SEPARATION AND RELEASE AGREEMENT

Exhibit 10.1

This Separation and Release Agreement (collectively, the “Agreement”) dated as of April 30, 2022 (the “Effective Date”) is made by and between U.S. Well Services, Inc. (the “Company”) and Xxxx Xxxxxxxxx (“Xxxxxxxxx”). Xxxxxxxxx and the Company together are referred to as the “Parties.”

Preamble

Xxxxxxxxx has been employed by the Company as the Chief Executive Officer pursuant to an Employment Agreement entered into on July 13, 2018 (as amended, the “Employment Agreement”) attached to this Agreement as Exhibit A;

Xxxxxxxxx has also served as a member of the Company’s board of directors (the “Board”) since November 9, 2018;

On the Effective Date, Xxxxxxxxx is resigning from his position as the President and Chief Executive Officer of the Company and from any and all other positions of employment with the Company without Good Reason (as defined in the Employment Agreement); and

Following his resignation, Xxxxxxxxx will continue to serve as a Member of the Board and, in connection with his resignation, the Board will appoint Xxxxxxxxx as the non-executive Chairman of the Board.

NOW THEREFORE in consideration of the mutual promises exchanged in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

Agreement

Definitions. When used in this Agreement,

“Cause” means any of the following:

(a)

Xxxxxxxxx’x failure or refusal to perform specific directives from the Board that are consistent with the scope and nature of Xxxxxxxxx’x duties and responsibilities;

(b)

Fraud committed against the Company, or any of its affiliates or subsidiaries, or embezzlement of the funds of the Company or any its affiliates or subsidiaries;

(c)

Use of drugs or other substances, which is (x) unlawful or (y) otherwise interferes with the performance of Xxxxxxxxx’x duties and obligations;

(d)

Xxxxxxxxx’x commission of or pleading guilty or no contest to a felony or to any crime involving dishonesty or fraud;

(e)

Any gross or willful misconduct of Xxxxxxxxx resulting in loss to the Company or any of its affiliates or subsidiaries or damages to the reputation of the Company or any of its affiliates or subsidiaries;

(f)

Any material breach by Xxxxxxxxx of Xxxxxxxxx’x covenants contained in Section 6 of this Agreement; or

(g)

Any other material breach of this Agreement by Xxxxxxxxx.

No act or failure to act on the part of Xxxxxxxxx will be deemed “willful” if it was due primarily to an error in judgment or negligence, but will be deemed “willful” only if done or omitted to be done by Xxxxxxxxx not in good faith and without reasonable belief that his action or omission was in the best interest of the Company.

“Company and/or its Affiliates” means and includes U.S. Well Services, Inc. and all of its predecessors, successors, parents, subsidiaries, divisions and other affiliated companies, partners, partnerships, assigns, and all of their respective present and former officers, directors, employees, shareholders or equity holders, board members, agents and insurers, whether in their individual or official capacities.

1. Resignation Date. As of the Effective Date, Xxxxxxxxx has voluntarily resigned without Good Reason from employment with the Company and from any and all positions ever held as an officer, manager, director or similar position with any subsidiary of the Company, other than as a member of the Board, and Xxxxxxxxx agrees he shall execute all documents necessary to effect such resignations.

2. Accrued Obligations and Employee Equity Grants.

(a) Xxxxxxxxx and the Company acknowledge that Xxxxxxxxx is not entitled to any severance payments under the terms of the Employment Agreement in connection with his resignation and that the Employment Agreement is terminated on the Effective Date, and no amounts will be payable under the Employment Agreement after the Effective Date, provided, however, that Article VI of the Employment Agreement shall continue in effect. The Company agrees to provide Xxxxxxxxx with the following amounts: (i) payment of his current base salary through the Effective Date; (ii) reimbursement of expenses in accordance with past practices; (iii) payment of his accrued, unused vacation time as of the Effective Date; and (iv) a cash lump sum in the amount of $316,670.00. Such base salary will be paid in accordance with the Company’s normal payroll schedule and the payments identified in parts (ii), (iii) and (iv) of the previous sentence will be paid in a lump sum within thirty (30) days after the Effective Date. In addition, subject to Xxxxxxxxx’x continued services in accordance with this Section 2 with the Company and its Affiliates, including services on the Board or as a consultant, on each of the following payment dates, the Company shall pay Xxxxxxxxx a cash lump sum amount of $316,670.00 on the six-month anniversary of the Effective Date and a cash lump sum amount of $316,670.00 on the 18-month anniversary of the Effective Date, subject to acceleration as provided in Section 2(b) below.

(b) If, prior to the date of such cash lump sum payments described in Section 2(a), Xxxxxxxxx is terminated or released from his service obligations on the Board or as a consultant with the Company without Cause, Xxxxxxxxx will receive the full amount of any cash lump sum amount not yet paid on the date of such separation, provided, that, if Xxxxxxxxx resigns from the Board, voluntarily ceases to provide services to the Company or is terminated or released from his service obligations on the Board or as a consultant with Company for Cause, Xxxxxxxxx will forfeit the right to receive any cash lump sum payments not yet received as of such date. In the event of a Change in Control (as defined in the Amended and Restated U.S. Well Services 2018 Stock Incentive Plan (the “Stock Incentive Plan”)), subject to Xxxxxxxxx’x continued service as a consultant or on the Board through the date of a consummation of a Change in Control, Xxxxxxxxx will be entitled to receive the full amount of any cash lump sum amount not yet received as of the date of the consummation of the Change in Control.

(i) U.S. Well Services, Inc. Restricted Stock Award Agreement dated November 9, 2018;

(ii) U.S. Well Services, Inc. Grant Notice for 2018 Stock Incentive Plan Nonqualified Stock Options dated March 14, 2019;

(iii) U.S. Well Services, Inc. Grant Notice for 2018 Stock Incentive Plan Restricted Stock Award dated March 14, 2019;

(iv) U.S. Well Services, Inc. Grant Notice for 2018 Stock Incentive Plan Performance Award (Pool A) dated November 5, 2020;

(v) U.S. Well Services, Inc. Grant Notice for 2018 Stock Incentive Plan Performance Award (Pool B) dated November 5, 2020; and

(vi) U.S. Well Services, Inc. Grant Notice for 2018 Stock Incentive Plan Deferred Stock Unit Award dated November 5, 2020.

All of the foregoing Awards shall be subject to their terms and conditions and settled or paid, if any, in accordance with their terms and conditions. Nothing in this Agreement is intended to modify the Awards.

3. Director Services, Director Equity Grants and Director Compensation.

(a) In connection with Xxxxxxxxx’x continued services as a consultant to be performed for the Company and its Affiliates following the Effective Date as the Board may request, which level is expected to be more than 20% of the Xxxxxxxxx’x services within the preceding 36 months of the Effective Date and in connection with his service on the Board after the Effective Date, the Company, on the Effective Date, will xxxxx Xxxxxxxxx a restricted stock award for restricted shares with a value on the Effective Date equal to $950,000 of the Fair Market Value of shares of restricted Class A common stock as an award under the Stock Incentive Plan, which shall be subject to the terms of such award and the Plan; provided, however, that no fractional shares shall be issued, and any amount for the fractional share shall not be paid.

(b) In connection with his service as the Chairman of the Board following the Effective Date, Xxxxxxxxx will be entitled to receive the annual director and chairman compensation approved by the Compensation Committee of the Board and the Board for current non-employee Board members, currently consisting of $120,000 for each non-employee director in 2022 and an additional $40,000 for the non-executive Chairman of the Board in 2022.

4. Indemnification. Subject to applicable law, the Company will provide indemnification to Xxxxxxxxx to the maximum extent permitted by the General Corporation Law of Delaware, the Company’s Bylaws and Certificate of Incorporation, including coverage, if applicable, under Xxxxxxxxx’x Indemnity Agreement with the Company dated November 9, 2018, and any directors and officers insurance policies, with such indemnification determined by the Board or any of its committees in good faith based on principles consistently applied (subject to such limited exceptions as the Board may approve in cases of hardship) and on terms no less favorable than those provided to any other Company executive officer or director.

5. Release by Xxxxxxxxx.

(a) General Release.

(i) In exchange for the consideration contained herein, Xxxxxxxxx, on behalf of himself, and his agents, spouse, heirs, executors, successors and assigns, unconditionally, fully and forever waives, releases, discharges, agrees to hold harmless, and promises not to xxx the Company and/or its Affiliates, from and for any claim, demand, judgment, right, fee, damage, debt, obligation, liability, action or right of any sort, known or unknown (collectively, “Claims”), arising on or before the Effective Date, for (A) any compensation of any kind, any wages, salary, bonuses, equity interests, compensation, sick time, vacation time, paid leave or other remuneration of any kind or any claim for additional or different compensation or benefits of any sort, including phantom equity, fringe benefits, reimbursements, any benefits under any employee benefit plan, policy or program, severance payments or benefits or compensation pursuant to the Employment Agreement, any equity awards under the Stock Incentive Plan or otherwise, or any other agreement, or additional or different compensation or benefits related to his resignation or termination of employment with the Company, (B) any and all claims arising under tort, contract, and quasi-contract law, including but not limited to claims of breach of an express or implied contract, tortious interference with contract or prospective business advantage, breach of the covenant of good faith and fair dealing, promissory estoppel, detrimental reliance, invasion of privacy, nonphysical injury, personal injury or sickness or any other harm, wrongful or retaliatory discharge, fraud, defamation, slander, libel, false imprisonment, and negligent or intentional infliction of emotional distress, or (C) any and all claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) (regarding existing but not prospective claims), the Fair Labor Standards Act (FLSA), the Equal Pay Act, the Employee Retirement Income Security Act (ERISA) (regarding unvested benefits), the Civil Rights Act of 1991, Section 1981 of U.S.C. Title 42, the Fair Credit Reporting Act (FCRA), the Worker Adjustment and Retraining Notification (WARN) Act, and

the Age Discrimination in Employment Act (“ADEA”), Older Workers Benefit Protection Act (“OWBPA”), all including any amendments and their respective implementing regulations, and any other federal, state, local, or foreign law (statutory, regulatory, or otherwise) that may be legally waived and released; however, the identification of specific statutes is for purposes of example only, and the omission of any specific statute or law shall not limit the scope of this general release in any manner; provided, however, that Xxxxxxxxx does not waive, release or otherwise discharge (i) any claim or cause of action to enforce any of Xxxxxxxxx’x rights under this Agreement, (ii) COBRA rights, (iii) unsubmitted or unpaid medical and dental insurance benefits accrued prior to the Effective Date, subject to the terms of the relevant insurance plans, (iv) coverage, if any, under the Company’s insurance policies in effect as of the Effective Date, subject to the terms thereof, (v) any vested benefits under the Company’s tax-qualified 401(k) plan, subject to the terms thereof, (vi) any rights Xxxxxxxxx may possess as a shareholder of the Company to own or vote Xxxxxxxxx’x shares or to receive dividends, if any, or (vii) Xxxxxxxxx’x rights to indemnification as described in Section 4.

(b) Specific Release of ADEA Claims. In further consideration of the payments and benefits provided to Xxxxxxxxx in this Agreement, Xxxxxxxxx hereby irrevocably and unconditionally fully and forever waives, releases, and discharges the Company and/or its Affiliates from any and all Claims, whether known or unknown, from the beginning of time through the date of the Xxxxxxxxx’x execution of this Agreement, arising under the ADEA, as amended, and its implementing regulations. By signing this Agreement, Xxxxxxxxx hereby acknowledges and confirms that:

(i) Xxxxxxxxx has fully read, understands and voluntarily enters into this Agreement including the release set forth in this Section 5 and that (i) rights and claims under the ADEA and the OWBPA are among the rights and claims against Company and/or its Affiliates that Xxxxxxxxx is releasing, and (ii) Xxxxxxxxx is not releasing any rights or claims arising after he signs the Agreement;

(ii) by this Agreement, Xxxxxxxxx is hereby advised that he should consult with independent legal counsel prior to executing this Agreement regarding the consequences to him from execution and delivery of this Agreement. Xxxxxxxxx further acknowledges that he has had an opportunity to consult with an attorney of his choice before signing this Agreement; and

(iii) Xxxxxxxxx knowingly, freely, and voluntarily agrees to all of the terms and conditions set out in this Agreement including, without limitation, the waiver, release, and covenants contained in it.

(c) Xxxxxxxxx is signing this Agreement, including the waiver and release, in exchange for good and valuable consideration in addition to anything of value to which Xxxxxxxxx is otherwise entitled.

(d) Xxxxxxxxx acknowledges that he was given at least 21 days to consider the terms of this Agreement and consult with an attorney of his choice, although Xxxxxxxxx may sign it sooner if desired and changes to this Agreement, whether material or immaterial, do not restart the running of the 21 -day period.

(e) Xxxxxxxxx understands that he has seven (7) days after signing this Agreement to revoke the release in this paragraph by delivering notice of revocation to [NAME] at the Company, [EMAIL] or 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 by email or overnight delivery before the end of this seven-day period. If Xxxxxxxxx elects to revoke the Agreement, all of the provisions of the Agreement shall be void and unenforceable. If Brossard does not revoke this Agreement, the Agreement shall become effective at the expiration of the seven (7) day revocation period (i.e., on the eighth day after Xxxxxxxxx signs the Agreement) (the “Effective Date”).

(f) Nothing in this Agreement prevents Xxxxxxxxx from filing a claim with the Equal Opportunity Commission (“EEOC”) or other applicable law or participating in any investigation or proceeding conducted by the EEOC or other applicable law; provided, however, Xxxxxxxxx understands and agrees that he is waiving any and all rights to recover any monetary or personal relief or recovery as a result of such proceeding or subsequent legal action.

6. Continued Obligations. Xxxxxxxxx acknowledges and agrees that he previously agreed to be bound by certain ongoing and post-employment obligations pursuant to Article VI of the Employment Agreement (the “Continued Obligations”), which are hereby incorporated herein by reference, provided, that, the restrictions on solicitation set forth in Section VI(b) will not apply with respect to any solicitation of Xxxx Xxxxxxx, Xxxx Xxxxxxxxx or Xxxx Xxxxxxx by Xxxxxxxxx after the Effective Date.

7. Cooperation. The Parties agree that certain matters in which Xxxxxxxxx has been involved during Xxxxxxxxx’x employment may need Xxxxxxxxx’x cooperation with the Company in the future. Upon reasonable request, Xxxxxxxxx agrees to cooperate with the Company and all individuals employed by the Company in any and all matters relating to the Company, including cooperation in any transition of his duties as Chief Executive Officer.

8. Non-Disparagement. Xxxxxxxxx agrees not to disparage, either orally or in writing, the Company and/or its Affiliates or their businesses, operations, officers, directors, employees or shareholders.

9. No knowledge of Wrongdoing or Matters Requiring Disclosure. Xxxxxxxxx represents that he has no knowledge of (a) any wrongdoing by the Company and/or its Affiliates; or (b) any matters regarding the Company and/or its Affiliates requiring disclosure to any private or government agency.

10. Taxes.

(a) Xxxxxxxxx has been advised and Xxxxxxxxx hereby acknowledges that he has been advised to obtain independent legal and tax advice regarding this Agreement, including, without limitation, under Section 409A of the Internal Revenue Code of 1986, as amended and the applicable notices, rules, and regulation thereunder (the “Code”). Xxxxxxxxx acknowledges that none of the Company, its affiliates, the Board or any of their officers, directors, employees or agents guarantees or are otherwise responsible for any tax consequences to Xxxxxxxxx in connection with this Agreement or any payments hereunder including under any Award under any federal, state, local domestic or foreign law, including, without limitation, any income or excise taxes or interest or penalties under Code Section 409A and that Xxxxxxxxx is solely responsible for such tax consequences.

(b) It is the intent of the parties is that this Agreement be exempt from or to the extent applicable comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder and, accordingly, this Agreement shall be interpreted to be in compliance therewith, and to the extent required the defined terms herein shall have the meaning required of such term under Code Section 409A, and any provision that would result in a violation of Code Section 409A shall be null and void. Notwithstanding any provision to the contrary in this Agreement, payments under this Agreement that are subject to Code Section 409A and are to be made hereunder upon a termination of employment shall only be made upon a “separation from service” (as defined in Treasury Regulation § 1.409A 1(h)) and, if Xxxxxxxxx is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment that constitutes “nonqualified deferred compensation” subject to Code Section 409A, such payment or benefit shall be made or provided at the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date after the date of such “separation from service” of Xxxxxxxxx, and (B) the date of Xxxxxxxxx’x death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this provision (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Xxxxxxxxx in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. Whenever a payment under this Agreement may be paid within a specified period, the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may Xxxxxxxxx, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.

(c) Any installment payments shall be treated as a series of separate payments in accordance with Treasury Regulation 1.409A-2(b)(iii).

(d) This Agreement is subject to all applicable federal, state and local taxes and withholding requirements.

11. Enforcement.

(a) Arbitration.

(i) The Parties agree that any and all disputes, claims or controversies arising out of, relating to, or in connection with this Agreement or Xxxxxxxxx’x resignation, including the execution, performance, and termination of this Agreement and related documents, that are not resolved by their mutual agreement shall be resolved by final and binding confidential arbitration as the exclusive remedy. Xxxxxxxxx understands that by entering into this Agreement, Xxxxxxxxx is waiving any right he may have to file a lawsuit or other civil action or proceeding, and Xxxxxxxxx is waiving any right he may have to resolve disputes through trial by judge or jury.

(ii) Either Party may commence the arbitration process by filing a written demand for arbitration with the American Arbitration Association (“AAA”) and sending a copy by personal delivery or certified mail to the other party. The Parties agree that, except as provided in this Agreement, the arbitration shall be in accordance with the AAA’s then–current rules Commercial Arbitration Rules. The arbitration shall be conducted by one arbitrator (“Arbitrator”) admitted to practice law in Texas for at least ten (10) years who is a former judge, selected pursuant to the selection procedures provided by AAA or by an arbitrator mutually selected by the parties. Proceedings to enforce, confirm, modify, set aside or vacate an award or decision rendered by the Arbitrator will be controlled by and conducted in conformity with the Federal Arbitration Act, 9 U.S.C. § 1 et seq., or applicable state law. The arbitration shall be final and binding upon the parties. The Parties will be responsible for paying their own costs and attorney’s fees except as otherwise provided by the arbitration rules. Any arbitration proceeding shall take place in Xxxxxx County, Texas. The arbitration proceeding and all related documents will be confidential, unless disclosure is required by law.

(iii) THE PARTIES HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY AND AGREE TO HAVE ANY AND ALL DISPUTES RESOLVED IN ARBITRATION IN ACCORDANCE WITH THIS SECTION.

12. Notices. Any notices provided under this Agreement shall be effective if provided concurrently by both email and federal express (overnight delivery) as follows:

(a) If to Broussard:

(i) 000 Xxx Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000

xxxxx@xxxxxxxxxxxxxx.xxx

(b) If to the Company:

(i) U.S. Well Services, Inc.

0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000

Attn: Xxxx X’Xxxxx.

xxxxxxx@xxxxxxxxxxxxxx.xxx

(ii) With a courtesy copy (which does not constitute notice) to:

Xxxx X. Xxxxxx

Xxxxxx Xxxxxx LLP

0000 Xxxx Xx., 00xx Xxxxx, Xxxxxxx, XX 00000

xxxxxxx@xxxxxxxxxxxx.xxx

13. Authority. The Parties warrant that they or their undersigned representatives are legally competent and fully authorized to execute and deliver this Agreement. Xxxxxxxxx additionally warrants that he has not heretofore assigned or transferred, or purported to have assigned or transferred, to any firm, entity, or person, any dispute released herein.

14. Entire Agreement. This Agreement, together with the Continued Obligations, embody the entire agreement between the Parties relating to the subject matter hereof, and may be amended or modified only by an instrument in writing executed jointly by the Parties.

15. Choice of Law. This Agreement is made and shall be enforced pursuant to the laws of the State of Delaware. It is the intent of the Parties that this Agreement may be disclosed to a court of law and that the terms of the Agreement are binding upon the Parties in a court of law.

16. No Admission. The Parties acknowledge that this Agreement is the result of a compromise and shall never be construed as, or said by either of them to be, an admission by the other of any liability, wrongdoing, or responsibility. The Parties expressly disclaim any such liability, wrongdoing, fault, or responsibility.

17. Other Representations. By executing this Agreement and as a condition precedent to any obligations or liabilities of the Parties, Xxxxxxxxx expressly acknowledges, represents, and warrants that Xxxxxxxxx (i) is not relying upon any statements, understandings, representations, expectations, or agreements other than those expressly set forth in this Agreement; (ii) was represented by legal counsel of his own choosing; (iii) has made his own investigation of the facts, have had a full opportunity to review the terms of this Agreement, and has and is relying solely upon his own knowledge and the advice of his own legal counsel; (iv) has carefully read and understood all of the provisions of this Agreement; (v) knowingly waives any claim that this Agreement was induced by any misrepresentation, omission, or nondisclosure and any right to rescind or avoid this Agreement based upon presently existing facts, known or unknown; and (vi) he is the lawful owner of the claims released herein and has not assigned, transferred, sold, pledged, or in any manner whatsoever conveyed any right, title, interest, or claim in or to any claim released by this Agreement. Xxxxxxxxx stipulates that the Company is relying upon these representations and warranties in entering into this Agreement. These representations and warranties shall survive the execution of this Agreement.

18. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future laws or public policies, such provisions shall be fully severable and shall in no way affect the validity or enforceability of this Agreement or any other provision herein.

19. Waiver. The provisions of this Agreement may only be waived with the prior written consent of the Company and Xxxxxxxxx, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall be construed as a waiver of such provisions or affect the validity, binding effect, or enforceability of this Agreement or any provision herein.

20. Agreement Jointly Drafted. The Parties agree that this Agreement shall be construed as if the Parties jointly prepared this Agreement and that this Agreement shall not be construed against any Party on the ground that such Party drafted the Agreement.

21. Voluntary Execution. Xxxxxxxxx further acknowledges that he has had sufficient time to consider this Agreement, that he was represented by counsel of his choosing in negotiating this Agreement, and that Xxxxxxxxx is signing this Agreement knowingly and voluntarily for purposes of receiving additional, valuable compensation beyond what Xxxxxxxxx would otherwise be entitled to.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as follow:


/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx

Date:		April 29, 2022


U.S. Well Services, Inc.

/s/ Xxxx X’Xxxxx
Name:		Xxxx X’Xxxxx
Title:		Chief Financial Officer
Date:		April 29, 2022

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SEPARATION AND RELEASE AGREEMENT

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