EX-10.1






Exhibit
10.1




EMPLOYMENT AGREEMENT

Vice President — Western Operations




     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made by and between Superior Well Services, Inc., a
Delaware corporation (“Company”), and Arty Straehla (“Executive”).



WITNESSETH:




     WHEREAS, Executive is currently employed by Diamondback Energy and Company desires to employ
Executive in accordance with the terms of this Agreement in connection with the Company’s purchase
of the business of Diamondback Energy;



     WHEREAS, Executive recognizes that Company operates in a highly competitive environment and
the importance to Company of ensuring Executive’s loyalty and protecting Company’s customers,
employees, business information and inventions, and goodwill. Accordingly, Executive has entered
into and agrees to be bound by this Agreement in consideration of Employee’s employment with
Company and being given access to Company’s confidential information; and



     WHEREAS,
 Executive acknowledges he is receiving good and valuable consideration for entering
into this Agreement, including the Non-Competition/Non-Solicitation provisions contained in
Article 7 of this Agreement, and Employee acknowledges that his Agreement was negotiated between
the parties hereto, that because Employee is being newly-hired by Company, Employee was not
previously entitled to the benefits conferred to Employee under this Agreement, and that Employee
received bargained for consideration, in exchange for agreeing to the
Non-Competition/Non-Solicitation provisions of this Agreement set forth in Article 7 of this
Agreement;



     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:



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     (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




     (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; or




     (ii)
the dissolution or liquidation 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.



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(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.




     (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 November 18, 2008.




     (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.



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     (p) “Severance Period” shall mean the period commencing on the date of an
Involuntary Termination and continuing for six months.



     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 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 position of Vice President- Western Operations 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.



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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.



     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 of 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



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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 $300,000. Executive’s Annual Base Salary shall be reviewed 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. Executive shall initially be entitled to earn
up to 100% of his base pay in bonuses under such plan.



     4.3 Restricted Stock Grant. Promptly following Executive entering into this
Agreement, Company shall grant Executive 10,000 shares of restricted stock of Company, to vest
annually after the date of grant at the following rates: 1st anniversary — 15%;
2nd anniversary — 15%; 3rd anniversary — 15%; 4th anniversary —
15%; and 5th anniversary — 40%. Such restricted stock shall be subject to the
restricted stock agreement to be provided by Company to Executive in connection with the grant.



     4.4 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.




     (c)
 Automobile — Company shall lease for and provide to Executive a vehicle designated
by Executive; provided, however, that the lease cost to Company of such vehicle shall not
exceed $800 per month.



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     (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.



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



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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:




     (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 any and all shares of restricted
stock held by Executive to immediately vest 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



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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 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 Company a
separate full release and waiver substantially in the form attached hereto as Exhibit A (with such
changes to such form as 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 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



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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: PROTECTION OF CONFIDENTIAL INFORMATION




     6.1 Disclosure to and Property of Company. All information, designs, ideas, concepts,
improvements, product developments, discoveries and inventions, whether patentable or not, that
are conceived, made, developed or acquired by Executive, individually or in conjunction with
others, during the period of Executive’s employment by Company (whether during business hours or
otherwise and whether on Company’s premises or otherwise) that relate to Company’s (or any of its
Affiliates’) business, trade secrets, products or services (including, without limitation, all
such information relating to corporate opportunities, product specification, compositions,
manufacturing and distribution methods and processes, research, financial and sales data, pricing
terms, evaluations, opinions, interpretations, acquisitions prospects, the identity of customers
or their requirements, the identity of key contacts within the customer’s organizations or within
the organization of acquisition prospects, marketing and merchandising techniques, business plans,
computer software or programs, computer software and database technologies, prospective names and
marks) (collectively, “Confidential Information”) shall be disclosed to Company and are and shall
be the sole and exclusive property of Company (or its Affiliates). Moreover, all documents,
videotapes, written presentations, brochures, drawings, memoranda, notes, records, files,
correspondence, manuals, models, specifications, computer programs, E-mail, voice mail, electronic
databases, maps, drawings, architectural renditions, models and all other writings or materials of
any type embodying any of such information, ideas, concepts, improvements, discoveries, inventions
and other similar forms of expression (collectively, “Work Product”) are and shall be the sole and
exclusive property of Company (or its Affiliates). Upon Executive’s termination of employment with
Company, for any reason, Executive promptly shall deliver such Confidential Information and Work
Product, and all copies thereof, to Company.



     6.2 Disclosure to Executive. Company has and will disclose to Executive, or place
Executive in a position to have access to or develop, Confidential Information and Work Product of
Company (or its Affiliates); and/or has and will entrust Executive with business opportunities of
Company (or its Affiliates); and/or has and will place Executive in a position to develop business
good will on behalf of Company (or its Affiliates). Executive agrees to preserve and protect the
confidentiality of all Confidential Information or Work Product of Company (or its Affiliates).



     6.3 No Unauthorized Use or Disclosure. Executive agrees that he will not, at any time
during or after Executive’s employment by Company, make any unauthorized disclosure of, and will
prevent the removal from Company premises of, Confidential Information or Work Product of Company
(or its Affiliates), or make any use thereof, except in the carrying out of Executive’s
responsibilities during the course of Executive’s employment with Company. Executive shall use
commercially reasonable efforts to cause all persons or entities to whom any Confidential
Information shall be disclosed by him hereunder to observe the terms and conditions set forth
herein as though each such person or entity was bound hereby. Executive shall have no obligation
hereunder to keep confidential any Confidential Information if and to the extent disclosure thereof
is specifically required by law; provided, however, that in the event



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disclosure is required by applicable law, Executive shall provide Company with prompt notice of
such requirement prior to making any such disclosure, so that Company may seek an appropriate
protective order. At the request of Company at any time, Executive agrees to deliver to Company all
Confidential Information that he may possess or control. Executive agrees that all Confidential
Information of Company (whether now or hereafter existing) conceived, discovered or made by him
during the period of Executive’s employment by Company exclusively belongs to Company (and not to
Executive), and Executive will promptly disclose such Confidential Information to Company and
perform all actions reasonably requested by Company to establish and confirm such exclusive
ownership. Affiliates of Company shall be third party beneficiaries of Executive’s obligations
under this Article 6. As a result of Executive’s employment by Company, Executive may also from
time to time have access to, or knowledge of, Confidential Information or Work Product 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 Work Product to the same extent, and on the same basis, as Company’s
Confidential Information and Work Product.




     6.4 Ownership by Company. If, during Executive’s employment by Company, Executive
creates any work of authorship fixed in any tangible medium of expression that is the subject
matter of copyright (such as videotapes, written presentations, or acquisitions, computer
programs, E-mail, voice mail, electronic databases, drawings, maps, architectural renditions,
models, manuals, brochures, or the like) relating to Company’s business, products, or services,
whether such work is created solely by Executive or jointly with others (whether during business
hours or otherwise and whether on Company’s premises or otherwise), including any Work Product,
Company shall be deemed the author of such work if the work is prepared by Executive in the scope
of Executive’s employment; or, if the work is not prepared by Executive within the scope of
Executive’s employment but is specially ordered by Company as a contribution to a collective work,
as a part of a motion picture or other audiovisual work, as a translation, as a supplementary
work, as a compilation, or as an instructional text, then the work shall be considered to be work
made for hire and Company shall be the author of the work. If such work is neither prepared by
Executive within the scope of Executive’s employment nor a work specially ordered that is deemed
to be a work made for hire, then Executive hereby agrees to assign, and by these presents does
assign, to Company all of Executive’s worldwide right, title, and interest in and to such work and
all rights of copyright therein.



     6.5
Assistance by Executive. During the period of Executive’s employment by Company
and thereafter, Executive shall reasonably assist Company and its nominee, at any time, in the
protection of Company’s (or its Affiliates’) worldwide right, title and interest in and to Work
Product and the execution of all formal assignment documents requested by Company or its nominee
and the execution of all lawful oaths and applications for patents and registration of copyright
in the United States and foreign countries.



     6.6 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



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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.




ARTICLE 7: NON-SOLICITATION OBLIGATIONS




     7.1 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 and will in the future be
disclosed or entrusted to Executive, the business good will of Company or 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 or its Affiliates; and as
an additional incentive for Company to enter into this Agreement, Company and Executive agree to
the provisions of this Article 7. Executive agrees that during his employment with Company and for
a period of one (1) year following the termination of Executive’s employment with Company for any
reason (the “Non-Compete 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; and




     (b) directly or indirectly participate in the ownership, management, operation or
control of, or be connected as an officer, employee, partner, director, contractor or
otherwise with, or have any financial interest in or act as a consultant to 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”); provided, however, that
this provision shall not preclude Executive after the termination of his employment with
Company from owning less than 2% of the equity securities of any publicly held Competitive
Operation so long as Executive does not serve as an employee, officer, director or
consultant to such business;




     (c) 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 a
Competitive Operation; or



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     (d) 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.



     7.2 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
Company, or any of their directors, officers, agents, representatives, stockholders, employees or
Affiliates.



     7.3 Remedies. Executive acknowledges that money damages would not be sufficient
remedy for any breach of this Article 7 by Executive, and Company or its Affiliates shall be
entitled to enforce the provisions of this Article 7 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 7 but shall be in addition to all remedies available at law
or in equity, including the recovery of damages from Executive and his agents.



     7.4 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
7 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-Compete 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 compete 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, 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 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 compete 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 8: MISCELLANEOUS




     8.1
Payment Obligations Absolute. Except as specifically provided in Sections 6.6 and
7.4, 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



14









 




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.




     8.2 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:



	 	 	 	 
	If to Company to:

	 	Superior Well Services, Inc.
	 

	 	1380 Rt. 286 East, Suite #121

 Indiana, Pennsylvania 15701
	 

	 	 Attention: Chairman of the Board of Directors
	 
	 	 
	If to Executive to:

	 	Arty Straehla
	 	 	14301 Caliber Drive, Suite 200 
	 	 	Oklahoma City, OK 73134





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.




     8.3 Applicable Law. This Agreement is entered into under, and shall be governed for
all purposes by, the laws of the Commonwealth of Pennsylvania.



     8.4 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.



     8.5 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.



     8.6 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.



     8.7 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.



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     8.8 Headings. The paragraph headings have been inserted for purposes of convenience
and shall not be used for interpretive purposes.



     8.9 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.



     8.10 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.



     8.11 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.



     8.12 Consent to Jurisdiction. Executive hereby irrevocably submits to the personal
jurisdiction of the United States District Court for the Western District of Pennsylvania or the
Court of Common Pleas in Indiana County, Pennsylvania in any action or proceeding arising out of
or relating to this Agreement, and Employee hereby irrevocably agrees that all claims in respect
of any such action or proceeding may be heard and determined in either such court.



     8.13 Jurisdiction and Venue. Any action or proceeding arising out of or relating to
this Agreement shall be commenced by Employee and may be commenced by Company in the United States
District Court for the Western District of Pennsylvania or the Court of Common Pleas in Indiana
County, Pennsylvania. In an action commenced in either of the aforesaid Courts, Company and
Employee waive any objections to venue and to the personal jurisdiction of the Court.



     8.14 Service of Process. Employee hereby irrevocably consents to the service of any
summons and complaint and any other process which may be served in any action or proceeding
arising out of or related to this Agreement brought in the United States District Court for the
Western District of Pennsylvania or the Court of Common Please in Indiana County, Pennsylvania by
the mailing by certified or registered mail of copies of such process to Employee at his or her
address as set forth in this Agreement.



     8.15 Remedies. If Company prevails in a proceeding for damages or injunctive relief,
Employee agrees that Company, in addition to other relief, shall be entitled to reasonable
attorneys’ fees, costs and the expenses of litigation incurred by Company in securing the relief
granted by the Court.



     8.16 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



16









 




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.





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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
18th
day of November, 2008,  to be effective as of the Effective Date.



	 	 	 	 	 
	 	SUPERIOR WELL SERVICES, INC.

 	 
	 	By:  	/s/ David E. Wallace 	 
	 	 	Name:  	David E. Wallace 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



COMPANY




	 	 	 	 	 
	 	 	 
	 	By:  	                                                   /s/ Arty Straehla
 	 
	 	 	Name: Arty Straehla 	 
	 



EXECUTIVE





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