AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (as amended from time to time, this
“Agreement”), effective as of January 1, 2008, is between W-H Energy Services, Inc., a
Texas corporation (“Company”), and Xxxxxxx X. Xxxxx, Xx. (“Executive”).
W I T N E S S E T H:
WHEREAS, Company and Executive are currently parties to an Employment Agreement effective as
of October 1, 2003, as amended by a First Amendment thereto effective as of October 27, 2006 and a
Second Amendment thereto executed as of March 30, 2007 (such Employment Agreement, as so amended,
the “Original Employment Agreement”); and
WHEREAS, Company and Executive desire to amend and restate the Original Employment Agreement
to reflect therein the amendments thereto effected by the First Amendment thereto and the Second
Amendment thereto and to make certain other amendments, including those required by Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”).
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations
contained herein, Company and Executive agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES
1.1 Employment; Effective Date. Effective as of October 1, 2003 (the “Effective
Date”), and continuing for the period of time set forth in Article 2 of this Agreement, Company
agrees to employ Executive and Executive agrees to be employed by Company, subject to the terms and
conditions of this Agreement.
1.2 Positions. From and after the Effective Date, Company shall employ Executive in the
position of President and Chief Executive Officer of Company, or in such other positions as the
parties mutually may agree.
1.3 Duties and Services. Executive agrees to serve in the position referred to in paragraph
1.2 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.
1.4 Other Interests. Executive agrees, during the period of his employment by Company, to
devote his primary 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 of Directors. The
foregoing notwithstanding, the parties recognize and agree that Executive may engage in other
business 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 Company’s Board of Directors.
1.5 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.
1.6 Option To Revise Employment Duties. Notwithstanding anything herein to the contrary,
Executive may, at any time during the term hereof, with the consent of the Board of Directors,
resign from his position as Executive and Chief Executive Officer of the Company (a “Partial
Resignation”). If Executive desires to exercise his Partial Resignation right, he shall
provide written notice thereof to the Board of Directors no less than 180 days prior to the
effective date of such Partial Resignation, which effective date shall be set forth in such notice.
The Board of Directors shall have 90 days from the date of receipt of such notice to consent to
such request for Partial Resignation. If the Board of Directors does not respond to such request
for Partial Resignation or if it shall otherwise not provide its consent thereto, the Executive
shall continue to serve as President and Chief Executive Officer of the Company and Chairman of the
Board of Directors pursuant hereto, subject to Executive’s rights set forth in Section 2.3 hereof.
If the Board of Directors consents to such Partial Resignation, it may specify an earlier effective
date for such Partial Resignation, and, if it does so, such date specified by the Board of
Directors shall be the effective date of such Partial Resignation. Between the date of the Board
of Directors’ consent to a Partial Resignation and the effective date thereof, Executive shall
cooperate with and assist the Company in making appropriate and necessary arrangements occasioned
by Executive’s exercise of his Partial Resignation right. Following the effective date of such
Partial Resignation, (i) Executive shall continue to be an employee of the Company and shall
continue to have all of the rights provided to Executive herein, (ii) Executive shall continue to
serve as Chairman of the Company’s Board of Directors, (iii) this Agreement shall continue in full
force and effect as provided herein and (iv) Executive shall continue a level of bona fide services
rendered with respect to his employment at a level that is at least 50% of the average level of
services that he has provided to Company during the previous 36 months (and, consequently, a
Partial Resignation shall not constitute a separation from service for purposes of Section 409A of
the Code).
ARTICLE 2: TERM AND TERMINATION OF EMPLOYMENT
2.1 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 September 30, 2009.
If Executive exercises the Partial Resignation right pursuant to paragraph 1.6, the term of this
Agreement shall be extended automatically for three (3) years (the “Option Term”), such
Option Term to commence on the effective date of such Partial Resignation and to end on the third
anniversary of such date.
2.2 Company’s Right to Terminate. Notwithstanding the provisions of paragraph 2.1, Company
shall have the right to terminate Executive’s employment under this Agreement at any time for any
of the following reasons:
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(i) upon Executive’s becoming incapacitated by accident, sickness or other circumstance
which, in the reasonable opinion of a physician selected by Company, renders him mentally or
physically incapable of performing the duties and services required of him hereunder;
(ii) for cause, which for purposes of this Agreement shall mean Executive (A) has
willfully breached any of his duties and obligations hereunder resulting in materially
adverse consequences to Company or any of its affiliates, (B) has misappropriated funds or
property of Company or any of its affiliates, or (C) has engaged in conduct that is
materially adverse to the interests of Company or any of its affiliates; or
(iii) for any other reason whatsoever, in the sole discretion of the Board of
Directors.
2.3 Executive’s Right to Terminate. Notwithstanding the provisions of paragraph 2.1,
Executive shall have the right to terminate his employment under this Agreement for any of the
following reasons:
(i) within 60 days of the initial existence of (A) a material breach by Company of any
material provision of this Agreement, (B) a material decrease in Executive’s base salary;
(C) a material decrease in the duties and responsibilities assigned to Executive as compared
to the positions referred to in paragraph 1.2; or (D) Executive being required to relocate
to a site more than 25 miles from his present business address; provided, however, that,
prior to termination pursuant to clause (A), Company shall give Executive written notice of
the grounds for termination and Executive shall have ten days after receipt thereof to cure
same;
(ii) at any time after there is a Change in Control (as such term is defined in
paragraph 6.1); or
(iii) at any time for any other reason whatsoever, in the sole discretion of Executive;
provided, however, that in the case of a termination under paragraph 2.3(i), (A) Executive must
provide Company with written notice of the event giving rise to the right of termination within 60
days of the initial existence thereof, and Company shall have 30 days to remedy the same and (B)
in no event may the effective date of Executive’s termination be more than 24 months following the
initial existence of the event giving rise to the right of termination.
2.4 Notice of Termination. If Company or Executive desires to terminate Executive’s
employment hereunder at any time prior to expiration of the term of employment as provided in
paragraph 2.1, it or he shall do so by giving written notice to the other party that it or he 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.
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ARTICLE 3: COMPENSATION AND BENEFITS
3.1 Base Salary. Commencing January 1, 2007, Executive shall receive a minimum annual base
salary of $500,000. Executive’s annual base salary shall be reviewed by the Board of Directors (or
a committee thereof) on an annual basis, and, in the sole discretion of the Board of Directors (or
such committee), such annual base salary may be increased, but not decreased, effective as of
January 1 of each year. Executive’s annual base salary shall be paid during his employment
hereunder in equal installments in accordance with the Company’s standard policy regarding payment
of compensation to executives but no less frequently than monthly. On and after the effective date
of a Partial Resignation, Executive shall continue to receive his annual base salary which shall be
paid at the same time and in the same form and amount that it would otherwise be paid under this
paragraph 3.1 as if no Partial Resignation took place.
3.2 Incentive Compensation. During the period of this Agreement, other than during the Option
Term, during which Executive shall not be entitled to receive incentive compensation, Executive
shall be eligible to receive incentive compensation up to a maximum of 200% of his annual base
salary each calendar year as shall be determined in the sole discretion of the Board of Directors
(or a committee thereof), which compensation, if any, shall be paid to Executive in the form of a
lump-sum payment between January 1 and March 15 of the calendar year following the calendar year to
which the incentive compensation relates.
3.3 Other Perquisites. During his employment hereunder, Executive shall be afforded the
following benefits as incidences of his employment:
(i) Car Allowance - Company shall provide to Executive an automobile or automobile
allowance as approved by the Board of Directors (or committee thereof), which shall be paid
in equal installments on a monthly basis in accordance with the Company’s standard policy
regarding payment of compensation to its other employees. On and after the effective date
of a Partial Resignation, Executive shall continue to receive his car allowance which shall
be paid at the same time and in the same form and amount that it would otherwise be paid
under this paragraph 3.3(i) as if no Partial Resignation took place.
(ii) Other Company Benefits - Executive and, to the extent applicable, Executive’s
spouse, dependents and beneficiaries, shall be allowed to participate in the health and
welfare plans and programs, including improvements or modifications of the same, which are
now, or may hereafter be, available to the other executive officers of Company. Such plans
and programs include, without limitation, health insurance, life insurance and disability
insurance and vacation and sick leave plans, 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 plan or program, so long as such
changes are similarly applicable to the other executive officers of Company. On and after
the effective date of a Partial Resignation, Executive shall, to the extent Executive is
eligible under the terms of the applicable plan agreements, continue to participate in such
plans and programs as if no Partial Resignation took place.
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ARTICLE 4: PROTECTION OF INFORMATION
4.1 Disclosure to Executive. Company shall disclose to Executive, or place Executive in a
position to have access to or develop, trade secrets or confidential information of Company or its
affiliates; and/or shall entrust Executive with business opportunities of Company or its
affiliates; and/or shall place Executive in a position to develop business good will on behalf of
Company or its affiliates.
4.2 Property of Company. All documents, drawings, memoranda, notes, records, files,
correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic
databases, maps, and all other writings or materials of any type embodying any information relating
to Company or its business are and shall be the sole and exclusive property of Company. Upon
termination of Executive’s employment by Company, for any reason, Executive promptly shall deliver
the same, and all copies thereof, to Company. For the avoidance of doubt, this paragraph 4.2 shall
not prohibit Executive from retaining his only personal property following termination or
expiration of this Agreement.
4.3 No Unauthorized Use or Disclosure. Executive will not, at any time during or after
Executive’s employment by Company, make any unauthorized disclosure of any confidential business
information or trade secrets of Company or its affiliates, or make any use thereof, except in the
carrying out of Executive’s employment responsibilities hereunder. Affiliates of the Company shall
be third party beneficiaries of Executive’s obligations under this paragraph. As a result of
Executive’s employment by Company, Executive may also from time to time have access to, or
knowledge of, confidential business information or trade secrets of third parties, such as
customers, suppliers, partners, joint venturers, and the like, of Company and its affiliates.
Executive also agrees to preserve and protect the confidentiality of such third party confidential
information and trade secrets to the same extent, and on the same basis, as Company’s confidential
business information and trade secrets.
4.4 Remedies. Executive acknowledges that money damages would not be sufficient remedy for
any breach of this Article by Executive, and Company shall be entitled 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, but shall be in addition to all
remedies available at law or in equity to Company, including the recovery of damages from
Executive.
ARTICLE 5: NONCOMPETITION OBLIGATIONS
5.1 In General. As part of the consideration for the compensation and benefits to be paid to
Executive hereunder; to protect the trade secrets and confidential information of Company and its
affiliates that have been and will in the future be disclosed or entrusted to Executive, the
business good will of Company and its affiliates that has been and will in the future be developed
in Executive, or the business opportunities that have been and will in the future be disclosed or
entrusted to Executive by Company and its affiliates; and as an additional incentive for Company to
enter into this Agreement, Company and Executive agree to the noncompetition obligations hereunder.
Executive shall not, directly or indirectly for Executive or for others, in the State of Texas and
in all parishes of the State of Louisiana:
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(i) engage in any business competitive with the business conducted by Company during
the term of employment of Executive in such states; or
(ii) render advice or services to, be employed by, acquire an ownership interest in, or
otherwise assist, any other person, association, or entity who is engaged, directly or
indirectly, in any business competitive with the business conducted by Company during the
term of employment of Executive in such states with respect to such competitive business,
except that Executive may hold up to 2% of the outstanding shares of any publicly held
company engaged in such competitive activities.
The noncompetition obligations set forth above shall apply only during the period that Executive is
employed by Company and for two years thereafter; provided, however, that such noncompetition
obligations shall only apply after Executive’s termination of employment hereunder if such
termination shall be as a result of a resignation by Executive other than under circumstances
described in paragraph 2.3(i). For the avoidance of doubt, such obligations shall not apply
following the termination or expiration of this Agreement under any other provision hereof.
5.2 Enforcement and Remedies. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article by Executive, and Company shall be entitled 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, but shall be
in addition to all remedies available at law or in equity to Company, including without limitation,
the recovery of damages from Executive.
5.3 Reformation. It is expressly understood and agreed that Company and Executive consider
the restrictions contained in this Article to be reasonable and necessary to protect the
proprietary information of Company. Nevertheless, if any of the aforesaid restrictions are found
by a court having jurisdiction to be unreasonable, or overly broad as to geographic area or time,
or otherwise unenforceable, the parties intend for the restrictions therein set forth to be
modified by such court so as to be reasonable and enforceable and, as so modified by the court, to
be fully enforced.
ARTICLE 6: EFFECT OF TERMINATION ON COMPENSATION;
ADDITIONAL PAYMENTS
ADDITIONAL PAYMENTS
6.1 Defined Terms. For purposes of this Article 6, the following terms shall have the
meanings indicated:
“Change in Control” means (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 60% 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
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transaction or event or (B) the persons who were members of the Board of Directors
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, (iii) when any person or entity, including a
“group” as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, 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, (A) if
Company has not engaged in a merger or consolidation, Company, or (B) if Company has engaged
in a merger or consolidation, the resulting entity, or (iv) as a result of or in connection
with a contested election of directors, the persons who were members of the Board of
Directors immediately before such election shall cease to constitute a majority of the Board
of Directors. 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 in Control, the term “Company” shall refer
to the resulting entity and the term “Board of Directors” shall refer to the board of
directors (or comparable governing body) of the resulting entity.
“Termination Benefits” means (i) a lump sum cash payment equal to 250% (the
“Applicable Percentage”) of the sum of (A) Executive’s annual base salary at the
rate in effect under paragraph 3.1 on the date of termination of Executive’s employment and
(B) the highest annual incentive compensation payment paid, or determined by the Board (or
the applicable committee thereof) and to be paid, to Executive by Company (pursuant to
paragraph 3.2 or otherwise) in respect of any of the three years immediately prior to the
date of termination of Executive’s employment, (ii) notwithstanding anything to the contrary
set forth in the Company’s other applicable plans and agreements, all of the outstanding
stock options, restricted awards and other equity based awards granted by Company to
Executive shall become fully vested and immediately exercisable in full on the date of
termination of Executive’s employment, (iii) a consulting arrangement whereby Executive
shall continue to perform services as a consultant to Company for up to twenty (20) hours
per month for a term of five (5) years for consideration of $25,000 per annum (payable in
equal monthly installments in accordance with the Company’s standard policy regarding
payment of compensation to its service providers (which shall at all times constitute a
right to a series of separate payments for purposes of Section 409A of the Code, if
applicable) commencing on the first regular payroll period for employees following the date
of termination of Executive’s employment), and (iv) continuation of participation in all of
Company’s health, medical and life insurance plans that may be in effect from time to time,
but only to the extent Executive is eligible under the terms of such plans, from the date of
termination of Executive’s employment for a period of five (5) years; provided, however,
that in the event that the event giving rise to the termination occurs during the Option
Term, then the Applicable Percentage shall be 125%. Company and Executive do not (and will
not, as of the date of termination) anticipate that Executive’s consulting services
hereunder will involve a level
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of services to the Company in excess of 20% of the average level of services provided
during the previous 36 months, whether as an employee or an independent contractor (and the
termination of Executive’s employment preceding the consulting arrangement shall thus
constitute a separation of service for purposes of Section 409A of the Code).
Notwithstanding anything in this Agreement to the contrary, if Executive is entitled to
Termination Benefits under any clause in this Agreement, then Executive shall not also be
entitled to additional Termination Benefits under any other clause of this Agreement.
6.2 By Expiration. If Executive’s employment hereunder shall terminate upon expiration of the
term provided in paragraph 2.1 hereof (whether the regular term hereof or the Option Term), then
(i) all compensation and all benefits to Executive hereunder shall continue to be provided until
the expiration of such term, (ii) such compensation and benefits shall terminate contemporaneously
with termination of his employment, and (iii) Company shall provide Executive with the Termination
Benefits. Any lump sum cash payment due to Executive pursuant to clause (iii) of the preceding
sentence shall be paid to Executive within five business days of the date of Executive’s
termination of employment with Company.
6.3 By Company. If Executive’s employment hereunder shall be terminated by Company prior to
expiration of the term provided in paragraph 2.1, then, upon such termination, regardless of the
reason therefor, all compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment; provided, however, that:
(i) if such termination shall be for a reason encompassed by paragraph 2.2(i), then
Company shall pay to Executive (or in the event of Executive’s death, his designated
beneficiary or his estate if Executive does not have a beneficiary designation on file with
Company for this purpose) a lump-sum payment equal to six months of his base salary at the
rate in effect under paragraph 3.1 on the date of such termination; and
(ii) if such termination shall be for any reason other than those encompassed by
paragraphs 2.2 (i) or (ii), then Company shall provide Executive with the Termination
Benefits.
Any lump-sum cash payment due to Executive (or his designated beneficiary, as the case may be)
pursuant to the preceding sentence shall be paid to Executive within five business days of the date
of Executive’s termination of employment with Company.
6.4 By Executive. If Executive’s employment hereunder shall be terminated by Executive prior
to expiration of the term provided in paragraph 2.1, then, upon such termination, regardless of the
reason therefor, all compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment; provided, however, that:
(i) if such termination occurs for a reason encompassed by paragraph 2.3(i), then
Company shall provide Executive with the Termination Benefits; and
(ii) if such termination shall occur within the 180-day period beginning on the date
upon which a Change in Control occurs, then Company shall provide Executive with the
Termination Benefits;
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(iii) if such termination shall occur under paragraph 2.3(iii) within the 30-day period
beginning on the date that the Board of Directors fails or refuses to grant its consent to
Executive’s Partial Resignation pursuant to paragraph 1.6 hereof, then Company shall provide
Executive with the Termination Benefits; and
(iv) if such termination occurs after September 30, 2009 for a reason encompassed by
paragraph 2.3(iii), then the Company shall provide the Executive with the Termination
Benefits.
Any lump sum cash payment due to Executive pursuant to this paragraph shall be paid to Executive
within five business days of the date of Executive’s termination of employment with Company.
6.5 Death of Executive. Upon the date of death of Executive, the Agreement shall terminate
and Company shall pay to Executive’s designated beneficiary (or his estate if Executive does not
have a beneficiary designation on file with Company for this purpose) a lump-sum payment equal to
six months of his base salary at the rate in effect under paragraph 3.1 on the date of such
termination, such payment to be made as soon as practicable following such death, but in no event
later than the later of (i) the end of the calendar year of the date of death of Executive or
(ii) the 75th day following the date of death of Executive.
6.6 Additional Payments by Company.
(a) Notwithstanding anything to the contrary in this Agreement, in the event that any payment
or distribution by Company to or for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or otherwise (a
“Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties with respect to such excise tax (such excise tax, together with any such
interest or penalties, are hereinafter collectively referred to as the “Excise Tax”),
Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount
such that after payment by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains
an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and
Executive shall make an initial determination as to whether a Gross-up Payment is required and the
amount of any such Gross-up Payment, and any Gross-up Payment so determined shall be paid to
Executive as a lump-sum payment on the date the related Payment is made. Unless withheld and
remitted by the Company, Executive shall timely remit any required Excise Tax payments to the
Internal Revenue Service.
(b) Executive shall notify Company in writing of any claim by the Internal Revenue Service
which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in
excess of that, if any, initially determined by Company and Executive) within 10 days of the
receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due
date of any response required with respect to such claim if it plans to contest the claim. If
Company fails to timely notify Executive whether it will contest such claim or Company determines
not to contest such claim, then Company shall immediately pay to Executive the portion of such
claim, if any, which it has not previously paid to Executive. If
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Company decides to contest such claim, Executive shall cooperate fully with Company in such
action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses
(including additional interest and penalties) incurred in connection with such action and shall
indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as a result of Company’s action.
(c) Any Gross-up Payment, reimbursement, indemnification or in-kind provision of expenses
under clause (b) shall be made by Company to Executive promptly after incurrence thereof by
Executive but in no event later than the end of the calendar year next following the calendar year
in which Executive remits the related taxes that are the subject of the audit or litigation to the
Internal Revenue Service (or, if no taxes are remitted, the end of the calendar year following the
calendar year in which the audit is completed, settled or otherwise resolved) provided, that
Executive must provide reasonable documentation to Company to substantiate taxes paid and expenses
incurred. If, as a result of Company’s action with respect to a claim, Executive receives a refund
of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund
to Company
6.7 No Duty to Mitigate Losses. Executive shall have no duty to find new employment following
the termination of his employment under circumstances which require Company to pay any amount to
Executive pursuant to this Article 6. Any salary or remuneration received by Executive from a
third party for the providing of personal services (whether by employment or by functioning as an
independent contractor) following the termination of his employment under circumstances pursuant to
which this Article 6 apply shall not reduce Company’s obligation to make a payment to Executive (or
the amount of such payment) pursuant to the terms of this Article 6.
6.8 Liquidated Damages. In light of the difficulties in estimating the damages for an early
termination of this Agreement, Company and Executive hereby agree that the payments, if any, to be
received by Executive pursuant to this Article 6 shall be received by Executive as liquidated
damages. Employee shall have no liability for his termination of this Agreement in accordance with
paragraph 2.3.
6.9 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 7: MISCELLANEOUS
7.1 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: | W-H Energy Services, Inc. | |||
| 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxx, Xxxxx 00000 | ||||
| Attention: Chief Operating Officer | ||||
| If to Executive to: | Xxxxxxx X. Xxxxx, Xx. | |||
| 000 Xxxxx Xxxxx Xxxx. | ||||
| Xxxxx Xxxx, Xxxxx 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.
7.2 Applicable Law. This Agreement is entered into under, and shall be governed for all
purposes by, the laws of the State of Texas.
7.3 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.
7.4 Severability. If a court of competent jurisdiction determines that any provision of this
Agreement is invalid or unenforceable, then the invalidity or unenforceability of that provision
shall not affect the validity or enforceability of any other provision of this Agreement, and all
other provisions shall remain in full force and effect.
7.5 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.
7.6 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.
7.7 Headings. The paragraph headings have been inserted for purposes of convenience and shall
not be used for interpretive purposes.
7.8 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.
7.9 Affiliate. As used in this Agreement, the term “affiliate” shall mean any entity which
owns or controls, is owned or controlled by, or is under common ownership or control with, Company.
7.10 Assignment. This Agreement shall be binding upon and inure to the benefit of Company and
any successor of Company, by merger or otherwise. Except as provided in the
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preceding sentence, this Agreement, and the rights and obligations of the parties hereunder,
are personal and neither this Agreement, nor any right, benefit, or obligation of either party
hereto, shall be subject to voluntary or involuntary assignment, alienation or transfer, whether by
operation of law or otherwise, without the prior written consent of the other party.
7.11 Term. This Agreement has a term co-extensive with the term of employment provided in
paragraph 2.1. Termination shall not affect any right or obligation of any party which is accrued
or vested prior to such termination.
7.12 Entire Agreement. Except as provided in (i) the written benefit plans and programs
referenced in paragraph 6.8 (and any agreements between Company and Executive that have been
executed under such plans and programs) and (ii) any signed written agreement contemporaneously or
hereafter executed by Company and Executive, 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 employment of
Executive by Company. 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 (other than the agreements described in clause (i) of the preceding sentence) are hereby
null and void and of no further force and effect. Any modification of this Agreement will be
effective only if it is in writing and signed by the party to be charged.
7.13 Section 409A. The parties intend that this Agreement be interpreted in a manner to be
exempt from the requirements of Section 409A of the Code, and, where not so exempt, to be in
compliance therewith. Executive (or his estate or beneficiary) shall have no right to dictate the
taxable year in which any payment hereunder should be paid. Notwithstanding any provision of this
Agreement to the contrary, only to the extent that this Agreement is subject to the requirements of
Section 409A of the Code and is not exempted from such requirements, if at the time of Executive’s
termination of employment with the Company, Executive is a “specified employee” as defined in
Section 409A of the Code, no payment or benefit that results from Executive’s termination of
employment will be provided until the date which is six months after the date of Executive’s
termination of employment. Payments to which Executive would otherwise be entitled during the
six-month period described above will be accumulated and paid in a lump sum on the first day of the
seventh month after the date of Executive’s termination of employment. Notwithstanding anything to
the contrary, to the extent required by Section 409A of the Code (a) the amount of expenses
eligible for reimbursement or to be provided as an in-kind benefit under this Agreement with
respect to a calendar year may not affect the expenses eligible for reimbursement or to be provided
as an in-kind benefit in any other calendar year and (b) the right to reimbursement or in-kind
benefits under this Agreement shall not be subject to liquidation or exchange for another benefit.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the ___day of January,
2008, to be effective as of the Effective Date.
| W-H ENERGY SERVICES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Chief Operating Officer | |||
| /s/ Xxxxxxx X. Xxxxx, Xx. | ||||
| Xxxxxxx X. Xxxxx, Xx. | ||||
