EXHIBIT 10.4
EMPLOYMENT AGREEMENT
CHIEF FINANCIAL OFFICER
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between Superior
Well Services, Inc., a Delaware corporation ("Company"), and Xxx Xxxxxx
("Executive").
WITNESSETH:
WHEREAS, Executive is to be employed by Company; and
WHEREAS, Company is desirous of employing Executive in an executive
capacity on the terms and conditions, and for the consideration, hereinafter set
forth and Executive is desirous of being 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 June 1, 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-Finance and Chief Financial Officer
of Company, 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 $153,000. 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 _________ 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
________ weeks 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 $____
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 will in the future be disclosed or entrusted to
Executive, the business good will of Company or its Affiliates that will in the
future be developed in Executive, or the business opportunities that 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 and
Executive agree to the provisions of
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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, 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 Article 6 would cause irreparable injury to Company. Executive
understands that the foregoing
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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, XX 00000
Attention: Chairman of the Board of Directors
IF TO EXECUTIVE TO: Xxxxxx X. Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
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 3rd day of August, 2005, to be effective as of the Effective Date.
SUPERIOR WELL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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 August 3, 2005, by and between Xxx Xxxxxx ("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
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action under which Executive may have a right or 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.
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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 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 Xxxxx X. Xxxxxxx before
11:59 p.m., August 9, 2005, 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 3rd day of August, 2005.
/s/ Xxxxxx X. Xxxxxx
------------------------------
STATE OF PENNSYLVANIA )
)
COUNTY OF INDIANA )
BEFORE ME, the undersigned authority personally appeared in person,
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 3rd day of August, 2005.
/s/ Xxxxxx Silk
------------------------------
NOTARY PUBLIC in and for the
State of Pennsylvania
My Commission Expires: May 9, 2009
Identification produced:
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