<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly Period Ended October 31, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File Number 001-11963
----------------------------------------------------------
DAILEY PETROLEUM SERVICES CORP.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 76-0503351
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2507 North Frazier,
Conroe, Texas 77035
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 350-3399
----------------
N/A
- --------------------------------------------------------------------------------
(Former Name, Former Address and Former Fiscal Year,
if Changed Since Last Report)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No
--- ---
Number of shares outstanding of issuer's Class A Common Stock as of December 6,
1996 was 4,270,000.
<PAGE> 2
DAILEY PETROLEUM SERVICES CORP.
FORM 10-Q FOR THE QUARTER ENDED OCTOBER 31, 1996
INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
PART 1. FINANCIAL INFORMATION
Item 1. Financial Statements (unaudited)
Consolidated balance sheets - October 31, 1996 and April 30, 1996 1
Consolidated statements of operations - Three months and six months ended
October 31, 1996 and 1995 2
Consolidated statements of cash flows - Six months ended October 31, 1996
and 1995 3
Notes to consolidated financial statements - October 31, 1996 4 - 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 7-9
PART II. OTHER INFORMATION 10
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
Signatures 11
Index to Exhibits 12
</TABLE>
i
<PAGE> 3
DAILEY PETROLEUM SERVICES CORP.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS OF DOLLARS)
(UNAUDITED)
<TABLE>
<CAPTION>
OCTOBER 31, APRIL 30,
1996 1996
------------ ------------
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents .................................... $ 18,697 $ 1,967
Accounts receivable, net ..................................... 21,699 16,306
Accounts receivable from officers and affiliates ............. -- 436
Prepaid expenses ............................................. 906 422
Deferred income taxes ........................................ 1,125 389
Other current assets ......................................... 960 153
------------ ------------
Total current assets ..................................... 43,387 19,673
Revenue-producing tools and inventory, net ........................ 33,255 29,208
Property and equipment, net ....................................... 5,570 5,121
Property and equipment held for sale, net ......................... 205 205
Deferred income taxes ............................................. 323 1,384
Intangibles and other assets ...................................... 422 287
------------ ------------
Total assets ............................................. $ 83,162 $ 55,878
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Accounts payable and accrued liabilities ..................... $ 12,184 $ 6,749
Accounts payable to affiliates ............................... 175 --
Income taxes payable ......................................... 2,264 1,749
Short-term debt .............................................. -- 1,300
Current portion of long-term debt ............................ 1,714 1,738
Current portion of indebtedness to affiliate ................. -- 660
------------ ------------
Total current liabilities ................................ 16,337 12,196
Long-term debt .................................................... 6,011 6,866
Long-term indebtedness to affiliate ............................... -- 1,100
Other noncurrent liabilities ...................................... 59 75
Commitments and contingencies
Stockholders' equity:
Preferred stock, $0.01 par value; 5,000,000 shares authorized,
none issued and outstanding ............................. -- --
Common stock, Class A, $0.01 par value; 20,000,000 shares
authorized, 3,910,000 issued and outstanding at
October 31, 1996, none at April 30, 1996; Class B,
$0.01 par value; 10,000,000 shares authorized,
5,000,000 shares issued and outstanding ................. 89 50
Paid-in capital .............................................. 37,354 4,559
Retained earnings ............................................ 23,312 31,032
------------ ------------
Total stockholders' equity ............................... 60,755 35,641
------------ ------------
Total liabilities and stockholders' equity ............... $ 83,162 $ 55,878
============ ============
</TABLE>
See accompanying notes
1
<PAGE> 4
DAILEY PETROLEUM SERVICES CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS OF DOLLARS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
OCTOBER 31, OCTOBER 31,
-------------------------- --------------------------
1996 1995 1996 1995
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
REVENUES:
Rental income ..................... $ 13,056 $ 10,651 $ 25,175 $ 21,212
Sales of products and services .... 4,099 3,449 8,736 8,367
----------- ----------- ----------- -----------
14,100 33,911 29,579
COSTS AND EXPENSES:
Cost of rentals ................... 9,54 8,190 18,884 16,421
Cost of products and services ..... 2,263 1,643 4,799 4,136
Selling, general and administrative 3,068 2,774 5,968 5,527
Research and development .......... 224 156 399 318
----------- ----------- ----------- -----------
15,095 12,763 30,050 26,402
----------- ----------- ----------- -----------
Operating income ....................... 2,060 1,337 3,861 3,177
Other (income) expense:
Interest income ................... (195 (15) (207) (22)
Interest expense-nonaffiliates .... 178 200 380 404
Interest expense-affiliate ........ 61 44 172 91
Foreign exchange (gain) loss ...... (76) 71 (83) 110
Other, net ........................ 47 (23) 63
----------- ----------- ----------- -----------
Income before income taxes ............. 2,076 990 3,622 2,531
Provision for income taxes ............. 758 350 1,342 894
----------- ----------- ----------- -----------
Net income ............................. $ 1,318 $ 640 $ 2,280 $ 1,637
=========== =========== =========== ===========
Earnings per share (Note 2) ............ $ 0.15 $ 0 .32
=========== ===========
Pro forma earnings per share............ $ 0.10 $ 0 .25
=========== ===========
Weighted average shares outstanding .... 9,023,065 7,191,532
=========== ===========
Pro forma weighted average shares
outstanding........................ 6,610,000 6,610,000
=========== ===========
</TABLE>
See accompanying notes
2
<PAGE> 5
DAILEY PETROLEUM SERVICES CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS OF DOLLARS)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED OCTOBER 31,
----------------------------
1996 1995
---- ----
<S> <C> <C>
Operating activities:
Net income ................................................ $ 2,280 $ 1,637
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization ........................ 3,055 2,842
Deferred income taxes ................................ 325 (19)
Provision for doubtful accounts receivable ........... 153 105
Gain on sale and disposition of property and equipment (17) (97)
Changes in operating assets and liabilities:
Accounts receivable - trade ...................... (5,546) (1,939)
Accounts receivable from/payable to affiliates ... 611 54
Prepaid expenses and other ....................... (1,455) (50)
Accounts payable and accrued liabilities ......... 5,435 690
Income taxes payable ............................. 515 307
----------- -----------
Net cash provided by operating activities ................. 5,356 3,530
Investing activities:
Additions to revenue-producing tools and inventory ........ (10,724) (4,037)
Inventory transferred to cost of rentals .................. 2,894 2,342
Revenue-producing tools lost in hole, abandoned, and sold . 1,175 1,352
Additions to property and equipment ....................... (966) (550)
Proceeds from sale of property and equipment .............. 100 480
----------- -----------
Net cash used in investing activities ..................... (7,521) (413)
Financing activities:
Proceeds from the issuance of debt ........................ 400 --
Payments on outstanding debt .............................. (4,339) (872)
Cost of initial public offering ........................... (3,496) --
Payment of promissory note ................................ (5,000) --
Proceeds from sale of common stock ........................ 31,330 --
----------- -----------
Net cash provided by (used in) financing activities ....... 18,895 (872)
----------- -----------
Increase in cash and cash equivalents ..................... 16,730 2,245
Cash and cash equivalents at beginning of period .......... 1,967 1,796
----------- -----------
Cash and cash equivalents at end of period ................ $ 18,697 $ 4,041
----------- -----------
</TABLE>
See accompanying notes
3
<PAGE> 6
DAILEY PETROLEUM SERVICES CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited consolidated financial statements include
the accounts of Dailey Petroleum Services Corp. and its subsidiaries and
predecessors ("Dailey" or the "Company"), and have been prepared in accordance
with United States generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments considered
necessary for a fair presentation have been included. Operating results for the
three and six month periods ended October 31, 1996 are not necessarily
indicative of the results that may be expected for the year ending April 30,
1997. For further information, reference is made to the consolidated
financial statements and footnotes thereto included in Amendment No. 1 to the
Company's Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on June 7, 1996, as amended and supplemented, and included
in the Company's final prospectus dated August 14, 1996.
2. ORGANIZATION AND PUBLIC OFFERING
The accompanying financial statements reflect the operations of Dailey
Petroleum Services Corp., a Delaware corporation, which was merged with Dailey
Corporation (which changed its name to Dailey Petroleum Services Corp.) in June
1996. New Dailey Petroleum Services Corp. and its predecessor, Dailey Petroleum
Services Corp., are hereinafter referred to as the "Company" or "Dailey".
Prior to June 1996, Dailey was a wholly-owned subsidiary of Lawrence
Industries, Inc. ("Lawrence"). In June 1996, in preparation for the initial
public offering of Class A Common Stock of Dailey, Lawrence reorganized its
ownership of the Company into a holding company structure through a forward
triangular merger of Dailey Petroleum Services Corp., into a newly-formed,
wholly-owned indirect subsidiary of Lawrence, Dailey Corporation (the
"Reorganization"). Following the Reorganization, Dailey Corporation changed its
name to Dailey Petroleum Services Corp. The effect of the forward triangular
merger has been reflected retroactively in the accompanying financial
statements. On August 14, 1996 the Company commenced its initial public
offering of 3,910,000 shares of Class A Common Stock (the "Offering").
In connection with the Offering, the Company issued 3,910,000 shares of
Class A Common Stock. Net proceeds to the Company from the sale of the stock
were $29.1 million, of which approximately $1.3 million was used to pay costs
associated with the Offering. The Company also used $5.0 million of the
proceeds from the Offering to repay the outstanding balance of a $10.0 million
promissory note, which was incurred in connection with a dividend declared on
June 27, 1996 (the "Dividend"). Prior to commencement of the Offering the
Company's sole stockholder contributed to the capital of the Company the
remaining $5.0 million of the outstanding principal of such note. The promissory
note accrued interest at the prime rate. The statements of operations for the
1996 fiscal period
4
<PAGE> 7
include pro forma per share data which gives effect to the number of shares from
which proceeds would have been used to pay the Dividend (an additional
1,250,000 shares assuming a per share offering price of $8.00, thus earnings per
share for the periods ending October 31, 1996 and 1995, are based on 6,610,000
shares of all Common Stock outstanding). Historical earnings per share excluding
the pro forma effect of the dividend was $0.12 per share and $0.30 per share for
the three and six month periods ending October 31, 1995 respectively.
3. REVENUE-PRODUCING TOOLS AND INVENTORY
<TABLE>
<CAPTION>
OCTOBER 31, APRIL 30,
1996 1996
----------- ---------
(IN THOUSANDS)
<S> <C> <C>
Revenue-producing tools................................. $ 51,915 $ 48,024
Accumulated depreciation................................ (30,932) (29,740)
-------- --------
20,983 18,284
Inventory:
Components, subassemblies and expendable parts........ 8,883 9,096
Rental tools and expendable parts under production.... 2,155 1,058
Raw materials......................................... 1,234 770
-------
12,272 10,924
-------- --------
Revenue-Producing Tools and Inventory.... $ 33,255 $ 29,208
======== ========
</TABLE>
4. STOCK OPTIONS AWARDS
Prior to commencement of the Offering, the Company established its 1996
Key Employee Stock Plan (the "1996 Plan") and its 1996 Non-Employee Director
Stock Option Plan (the "1996 Director Plan"). Pursuant to the 1996 Plan, the
Board of Directors of the Company are authorized to grant options or restricted
stock for Class A Common Stock to management personnel for up to 900,000 shares
of the Company's Class A Common Stock. The Board granted options totaling
378,327 shares contemporaneously with the Offering to various executive
officers, which are exercisable at the initial public offering price, of which
163,191 vest immediately and 215,136 vest over three years. Immediately
following the Offering the Company granted to key officers restricted stock
awards totaling 360,000 shares of Class A Common Stock, which will vest over
three years and will not require any payment by the key officers. On October 2,
1996, the Company granted additional options totaling 15,001 shares and a
restricted stock award of 45,000 shares of Class A Common Stock to an executive
officer of the Company. These options are exercisable at $9.00 per share and
will vest over three years. The restricted stock award will also vest over
three years and will not require any payment by the executive officer. The
1996 Director Plan has 100,000 shares authorized for the granting of options to
outside directors, of which 20,000 shares were issued and outstanding effective
September 25, 1996 at an exercise price of $8.875.
5
<PAGE> 8
5. BORROWING ARRANGEMENTS
Long-term debt consisted of the following:
<TABLE>
<CAPTION>
OCTOBER 31, APRIL 30,
1996 1996
------------ ----------
<S> <C> <C>
Note payable to a bank ....................................... $ 7,611 $ 8,444
Note payable to affiliates ................................... --- 1,760
Other notes payable........................................... 114 160
------ --------
$ 7,725 10,364
Less current portion of long-term debt........................ 1,714 2,398
------- --------
Total long-term debt.................................. $ 6,011 $ 7,966
======= ========
</TABLE>
Proceeds from the Offering were used to repay debt during the second
quarter of fiscal 1997.
6. INCOME TAXES
Certain balance sheet reclassifications have been made which reflect a
change in management's estimate that the utilization of the net operating loss
carryforward will be accelerated. The amount of the reclassification from
long-term to current is approximately $736,000.
6
<PAGE> 9
DAILEY PETROLEUM SERVICES CORP.
MANAGEMENT DISCUSSION AND ANALYSIS
The Company provides directional drilling services and designs,
manufactures and rents technologically-advanced downhole tools for oil and gas
drilling and workover applications. Founded in 1945 as a rental tool company,
Dailey began offering directional drilling services in 1984 and currently
provides such services in the Gulf of Mexico, the United States Gulf Coast
region, and most recently, Venezuela and the Austin Chalk formation in Texas
and Louisiana. The Company operates in one business segment.
Demand for the Company's directional drilling services and downhole
tools depends primarily upon the level of exploration and production activity
in the oil and gas industry, which in turn depends in part on oil and gas
prices, expectations about future prices, the cost of exploration for,
producing and delivering oil and gas, the discovery rate of new oil and gas
reserves, domestic and international political, military, regulatory and
economic conditions and the ability of oil and gas companies to raise capital.
During the past five years, the Company has experienced significant
growth in revenues relating to its directional drilling services. The Company
believes this growth is consistent with trends in the oil and gas industry
towards use of technologically-advanced directional drilling services in order
to develop reservoirs that otherwise would have been marginal or uneconomical
using conventional drilling methods. During fiscal 1995, the Company expanded
its directional drilling operations into Venezuela, and in fiscal 1996, began
offering its services in the Austin Chalk formation in Louisiana and Texas. The
Company's revenues during the six months ended October 31, 1996, reflect the
effects of this expansion. The Company also believes that rentals of its
downhole tools have benefited from industry trends toward the use of
directional drilling techniques, in part because a growing percentage of the
Company's downhole tools are rented in connection with its drilling services.
Utilizing proceeds from the Offering, the Company invested $4.3 million for
downhole tools during the quarter ended October 31, 1996, which the Company
believes began to impact revenues during the quarter and will continue to
impact revenues during the second half of the year.
Quarter Ended October 31, 1996 Compared to the Quarter Ended October 31, 1995
Rental Income. Rental income for the quarter ended October 31, 1996 was
$13.1 million, an increase of 23% from $10.7 million for the quarter ended
October 31, 1995. This was due to an increase in demand for directional
drilling services and related products in the United States Gulf Coast region
and the Gulf of Mexico which resulted in a $1.2 million increase in rentals.
During the quarter, the Company purchased and began utilizing additional MWD
equipment, downhole motors and other directional drilling tools in Venezuela,
which resulted in a $600,000 increase in rentals. Also, revenue from the
rental of drilling jars and related products increased $500,000 primarily in
the United States as the result of increased drilling activity.
Sales of Products and Services. Sales of products and services for the
quarter ended October 31, 1996 were $4.1 million, an increase of 19% from $3.4
million for the quarter ended October 31, 1995. This was the result of an
increase in demand for directional drilling services in the Gulf of Mexico, the
United States Gulf Coast region and Venezuela, and to an increase in tools
lost-in-hole primarily in the United States and export sales of mechanical
drilling jars.
Cost of Rentals. Cost of rentals for the quarter ended October 31, 1996
was $9.5 million, an increase of 17% from $8.2 million for the quarter ended
October 31, 1995. This increase was due primarily to the variable costs
associated with an increase in rental activity, such as tool repair costs and
third party tool charges. As a percentage of rental income, cost of rentals
decreased from 77% in the second quarter of fiscal 1996 to 73% in the second
quarter of fiscal 1997, primarily as the result of the fixed nature of the
Company's cost base and to a higher absorption of fixed overhead costs due to an
increase in manufacturing activity.
Cost of Products and Services. Cost of products and services for the
quarter ended October 31, 1996 was $2.3 million, which is a $620,000 increase
from the quarter ended October 31, 1995. The margin on sales of products and
services for the second quarter of fiscal 1997 was 45% compared to 52% for the
same quarter last year. This decrease in margin was due primarily to an
increase in directional drilling services which has a lower margin than sales of
products.
7
<PAGE> 10
Income Tax Expense. Provision for income taxes for the quarter ended
October 31, 1996 was $758,000, an increase of 117% from $350,000 for the quarter
ended October 31, 1995. This was due to a 110% increase in income before income
taxes and a change in the effective tax rate from 35% to 37% due to an increase
in state income taxes.
Six Months Ended October 31, 1996 Compared to the Six Months Ended October 31,
1995
Rental Income. Rental income for the six months ended October 31, 1996
was $25.2 million, an increase of 19% from $21.2 million for the six months
ended October 31, 1995. This was due primarily to an increase in demand for the
Company's directional drilling services and related products in the United
States Gulf Coast region, Gulf of Mexico and Venezuela which resulted in
increased revenue of $2.2 million and $1.5 million, respectively. The increase
was also due to an increase in demand for the Company's drilling jars
domestically which resulted in an increase in revenue of $1.0 million. However,
this was partially offset by a decrease in demand primarily in Latin America
which resulted in a decrease in revenue of $800,000.
Sales of Products and Services. Sales of products and services for the
six months ended October 31, 1996 were $8.7 million, an increase of 4% from $8.4
million for the six months ended October 31, 1995. This was due primarily to an
increase in demand for directional drilling services in the Gulf of Mexico, the
United States Gulf Coast region and Venezuela which resulted in additional
revenue of $950,000. The increase is partially offset by a decrease in export
sales of mechanical drilling jars of approximately $400,000.
Cost of Rentals. Cost of rentals for the six months ended October 31,
1996, was $18.9 million, an increase of 15% from $16.4 million for the six
months ended October 31, 1995. This increase was due primarily to the variable
costs associated with an increase in rental activity, such as tool repair costs
and third party tool charges. As a percentage of rental income, cost of
rentals decreased from 77% in the six months ended October 31, 1995 to 75% in
the six months ended October 31, 1996 primarily as the result of the fixed
nature of the Company's cost base and to a higher absorption of fixed overhead
costs due to an increase in manufacturing activity.
Cost of Products and Services. Cost of products and services for the six
months ended October 31, 1996, was $4.8 million, which is a $663,000 increase
from the six months ended October 31, 1995. The margin on sales of products and
services for the first six months of fiscal 1997 was 45% compared to 51% for
the same period last year. This decrease in margin was due primarily to a
decrease in higher margin export sales of mechanical jars partially offset by
increased revenues and improved margins on revenues from directional drilling
services.
Foreign Exchange (Gain) Loss. Foreign exchange gains of $83,000 for the
six months ended October 31, 1996 compared to losses of $110,000 for the six
months ended October 31, 1995 were due primarily to favorable fluctuations with
the British pound.
8
<PAGE> 11
Income Tax Expense. Provision for income taxes for the six months ended
October 31, 1996 was $1.3 million, an increase of 50% from $894,000 for the six
months ended October 31, 1995. This was due to a 43% increase in income before
income taxes and a change in the effective tax rate from 35% to 37% due to an
increase in state income taxes.
LIQUIDITY AND CAPITAL RESOURCES
Working Capital. At October 31, 1996, the Company had $18.7 million in
cash and cash equivalents. For the six months ended October 31, 1996, the
Company had net income of $2.3 million and cash provided by operating
activities of $5.4 million. Other sources of cash included net proceeds from
the Offering of $27.8 million, $1.2 million from revenue-producing tools lost
in hole, abandoned and sold and $400,000 from advances under the revolving line
of credit discussed below. The Company's principal uses of cash for the six
months were to fund $8.8 million for capital expenditures, $5.0 million for
payment of a promissory note to Lawrence, $1.6 million for payment of a note to
affiliate (see Notes to Lawrence below), $1.7 million repayment on line of
credit (see Credit Facilities below) and $1.1 million for repayment of
long-term debt. During the past several years, the Company has funded its
working capital requirements through cash generated from operations, credit
facilities and asset sales.
Credit Facilities. At October 31, 1996, the Company had $7.6 million of
bank debt outstanding pursuant to an amended and restated credit agreement
dated December 13, 1995, as amended on June 5, 1996 (the "Credit Agreement").
The Credit Agreement provides for a term loan and a revolving credit
facility. Borrowings under the revolving credit facility are limited to the
lesser of $3.0 million or a loan formula based upon the level of the Company's
eligible accounts receivable. At October 31, 1996, there were no outstanding
advances made pursuant to the revolving line of credit.
Notes to Lawrence. During the quarter, the Company repaid $6.6 million
in outstanding notes to Lawrence utilizing a portion of the net proceeds from
the Offering. This repayment included a $5.0 million payment on a $10.0 million
promissory note incurred in connection with the Dividend. The remainder of the
promissory note, $5.0 million, was contributed back to the capital of the
Company by the stockholder prior to the Offering. At October 31, 1996, there
were no outstanding amounts due on these notes.
Capital Expenditures. The Company incurred capital expenditures of
approximately $8.8 million in the six months ending October 31, 1996. Of this
amount, $7.8 million was for downhole tools, primarily MWD and other directional
equipment, hydraulic drilling jars, hydraulic fishing jars and related
inventory. The Company has budgeted approximately $6.6 million for capital
expenditures during the remaining six months of the fiscal year. The Company
believes it has available resources through internally generated cash flow, the
existing Credit Agreement and the net proceeds of the Offering to fund its
operations for at least the next 12 months.
OTHER
From time to time, the Company may make certain statements that contain
"forward-looking" information (as defined in the Private Securities Litigation
Reform Act of 1995) and that involve risk and uncertainty. These forward-looking
statements may include, but are not limited to, future capital expenditure
plans, anticipated results from current and future operations, earnings,
margins, acquisitions, market trends in the oil and gas industry, technological
evolution and product obsolescence, competition and various business trends.
Forward-looking statements may be made by management orally or in writing
including, but not limited to, the Management's Discussion and Analysis and
Financial Condition Results of Operation section and other sections of the
Company's filings with the Securities and Exchange Commission under the
Securities Act of 1933 and the Securities Exchange Act of 1934.
Actual results and trends in the future may differ materially depending on
a variety of factors including, but not limited to, the success of the Company's
exploration and development program, changes in the price of oil and natural
gas, world-wide political stability and economic growth, the Company's
successful execution of internal exploration, development and operating plans,
environmental regulation and costs, regulatory uncertainties and legal
proceedings.
9
<PAGE> 12
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None
ITEM 2. CHANGES IN SECURITIES
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10 - Employment Agreement dated October 2, 1996
between the Company and James J. Percle
27 - Financial Data Schedule
(b) Reports on Form 8-K
None
10
<PAGE> 13
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dailey Petroleum Services Corp.
-------------------------------
(Registrant)
Date December 13, 1996 /s/ DAVID T. TIGHE
------------------ --------------------------------------
David T. Tighe
Senior Vice President &
Chief Financial Officer
and authorized to sign on
behalf of the Registrant
11
<PAGE> 14
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
10 Employment Agreement dated October 2, 1996
between the Company and James J. Percle
27 Financial Data Schedule
</TABLE>
12
<PAGE> 1
EXHIBIT 10
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into
by and between Dailey Petroleum Services Corp., a Delaware corporation
("COMPANY"), and James J. Percle ("EXECUTIVE"), effective October 2, 1996.
W I T N E S S E T H :
WHEREAS, Company desires to employ Executive and Executive desires to
be employed by Company in the capacity set forth in this Agreement;
WHEREAS, Company and Executive entered into a Management Employment
Agreement dated June 26, 1996 which the parties desire to fully restate as set
forth herein;
NOW THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
TERM AND NATURE OF EMPLOYMENT
1.1 TERM OF EMPLOYMENT. Subject to the terms and conditions of
this Agreement, Company hereby employs Executive and Executive hereby accepts
employment with Company for a term beginning on the date shown above through
and including December 31, 1999 (the "INITIAL TERM"), unless this Agreement and
Executive's employment hereunder are sooner terminated pursuant to Article 5.
Six months prior to the end of the Initial Term or any subsequent Renewal Term
(as defined below), the term of this Agreement shall automatically extend for a
three year period from such date, unless either party files a written notice of
non-renewal with the other. Each three year extension of this Agreement shall
be a Renewal Term. The Initial Term together with each Renewal Term shall
hereinafter be referred to collectively as the "EMPLOYMENT PERIOD."
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1.2 PRINCIPAL DUTIES. Executive's employment hereunder shall be
in the capacity of Executive Vice- President and Chief Operating Officer. In
such capacity, Executive shall perform the duties for such office prescribed in
the By-laws, or by the Board of Directors or by the President as set forth in
Annex A, attached. Executive shall perform his duties hereunder in accordance
with any lawful instructions, rules, regulations or policies made or adopted by
Company's Board of Directors, including those applicable to Company's
Executives generally and in accordance with directions of the President.
During the Employment Period, Executive shall devote his full time, and best
efforts and skills to the business and interests of Company, do his utmost to
further enhance and develop Company's best interests and welfare, and endeavor
to improve his ability and knowledge of Company's business, particularly as it
relates to his duties hereunder, in an effort to increase the value of his
services for the mutual benefit of the parties hereto.
1.3 PLACE OF PERFORMANCE. Executive shall perform his duties
hereunder at the principal executive offices of Company at One Lawrence Centre,
2507 North Frazier, Conroe, Texas 77305, or at such other place where
Company's principal executive offices subsequently may be located. Executive
acknowledges subject to Section 5.3(c) hereof, and agrees that Company may
require Executive to travel and render services in different locations from
time to time incident to the performance of his duties hereunder.
1.4 AFFILIATES. The term "AFFILIATES" shall mean any person
controlled by or under common control with Company.
ARTICLE 2
COMPENSATION
For and in consideration of the performance by Executive of the
services, terms, conditions, covenants and agreements contained in this
Agreement, Company shall pay to Executive at the times, in the amounts and in
the manner herein provided, the following:
2.1 BASE COMPENSATION. As the principal consideration for the
services to be performed by Executive hereunder during the Employment Period,
Executive shall be entitled to receive as base compensation from Company a
salary of not less than Nineteen Thousand Eight Hundred Eighty-Three Dollars
($19,883) per month (the "BASE SALARY"), which shall be prorated for any
partial employment period and payable in the manner and on the timetable in
which Company's payroll is customarily handled, or at such intervals as Company
and Executive may hereafter agree to from time to time. No overtime
compensation shall be payable to Executive. Company's Board of Directors shall
review Executive's performance at least annually and shall make any adjustments
to Executive's compensation that it deems, in its sole discretion, appropriate,
provided that at no time during the Employment Period shall Executive's
compensation be adjusted to an amount below the Base Salary. Company shall be
entitled to withhold from all amounts of compensation payable under this
Article 2 such amounts on account of payroll taxes and similar matters as are
required by
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any applicable law, rule, or regulation of any appropriate governmental
authority. Such compensation shall continue to be paid during any period of
physical or mental incapacity unless and until Executive's employment is
terminated as herein provided.
2.2 STOCK GRANT AND OPTION. As additional consideration for
Executive's performance of his obligations under Article 3 and Article 4 of
this Agreement, Company shall, within 180 days of the date of this Agreement,
grant to Executive 45,000 restricted shares of Company's Common Stock, and an
option to purchase 15,001 shares of Company's Common Stock, subject to the
terms and conditions of Company's 1996 Key Employee Stock Plan; provided,
however, that the terms of such restricted Common Stock grant and grant of
stock options shall provide for a vesting schedule so that thirty three and
one-third percent (33 1/3%) of such Restricted Stock and stock options shall
vest upon each of the next three anniversaries of the date of this Agreement.
Executive hereby acknowledges and agrees that Company's grant to Executive of
such Common Stock and options, together with other compensation payable to
Executive hereunder, is reasonable and adequate independent consideration for
Executive's performance of his obligations under Articles 3 and 4 of this
Agreement.
2.3 BONUSES AND BENEFITS. In addition to the Base Salary and
stock grant and option described above, Company shall provide Executive with
the following during the Employment Period:
(a) Bonuses, when and based upon or subject to such
terms and conditions as Company's Board of Directors, in its sole and
absolute discretion, may determine provided, however, that an annual
bonus plan shall be prepared which will make a bonus of thirty three
and one third percent (33 1/3%) of base compensation payable if all
bonus plan criteria are met;
(b) Participation in any present or future disability,
medical, health, dental, insurance, pension, profit-sharing, thrift,
retirement, investment, and stock appreciation plans, and any other
benefit, bonus or compensation plans on the same terms generally
available to all of Company's Executives generally or its executive
officers in particular;
(c) Payment or reimbursement, as the case may be, of
reasonable business expenses (within limits that may be established by
Company's Board of Directors) incurred in connection with the
performance of his duties hereunder, such expense payment or
reimbursement being subject to, and made in accordance with Company's
policies and procedures of Executive expense payment or reimbursement
in effect from time to time;
(d) Access to and use of Company's health club facility
in accordance with the policies and procedures governing such
facility;
(e) An automobile allowance of $1,500.00 per month; and
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(f) Reimbursement of dependent children education
expenses up to $10,000.00 per child per calendar year.
2.4 VACATION. During the Employment Period, Executive shall
accrue paid vacation time in such amounts and at such times as determined by
Company's Board of Directors, in its sole discretion; provided, however, that
the minimum amount of paid vacation to which Executive shall be entitled shall
be no less than four (4) weeks per year. If vacation time is not taken by
Executive during the term of this Agreement, Executive may, at his option,
receive a lump sum payment of cash value of the vacation pay in lieu thereof,
or carry the vacation time forward.
ARTICLE 3
CONFIDENTIAL INFORMATION; PROPERTY RIGHTS
3.1 NON-DISCLOSURE OBLIGATION OF EXECUTIVE. For purposes of this
Article 3, all references to Company shall mean and include its Affiliates (as
defined in Section 1.4) Executive hereby acknowledges, understands and agrees
that whether developed by Executive or others employed by or in any way
associated with Executive or Company, all Confidential Information, as defined
in Section 3.2, is the exclusive and confidential property of Company and shall
be at all times regarded, treated and protected as such in accordance with this
Agreement. Executive acknowledges that all such Confidential Information is in
the nature of a trade secret. Failure to mark any writing confidential shall
not affect the confidential nature of such writing or the information contained
therein.
3.2 DEFINITION OF CONFIDENTIAL INFORMATION. "CONFIDENTIAL
INFORMATION" shall mean information, whether or not originated by Executive,
which is used in Company's business and (a) is proprietary to, about or created
by Company; (b) gives Company some competitive business advantage or the
opportunity of obtaining such advantage, or the disclosure of which could be
detrimental to the interests of Company; (c) is designated as Confidential
Information by Company, known by the Executive to be considered confidential by
Company, or from all the relevant circumstances considered confidential by
Company, or from all the relevant circumstances should reasonably be assumed by
Executive to be confidential and proprietary to Company; or (d) is not
generally known by non-Company personnel. Such Confidential Information
includes, but is not limited to, the following types of information and other
information of a similar nature (whether or not reduced to writing or
designated as confidential):
1. Work product resulting from or related to work or
projects performed or to be performed for Company or for clients of
Company, including but not limited to data bases, draft and other
non-public written documents, the interim and final lines of inquiry,
hypotheses, research and conclusions related thereto and the methods,
processes, procedures, analyses, techniques and audits used in
connection therewith;
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2. Computer software of any type or form in any stage of
actual or anticipated research and development, including but not
limited to programs and program modules, routines and subroutines,
processes, algorithms, design concepts, design specifications (design
notes, annotations, documentation, flowcharts, coding sheets, and the
like), source codes, object codes and load modules, programming,
program patches and system designs;
3. Information relating to Company's proprietary rights
prior to any public disclosure thereof, including but not limited to
the nature of the proprietary rights, production data, technical and
engineering data, test data and test results, the status and details
of research and development of products and services, and information
regarding acquiring, protecting, enforcing and licensing proprietary
rights (including, without limitation, patents, copyrights and trade
secrets);
4. Internal Company personnel and financial information,
vendor names and other vendor information (including vendor
characteristics, services and agreements), purchasing and internal
cost information, internal service and operational manuals, and the
manner and methods of conducting Company's business;
5. Marketing and development plans, price and cost data,
price and fee amounts, pricing and billing policies, quoting
procedures, marketing techniques and methods of obtaining business,
forecasts and forecast assumptions and volumes, and future plans and
potential strategies of Company which have been or are being
discussed;
6. Names of customers and their representatives,
contracts and their contents and parties, customer services, and the
type, quantity, specifications and contents of products and services
purchased, leased, licensed or received by customers of Company;
7. Information provided to Company by any actual or
potential customer, government agency, or other third party (including
businesses, consultants and other entities and individuals); and
8. Contracts with, or developed by Company for use with,
agents of Company, including, without limitation, the terms and
conditions thereof.
3.3 EXCLUSIONS FROM CONFIDENTIAL INFORMATION. "CONFIDENTIAL
INFORMATION" shall not include information publicly known other than as a
result of a disclosure by Executive in breach of Section 3.1, and the general
skills and experience gained during Executive's work with Company which
Executive could reasonably have been expected to acquire in similar work with
another company. The phrase "PUBLICLY KNOWN" shall mean readily accessible to
the public in a written publication and, shall not include information which is
only available by a substantial searching of the published literature or
information the substance of which must be pieced together from a number of
different publications and sources. The burden of proving that information or
skills and experience are not Confidential Information shall be on the party
asserting such exclusion.
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3.4 COVENANTS OF EXECUTIVE. As a consequence of Executive's
acquisition or anticipated acquisition of Confidential Information, Executive
will occupy a position of trust and confidence with respect to Company's
affairs and business. In view of the foregoing and of the consideration to be
provided to Executive, Executive agrees that it is reasonable and necessary
that Executive make the following covenants:
(a) At any time during or after the termination of the
Employment Period, Executive will not disclose Confidential
Information to any person or entity, either inside or outside of
Company, other than as necessary in carrying out duties on behalf of
Company, without obtaining Company's prior written consent (unless
such disclosure is compelled pursuant to court order or subpoena, and
at which time Executive gives notice of such proceedings to Company),
and Executive will take all reasonable precautions to prevent
inadvertent disclosure of such Confidential Information. This
prohibition against Executive's disclosure of Confidential Information
includes, but is not limited to, disclosing the fact that any
similarity exists between the Confidential Information and information
independently developed by another person or entity, and Executive
understands that such similarity does not excuse Executive from
abiding by his covenants or other obligations under this Agreement.
(b) At any time during or after the termination of the
Employment Period, Executive will not use, copy or transfer
Confidential Information other than as necessary in carrying out his
duties on behalf of Company, without first obtaining Company's prior
written consent, and will take all reasonable precautions to prevent
inadvertent use, copying or transfer of such Confidential Information.
This prohibition against Executive's use, copying, or transfer of
Confidential Information includes, but is not limited to, selling,
licensing or otherwise exploiting, directly or indirectly, any
products or services (including data bases, written documents and
software in any form) which embody or are derived from Confidential
Information, or exercising judgment in performing analyses based upon
knowledge of Confidential Information.
3.5 RETURN OF CONFIDENTIAL MATERIAL. Executive shall turn over to
Company all originals and copies of materials containing Confidential
Information in the Executive's possession, custody, or control upon request or
upon termination of the Executive's employment with Company. Executive agrees
to attend a termination interview with the General Counsel to confirm turnover
of such materials and to discuss any questions the undersigned may have about
his continuing obligations under this Agreement.
3.6 INVENTIONS. Any and all inventions, products, discoveries,
improvements, copyrightable works, trademarks, service marks, ideas, processes,
formulae, methods, designs, techniques or trade secrets (collectively
hereinafter referred to as "INVENTIONS") made, developed, conceived or
resulting from work performed by Executive (alone or in conjunction with
others, during regular hours of work or otherwise) while he is employed by
Company and which may be
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directly or indirectly useful in, or related to, the business of Company
(including, without limitation, research and development activities of
Company), or which are made using any equipment, facilities, Confidential
Information, materials, labor, money, time or other resources of Company, shall
be promptly disclosed by Executive to his supervisor, shall be deemed
Confidential Information for purposes of this Agreement, and shall be Company's
exclusive property. Executive shall, upon Company's request, execute any
documents and perform all such acts and things which are necessary or advisable
in the opinion of Company to cause issuance of patents to, or otherwise obtain
recorded protection of right to intellectual property for, Company with respect
to Inventions that are to be Company's exclusive property under this Section
3.6, or to transfer to and vest in Company full and exclusive right, title and
interest in and to such Inventions; provided, however, that the expense of
securing any such protection of right to Inventions shall be borne by Company.
In addition, Executive shall, at Company's expense, assist Company in any
proper manner in enforcing any Inventions which are to be or become Company's
exclusive property hereunder against infringement by others. Executive shall
keep confidential and will hold for Company's sole use and benefit any
Invention that is to be Company's exclusive property under this Section 3.6 for
which full recorded protection of right has not been or cannot be obtained.
ARTICLE 4
COVENANT NOT TO COMPETE; NON-INTERFERENCE
4.1 PROHIBITED EXECUTIVE ACTIVITIES. Executive agrees that except
in the ordinary course of his employment hereunder during the Employment
Period, Executive shall not during the Employment Period and for a period of
one (1) year thereafter within any geographic area in which Company conducts
business during the Employment Period (all references to Company shall mean and
include its Affiliates as defined in Section 1.4):
(a) Directly or indirectly, engage or invest in, own,
manage, operate, control or participate in the ownership, management,
operation or control of, be employed by, associated or in any manner
connected with, or render services or advice to, any Competing
Business (as defined below) provided, however, that the Executive may
invest in the securities of any enterprise with the power to vote up
to 5% of the capital stock of such enterprise (but without otherwise
participating in the activities of such enterprise) if such securities
are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Securities Exchange Act of
1934;
(b) Directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee,
employer, advisor (whether paid or unpaid), stockholder, partner or in
any other individual or representative capacity whatsoever, either for
his own benefit or for the benefit of any other person or entity,
solicit, divert or take away, any customers or clients of Company; or
(c) Directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, Executive,
Company, advisor (whether paid or unpaid),
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stockholder, partner or in any other individual or representative
capacity whatsoever, either for his own benefit or for the benefit of
any other person or entity, either (1) hire, attempt to hire, contact
or solicit with respect to hiring any Executive of Company, (2) induce
or otherwise counsel, advise or encourage any Executive of Company to
leave the employment of Company, or (3) induce any distributor,
representative or agent of Company to terminate or modify its
relationship with Company.
"COMPETING BUSINESS" shall mean any individual, business, firm, company,
partnership joint venture, organization, or other entity whose products or
services compete, in whole or in part, at any time during the Employment Period
with the products or services of Company or its Affiliates in any domestic or
international market area.
4.2 ESSENTIAL NATURE OF ARTICLE 4. It is acknowledged, understood
and agreed by and between the parties hereto that the covenants made by
Executive in Section 4.1 are essential elements of this Agreement and that, but
for the agreement of the Executive to comply with such covenants, Company would
not have entered into this Agreement.
4.3 NECESSITY AND REASONABLENESS OF ARTICLE 4. Executive hereby
specifically acknowledges and agrees that:
(a) Company has expended and will continue to expend
substantial time, money and effort in developing (1) its business in
which the designs, plans, manuals and specifications are valuable
trade secrets, and (2) a valuable list of customers and agents, and
information about their technical problems and needs, purchasing
habits, idiosyncracies and internal purchasing procedures;
(b) Executive will, in the course of his Employment, be
personally entrusted with and exposed to the trade secrets of Company;
(c) Company, during the term of this Agreement and after
its termination, will be engaged in its highly competitive business in
which many firms, including Company, compete;
(d) A substantial portion of Company's business is
conducted outside the United States;
(e) Company, pursuant to acquiring certain patents,
technology and associated trade secrets and know-how, will further
develop its worldwide business;
(f) Executive could, after having access to Company's
financial records, contracts, patents, technology and associated trade
secrets and know-how and, after receiving further training by and
experience with Company, and after reviewing Company's trade secrets,
become a competitor;
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(g) Company will suffer great loss and irreparable harm
if Executive terminates his employment and enters directly or
indirectly, into competition with Company;
(h) The temporal and other restrictions contained in this
Article 4 are in all respects reasonable and necessary to protect the
business goodwill, trade secrets, prospects and other business
interests of Company;
(i) The enforcement of this Agreement in general, and of
this Article 4 in particular, will not work an undue or unfair
hardship on Executive or otherwise be oppressive to him, it being
specifically acknowledged and agreed by Executive that he has
activities and other business interests and opportunities which will
provide him adequate means of support if the provisions of this
Article 4 are enforced after termination of his employment with
Company; and
(j) the enforcement of this Agreement in general, and of
this Article 4 in particular, will neither deprive the public of
needed goods or services nor otherwise be injurious to the public.
4.4 JUDICIAL MODIFICATION. Executive agrees that if a court of
competent jurisdiction determines that the length of time or any other
restriction, or portion thereof, set forth in this Article 4 is overly
restrictive and unenforceable, the court shall reduce or modify such
restrictions to those which it deems reasonable and enforceable under the
circumstances, and as so reduced or modified, the parties hereto agree that the
restrictions of this Article 4 shall remain in full force and effect.
Executive further agrees that if a court of competent jurisdiction determines
that any provision of this Article 4 is invalid or against public policy, the
remaining provisions of this Article 4 and the remainder of this Agreement
shall not be affected thereby, and shall remain in full force and effect.
4.5 SURVIVAL OF COVENANTS. The covenants and agreements of
Executive set forth in this Article 4 are of a continuing nature and shall
survive the expiration, termination or cancellation of the remainder of this
Agreement regardless of the reason for such therefor and shall survive the
termination, if any, of the Executive's employment.
4.6 SPECIAL SEVERANCE PAYMENTS. Upon termination of Executive's
employment with Company for any reason other than pursuant to Section 5.1 or
upon the expiration of this Agreement by reason of nonrenewal, Company shall
pay to Executive (a) a single lump sum payment equal to six (6) months of Base
Salary, and (b) twelve (12) monthly installments equal to his Base Salary, as
defined in Section 2.1, ("Special Severance Payments"), provided that:
(i) any payments made to Executive pursuant to Section 5.3 shall
be applied against and reduce the Special Severance Payments payable
to Executive under this Section 4.6; and
(ii) there shall be no Special Severance Payments payable for any
period in which Executive is in breach of the obligations set forth in
Articles 3 and 4 of this Agreement.
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ARTICLE 5
TERMINATION
5.1 COMPANY TERMINATION
(a) Notwithstanding any other provision of this
Agreement, at any time during the Employment Period, including,
without limitation, the Initial Term, this Agreement and Executive's
employment hereunder shall terminate upon his death, and Company shall
have the right, in its sole and absolute discretion, to terminate this
Agreement and Executive's employment hereunder at any time by giving
him written notice of such termination (1) for "Cause" (as defined
below), or (2) if Executive shall suffer a Disability (as defined
below).
(b) "CAUSE" shall mean any of the following events:
1. An act or acts of personal dishonesty taken
by the Executive which could result in personal enrichment of
the Executive at the expense of the Company;
2. More than one violation by the Executive of
Executive's obligations under this Agreement or under written
policies of the Company which are demonstrably willful on the
Executive's part, and for which Executive has received at
least one written warning that specifies each area of
Executive's violations;
3. Executive's use of illegal drugs as
evidenced by a drug test authorized by Company; or
4. Executive's conviction or the entry of a plea
of nolo contendere or equivalent plea in a court of competent
jurisdiction of any crime or offense involving moral
turpitude.
(c) "DISABILITY" shall mean any mental or physical
illness, impairment or condition which incapacitates the Executive for
a continuous period of six (6) months.
5.2 TERMINATION BY EITHER PARTY. Subject to the provisions of
Section 5.3(a), Company may at any time, for any reason, with or without Cause,
terminate this Agreement and Executive's employment hereunder. Executive may
terminate this Agreement at any time and for any reason. Each of Company's and
Executive's option to terminate this Agreement pursuant to this Section 5.2
shall be exercised by delivery of a written notice to Executive or Company, as
applicable, specifying the effective date of such termination which in no event
shall be sooner than expiration of thirty (30) calendar days following delivery
of such written notice.
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5.3 EFFECT OF TERMINATION.
(a) "TERMINATION BY COMPANY WITHOUT CAUSE." If Company
terminates this Agreement for any reason other than pursuant to the
terms of Section 5.1 and such termination is not within one year of a
Change in Control (as defined in 5.3(b) below), then Company shall:
(a) pay to Executive an amount equal to the greater of (1) his total
Base Salary for the remainder of the Employment Period, or (2) one
month of Base Salary for each full year of service completed with
Company as of the date of termination, (b) cause Executive to be
fully vested in any stock options and stock grants held by Executive,
and (c) pay Executive an amount equal to Executive's most recent
annual bonus. Company shall at its option, make such payments either
in one lump sum on the effective date of termination or over the
remainder of the Employment Period as if the Agreement had not been
terminated.
(b) "TERMINATION BY COMPANY WITHOUT CAUSE AFTER CHANGE IN
CONTROL." If Company terminates this Agreement for any reason other
than pursuant to the terms of Section 5.1 and such termination occurs
within one year of the occurrence of a Change in Control, then Company
shall: (a) pay to Executive an amount equal to the greater of (1)
his total Base Salary for the remainder of the Employment period; (2)
two times the greater of (a) his annualized Base Salary in effect upon
the occurrence of the Change in Control or (b) his annualized Base
Salary in effect on the date of notice termination is received; or (3)
one month of Base Salary for each full year of service completed with
the Company as of the date of termination, (b) pay to Executive an
amount equal to two (2) times his most recent annual bonus, and (c)
shall cause Executive to be fully vested in any stock options or stock
grants held by Executive. Company shall make such payments in one
lump sum on the effective date of termination. A "Change in Control"
shall be deemed to have occurred at any time after the date of this
Agreement that (i) any person (other than those persons who own more
than 10% of the combined voting power of the Company's outstanding
voting securities on the date hereof) becomes the beneficial owner,
directly or indirectly, of 30% or more of the combined voting power of
the Company's then outstanding voting securities, or (ii) individuals
who at the beginning of any period of two consecutive fiscal years
constitute the Company's Board of Directors cease for any reason to
constitute a majority of such Board of Directors at any time during
such two-year period.
(c) "TERMINATION BY EXECUTIVE WITH GOOD CAUSE AFTER
CHANGE IN CONTROL." If Executive terminates this Agreement for Good
Cause (defined below) and such termination occurs within one year of
the occurrence of a Change in Control, then Company shall: (a) pay
to Executive an amount equal to the greater of (1) his total Base
Salary for the remainder of the Employment Period; (2) two times the
greater of (a) his annualized Base Salary in effect upon the
occurrence of the Change in Control or (b) his annualized Base Salary
in effect on the date of notice termination is received; or (3) one
month of Base Salary for each full year of service completed with the
Company as of the date of termination, (b) pay to Executive an
amount equal to two (2) times his most recent annual bonus, and (c)
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cause Executive to be fully vested in any stock options or stock
grants held by Executive. "Good Cause" shall mean the occurrence of
any of the following events:
(i) a reduction by Company in the amount of the
Executive's salary in effect at the time of the occurrence of
a Change in Control or the failure of Company to pay such
salary to the Executive at the time and in the manner
specified in this Agreement;
(ii) other than with respect to the annual
performance bonus specified in Article 2 or, as made with the
Executive's prior written consent, the discontinuance (without
comparable replacement) or material reduction by Company of
the Executive's participation in any bonus or other employee
benefit arrangement (including, without limitation, any
profit-sharing, thrift, life insurance, medical, dental,
hospitalization, stock option or retirement plan or
arrangement) in which the Executive is a participant under the
terms of this Agreement, as in effect on the date hereof or as
may be improved from time to time hereafter;
(iii) the relocation, without the Executive's prior
written consent, of Company's principal operating offices to a
location outside the state in which such offices are located
at the time of the signing of this Agreement;
(iv) in the event the Executive consents to a
relocation of Company's principal operating offices, the
failure of Company to (A) pay or reimburse the Executive on
an after-tax basis for all reasonable moving expenses incurred
by the Executive in connection with such relocation or (B)
indemnify the Executive on an after-tax basis against any
loss realized by the Executive on the sale his principal
residence in connection with such relocation;
(v) the failure of Company to continue to provide
the Executive with office space, related facilities and
support personnel (including, without limitation,
administrative and secretarial assistance) that are
commensurate with the Executive's responsibilities to and
position with Company.
(vi) the failure by Company to promptly reimburse
the Executive for the reasonable business expenses incurred by
the Executive in the performance of his duties for Company, in
accordance with this Agreement.
(vii) the assignment by Company to the Executive of
duties that are materially inconsistent with the Executive's
office with Company at the time of such assignment, or the
removal by the Company from the Executive of a material
portion of those duties usually pertaining to the Executive's
office with Company at the time of such removal.
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(viii) a material change by Company, without the
Executive's prior written consent, in the Executive's
responsibilities to the Company, as such responsibilities are
ordinarily and customarily required from time to time of a
senior officer of a corporation engaged in Company's business.
(ix) any removal of the Executive from, or any
failure to reelect or to reappoint the Executive to, the
office stated in Section1.2.
(d) Subject to the provisions of Section 4.6 and 5.3,
upon termination of this Agreement and Executive's employment
hereunder by either Company or Executive, Executive shall have no
right to receive any compensation or benefits for any period
subsequent to the effective date of such termination, or for any
period prior to such date which have not been earned or vested as of
such date except as may be provided for in any employee benefit plan
relating to such benefits, including the Company's 1996 Key Employee
Stock Plan.
(e) Company's right of termination shall be in addition
to and shall not affect Company's rights and remedies under Articles 3
and 4, and Section 6.1 of this Agreement, and such rights and remedies
shall survive termination of Executive's employment hereunder.
5.4 RESIGNATION FROM OFFICES. Any provision of this Agreement to
the contrary notwithstanding, Executive shall immediately resign from any
offices held with Company or its Affiliates upon written request by the
Company. Any resignation made pursuant to a written request by Company under
this Section 5.4 shall not affect Executive's rights under this Agreement for
any compensation or payment.
5.5 RELEASE OF FOREIGN RIGHTS. If, during the course of
Executives employment with Company or its Affiliates, Executive may acquire any
compensation, retirement, severance or other similar rights or benefits under
the laws of a country other than the United States of America,
("Extraterritorial Rights") then the compensation and benefits of this
Agreement shall supersede and replace such Extra Territorial Rights to the
extent permitted by law. Furthermore, to the extent the Extra Territorial
Rights may not be superseded under the applicable law, any payments or benefits
under applicable law, any payments or benefits under this Agreement shall be
reduced on a dollar for dollar basis for any amounts paid Executive for any
Extra Territorial Rights. By entering into this Agreement Executive expressly
acknowledges:
(a) Executive's domicile is the United States of America;
(b) Executive acknowledges that the employment
relationship with Company and its Affiliates is to be governed solely
by reference to the laws of the State of Texas, regardless of any
services rendered in a jurisdiction outside the State of Texas;
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(c) Executive expressly waives and releases any rights
under the laws of any country other than the United States of America
for any Extra Territorial Rights as heretofore defined; and
(d) Executive expressly acknowledges and agrees that the
payments and benefits under this Agreement have been bargained for in
lieu of any Extra Territorial Rights.
ARTICLE 6
MISCELLANEOUS
6.1 INJUNCTIVE RELIEF. Because of the unique nature of the
Confidential Information, Executive acknowledges, understands and agrees that
Company will suffer immediate and irreparable harm if Executive fails to comply
with any of his obligations under Articles 3 or 4 of this Agreement, and that
monetary damages will be inadequate to compensate Company for such breach.
Accordingly, Executive agrees that Company shall, in addition to any other
remedies available to it at law or in equity, be entitled to temporary,
preliminary, and permanent injunctive relief to enforce the terms of Articles 3
and 4 without the necessity of proving inadequacy of legal remedies or
irreparable harm.
6.2 ACTION BY AND CONSENT OF COMPANY. All rights and remedies of
Company hereunder shall be exercised by the Company solely by the Compensation
Committee of the Company's Board of Directors.
6.3 NOTICES. Any notice, instruction, authorization, request or
demand required hereunder shall be in writing, and shall be delivered either by
personal delivery, by telegram, telex, telecopy or similar facsimile means, by
certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the parties hereto at the principal offices of
Company at the address indicated beneath its signature on the execution page of
this Agreement, and also to Executive at his home address indicated beneath his
signature on the execution page of this Agreement, or at such other address and
number as a party shall have previously designated by written notice given to
the other party in the manner hereinabove set forth. Notices shall be deemed
given when received, if sent by facsimile means (confirmation of such receipt
by confirmed facsimile transmission being deemed receipt of communications sent
by facsimile means); and when delivered and receipted for (or upon the date of
attempted delivery where delivery is refused), if hand-delivered, sent by
express courier or delivery service, or sent by certified or registered mail,
return receipt requested.
6.4 AMENDMENT AND WAIVER. This Agreement may be amended, modified
or superseded only by written instrument executed by all parties hereto. Any
waiver of the terms, provisions, covenants, representations, warranties, or
conditions hereof shall be made only by a written instrument executed and
delivered by the party waiving compliance. Any waiver granted by Company shall
be effective only if executed and delivered by a duly authorized executive
officer of Company other than Executive. The failure of any party at any time
or times to require performance of any provisions hereof, shall in no manner
effect the right to enforce the same. No waiver by any
14
<PAGE> 15
party of any condition or provision, or the breach of any term, provision,
representation, or warranty contained in this Agreement in one or more
instances shall be deemed to be or construed as a further or continuing waiver
of any such condition or breach or a waiver of any other condition or the
breach of any other term, provision, covenant, representation, or warranty.
6.5 SUCCESSORS AND ASSIGNS. All of the terms, provisions,
covenants, representations, warranties, and conditions of this Agreement shall
bind, be enforceable by, and inure to the benefit of, the parties hereto, but
this Agreement and the rights and obligations hereunder shall not be assignable
or delegable by any party; provided, however, that this Agreement and all of
Company's rights and obligations hereunder may be assigned or delegated by it,
in whole, but not in part, to, and shall be binding upon and inure to the
benefit of, any of its successors or assigns, but such assignment or delegation
by Company shall not relieve it of any of its obligations hereunder.
6.6 DEFINITIONS, GENDER AND CERTAIN REFERENCES. As used in this
Agreement, each parenthetically or quoted capitalized term in the introduction,
recitals and other Sections of this Agreement shall have the meaning so
ascribed to it. Whenever the context requires, the gender of all words used
herein shall include the masculine, feminine and neuter, and the number of all
words shall include the singular and plural. References to Articles or
Sections shall be to Articles or Sections of this Agreement unless otherwise
specified. The headings and captions used in this Agreement are solely for
convenient reference and shall not affect the meaning or interpretation of any
article, section or paragraph herein, or this Agreement. The terms "hereof,"
"herein" or "hereunder" shall refer to this Agreement as a whole and not to any
particular Section.
6.7 GOVERNING LAW AND SEVERABILITY. This Agreement has been
executed and is performable in Montgomery County, Texas. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the internal law, and not the law of conflicts, of the State of
Texas. Each party hereto hereby acknowledges and agrees that it has had the
opportunity to consult with its own legal counsel in connection with the
negotiation of this Agreement, and that it has bargaining power equal to that
of the other party hereto in connection with the negotiation, execution and
delivery of this Agreement. Accordingly, the parties hereto agree that the
rule of contract construction that an agreement shall be construed against the
drafter shall have no application in the construction or interpretation of this
Agreement. The invalidity of any provision of this Agreement shall not affect
any other provision of this Agreement, which shall remain in full force and
effect, nor shall the invalidity of a portion of any provision of this
Agreement affect the balance of such provision.
6.8 EXPENSES. Each party hereto shall pay all of its respective
fees and expenses of attorneys, accountants and other persons employed by it in
connection with the resolution of any dispute between the parties hereto
arising out of or relating to this Agreement.
6.9 ENTIRE AGREEMENT. No agreements or representations, oral or
otherwise, express or implied, have been made by any party hereto with respect
to the subject matter hereof that are not set forth expressly in this
Agreement. This Agreement supersedes and cancels any prior agreement,
15
<PAGE> 16
arrangement or understanding entered into between Company and Executive
relating to the subject matter hereof, except any agreement entered into
pursuant to Company's 1996 Key Employee Stock Plan as contemplated by Section
2.2 of this Agreement.
6.10 COUNTERPARTS. The parties may execute this Agreement in any
number of counterparts, each of which is an original, but all of which together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written.
COMPANY:
DAILEY PETROLEUM SERVICES CORP.
By: ______________________________
Name: James F. Farr
Title: Chief Executive Officer
Address: One Lawrence Center
P. O. Box 1863
2507 North Frazier
Conroe, Texas 77305
EXECUTIVE:
________________________________
Name: James J. Percle
Address:
______________________
______________________
THIS SPACE INTENTIONALLY LEFT BLANK
16
<PAGE> 17
COMPANY ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF MONTGOMERY )
Before me, the undersigned authority, on this date personally appeared
James F. Farr, Chief Executive Officer, of Dailey Petroleum Services Corp., a
Delaware corporation, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed, in the capacity stated, and
as the act and deed of said corporation.
Given under my hand and seal this _____ day of _______________, 1996.
____________________________
Notary Public in and for
The State of Texas
My Commission Expires: ________
EXECUTIVE ACKNOWLEDGMENT
STATE OF TEXAS )
)
COUNTY OF MONTGOMERY )
Before me, the undersigned authority, on this date personally appeared
James J. Percle, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
Given under my hand and seal this ___ day of ____________, 1996.
____________________________
Notary Public in and for
The State of Texas
My Commission Expires: ________
17
<PAGE> 18
Annex A to
Executive Employment Agreement
Dated October 2, 1996
By and Between Dailey Petroleum Services Corp.
and James J. Percle
The duties of the Executive Vice-President and Chief Operating Officer
shall include the following:
(a) management of the Company's normal day to day operations
including marketing, sales, manufacturing, engineering and
operations;
(b) preparation of an annual operating plan outlining the
Company's operating and financial objectives in accordance
with criteria set forth by the Board of Directors; and
(c) other duties and responsibilities as may be assigned by the
President commensurate with the duties and responsibilities
typically associated with the position.
Expressly excluded from the duties and responsibilities are the
following areas: accounting, finance, risk management, safety and facilities,
legal and information services.
Initialed for identification
_________________ _________________
J.J. Percle J.F. Farr
18
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<S> <C>
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<FISCAL-YEAR-END> APR-30-1997
<PERIOD-START> MAY-01-1996
<PERIOD-END> OCT-31-1996
<CASH> 18,697
<SECURITIES> 0
<RECEIVABLES> 23,040
<ALLOWANCES> 1,341
<INVENTORY> 0
<CURRENT-ASSETS> 43,387
<PP&E> 23,892
<DEPRECIATION> 18,322
<TOTAL-ASSETS> 83,162
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<BONDS> 0
0
0
<COMMON> 89
<OTHER-SE> 60,666
<TOTAL-LIABILITY-AND-EQUITY> 83,162
<SALES> 0
<TOTAL-REVENUES> 33,911
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