EXHIBIT 10.7
EMPLOYMENT AGREEMENT
VICE-PRESIDENT AND CONTROLLER
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between Superior
Well Services, Inc., a Delaware corporation ("Company"), and Xxxx Xxxxxxx
("Executive").
W I T N E S S E T H:
WHEREAS, Executive is to be directly employed by Company; and
WHEREAS, Company is desirous of directly employing Executive in an
executive capacity on the terms and conditions and for the consideration
hereinafter set forth (which includes new and additional consideration to that
which Executive is currently receiving), and Executive is desirous of being
directly employed by Company on such terms and conditions and for such
consideration;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, Company and Executive agree as
follows:
ARTICLE 1: DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS.
(a) "AFFILIATE" shall mean with respect to any natural person, firm,
partnership, association, corporation, limited liability company, company,
trust, entity, public body or government (a "Person"), any Person which,
directly or indirectly, controls, is controlled by, or is under a common
control with, such Person. The term "control" (including the terms
"controlled by" and "under common control with") as used in this
definition means the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies of a Person,
whether through the ownership of voting securities, by contract, or
otherwise. With respect to any natural person, the term "Affiliate" shall
also mean (1) the spouse or children (including those by adoption) and
siblings of such Person; and any trust whose primary beneficiary is such
Person, such Person's spouse, such Person's siblings and/or one or more of
such Person's lineal descendants, (2) the legal representative or guardian
of such Person or of any such immediate family member in the event such
Person or any such immediate family member becomes mentally incompetent
and (3) any Person controlled by or under the common control with any one
or more of such Person and the Persons described in clauses (1) or (2)
preceding.
(b) "ANNUAL BASE SALARY" shall mean, as of a specified date,
Executive's annual base salary as of such date determined pursuant to
Section 4.1.
(c) "ANNUAL COMPENSATION" shall mean an amount equal to the greater
of:
(i) Executive's Annual Base Salary at the annual rate in
effect at the date of his Involuntary Termination;
(ii) Executive's Annual Base Salary at the annual rate in
effect 60 days prior to the date of his Involuntary Termination; or
(iii) Executive's Annual Base Salary at the annual rate in
effect immediately prior to a Change of Control if Executive's
employment shall be subject to an Involuntary Termination during the
Change of Control Period.
(d) "BOARD" means the Board of Directors of Company.
(e) "CAUSE" shall mean Executive (i) has engaged in gross
negligence, gross incompetence, or willful misconduct in the performance
of his duties, (ii) has refused, without proper reason, to perform his
duties, (iii) has willfully engaged in conduct which is materially
injurious to Company or its subsidiaries (monetarily or otherwise), (iv)
has committed an act of fraud, embezzlement, or willful breach of a
fiduciary duty to Company or an Affiliate (including the unauthorized
disclosure of confidential or proprietary material information of Company
or an Affiliate), (v) has been convicted of (or pleaded no contest to) a
crime involving fraud, dishonesty, or moral turpitude or any felony, or
(vi) has engaged in any other act of misconduct.
(f) "CHANGE IN TERMS OF SERVICE" shall mean:
(i) The occurrence, prior to a Change of Control or after the
expiration of a Change of Control Period, of any one or more of the
following:
(1) a reduction in Executive's Annual Base Salary; or
(2) a material diminution in employee benefits
(including but not limited to medical, dental, life insurance,
and long-term disability plans) and perquisites applicable to
Executive from those substantially similar to the employee
benefits and perquisites provided by Company (including its
subsidiaries) to executives with comparable duties.
(ii) The occurrence, within a Change of Control Period, of any
one or more of the following:
(1) a reduction in Executive's Annual Base Salary from
that provided to him immediately prior to the date on which a
Change of Control occurs;
(2) a diminution in Executive's eligibility to
participate in bonus, stock option, incentive award, and other
compensation plans which provide opportunities to receive
compensation which are the greater of (A) the opportunities
provided by Company (including its subsidiaries) for
executives with comparable duties or (B) the opportunities
under any such plans under which he was participating
immediately prior to the date on which a Change of Control
occurs; or
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(3) a material diminution in employee benefits
(including but not limited to medical, dental, life insurance,
and long-term disability plans) and perquisites applicable to
Executive from the greater of (A) the employee benefits and
perquisites provided by Company (including its subsidiaries)
to executives with comparable duties or (B) the employee
benefits and perquisites to which he was entitled immediately
prior to the date on which a Change of Control occurs.
(g) "CHANGE OF CONTROL" shall mean:
(i) a merger of Company with another entity, a consolidation
involving Company, or the sale of all or substantially all of the
assets of Company to another entity if, in any such case, (A) the
holders of equity securities of Company immediately prior to such
transaction or event do not beneficially own immediately after such
transaction or event equity securities of the resulting entity
entitled to 50% or more of the votes then eligible to be cast in the
election of directors generally (or comparable governing body) of
the resulting entity in substantially the same proportions that they
owned the equity securities of Company immediately prior to such
transaction or event or (B) the persons who were members of the
Board immediately prior to such transaction or event shall not
constitute at least a majority of the board of directors of the
resulting entity immediately after such transaction or event;
(ii) the dissolution or liquidation of Company; or
(iii) when any person or entity (other than the Xxxxxx Holders
or any Xxxxxx Holder or any other Affiliate of the Company),
including a "group" as contemplated by Section 13(d)(3) of the
Securities Exchange Act of 1934, acquires or gains ownership or
control (including, without limitation, power to vote) of more than
50% of the combined voting power of the outstanding securities of
Company.
For purposes of the preceding sentence, (1) "resulting entity" in
the context of a transaction or event that is a merger,
consolidation or sale of all or substantially all assets shall mean
the surviving entity (or acquiring entity in the case of an asset
sale) unless the surviving entity (or acquiring entity in the case
of an asset sale) is a subsidiary of another entity and the holders
of common stock of Company receive capital stock of such other
entity in such transaction or event, in which event the resulting
entity shall be such other entity, and (2) subsequent to the
consummation of a merger or consolidation that does not constitute a
Change of Control, the term "Company" shall refer to the resulting
entity.
(h) "CHANGE OF CONTROL PERIOD" means, with respect to a Change of
Control, the six-month period beginning on the date upon which such Change
of Control occurs.
(i) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
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(j) "COMPENSATION COMMITTEE" shall mean the Compensation Committee
of the Board.
(k) "DISABILITY" shall mean that, as a result of Executive's
incapacity due to physical or mental illness, he shall have been absent
from the full-time performance of his duties for six consecutive months
and he shall not have returned to full-time performance of his duties
within 30 days after written notice of termination is given to Executive
by Company (provided, however, that such notice may not be given prior to
30 days before the expiration of such six-month period).
(l) "EFFECTIVE DATE" shall mean ____________, 2005.
(m) "INVOLUNTARY TERMINATION" shall mean any termination of
Executive's employment with Company which:
(i) does not result from a resignation by Executive (other
than a resignation pursuant to clause (ii) of this Section 1.1(m));
or
(ii) results from a resignation by Executive on or before the
date which is 60 days after the date upon which Executive receives
notice of a Change in Terms of Service;
provided, however, the term "INVOLUNTARY TERMINATION" shall not
include a termination for Cause or any termination as a result of
death or Disability.
(n) "MONTHLY SEVERANCE AMOUNT" shall mean an amount equal to
one-twelfth of Executive's Annual Compensation.
(o) "SEVERANCE AMOUNT" shall mean an amount equal to one-half times
Executive's Annual Compensation.
(p) "SEVERANCE PERIOD" shall mean the period commencing on the date
of an Involuntary Termination and continuing for six months.
(q) "XXXXXX HOLDERS" shall mean each of Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, X.X. Xxxxxx,
Xx. Grantor Retained Annuity Trust dated November 1, 2004, a Pennsylvania
trust, Allegheny Mineral Corp., a Pennsylvania corporation, Xxxxxxxxx
Cement & Supply Corp., a Pennsylvania corporation, Glacial Sand & Gravel
Co., a Pennsylvania corporation and any of their respective Affiliates.
1.2 INTERPRETATIONS. In this Agreement, unless a clear contrary intention
appears, (a) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision, (b) reference to any Article or Section,
means such Article or Section hereof, (c) the words "including" (and with
correlative meaning "include") means including, without limiting the generality
of any description preceding such term, and (d) where any provision of this
Agreement refers to action to be taken by either party, or which such party is
prohibited from
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taking, such provision shall be applicable whether such action is taken directly
or indirectly by such party.
ARTICLE 2: EMPLOYMENT AND DUTIES
2.1 EMPLOYMENT. Effective as of the Effective Date and continuing for the
period of time set forth in Section 3.1 of this Agreement, Executive's
employment by Company shall be subject to the terms and conditions of this
Agreement.
2.2 POSITIONS. From and after the Effective Date, Company shall employ
Executive in the positions of Vice-President and Controller, or in such other
positions as the parties mutually may agree.
2.3 DUTIES AND SERVICES. Executive agrees to serve in the positions
referred to in Section 2.2 and to perform diligently and to the best of his
abilities the duties and services appertaining to such offices, as well as such
additional duties and services appropriate to such offices which the parties
mutually may agree upon from time to time. Executive's employment shall also be
subject to the policies maintained and established by Company that are of
general applicability to Company's executive employees, as such policies may be
amended from time to time.
2.4 OTHER INTERESTS. Executive agrees, during the period of his employment
by Company, to devote substantially all of his business time, energy and best
efforts to the business and affairs of Company and its Affiliates and not to
engage, directly or indirectly, in any other business or businesses, whether or
not similar to that of Company, except with the consent of the Board. The
foregoing notwithstanding, the parties recognize and agree that Executive may
engage in passive personal investment and charitable activities that do not
conflict with the business and affairs of Company or interfere with Executive's
performance of his duties hereunder, which shall be at the sole determination of
the Board.
2.5 DUTY OF LOYALTY. Executive acknowledges and agrees that Executive owes
a fiduciary duty of loyalty to act at all times in the best interests of
Company. In keeping with such duty, Executive shall make full disclosure to
Company of all business opportunities pertaining to Company's business and shall
not appropriate for Executive's own benefit business opportunities concerning
Company's business.
ARTICLE 3: TERM AND TERMINATION OF EMPLOYMENT
3.1 TERM. Unless sooner terminated pursuant to other provisions hereof,
Company agrees to employ Executive for the period beginning on the Effective
Date and ending on the third anniversary of the Effective Date (the "INITIAL
EXPIRATION DATE"); provided, however, that beginning on the Initial Expiration
Date, and on each anniversary of the Initial Expiration Date thereafter, if this
Agreement has not been terminated pursuant to Section 3.2 or 3.3, then said term
of employment shall automatically be extended for an additional one-year period
unless on or before the date that is 90 days prior to the first day of any such
extension period either party shall give written notice to the other that no
such automatic extension shall occur.
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3.2 COMPANY'S RIGHT TO TERMINATE. Notwithstanding the provisions of
Section 3.1, Company shall have the right to terminate Executive's employment
under this Agreement at any time for any of the following reasons:
(a) upon Executive's death;
(b) upon Executive's Disability;
(c) for Cause; or
(d) for any other reason whatsoever, in the sole discretion of the
Board.
3.3 EXECUTIVE'S RIGHT TO TERMINATE. Notwithstanding the provisions of
Section 3.1 Executive shall have the right to terminate his employment under
this Agreement for any of the following reasons:
(a) as a result of a Change in Terms of Service; provided, however,
that prior to Executive's termination as a result of a Change in Terms of
Service, Executive must give written notice to Company of the specific
occurrence that resulted in the Change in Terms of Service and such
occurrence must remain uncorrected for 10 days following such written
notice; or
(b) at any time for any other reason whatsoever, in the sole
discretion of Executive.
3.4 NOTICE OF TERMINATION. If Company desires to terminate Executive's
employment hereunder at any time prior to expiration of the term of employment
as provided in Section 3.1, it shall do so by giving written notice to Executive
that it has elected to terminate Executive's employment hereunder and stating
the effective date and reason for such termination, provided that no such action
shall alter or amend any other provisions hereof or rights arising hereunder. If
Executive desires to terminate his employment hereunder at any time prior to
expiration of the term of employment as provided in Section 3.1, he shall do so
by giving a 30-day written notice to Company that he has elected to terminate
his employment hereunder and stating the effective date and reason for such
termination, provided that no such action shall alter or amend any other
provisions hereof or rights arising hereunder.
3.5 DEEMED RESIGNATIONS. Any termination of Executive's employment shall
constitute an automatic resignation of Executive as an officer of Company and
each Affiliate of Company and an automatic resignation of Executive from the
Board (if applicable) and from the board of directors of any Affiliate of
Company and from the board of directors or similar governing body of any
corporation, limited liability company, or other entity in which Company or any
Affiliate holds an equity interest and with respect to which board or similar
governing body Executive serves as Company's or such Affiliate's designee or
other representative.
ARTICLE 4: COMPENSATION AND BENEFITS
4.1 BASE SALARY. During the period of this Agreement, Executive shall
receive a minimum Annual Base Salary of $120,000. Executive's Annual Base Salary
shall be reviewed
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by the Compensation Committee on an annual basis, and, in the sole discretion of
the Compensation Committee, such Annual Base Salary may be increased, but not
decreased, effective as of any date determined by the Compensation Committee.
Executive's Annual Base Salary shall be paid in equal installments in accordance
with Company's standard policy regarding payment of compensation to executives
but no less frequently than monthly.
4.2 BONUSES. Executive shall be eligible to participate in Company's
annual bonus plan or plans applicable to Executive as approved from time to time
by the Board or the Compensation Committee in amounts to be determined by the
Compensation Committee based upon criteria established by the Compensation
Committee.
4.3 OTHER PERQUISITES. During his employment hereunder, Executive shall be
afforded the following benefits as incidences of his employment:
(a) BUSINESS AND ENTERTAINMENT EXPENSES - Subject to Company's
standard policies and procedures with respect to expense reimbursement as
applied to its executive employees generally, Company shall reimburse
Executive for, or pay on behalf of Executive, reasonable and appropriate
expenses incurred by Executive for business related purposes, including
dues and fees to industry and professional organizations and costs of
entertainment and business development.
(b) VACATION - During his employment hereunder, Executive shall be
entitled to four weeks of paid vacation each calendar year (or such
greater amount of vacation as provided to executives of Company generally)
and to all holidays provided to executives of Company generally; provided,
however, that for the period beginning on the Effective Date and ending on
the last day of the calendar year in which the Effective Date occurs,
Executive shall be entitled to 16 days of paid vacation (or such greater
amount of vacation as provided to executives of Company generally)
reduced by the number of vacation days that Executive has already used
during such calendar year and prior to the Effective Date.
(c) AUTOMOBILE - The Company shall lease for and provide to
Executive a vehicle designated by Executive; provided, however, that the
lease cost to the Company of such vehicle shall not exceed $800 per month.
(d) OTHER COMPANY BENEFITS - Executive and, to the extent
applicable, Executive's spouse, dependents and beneficiaries, shall be
allowed to participate in all benefits, plans and programs, including
improvements or modifications of the same, which are now, or may hereafter
be, available to other executive employees of Company. Such benefits,
plans and programs shall include, without limitation, any profit sharing
plan, thrift plan, health insurance or health care plan, life insurance,
disability insurance, pension plan, supplemental retirement plan, vacation
and sick leave plan, and the like which may be maintained by Company.
Company shall not, however, by reason of this paragraph be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing,
any such benefit plan or program, so long as such changes are similarly
applicable to executive employees generally.
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ARTICLE 5: EFFECT OF TERMINATION ON COMPENSATION; ADDITIONAL PAYMENTS
5.1 TERMINATION OTHER THAN AN INVOLUNTARY TERMINATION. If Executive's
employment hereunder shall terminate upon expiration of the term provided in
Section 3.1 hereof because either party has provided the notice contemplated in
such paragraph, or if Executive's employment hereunder shall terminate for any
other reason except those described in Sections 5.2 and 5.3, then all
compensation and all benefits to Executive hereunder shall continue to be
provided until the date of such termination of employment and such compensation
and benefits shall terminate contemporaneously with such termination of
employment.
5.2 INVOLUNTARY TERMINATION OTHER THAN DURING A CHANGE OF CONTROL PERIOD.
Subject to the provisions of Section 5.6 hereof, if Executive's employment by
Company or any subsidiary thereof or successor thereto shall be subject to an
Involuntary Termination which occurs prior to a Change of Control or after the
expiration of a Change of Control Period, then Company shall, as additional
compensation for services rendered to Company (including its subsidiaries), pay
to Executive the following amounts and take the following actions after the last
day of Executive's employment with Company:
(a) Pay Executive the Monthly Severance Amount on the first day of
each month throughout the Severance Period; provided, however, that if
commencement of such payments would cause any part of the Monthly
Severance Amount to be subject to additional taxes and interest under
Section 409A of the Code, then the payment of the Monthly Severance Amount
shall be deferred to the earliest date upon which such payments can
commence without being subject to such additional taxes and interest and
the first payment of the Monthly Severance Amount shall include all
amounts that would have been paid prior to the date of such payment but
for the deferral required pursuant to this sentence.
(b) During the portion, if any, of the Severance Period that
Executive is eligible to elect and elects to continue coverage for himself
and his eligible dependents under Company's group health plans under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and/or
Sections 601 through 608 of the Employee Retirement Income Security Act of
1974, as amended, Company shall promptly reimburse Executive on a monthly
basis for the difference between the amount Executive pays to effect and
continue such coverage and the employee contribution amount that active
senior executive employees of Company pay for the same or similar coverage
under Company's group health plans.
5.3 INVOLUNTARY TERMINATION DURING A CHANGE OF CONTROL PERIOD. Subject to
the provisions of Section 5.6 hereof, if Executive's employment by Company or
any subsidiary thereof or successor thereto shall be subject to an Involuntary
Termination during a Change of Control Period, then Company shall, as additional
compensation for services rendered to Company (including its subsidiaries), pay
to Executive the following amounts and take the following actions after the last
day of Executive's employment with Company:
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(a) Pay Executive a lump sum cash payment in an amount equal to the
Severance Amount on or before the fifth day after the last day of
Executive's employment with Company; provided, however, that if the lump
sum cash payment would be subject to additional taxes and interest under
Section 409A of the Code, then payment of the lump sum cash payment shall
be deferred to the earliest date upon which such amount can be paid
without being subject to such additional taxes and interest.
(b) Cause any and all outstanding options to purchase common stock
of Company held by Executive to become immediately exercisable in full and
cause Executive's accrued benefits under any and all nonqualified deferred
compensation plans sponsored by Company to become immediately
nonforfeitable.
(c) Cause Executive and those of his dependents (including his
spouse) who were covered under Company's medical and dental benefit plans
on the day prior to Executive's Involuntary Termination to continue to be
covered under such plans (or to receive equivalent benefits) throughout
the Severance Period at no greater cost to Executive than that applicable
to a similarly situated Company executive who has not terminated
employment; provided, however, that (i) such coverage shall terminate if
and to the extent Executive becomes eligible to receive medical and dental
coverage from a subsequent employer (and any such eligibility shall be
promptly reported to Company by Executive), (ii) if Executive (and/or his
spouse) would have been entitled to retiree medical and/or dental coverage
under Company's plans had he voluntarily retired on the date of such
Involuntary Termination, then such coverages shall be continued as
provided under such plans, and (iii) such coverage to Executive (or the
receipt of equivalent benefits) shall be provided under one or more
insurance policies so that reimbursement or payment of benefits to
Executive thereunder shall not result in taxable income to Executive (or,
if any such reimbursement or payment of benefits is taxable, then Company
shall pay to Executive an amount as shall be required to hold Executive
harmless from any additional tax liability resulting from the failure by
Company to so provide insurance policies so that reimbursement or payment
of benefits to Executive thereunder shall not result in taxable income to
Executive).
5.4 INTEREST ON LATE PAYMENTS. If any payment provided for in Section 5.2
or Section 5.3 hereof is not made when due, then Company shall pay to Executive
interest on the amount payable from the date that such payment should have been
made under such Section until such payment is made, which interest shall be
calculated at 2% plus the prime or base rate of interest announced by JPMorgan
Chase Bank (or any successor thereto) at its principal office in New York, and
shall change when and as any such change in such prime or base rate shall be
announced by such bank.
5.5 PARACHUTE PAYMENTS. Notwithstanding anything to the contrary in this
Agreement, if Executive is a "disqualified individual" (as defined in Section
280G(c) of the Code), and the benefits provided for in this Article, together
with any other payments and benefits which Executive has the right to receive
from Company and its Affiliates, would constitute a "parachute payment" (as
defined in Section 280G(b)(2) of the Code), then the benefits provided hereunder
(beginning with any benefit to be paid in cash hereunder) shall be either (1)
reduced (but not below zero) so that the present value of such total amounts and
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benefits received by Executive from Company will be one dollar ($1.00) less than
three times Executive's "base amount" (as defined in Section 280G(b)(3) of the
Code) and so that no portion of such amounts and benefits received by Executive
shall be subject to the excise tax imposed by Section 4999 of the Code or (2)
paid in full, whichever produces the better net after-tax position to Executive
(taking into account any applicable excise tax under Section 4999 of the Code
and any other applicable taxes). The determination as to whether any such
reduction in the amount of the benefits provided hereunder is necessary shall be
made by the Compensation Committee in good faith. If a reduced cash payment is
made and through error or otherwise that payment, when aggregated with other
payments and benefits from Company (or its Affiliates) used in determining if a
"parachute payment" exists, exceeds one dollar ($1.00) less than three times
Executive's base amount, then Executive shall immediately repay such excess to
Company upon notification that an overpayment has been made. Nothing in this
Section 5.5 shall require Company to be responsible for, or have any liability
or obligation with respect to, Executive's excise tax liabilities under Section
4999 of the Code.
5.6 RELEASE AND FULL SETTLEMENT. As a condition to the receipt of any
severance compensation and benefits under this Agreement, Executive will enter
into and deliver to the Company a separate full release and waiver substantially
in the form attached hereto as Exhibit A (with such changes to such form as the
Company may reasonably require to reflect the circumstances relating to the
termination of Executive's employment and/or changes in applicable law).
Notwithstanding anything to the contrary in this Agreement, severance
compensation and other benefits will not be payable by the Company unless and
until the release has been executed by Executive, has not been revoked and is no
longer subject to revocation by Executive.
5.7 LIQUIDATED DAMAGES. In light of the difficulties in estimating the
damages for an early termination of Executive's employment under this Agreement,
Company and Executive hereby agree that the payments, if any, to be received by
Executive pursuant to this Article 5 shall be received by Executive as
liquidated damages.
5.8 OTHER BENEFITS. This Agreement governs the rights and obligations of
Executive and Company with respect to Executive's base salary and certain
perquisites of employment. Except as expressly provided herein, Executive's
rights and obligations both during the term of his employment and thereafter
with respect to stock options, restricted stock, incentive and deferred
compensation, life insurance policies insuring the life of Executive, and other
benefits under the plans and programs maintained by Company shall be governed by
the separate agreements, plans and other documents and instruments governing
such matters.
ARTICLE 6: NON-SOLICITATION OBLIGATIONS
6.1 GENERAL. As part of the consideration for Company's employment of
Executive and the compensation and benefits that may be paid to Executive
hereunder; to protect the trade secrets and confidential information of Company
or its Affiliates that have been or will in the future be disclosed or entrusted
to Executive, the business good will of Company or its Affiliates that has been
or will in the future be developed in Executive, or the business opportunities
that have been or will in the future be disclosed or entrusted to Executive by
Company or its Affiliates; and as an additional incentive for Company to enter
into this Agreement, Company
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and Executive agree to the provisions of this Article 6. Executive agrees that
during his employment with Company and for a period of two (2) years following
the termination of Executive's employment with Company for any reason (the
"Non-Solicitation Period"), Executive shall not:
(a) directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer, advisor,
stockholder, or 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 (i) hire, contract or solicit, or attempt
any of the foregoing, with respect to hiring any employee of Company or
its Affiliates, or (ii) induce or otherwise counsel, advise, or encourage
any employee of Company or its Affiliates to leave the employment of
Company or its affiliates;
(b) directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer, advisor,
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, call upon, solicit, divert, or take away any customer or
vendor of Company or its Affiliates with whom Executive dealt, directly or
indirectly, during his engagement with Company or its Affiliates, in
connection with any business in any of the business territories in which
Company is presently or from time-to-time conducting business that either
conducts a business substantially similar to that conducted by Company or
its Affiliates or provides or sells a service or product that is the same,
substantially similar to, or otherwise competitive with the products and
services provided or sold by Company or its Affiliates (a "COMPETITIVE
OPERATION"); or
(c) call upon any prospective acquisition candidate on Executive's
own behalf or on behalf of any Competitive Operation, which candidate is a
Competitive Operation or which candidate was, to Executive's knowledge
after due inquiry, either called upon by Company or for which Company or
any of its Affiliates made an acquisition analysis, for the purpose of
acquiring such entity.
6.2 NON-DISPARAGEMENT. During Executive's employment with Company and
following any termination of employment with Company, each of Company and
Executive agree not to disparage, either orally or in writing, the other, or any
of the business, products, services, or practices of the Company or any of their
directors, officers, agents, representatives, stockholders, employees, or
Affiliates.
6.3 REMEDIES. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article 6 by Executive, and Company or
its Affiliates shall be entitled to enforce the provisions of this Article 6 by
terminating payments then owing to Executive under this Agreement or otherwise
and to specific performance and injunctive relief as remedies for such breach or
any threatened breach. Such remedies shall not be deemed the exclusive remedies
for a breach of this Article 6 but shall be in addition to all remedies
available at law or in equity, including the recovery of damages from Executive
and his agents.
6.4 REFORMATION. Company and Executive agree that the foregoing
restrictions are reasonable under the circumstances and that any breach of the
covenants contained in this
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Article 6 would cause irreparable injury to Company. Executive understands that
the foregoing restrictions may limit Executive's ability to engage in certain
businesses anywhere in the United States during the Non-Solicitation Period but
acknowledges that Executive will receive sufficiently high remuneration and
other benefits from Company to justify such restriction. Further, Executive
acknowledges that his skills are such that he can be gainfully employed in
non-competitive employment and that the agreement not to solicit will in no way
prevent him from earning a living. Nevertheless, if any of the aforesaid
restrictions are found by a court of competent jurisdiction to be unreasonable,
overly broad as to geographic area or time, or otherwise unenforceable, the
parties intend for the restrictions therein set forth to be modified by the
court making such determination so as to be reasonable and enforceable and, as
so modified, to be fully enforced. By agreeing to this contractual modification
prospectively at this time, Company and Executive intend to make this provision
enforceable under the law or laws of all applicable States so that the entire
agreement not to solicit and this Agreement as prospectively modified shall
remain in full force and effect and shall not be rendered void or illegal. Such
modification shall not affect the payments made to Executive under this
Agreement.
ARTICLE 7: MISCELLANEOUS
7.1 INDEMNIFICATION. If Executive shall obtain any money judgment or
otherwise prevail with respect to any litigation brought by Executive or Company
to enforce or interpret any provision contained herein, Company, to the fullest
extent permitted by applicable law, hereby indemnifies Executive for his
reasonable attorneys' fees and disbursements incurred in such litigation and
hereby agrees (i) to pay in full all such fees and disbursements and (ii) to pay
prejudgment interest on any money judgment obtained by Executive from the
earliest date that payment to him should have been made under this Agreement
until such judgment shall have been paid in full, which interest shall be
calculated at 2% plus the prime or base rate of interest announced by JPMorgan
Chase Bank (or any successor thereto) at its principal office in New York, and
shall change when and as any such change in such prime or base rate shall be
announced by such bank.
7.2 PAYMENT OBLIGATIONS ABSOLUTE. Company's obligation to pay (or cause
one of its subsidiaries to pay) Executive the amounts and to make the
arrangements provided herein shall be absolute and unconditional and shall not
be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense, or other right which Company (including its
subsidiaries) may have against him or anyone else. All amounts payable by
Company (including its subsidiaries hereunder) shall be paid without notice or
demand. Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and, except as provided in Section 5.3(c) hereof, the obtaining of
any such other employment shall in no event effect any reduction of Company's
obligations to make (or cause to be made) the payments and arrangements required
to be made under this Agreement.
7.3 NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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IF TO COMPANY TO: Superior Well Services, Inc.
0000 Xx. 000 Xxxx, Xxxxx #000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chairman of the Board of Directors
IF TO EXECUTIVE TO: ______________________________________________
______________________________________________
______________________________________________
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices or changes of address shall be
effective only upon receipt.
7.4 APPLICABLE LAW. This Agreement is entered into under, and shall be
governed for all purposes by, the laws of the Commonwealth of Pennsylvania.
7.5 NO WAIVER. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
7.6 SEVERABILITY. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction by reason of applicable law shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating or affecting the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
7.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
7.8 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS. Company may
withhold from any benefits and payments made pursuant to this Agreement all
federal, state, city and other taxes as may be required pursuant to any law or
governmental regulation or ruling and all other normal employee deductions made
with respect to Company's employees generally.
7.9 HEADINGS. The paragraph headings have been inserted for purposes of
convenience and shall not be used for interpretive purposes.
7.10 GENDER AND PLURALS. Wherever the context so requires, the masculine
gender includes the feminine or neuter, and the singular number includes the
plural and conversely.
7.11 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of Company and any successor of Company, by merger or otherwise. This
Agreement shall also be binding upon and inure to the benefit of Executive and
his estate. If Executive shall die prior to full payment of amounts due pursuant
to this Agreement, such amounts shall be payable pursuant to the terms of this
Agreement to his estate. Executive shall not have any right to pledge,
hypothecate, anticipate or assign this Agreement or the rights hereunder, except
by will or the laws of descent and distribution.
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7.12 TERM. This Agreement has a term co-extensive with the term of
employment provided in Section 3.1. Termination shall not affect any right or
obligation of any party which is accrued or vested prior to such termination.
7.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with regard to the subject matter hereof, and contains all the
covenants, promises, representations, warranties, and agreements between the
parties with respect to such subject matter. Without limiting the scope of the
preceding sentence, all understandings and agreements preceding the date of
execution of this Agreement and relating to the subject matter hereof are hereby
null and void and of no further force and effect, including, without limitation,
all prior employment and severance agreements, if any, by and between Company
and Executive. Any modification of this Agreement will be effective only if it
is in writing and signed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
_____ day of ________________, 2005, to be effective as of the Effective Date.
SUPERIOR WELL SERVICES, INC.
By: ___________________________
Name:
Title:
COMPANY
By: ___________________________
Name:
Title:
EXECUTIVE
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EXHIBIT A
RELEASE AGREEMENT
This Release Agreement (this "Agreement") constitutes the release referred
to in that certain Employment Agreement (the "Employment Agreement") dated as of
_________, 2005, by and between Xxxx Xxxxxxx ("Executive") and Superior Well
Services, Inc. (the "Company").
For good and valuable consideration, including the Company's provision of
certain payments and benefits to Executive in accordance with Section 5.2 or 5.3
of the Employment Agreement, Executive hereby releases, discharges and forever
acquits the Company, its Affiliates and the past, present and future
stockholders, members, partners, directors, managers, employees, agents,
attorneys, heirs, legal representatives, successors and assigns of the
foregoing, in their personal and representative capacities (collectively, the
"Company Parties"), from liability for, and hereby waives, any and all claims,
damages, or causes of action of any kind related to Executive's employment with
any Company Party, the termination of such employment, and any other acts or
omissions related to any matter on or prior to the date of this Agreement
including without limitation any alleged violation through the date of this
Agreement of: (i) the Age Discrimination in Employment Act of 1967, as amended;
(ii) Title VII of the Civil Rights Act of 1964, as amended; (iii) the Civil
Rights Act of 1991; (iv) Section 1981 through 1988 of Title 42 of the United
States Code, as amended; (v) the Employee Retirement Income Security Act of
1974, as amended; (vi) the Immigration Reform Control Act, as amended; (vii) the
Americans with Disabilities Act of 1990, as amended; (viii) the Fair Labor
Standards Act, as amended; (ix) the Occupational Safety and Health Act, as
amended; (x) the Worker Adjustment and Retraining Notification Act of 1988; (xi)
the Xxxxxxxx-Xxxxx Act of 2002; (xii) the Pennsylvania Human Relations Act;
(xiii) the Pennsylvania Minimum Wage Act; (xiv) the Pennsylvania Equal Pay Law,
as amended; (xv) the Pennsylvania Wage Payment and Collection Law, as amended;
(xvi) any other state anti-discrimination law; (xvii) any other state wage and
hour law; (xviii) any other local, state or federal law, regulation, or
ordinance; (xix) any public policy, contract, tort, or common law claim; (xx)
any allegation for costs, fees, or other expenses including attorneys' fees
incurred in these matters; (xxi) any and all rights, benefits, or claims
Executive may have under any employment contract, incentive compensation plan,
or stock option plan with any Company Party, or to any ownership interest in any
Company Party, except as expressly provided in the Employment Agreement and any
incentive equity or stock option agreement between Executive and the Company;
and (xxii) any claim for compensation or benefits of any kind not expressly set
forth in the Employment Agreement or any such incentive equity or stock option
agreement (collectively, the "Released Claims"). This Agreement is not intended
to indicate that any such claims exist or that, if they do exist, they are
meritorious. Rather, Executive is simply agreeing that, in exchange for the
consideration recited in the first sentence of this paragraph, any and all
potential claims of this nature that Executive may have against the Company
Parties, regardless of whether they actually exist, are expressly settled,
compromised, and waived. By signing this Agreement, Executive is bound by it.
Anyone who succeeds to Executive's rights and responsibilities, such as heirs or
the executor of Executive's estate, is also bound by this Agreement. This
release also applies to any claims brought by any person or agency or class
action under which Executive may have a right or
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benefit. THIS RELEASE INCLUDES MATTERS ATTRIBUTABLE TO THE SOLE OR PARTIAL
NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY,
OF ANY OF THE COMPANY PARTIES.
Executive affirms that he has not filed, caused to be filed, and presently
is not a party to, any claim, complaint, or action against Employer in any forum
or form. Executive further affirms that he has been paid and/or has received all
leave (paid or unpaid), compensation, wages, bonuses, commissions, and/or
benefits to which he may be entitled and that no other leave (paid or unpaid),
compensation, wages, bonuses, commissions, and/or benefits are due to him,
except as provided in the Employment Agreement. Executive furthermore affirms
that he has no known workplace injuries or occupational diseases and has been
provided and/or has not been denied any leave requested under the Family and
Medical Leave Act of 1993. Executive agrees not to bring or join any lawsuit
against any of the Company Parties in any court relating to any of the Released
Claims. Executive represents that Executive has not brought or joined any
lawsuit or filed any charge or claim against any of the Company Parties in any
court or before any government agency and has made no assignment of any rights
Executive has asserted or may have against any of the Company Parties to any
person or entity, in each case, with respect to any Released Claims. If
Executive brings or joins any lawsuit against any of the Company Parties in any
court (except as necessary to protect Executive's rights under this release or
with respect to Executive's entry into this release) relating to any of the
Released Claims, and Executive is the prevailing party in such lawsuit,
Executive shall be obligated to return to the Company all amounts paid to
Executive under this release, to the extent permitted under applicable law and
ordered by the court. Further, if Executive violates the covenant not to xxx set
forth in this paragraph, Executive shall be required to pay all costs and
expenses (including the reasonable fees of counsel, related disbursements of
counsel and court costs) incurred by any Company Party to defend such lawsuit or
other claim.
By executing and delivering this Agreement, Executive acknowledges that:
(a) Executive has carefully read this Agreement;
(b) Executive has had at least 21 days to consider this Agreement
before the execution and delivery hereof to the Company;
(c) Executive has been and hereby is advised in writing that
Executive may, at Executive's option, discuss this Agreement with an
attorney of Executive's choice and that Executive has had adequate
opportunity to do so; and
(d) Executive fully understands the final and binding effect of this
Agreement; the only promises made to Executive to sign this Agreement are
those stated in the Employment Agreement and herein; and Executive is
signing this Agreement voluntarily and of Executive's own free will, and
that Executive understands and agrees to each of the terms of this
Agreement.
Notwithstanding the initial effectiveness of this Agreement, Executive may
revoke the delivery (and therefore the effectiveness) of this Agreement within
the seven day period beginning on the date Executive delivers this Agreement to
the Company (such seven day period
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being referred to herein as the "Release Revocation Period"). To be effective,
such revocation must be in writing signed by Executive and must be delivered to
_________________ before 11:59 p.m., __________, Pennsylvania time, on the last
day of the Release Revocation Period. If an effective revocation is delivered in
the foregoing manner and timeframe, this Agreement shall be of no force or
effect and shall be null and void ab initio. No consideration shall be paid or
provided if this Agreement is revoked by Executive in the foregoing manner.
Executed on this ___________ day of _____________, _______.
______________________________
STATE OF ___________________ Section
Section
COUNTY OF __________________ Section
BEFORE ME, the undersigned authority personally appeared ____________, by
me known or who produced valid identification as described below, who executed
the foregoing instrument and acknowledged before me that he subscribed to such
instrument on this _____ day of ______________, ________.
____________________________________
NOTARY PUBLIC in and for the
State of ___________________
My Commission Expires: ____________
Identification produced:
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