of termination from the Board finding that in
the good faith opinion of a majority of the Board (excluding the Executive, if
applicable) he was guilty of conduct set forth in clause (i) or (ii) above.


 


(b)           Termination
upon Disability and Temporary Reassignment of Duties Due to Disability;
Termination upon Death


 


(i)            If
the Executive becomes totally and permanently disabled during the Employment
Period so that he is unable to perform his obligations hereunder by reasons
involving physical or mental illness or physical injury for an aggregate of
ninety (90) days (whether or not consecutive) during any period of twelve (12)
consecutive months during the Employment Period (“Disability”), then the Executive’s
employment hereunder and the Employment Period may be terminated by the Company
within sixty (60) days after the expiration of such ninety (90) day period
(whether or not consisting of consecutive days), such termination to be
effective ten (10) days after written notice to the Executive. In the event the
Company shall give a notice of termination under this Section 5(b)(i), then the
Company may reassign the Executive’s duties hereunder to another person or
other persons. Such reassignment shall not reduce the Company’s obligations
hereunder to make salary, bonus and other payments to the Executive and to
provide other benefits to him, during the remainder of his employment and, if
applicable, following the termination of employment.


 


(ii)           During
any period that the Executive is totally disabled such that he is unable to
perform his obligations hereunder by reason involving physical or mental
illness or physical injury, as determined by a physician chosen by the Company
and reasonably acceptable to the Executive (or his legal representative), the
Company may reassign the Executive’s duties hereunder to another person or
other persons, provided if the Executive shall again be able to


 


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perform his obligations hereunder prior to the Company’s termination of
the Executive’s employment hereunder and the Employment Period in accordance
with the terms of this Agreement, all such duties shall again be the Executive’s
duties. The cost of any examination by such physician shall be borne by the
Company. Notwithstanding the foregoing, if the Executive has been unable to
perform his obligations hereunder by reasons involving physical or mental
illness or physical injury for an aggregate of ninety (90) days (whether or not
consecutive) during any period of twelve (12) consecutive months during the
Employment Period, then a determination by a physician of disability will not
be required prior to any such reassignment. Any such reassignment shall not be
a termination of employment and in no event shall such reassignment reduce the
Company’s obligation to make salary, bonus and other payments to the Executive
and to provide other benefits to him under this Agreement during his employment
or, if applicable, following a termination of employment.


 


(iii)          The
Executive’s employment hereunder and the Employment Period shall automatically
terminate immediately upon the death of the Executive.


 


(c)           Termination
by Executive. The Executive’s employment hereunder and the Employment
Period may be terminated by the Executive by giving written notice to the
Company as follows: (i) at any time for any reason other than Good Reason
(including, without limitation, by giving the Company a Non-Renewal Notice pursuant
to Section 1(a) hereof) by notice of at least ninety (90) days (provided that,
in the event the Executive gives the Company a Non-Renewal Notice pursuant to
Section 1(a) hereof, only the 90-day notice period therein provided shall be
required); or (ii) at any time for Good Reason, effective upon the 16th
business day after Executive’s giving written notice in reasonable detail of
such (unless the Company corrects the condition Executive asserts gives him
Good Reason within fifteen (15) business days after such notice); provided that
the Executive can only give a notice of resignation for Good Reason in
connection with a “Change
in Control” (as defined in Exhibit B) beginning on the ninetieth
(90th) day after the closing of the Change in Control.  In the event of a termination by the
Executive of his employment, the Company may reassign the Executive’s duties
hereunder to another person or other persons.


 


As
used herein, a “Good
Reason” shall mean any of the following:


 


(1)           Failure
of the Board to elect the Executive as Senior Vice President and Chief
Financial Officer of the Company, or removal from the office of Senior Vice
President and Chief Financial Officer of the Company provided that such failure
or removal is not in connection with a termination of the Executive’s
employment hereunder by the Company for Cause (in accordance with Section 5(a)
hereof), for Disability (in accordance with Section 5(b) hereof) or other than
for Cause or Disability (in accordance with Section 5(a) hereof and including,
without limitation, by giving the Executive a Non-Renewal Notice pursuant to
Section 1(a) hereof), and provided further that any notice of termination
hereunder shall be given by the Executive within ninety (90) days of such
failure or removal; or


 


(2)           Material
change by the Company in the Executive’s title, authority, functions, duties or
responsibilities as Senior Vice President and Chief Financial Officer of the
Company (including without limitation material changes in the control or
structure of the Company) which would cause his position with the Company to
become of materially less responsibility,


 


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importance, scope or dignity than his position as of the Commencement
Date, provided that such material change is not in connection with a
termination of Executive’s employment hereunder by the Company for Cause (in
accordance with Section 5(a) hereof), for Disability (in accordance with
Section 5(b) hereof) or other than for Cause or Disability (in accordance with
Section 5(a) hereof) (including, without limitation, by giving the Executive a
Non-Renewal Notice pursuant to Section 1(a) hereof); and provided, further,
that any notice of termination hereunder shall be given by the Executive within
ninety (90) days of when he becomes aware of such change; or


 


(3)           Failure
by the Company to comply with any provision of Section 1(d), 2 or 4 of this
Agreement, which has not been cured within fifteen (15) days after notice of
such noncompliance has been given by the Executive to the Company, provided any
notice of termination hereunder shall be given by the Executive within ninety
(90) days after the end of such fifteen (15) day period; or


 


(4)           Failure
by the Company to obtain an assumption of this Agreement (by operation of law
or in writing) by a successor in accordance with Section 17 hereof unless
payment or provision for payment and provision for continuation of benefits
under this Agreement have been made as required by Section 17 hereof; or


 


(5)           Any
purported termination by the Company of the Executive’s employment which is not
effected in accordance with the terms of this Agreement, including without
limitation pursuant to a notice of termination not satisfying the requirements
set forth herein (and for purposes of this Agreement no such purported
termination by the Company shall be effective), which has not been cured within
ten (10) days after notice of such non-conformance has been given by the
Executive to the Company, provided any notice of termination hereunder shall be
given by the Executive within thirty (30) days of receipt of notice of such
purported termination.


 


(d)           Severance
Compensation.


 


(i)            Termination
for Good Reason or Other than for Cause. In the event the Executive’s
employment hereunder is terminated (A) by the Executive for Good Reason or
(B) by the Company other than for Cause or Disability, the Executive shall
be entitled, in addition to the other compensation and benefits herein provided
for, to severance compensation in an aggregate amount equal to two (2) times
his Base Salary at the rate in effect on the termination date, payable in
twenty-four (24) substantially equal monthly installments commencing at the end
of the calendar month in which the termination date occurs.  The preceding amounts shall be reduced to one
(1) times his Base Salary if the termination is a result of or after a
Non-Renewal Notice by the Company.


 


(ii)           Termination
following Disability. In the event the Executive’s employment should be
terminated by the Company as a result of Disability in accordance with Section
5(b) hereof, then the Executive shall be entitled, in addition to the other
compensation and benefits herein provided for, to severance compensation in an
aggregate amount equal to one (1) times his Base Salary at the rate in effect
on the termination date, payable in twelve (12) substantially equal monthly
installments commencing at the end of the calendar month in which


 


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the termination date occurs, reduced by the amount of any
employer-provided disability insurance proceeds actually paid to the Executive
or for his benefit during such time period.


 


(iii)          Change
in Control. If the Executive’s employment is terminated in anticipation of,
or within one (1) year following, a Change in Control and the Executive is
entitled to severance compensation pursuant to Section 5(d)(i) or 5(d)(ii)
hereof as a result of such termination, the severance compensation otherwise
payable to the Executive (A) shall be increased to an amount equal to three (3)
times the Base Salary then in effect and (B) shall be payable in one lump sum
on the effective date of such termination.  In the event there is a Change in Control
after Executive’s employment is terminated while Executive is entitled to
severance compensation pursuant to Section 5(d)(i) or 5(d)(ii) hereof, any
severance compensation which remains unpaid as of the Change in Control shall
be paid in one lump sum as of the Change in Control. In the event severance
compensation becomes payable in a lump sum pursuant to this Section 5(d)(iii),
if the Executive’s employment is or has been terminated for Disability, such
lump sum shall be reduced by a good faith estimate of the aggregate amount of
any disability insurance proceeds which will be actually paid to the Executive
or for his benefit from employer-provided disability insurance during the
remaining period over which such severance would otherwise have been paid.


 


(iv)          Termination
for Death. In the event of the Executive’s death during the Employment
Period, the Executive’s estate shall not be entitled to any severance
compensation.


 


(v)           Termination
by Executive other than for Good Reason or by Company for Cause. In the
event of the Executive’s termination by resignation under Section 5(c)(i)
(i.e., other than for Good Reason) or by the Company for Cause, the Executive
shall not be entitled to any severance under Section 5(d) or otherwise, any
continued benefits under Section 5(f) (other than as required by statute), or
any accrued compensation under (x) Section 5(g)(ii) (for unpaid vacation,
except as otherwise required by law), (y) Section 5(g)(iii) (for prior year
bonuses, to the extent specified in that clause), or the minimum bonus provided
in Section 2(c).  Under the foregoing situations,
the treatment of equity incentives shall be as specified in Section 5(e)(ii),
and the Executive shall receive the accrued compensation described in Section
5(g)(i), (v), and (vi).


 


(vi)          Release.  Executive agrees that all payments under
Subsections (d), (e), (f), and (g)(ii) of this Section 5 are conditioned on the
Executive’s prior execution and non-revocation of a full release of the Company
and its officers, employees, affiliates and agreements for all claims relating
to his employment, compensation, and termination and such other matters as the
Company reasonably requests on termination; provided,
however, that any Release
previously executed under this Section 5(d)(vi) will be null and void if the
Company reaches a determination of Cause within the Cause Review Period.


 


(e)           Effect
of Termination or Change in Control upon Equity-Based Incentives.


 


(i)            In
the event the Executive’s employment hereunder is terminated by the Company for
any reason other than for Cause or Disability (including, without limitation,
by giving the Executive a Non-Renewal Notice pursuant to Section 1(a) hereof),
or in the event the Executive should terminate his employment for Good Reason,
then any Equity-Based Incentives


 


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held by the Executive which have not vested prior to the effective date
of such termination shall immediately vest and shall remain exercisable until
the earlier to occur of (x) the first anniversary of the effective date of such
termination and (y) the final stated expiration date of the Equity-Based
Incentive. In addition, in the event of such a termination, any Equity-Based
Incentives held by the Executive which have vested prior to the effective date
of such termination shall remain exercisable until the earlier to occur of (x)
the first anniversary of the effective date of such termination and (y) the
final stated expiration date of the Equity-Based Incentive.


 


(ii)           In
the event the Executive’s employment hereunder is terminated by the Company for
Cause or is terminated by the Executive other than for Good Reason (including,
without limitation, by giving the Company a Non-Renewal Notice pursuant to
Section 1(a) hereof), then effective upon the date such termination is
effective, any Equity-Based Incentives which have not vested prior to the
effective date of such termination shall be forfeited. Any Equity-Based
Incentives held by the Executive entitling the Executive to retain or purchase
securities of the Company which have vested prior to the effective date of such
termination shall remain subject to the terms and provisions of the plan and/or
the agreement under which they were awarded.


 


(iii)          In
the event of the Executive’s death while employed by the Company or in the
event that the Executive’s employment should terminate as a result of
Disability, then, unless the provisions of Section 5(e)(iv) hereof regarding
Change in Control shall apply, any Equity-Based Incentives held by the
Executive which have not vested prior to the effective date of such termination
shall immediately vest and shall also remain exercisable until the earlier to
occur of (x) the first anniversary of the death of the Executive or the
effective date of such termination and (y) the final stated expiration date of
the Equity-Based Incentives. In addition, in the event of such death or such a
termination, any Equity-Based Incentives held by the Executive which have
vested prior to the effective date of such death or termination shall remain
exercisable until the earlier to occur of (x) the first anniversary of the
effective date of such death or termination and (y) the final stated expiration
date of the Equity-Based Incentives.


 


(iv)          In
the event of a conflict between the preceding terms and provisions of this
Section 5(e) and any other terms and provisions governing any Equity-Based
Incentives held (now or in the future) by the Executive (including without
limitation the terms and provisions contained in the agreements and/or plans
pursuant to which such Equity-Based Incentives were (or will in the future be)
granted), the preceding terms and provisions of this Section 5(e) shall
control; provided, however, that, if an Equity-Based Incentive
does not by its terms require any exercise, no requirement of exercise shall be
implied from the preceding terms and provisions of this Section 5(e).


 


(f)            Continuation
of Benefits.


 


(i)            Subject
to Section 5(f)(ii) hereof, in the event that Executive’s employment hereunder
is terminated by the Executive for Good Reason or by the Company for Disability
or other than for Cause (including, without limitation, by giving the Executive
a Non-Renewal Notice pursuant to Section 1(a) hereof) and not as a result of
the death of the Executive, the Executive shall continue to be entitled, at the
Company’s expense, to the post-employment


 


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benefits under Section 4(a), if any, that such benefits provide under
their terms for a period of time following the termination date ending on the
first to occur of (I) the second anniversary of the termination date, (II) the
last date of eligibility under the applicable benefits or (III) the date on
which the Executive commences full-time employment with another employer.  The Company will pay the premiums for COBRA
health coverage for Executive and his covered family members for the period
COBRA provides. At such time as the Company is no longer required to provide
the Executive with life and/or disability insurance, as the case may be, the
Executive shall be entitled, at the Executive’s expense, to convert such life
and disability insurance, as the case may be, into individually owned policies,
except if and to the extent such conversion is not available from the provider
of such insurance.


 


(ii)           In
the event the Executive’s employment hereunder is terminated by the Company
within one (1) year of a Change in Control (other than a termination because of
the Executive’s death) or is terminated by the Company other than for Cause in
anticipation of a Change in Control, the Company shall pay to the Executive, in
lieu of providing the benefits contemplated by Section 5(f)(i) above, an amount
in cash equal to the aggregate reasonable expenses that the Company would incur
if it were to provide such benefits for a period of time following the
termination date ending on the second anniversary of the termination date,
which amount shall be paid in one lump sum on the date of such termination.


 


(iii)          In
the event the Executive’s employment hereunder is terminated by reason of
death, the Executive’s spouse and her dependents shall be entitled at the
Company’s expense to continued health coverage under COBRA under the Company’s
group medical and dental plans applicable to executives (with the Company’s
payment of premiums lasting for a period of twenty-four months or such shorter
period as COBRA provides because of replacement coverage).


 


(g)           Accrued
Compensation. In the event of any termination of the Executive’s employment
for any reason, the Executive (or his estate) shall be paid (i) any unpaid
portion of his Base Salary through the effective termination date, (ii) for any
accrued but unused vacation (payable in an amount equal to the Base Salary
divided by 255 and multiplied by the number of accrued but unused vacation
days), (iii) any prior fiscal year bonus earned, but not paid (other than on a
resignation by Executive without Good Reason or termination for Cause), (iv)
any amounts for expense reimbursement and similar items which have been
properly incurred in accordance with the provisions hereof prior to termination
and have not yet been paid, including without limitation any sums due under
Sections 2(c), 2(d), and 4(c) hereof, and (v) any Gross-Up Payment which may
become due under the terms of Section 5(i) hereof. Such amounts shall be paid
within ten (10) days of the termination date.


 


(h)           Director/Officer
Resignations. If the Executive’s employment hereunder shall be terminated
by him or by the Company in accordance with the terms set forth herein, then
effective upon the date such termination is effective, he will be deemed to
have resigned from all positions as an officer and director of the Company and
of any of its Subsidiaries, except as the parties may otherwise agree.


 


10





















 


(i)            Certain
Tax Consequences.


 


(i)            (A)  Whether or not the Executive becomes entitled
to the payments and benefits described in this Section 5, if any of the
payments or benefits received or to be received by the Executive in connection
with a change in ownership or control of the Company, as defined in section
280G of the Internal Revenue Code of 1986 (the “Code”) (a “Statutory Change in Control”), or the
Executive’s termination of employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company, any
person whose actions result in a Statutory Change in Control or any person
affiliated with the Company or such person) (collectively, the “Severance Benefits “)
will be subject to any excise tax (the “Excise Tax”) imposed under section 4999 of
the Code after giving effect to Section 5(i)(i)(B), the Company shall pay to
the Executive an additional amount equal to the Excise Tax, plus any amount
necessary to “gross up” the Executive for additional taxes resulting from the
payments to the Executive by the Company under this Section 5(i)(i) (the “Excise Tax Payment”).
Each Excise Tax Payment shall be made not less than five (5) business days
prior to the due date for payment of the Excise Tax.


 


(B)  Notwithstanding the foregoing, if it shall be
determined that the Executive would be entitled to an Excise Tax Payment, but
that if the Severance Benefits could be reduced by an amount necessary such
that the receipt of the Company Payments would not give rise to any Excise Tax
(the “Reduced Benefits”)
and the Reduced Benefits would
not be less than ninety percent (90%) of the Severance Benefits before such
reduction, then no Excise Tax Payment shall be made to the Executive and the
Severance Benefits, in the aggregate, shall be reduced to the Reduced
Benefits.  To determine the Reduced
Benefits, payments shall be reduced in the following order (1) acceleration of
vesting of any stock options for which the exercise price exceeds the then fair
market value, (2) any cash severance based on a multiple of Base Salary or
Bonus, (3) any other cash amounts payable to the Executive, (4) any benefits
valued as parachute payments; and (5) acceleration of vesting of any equity not
covered by (1) above, unless the Executive elects another method of reduction
by written notice to the Company prior to the change of ownership or effective
control.


 


(ii)           For
purposes of determining whether any of the Severance Benefits will be subject
to the Excise Tax and the amount of such Excise Tax:


 


(A)  all of the Severance Benefits shall be
treated as “parachute payments” within the meaning of Code section 280G(b)(2)
if the aggregate present value (determined as provided in Code Section
280G(d)(4)) of such Severance Benefits equals or exceeds three times the
Executive’s “Base Amount”
(within the meaning of Code Section 280G(b)(3)), and all “excess parachute
payments” within the meaning of Code section 280G(b)(1) shall be treated as
subject to the Excise Tax, unless the Executive receives a written opinion from
a nationally recognized law or accounting firm (“280G Advisers”) selected by the
Compensation Committee or the Board, and reasonably acceptable to the
Executive, that such other payments or benefits (in whole or in part) do not
constitute parachute payments, including by reason of Code section
280G(b)(4)(A), or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered, within the
meaning of Code section 280G(b)(4)(B), in excess of the “Base Amount” as
defined in Code section 280G(b)(3) allocable to such reasonable compensation,
or are otherwise not subject to the Excise Tax; and


 


11





















 


(B)  the value of any non-cash benefits or any
deferred payment or benefit shall be determined by a certified public
accountant or appraisal company of recognized national standing forming part of
or selected by 280G Adviser and reasonably acceptable to the Executive, in
accordance with the principles of Code section 280G(d)(3) and (4).


 


(iii)          In
the event that the Excise Tax is subsequently determined to be less than the
amount taken into account hereunder, the Executive shall repay to the Company,
at the time that the amount of such reduction in Excise Tax is finally determined
(the “Reduced Excise Tax”),
an amount (the “Gross-Up
Repayment”) equal to the sum of (A) the difference of the Excise
Tax Payment and the Reduced Excise Tax plus
(B) an amount representing the difference between (1) the amount paid by the
Company to the Executive to “gross up” the Executive for taxes on payments made
by the Company to the Executive in respect of the Excise Tax and (2) the amount
which should have been paid to the Executive by the Company to “gross up” the
Executive for taxes on payments made by the Company to the Executive in respect
of the Reduced Excise Tax; provided,
however, that in no event shall
the Gross-Up Repayment exceed the actual aggregate cash refunds of, or cash
reductions in, taxes paid by the Executive by virtue of paying the Gross-Up
Repayment; and provided, further, that if such refunds or reductions are
realized from time to time, the Executive shall make a repayment to the Company
at the time of each such realization equal to the excess of the Gross-Up
Repayment due after giving effect to such realization over the Gross-Up
Repayment due immediately prior to giving effect to such realization. The
Executive shall (1) take such actions with respect to taxes and tax returns as
the Company may from time to time request in order to obtain such refunds and
reductions, including, without limitation, by taking positions on tax returns
and filing amended tax returns, (2) provide the Company with copies of all tax
returns filed by the Executive which reflect such refunds or reductions or are
otherwise requested by the Company in order to determine the Executive’s
compliance with the immediately preceding clause (1), (3) permit the Company to
participate in any proceedings relating to such refunds and reductions and (4)
take all such other actions as may be reasonably requested by the Company from
time to time in connection with the realization of such refunds or reductions,
including, without limitation, borrowing money from the Company (on terms and
conditions reasonably satisfactory to the Executive and the Company, including,
without limitation, having the Company make the Executive whole, on an
after-tax basis, for any interest costs) so that the payments made from time to
time by the Executive to the Company hereunder maximize (to the extent
reasonably possible) such refunds and reductions, the aggregate amount of such
payments by the Executive not to exceed the Gross-Up Repayment (computed
without regard to the provisos to the first sentence of this Section
5(i)(iii)); provided, however, that the Company shall bear and
directly pay, or shall promptly reimburse the Executive for, all costs and
expenses (including any additional penalties and interest) incurred by the
Executive in connection with any actions taken or omitted by the Executive in
accordance with instructions from the Company pursuant to this sentence, and
shall indemnify and hold the Executive harmless, on an after-tax basis, for any
Excise Tax or income tax (including any additional penalties and interest) imposed
as a result of the Company’s payment of such costs and expenses. In the event
that the Excise Tax is subsequently determined to exceed the amount taken into
account hereunder (including by reason of any payment the existence or amount
of which could not be determined at the time of the Excise Tax Payment), the
Company shall make an additional Excise Tax Payment in respect of such excess
(together


 


12





















 


with any interest or penalties payable by the Executive with respect to
such excess) at the time that the amount of such excess if finally determined,
plus any additional taxes resulting from the payment to the Executive by the
Company for such excess and the interest and penalties thereon. The Executive
and the Company shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the existence or
amount of liability for Excise Tax with respect to the Severance Benefits.


 


(iv)          The
Executive shall give the Company written notice of any determination by the
Executive, or any claim by any taxing authority, that he owes Excise Tax on any
Severance Benefit. Such notice shall be given as soon as practicable but no
later than ten (10) business days after the Executive makes such determination
or is informed of such claim, and shall, to the extent Executive has or may
reasonably obtain such information, apprise the Company of the amount of such
Excise Tax and the date on which it is required to be paid. If the Company
gives the Executive written notice at least thirty (30) days prior to the due
date for payment of such Excise Tax, or within ten (10) business days of having
received the foregoing notice from the Executive (whichever is later), that it
disagrees with or wishes to contest the amount of the Excise Tax, the Company
and the Executive shall consult with each other and their respective tax
advisors regarding the amount and payment of any Excise Tax. In the event there
is a contest with any taxing authority regarding the amount of the Excise Tax,
the Company shall bear and pay directly all costs and expenses (including
additional interest, penalties and legal fees) incurred in connection with any
such contest, and shall indemnify and hold the Executive harmless, on an
after-tax basis, to the extent not otherwise paid hereunder, on (x) the Excise
Tax Payment (including any interest and penalties with respect thereto) and (y)
the Company’s payment of the Executive’s costs and expenses hereunder.


 


6.             Limitation on Competition.


 


The Executive acknowledges that he will have
continuing access to the financial and other confidential information of the
Company.  As an agreement ancillary to
the receipt of such information and the other undertakings in this Agreement,
the Executive covenants as follows:


 


During the Employment Period, and for such period
thereafter (A) as the Executive is entitled to receive severance compensation
under this Agreement, or (B) in the event payment of the Executive’s severance
compensation is accelerated due to a Change in Control, for a period of three
(3) years following the end of the Employment Period, or (C) in the event the
Executive’s employment is terminated by the Company for Cause or the Executive
terminates his employment for any reason other than Good Reason (including,
without limitation, by giving the Company a Non-Renewal Notice pursuant to
Section 1(a) hereof), for a period of twelve months following the Employment
Period:


 


(a)           the
Executive shall not, directly or indirectly, without the Company’s prior
written consent, participate or engage in, whether as a director, officer,
employee, advisor, consultant, investor, lender, stockholder, partner, joint
venturer, owner or in any other capacity, any Competitive Business (as defined
below) conducted in any Competitive Market Area (as defined below); provided,
however, that the Executive shall not be deemed to be participating or engaging
in any such business solely by virtue of his ownership of not more than five
percent of


 


13





















 


any class of stock or other securities which is publicly traded on a
national securities exchange or in a recognized over-the-counter market ;


 


(b)           the
Executive shall not, without the Company’s prior written consent,
(i) solicit (other than by way of generalized employment advertising
undertaken in the ordinary course of business) the service of or employ any
employee of the Company for the Executive’s own benefit or for the benefit of
any person or entity other than the Company, (ii) induce any such employee to
leave employment with the Company, or (iii) employ or cause any other person or
entity other than the Company to employ any former employee of the Company
whose termination of employment with the Company occurred less than six (6)
months prior to such employment by the Executive or such other person or
entity; and


 


(c)           the
Executive shall not, without the Company’s prior written consent,
(i) induce or attempt to induce any customer, supplier or contractor of
the Company to terminate or breach any agreement or arrangement with the
Company or otherwise to cease doing business with the Company, or (ii) induce
or attempt to induce any customer, supplier or contractor of the Company
(including any prospective customer, supplier or contractor which the Company
is actively pursuing prior to the Executive’s termination of employment), not
to enter into any agreement or arrangement with the Company or not to do
business with the Company.


 


As used herein, the term “Competitive Business”
shall mean any business: (1) that is competitive with any business (A)
which was conducted by the Company or any of its affiliated companies during
the Employment Period or on the date of termination of Executive’s employment
hereunder or (B) which, on the date of such termination or during the twelve
months immediately preceding such termination, the Company or any of its
affiliated companies was actively investigating with a view to conducting or
was actively pursuing a plan to conduct; and (2) from which the Company and
such affiliated companies derive (or reasonably expect to derive) annual
revenues of not less than $1,000,000. As used herein, the term “Competitive Market Area”
shall mean any geographic market area (1) if the Company or any of its
affiliated companies conducted business in such geographic market area during
the Employment Period or on the date of termination of Executive’s employment
hereunder, or (2) if, on the date of such termination or during the twelve
months immediately preceding such termination, the Company or any of its
affiliated companies was actively investigating with a view to conducting
business in such geographic market area or was actively pursuing a plan to
conduct business in such geographic market area.


 


The Executive agrees and acknowledges that a portion
of the consideration to be paid by the Company to the Executive pursuant to
this Agreement is in consideration of the covenants under this Section 6 and
that such consideration is fair and adequate, even though the Executive will
not receive any severance compensation in the event he terminates his
employment with the Company other than for Good Reason or the Company
terminates his employment for Cause. The Executive acknowledges and agrees that
any breach or anticipatory breach by him of any of the provisions of this
Section 6 would cause the Company irreparable injury not compensable by
monetary damages alone and that, accordingly, in any such event, the Company
shall be entitled to injunctions, both preliminary and permanent, enjoining or
restraining such breach or anticipatory breach without the necessity of showing
irreparable injury


 


14





















 


(and the Executive hereby consents to the issuance thereof without bond
by a court of competent jurisdiction).


 


7.             Confidential Information.


 


The Executive acknowledges that during the course of
his employment with the Company he will have access to trade secrets,
confidential and proprietary information and know-how of the Company (“Confidential Information”).
Except in the ordinary course of properly performing his duties for the
Company, the Executive shall not at any time, without the Company’s prior
written consent while employed or after termination of his employment,
disclose, communicate or divulge, or use for the benefit of himself or of any
third party, any of the Confidential Information of the Company. In the event
the Executive learns during his employment with the Company any trade secrets,
confidential or proprietary information or know-how of any customer, supplier
or contractor of the Company, the Executive shall maintain the confidence of
such information.


 


8.             Return of Materials.


 


Upon termination of the Executive’s employment for any
reason, the Executive shall promptly deliver to the Company or, with the
Company’s consent, destroy all documents and other materials in the Executive’s
possession or custody (whether prepared by the Executive or others) that the
Executive obtained from the Company or a customer, supplier or contractor of
the Company during the Employment Period and which relate to the past, present
or anticipated business and affairs of the Company, including without
limitation, any Confidential Information.


 


9.             Enforceability.


 


If any provision of this Agreement shall be deemed
invalid or unenforceable as written, this Agreement shall be construed, to the
greatest extent possible, or modified, to the extent allowable by law, in a
manner which shall render it valid and enforceable and any limitation on the
scope or duration of any such provision necessary to make it valid and
enforceable shall be deemed to be a part thereof. No invalidity or
unenforceability of any provision contained herein shall affect any other
portion of this Agreement unless the provision deemed to be so invalid or
unenforceable is a material element of this Agreement, taken as a whole.


 


10.           Legal Expenses.


 


The Company shall pay the Executive’s reasonable fees
for legal and other related expenses associated with any disputes arising
hereunder or under any other agreements, arrangements or understandings
regarding Executive’s employment with the Company (including, without
limitation, all agreements, arrangements and understandings regarding bonuses,
Equity-Based Incentives, employee benefits or other compensation issues) if
either a court of competent jurisdiction or an arbitrator shall render a final
judgement or an arbitrator’s final decision in favor of the Executive on the
issues in such dispute, from which there is no further right of appeal. If it
shall be determined in such judicial adjudication or arbitration that the
Executive is successful on some of the issues in such dispute, but not all,
then the Executive shall be entitled to receive a portion of such legal fees
and other expenses as shall be appropriately prorated.


 


15





















 


11.           Notices.


 


All notices which the Company is required or permitted
to give to the Executive shall be given by registered or certified mail or
overnight courier, with a receipt obtained, addressed to the Executive at his
primary residence, or at such other place as the Executive may from time to
time designate in writing, or by personal delivery to the Executive, or by
facsimile to the Executive with oral confirmation of his receipt and with a
copy immediately sent to the Executive by first class U.S. Mail, and to counsel
for the Executive as may be requested in writing by the Executive from time to
time. All notices which the Executive is required or permitted to give to the
Company shall be given by registered or certified mail or overnight courier,
with a receipt obtained, addressed to the Company at the address set forth
above, or at such other address as the Company may from time to time designate
in writing, or by personal delivery to the Chief Executive Officer of the
Company, or by facsimile to the Chief Executive Officer with oral confirmation
of his receipt and with a copy immediately sent to the Chief Executive Officer
by first class U.S. Mail, and to counsel for the Company as may be requested in
writing by the Company. A notice will be deemed given upon personal delivery,
the mailing thereof or delivery to an overnight courier for delivery the next
business day, or the oral confirmation of receipt by facsimile, except for a
notice of change of address, which will not be effective until receipt, and
except as otherwise provided in Section 5(a) hereof.


 


12.           Waivers.


 


No waiver by either party of any breach or
nonperformance of any provision or obligation of this Agreement shall be deemed
to be a waiver of any preceding or succeeding breach of the same or any other
provision of this Agreement. Any waiver of any provision of this Agreement must
be in writing and signed by the party granting the waiver.


 


13.           Headings; Other Language.


 


The headings contained in this Agreement are for
reference purposes only and shall in no way affect the meaning or
interpretation of this Agreement. In this Agreement, as the context may
require, the singular includes the plural and the singular, the masculine
gender includes both male and female reference, the word “or” is used in the
inclusive sense and the words “including,” “includes,” and “included” shall not be limiting.  As used herein, the term “Subsidiary” shall
mean any corporation or other entity the voting equity of which the Company or
another Subsidiary holds at least fifty percent.


 


14.           Withholding and Timing of Payments.


 


The Executive acknowledges and agrees that any or all
payments under this Agreement may be subject to reduction for tax and other
required withholdings.  In addition, he
acknowledges and agrees that the timing of any payments due to him may be
revised as necessary for compliance with Section 409A of the Code, including,
if applicable, the six month delay required between separation from service and
payment of amounts covered by Section 409A.


 


16





















 


15.           Counterparts.


 


This Agreement may be executed in duplicate
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one agreement.


 


16.           Agreement Complete; Amendments.


 


Effective as of the Commencement Date, this Agreement,
together with the Exhibits hereto, the agreements referred to herein, and the
instruments, agreements, plans, resolutions and other documents pursuant to
which any Equity-Based Incentives are held (now or in the future) by the
Executive, constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, written or oral,
with respect thereto. This Agreement may not be amended, supplemented, canceled
or discharged except by a written instrument executed by both of the parties
hereto, provided, however, that the immediately foregoing provision shall not
prohibit the termination of rights and obligations under this Agreement which
termination is made in accordance with the terms of this Agreement.


 


17.           Benefit of the Successors and Permitted Assigns of
the Respective Parties Hereto.


 


This Agreement and the rights and obligations
hereunder are personal to the Company and the Executive and are not assignable
or transferable to any other person, firm or corporation without the consent of
the other party, except as contemplated hereby; provided, however, in the event
of the sale, merger or consolidation of the Company, whether or not the Company
is the surviving or resulting corporation, the transfer of all or substantially
all of the assets of the Company, or the voluntary or involuntary dissolution
of the Company, then the surviving or resulting corporation or the transferee
or transferees of the Company’s assets shall be bound by this Agreement and the
Company shall take all actions necessary to insure that such corporation,
transferee or transferees are bound by the provisions of this Agreement; and
provided, further, this Agreement shall inure to the benefit of the Executive’s
estate, heirs, executors, administrators, personal and legal representatives,
distributees, devisees, and legatees. Notwithstanding the foregoing provisions
of this Section 17, the Company shall not be required to take all actions
necessary to insure that a buyer, survivor, transferee or transferees of the
Company’s assets (“Transferee”)
are bound by the provisions of this Agreement and such Transferee shall not be
bound by the obligations of the Company under this Agreement if the Company
shall have (a) paid to the Executive or made provision satisfactory to the
Executive for payment to him of all amounts which are or may become payable to
him hereunder in accordance with the terms hereof and (b) made provision
satisfactory to the Executive for the continuance of all benefits required to
be provided to him in accordance with the terms hereof, in each case as if the
Executive had been terminated without Cause in anticipation of a Change in
Control.


 


18.           Governing Law.


 


This Agreement will be governed and construed in
accordance with the laws of Texas applicable to agreements made and to be
performed entirely within such state, without giving effect to any choice or
conflicts of laws principles which would cause the application of the domestic
substantive laws of any other jurisdiction.


 


17





















 


19.           Survival.


 


The covenants, agreements, representations, warranties
and provisions contained in this Agreement that are intended to survive the
termination of the Executive’s employment hereunder and the termination of the
Employment Period shall so survive such termination.


 


20.           Interpretation.


 


The Company and the Executive each acknowledge and
agree that this Agreement has been reviewed and negotiated by such party and
its or his counsel, who have contributed to its revision, and the normal rule
of construction, to the effect that any ambiguities are resolved against the
drafting party, shall not be employed in the interpretation of it.


 


 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.


 


	
   

  	
  KEY ENERGY
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/
  Richard J. Alario

  	
   

  
	
   

  	
   

  	
  Richard J.
  Alario

  
	
   

  	
   

  	
  Chairman,
  President, and Chief Executive

  Officer

  
	
  /s/ William M.
  Austin

  	
   

  
	
  William M. Austin

  	
   

  
						



 


18





















 


EXHIBIT A


 


Company Paid Coverages


 


1.             Medical
and Dental Plan. Comprehensive medical and dental plans available to the
Company’s senior management, pursuant to which all medical and dental expenses
incurred by the Executive, his spouse and his children will be reimbursed by
the Company, through insurance or, in the absence of insurance, directly by the
Company, so that the Executive has no out-of-pocket cost with respect to such
expenses.


 


2.             Director
and Officer Liability Insurance.


 


3.             Voluntary
annual physicals at the Executive’s option while employed, with a report by the
examining physician to the Board regarding the Executive’s ability to perform
job related functions.


 


19





















 


EXHIBIT B


 


Definition
of “Change in Control”


 


The occurrence of any of
the following shall constitute a “Change in Control” of the Company:


 


(a)           If
any person (as defined in Section 3(a)(9) of the Securities Exchange Act of
1934, as from time to time in effect (the “Exchange Act”), or any successor provision),
other than the Company, becomes the beneficial owner directly or indirectly of
more than fifty percent (50%) of the outstanding Common Stock of the Company,
determined in accordance with Rule 13d-3 under the Exchange Act (or any
successor provision), or otherwise becomes entitled to vote more than fifty
percent (50%) of the voting power entitled to be cast at elections for
directors (“Voting Power”)
of the Company;


 


(b)           If
the Company is subject to the reporting requirements of Section 13 or 15(d) (or
any successor provision) of the Exchange Act, and any person (as defined in
Section 3(a)(9) of the Exchange Act, or any successor provision), other than
the Company, purchases shares pursuant to a tender offer or exchange offer to
acquire Common Stock of the Company (or securities convertible into or
exchangeable for or exercisable for Common Stock) for cash, securities or any
other consideration, if after consummation of the offer, the person in question
is the beneficial owner, directly or indirectly, of more than fifty percent
(50%) of the outstanding Common Stock of the Company, determined in accordance
with Rule 13d-3 under the Exchange Act (or any successor provision);


 


(c)           If
the stockholders or the Board approve any consolidation or merger of the
Company (i) in which the Company is not the continuing or surviving corporation
unless such merger is with a Subsidiary at least fifty percent (50%) of the
Voting Power of which is held by the Company or (ii) pursuant to which the
holders of the Company’s shares of Common Stock immediately prior to such
merger or consolidation would not be the holders immediately after such merger
or consolidation of at least a majority of the Voting Power of the Company;


 


(d)           The
stockholders or the Board shall have approved any sale, lease, exchange or
other transfer (in one transaction or a series of transactions) of all or
substantially all of the assets of the Company;


 


(e)           Upon
the election of one or more new directors of the Company, a majority of the
directors holding office, including the newly elected directors, were not
nominated as candidates by a majority of the directors in office immediately
before such election


 


As used in this
definition of “Change in
Control,” “Common
Stock” means the Common Stock, or if changed, the capital stock
of the Company as it shall be constituted from time to time entitling the
holders thereof to share generally in the distribution of all assets available
for distribution to the Company’s stockholders after the distribution to any
holders of capital stock with preferential rights.


 


20