wttr_Ex10_23


		
			Exhibit 10.23
		

		
			EMPLOYMENT AGREEMENT
		

		
			THIS EMPLOYMENT AGREEMENT  (“Agreement”) is made by and between Rockwater Energy Solutions, Inc. (the “Company”), and Holli C. Nichols (“Executive”).
		

		
			W I T N E S S E T H:
		

		
			WHEREAS, the Company desires to employ Executive on the terms and conditions, and for the consideration, hereinafter set forth and Executive desires to be employed by the Company on such terms and conditions and for such consideration.
		

		
			NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained herein, the Company and Executive agree as follows:
		

		
			ARTICLE I
		

		
			DEFINITIONS
		

		
			In addition to the terms defined in the body of this Agreement, for purposes of this Agreement, the following capitalized words shall have the meanings indicated below:
		

		
			1.1“Acquiring Person” shall mean any individual, entity or group (within the meaning of section 13(d)(3) or 14(d)(2) of the Exchange Act) other than the Initial Stockholders.
		

		
			1.2“Board” shall mean the Board of Directors of the Company.
		

		
			1.3“Cause” shall mean a determination by the Company that Executive (a) has engaged in gross negligence or willful misconduct in the performance of Executive’s duties with respect to the Company or any of its affiliates, (b) has materially breached any material provision of this Agreement or any written agreement or corporate policy or code of conduct established by the Company or any of its affiliates, (c) has willfully engaged in conduct that is materially injurious to the Company or any of its affiliates, or (d) has been convicted of, pleaded no contest to or received adjudicated probation or deferred adjudication in connection with a felony involving fraud, dishonesty or moral turpitude (or a crime of similar import in a foreign jurisdiction).
		

		
			1.4“Change in Control” shall mean, as applicable:
		

		
			(a)Prior to the common stock of the Company becoming Public Stock (including any transaction pursuant to which the common stock of the Company first becomes Public Stock), a “Change in Control” of the Company shall mean, in one transaction or a series of related transactions, (A) a Corporate Transaction or a sale of capital stock of the Company by stockholders of the Company (other than in connection with an Initial Public Offering) with the result immediately after such Corporate Transaction or sale that a single Acquiring Person, together with its affiliates, owns, directly or indirectly, either a greater number of shares of common stock of the Company (calculated on a fully-diluted basis assuming that all shares of capital stock of the Company that are convertible into common stock of the Company at the then applicable conversion 


		 


		

			 

		


		

			 

		





 


ratio are so converted) than the Initial Stockholders then own or, in the context of a Corporate Transaction in which the Company is not the surviving entity, more voting stock generally entitled to elect directors of such surviving entity (or in the case of a triangular merger, of the parent entity of such surviving entity) than the Initial Stockholders then own, or (B) the Company sells, leases or exchanges all or substantially all of its assets to any Acquiring Person or the dissolution or liquidation of the Company other than, in either case, pursuant to a transaction that complies with clause (b)(iii)(1) of this definition.
		

		
			(b)After the common stock of the Company becomes Public Stock, a “Change in Control” of the Company shall mean:
		

		
			(i)The acquisition by any Acquiring Person of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent (50%) or more of either (1) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (2) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (i) any acquisition by any Acquiring Person pursuant to a transaction which complies with clause (b)(iii)(1) of this definition shall not constitute a Change in Control; or
		

		
			(ii)Individuals, who, immediately following the time when the common stock of the Company becomes Public Stock, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the time when the common stock of the Company becomes Public Stock whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered for purposes of this definition as though such individual was a member of the Incumbent Board, but excluding, for these purposes, any such individual whose initial assumption of office as a director occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of an Acquiring Person other than the Board; or
		

		
			(iii)The consummation of a Corporate Transaction unless, following such Corporate Transaction, (1) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Corporate Transaction beneficially own, directly or indirectly, more than fifty percent (50%) of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the Company (if it be the ultimate parent entity following such Corporate Transaction) or the corporation resulting from such Corporate Transaction (or the ultimate parent entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries), and (2) at least a majority of the members of the board of directors of the ultimate parent entity resulting from such Corporate Transaction were members of the Board at the time of the 


		 


		

			2

		


		

			 

		





 


execution of the initial agreement, or of the action of the Board, providing for such Corporate Transaction. For purposes of the foregoing sentence, only (A) shares of common stock and voting securities of the Company, assuming the Company is the ultimate parent entity following such Corporate Transaction, held by a beneficial owner immediately prior to such Corporate Transaction and any additional shares of common stock and voting securities of the Company issuable to such beneficial owner in connection with such Corporate Transaction in respect of the shares of common stock and voting securities of the Company held by such beneficial owner immediately prior to such Corporate Transaction, or (B) shares of common stock and voting securities of the ultimate parent entity following such Corporate Transaction, assuming the Company is not the ultimate parent entity following such Corporate Transaction, issuable to a beneficial owner in respect of the shares of common stock and voting securities of the Company held by such beneficial owner immediately prior to such Corporate Transaction, in either case shall be included in determining whether or not the fifty percent (50%) ownership test in this subsection (iii) has been satisfied.
		

		
			1.5“Code” shall mean the Internal Revenue Code of 1986, as amended.
		

		
			1.6“Corporate Transaction” shall mean a reorganization, merger or consolidation of the Company, any of its subsidiaries or sale, lease or other disposition of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole (other than to an entity wholly owned, directly or indirectly, by the Company) or the liquidation or dissolution of the Company.
		

		
			1.7“Date of Termination” shall mean the date Executive’s employment with the Company is considered to have terminated pursuant to Section 3.5.
		

		
			1.8“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
		

		
			1.9“Good Reason” shall mean the occurrence of any of the following events:
		

		
			(a)a material diminution in Executive’s Base Salary, other than as part of one or more decreases that shall not exceed, in the aggregate, more than 10% of Executive’s Base Salary as in effect on the Effective Date and that are applied similarly to all of the Company’s executive officers; or
		

		
			(b)Executive ceases to be employed in the position of Chief Financial Officer of the Company; or
		

		
			(c)the involuntary relocation of the geographic location of Executive’s principal place of employment by more than 35 miles from the location of Executive’s principal place of employment as of the Effective Date.
		

		
			Notwithstanding the foregoing provisions of this Section 1.9 or any other provision in this Agreement to the contrary, any assertion by Executive of a termination of employment for “Good Reason” shall not be effective unless all of the following requirements are satisfied: (i) the condition described in Section 1.9(a), (b) or (c) giving rise to Executive’s termination of employment must have arisen without Executive’s consent; (ii) Executive must provide written notice to the Company of such condition in accordance with Section 11.1 within 45 days of the 


		 


		

			3

		


		

			 

		





 


initial existence of the condition; (iii) the condition specified in such notice must remain uncorrected for 30 days after receipt of such notice by the Company; and (iv) the date of Executive’s termination of employment must occur within 135 days after the initial existence of the condition specified in such notice.
		

		
			1.10“Initial Public Offering” shall mean the initial underwritten public offering and sale of common stock of the Company on a firm commitment basis after which the common stock of the Company is listed for trading on a national securities exchange registered under section 6(a) of the Exchange Act.
		

		
			1.11“Initial Stockholders” shall mean the stockholders of the Company as of the date of the Stockholders Agreement and their respective affiliates and Persons who are permitted transferees in accordance with the terms of the Stockholders Agreement.
		

		
			1.12“Notice of Termination” shall mean a written notice delivered to the other party indicating the specific termination provision in this Agreement relied upon for termination of Executive’s employment and the intended Date of Termination and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated.
		

		
			1.13“Person” shall mean any natural person, limited liability company, corporation, limited partnership, general partnership, joint stock company, joint venture, association, company, trust, bank trust company, land trust, business trust, or other organization, whether or not a legal entity, and any government or agency or political subdivision thereof.
		

		
			1.14“Public Stock” shall mean shares of capital stock (including depositary receipts or depositary shares related to common stock or similar ordinary shares) of any Person that are registered under section 12 of the Exchange Act and listed for trading on a national securities exchange registered under section 6(a) of the Exchange Act.
		

		
			1.15“Section 409A Payment Date” shall mean the earlier of (a) the date of Executive’s death or (b) the date that is six months after the date of termination of Executive’s employment with the Company.
		

		
			1.16“Severance Multiple” shall mean two; provided, however, that the Severance Multiple shall mean three if Executive’s employment hereunder shall terminate on or within two years after the occurrence of a Change in Control.
		

		
			1.17“Stockholders Agreement” shall mean that certain Stockholders Agreement dated as of June 1, 2011 among the Company and certain of its stockholders, as the same may be amended or restated from time to time.
		

		
			ARTICLE II
		

		
			EMPLOYMENT AND DUTIES
		

		
			2.1Employment; Effective Date. The Company agrees to employ Executive, and Executive agrees to be employed by the Company, pursuant to the terms of this Agreement beginning as of June 1, 2011 (the “Effective Date”) and continuing for the period of time set forth 


		 


		

			4

		


		

			 

		





 


in Article III of this Agreement, subject to the terms and conditions of this Agreement. As of the Effective Date, the independent contractor relationship established pursuant to the following Consulting Agreements shall be terminated: (a) that certain Consulting Agreement dated March 14, 2011, by and between Executive and EnerMAX Services Limited Partnership; (b) that certain Consulting Agreement dated March 14, 2011, by and between Executive and Benchmark Performance Group, Inc.; (c) that certain Consulting Agreement dated March 14, 2011, by and between Executive and Reef Services Holdings, Inc.; and (d) that certain Consulting Agreement dated March 14, 2011, by and between Executive and Red Oak Water Transfer, Inc. The provisions of the preceding sentence shall be for the benefit of, and enforceable by, each of the parties to each such Consulting Agreement.
		

		
			2.2Positions. From and after the Effective Date, the Company shall employ Executive in the position of Chief Financial Officer of the Company or in such other position or positions as the parties mutually may agree.
		

		
			2.3Duties and Services. Executive agrees to serve in the position(s) referred to in Section 2.2 and to perform diligently and to the best of Executive’s abilities the duties and services appertaining to such position(s), as well as such additional duties and services appropriate to such position(s) which the parties mutually may agree upon from time to time.
		

		
			2.4Other Interests. Executive agrees, during the period of Executive’s employment by the Company, to devote substantially all of Executive’s business time, energy and best efforts to the business and affairs of the Company and its affiliates. Notwithstanding the foregoing, the parties acknowledge and agree that Executive may (a) engage in and manage Executive’s passive personal investments, (b) engage in charitable and civic activities, (c) serve on the board of directors of up to two public companies and (d) serve on the board of directors or similar governing body of those entities set forth on Appendix A hereto and any other entity otherwise approved by the Board (or a committee thereof); provided, however, that such activities set forth in Section 2.4(a), (b), (c) and (d) shall be permitted so long as such activities do not conflict with the business and affairs of the Company or interfere with Executive’s performance of Executive’s duties hereunder.
		

		
			2.5Duty of Loyalty. Executive acknowledges and agrees that Executive owes a fiduciary duty of loyalty, fidelity and allegiance to act in the best interests of the Company and to do no act that would injure the business, interests, or reputation of the Company or any of its affiliates. In keeping with these duties, Executive shall make full disclosure to the Company of all business opportunities pertaining to the Company’s business and shall not appropriate for Executive’s own benefit business opportunities concerning the subject matter of the fiduciary relationship.
		

		
			ARTICLE III
		

		
			TERM AND TERMINATION OF EMPLOYMENT
		

		
			3.1Term. Unless sooner terminated pursuant to other provisions hereof, the Company agrees to employ Executive for the period beginning on the Effective Date and ending on the second 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 


		 


		

			5

		


		

			 

		





 


thereafter, if Executive’s employment under this Agreement has not been terminated pursuant to Sections 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 60 days prior to the first day of any such extension period either party gives written notice to the other that no such automatic extension shall occur, in which case the term of employment shall terminate as of the Initial Expiration Date or the anniversary of the Initial Expiration Date immediately following the giving of such notice, as applicable.
		

		
			3.2Company’s Right to Terminate.  Notwithstanding the provisions of Section 3.1, the Company may terminate Executive’s employment under this Agreement at any time for any of the following reasons by providing Executive with a Notice of Termination:
		

		
			(a)upon Executive being unable to perform Executive’s duties or fulfill Executive’s obligations under this Agreement by reason of any physical or mental impairment for a continuous period of not less than six months as determined by the Company and certified in writing by a competent medical physician selected by the Company; or
		

		
			(b)Executive’s death; or
		

		
			(c)for Cause; or
		

		
			(d)for any other reason whatsoever or for no reason at all, in the sole discretion of the Company.
		

		
			3.3Executive’s Right to Terminate. Notwithstanding the provisions of Section 3.1, Executive shall have the right to terminate Executive’s employment under this Agreement for Good Reason or for any other reason whatsoever or for no reason at all, in the sole discretion of Executive, by providing the Company with a Notice of Termination. In the case of a termination of employment by Executive pursuant to this Section 3.3, the Date of Termination specified in the Notice of Termination shall not be less than 15 nor more than 60 days from the date such Notice of Termination is given, and the Company may require a Date of Termination earlier than that specified in the Notice of Termination (and, if such earlier Date of Termination is so required, then (a) it shall not change the basis for Executive’s termination nor be construed or interpreted as a termination of employment pursuant to Section 3.1 or Section 3.2, (b) Executive shall receive her Base Salary through the Date of Termination that was specified by Executive in the Notice of Termination (the “Specified Date of Termination”), (c) any bonus that would have been payable to Executive pursuant to Section 7.1(a)(vi) or Section 7.1(b)(iii)(A) if Executive had continued in the employment of the Company through the Specified Date of Termination shall be paid and, in the case of the bonus described in Section 7.1(b)(iii)(A), prorated as provided in such Sections but determined as if Executive had continued in the employment of the Company through the Specified Date of Termination, and (d) the Company shall cause all stock options and other equity-based incentive awards, if any, awarded to Executive by the Company that become vested based solely on continued employment to have at least the same vesting status as of the Date of Termination as Executive would have achieved under the terms of such awards had Executive remained continuously employed by the Company until the Specified Date of Termination).
		

		
			


		 


		

			6

		


		

			 

		





 



		

		
			3.4Deemed Resignations. Unless otherwise agreed to in writing by the Company and Executive prior to the termination of Executive’s employment, any termination of Executive’s employment shall constitute (a) an automatic resignation of Executive as an officer of the Company and each affiliate of the Company and (b) an automatic resignation of Executive from the Board (if applicable), from the board of directors of any affiliate of the Company and from the board of directors or similar governing body of any corporation, limited liability entity or other entity in which the Company or any affiliate holds an equity interest and with respect to which board or similar governing body Executive serves as the Company’s or such affiliate’s designee or other representative.
		

		
			3.5Meaning of Termination of Employment. For all purposes of this Agreement, Executive shall be considered to have terminated employment with the Company when Executive incurs a “separation from service” with the Company within the meaning of section 409A(a)(2)(A)(i) of the Code and applicable administrative guidance issued thereunder; provided, however, that whether such a separation from service has occurred shall be determined based upon a reasonably anticipated permanent reduction in the level of bona fide services to be performed to no more than 49% of the average level of bona fide services provided in the immediately preceding 36 months.
		

		
			ARTICLE IV
		

		
			COMPENSATION AND BENEFITS
		

		
			4.1Base Salary. During the term of this Agreement, Executive shall receive a minimum, annualized base salary of $425,000 (the “Base Salary”). Executive’s annualized base salary shall be reviewed at least annually by the Company and, in the sole discretion of the Company, such annualized base salary may be increased (but not decreased) effective as of any date determined by the Company; provided, however, the Company may decrease Executive’s Base Salary at any time and from time to time so long as such decreases do not exceed, in the aggregate, more than 10% of Executive’s Base Salary as in effect on the Effective Date and such decreases are part of similar reductions applicable to all of the Company’s executive officers. Executive’s Base Salary shall be paid in substantially equal installments in accordance with the Company’s standard policy regarding payment of compensation to executives but no less frequently than monthly.
		

		
			4.2Bonuses. For calendar year 2011, Executive shall receive such annual cash incentive bonus as may be determined by the Board in its reasonable discretion; provided, however, that (a) the target (expected value) amount of Executive’s 2011 annual incentive bonus shall be 64% of Executive’s Base Salary, and (b) Executive’s annual incentive bonus for 2011 may range between 0% and 80% of Executive’s Base Salary, depending on Executive’s performance for calendar year 2011. For calendar years after 2011, Executive shall be eligible to participate in the Company’s annual cash incentive bonus program which will provide for a potential annual, calendar-year bonus (the “Annual Bonus”) based on criteria determined in the reasonable discretion of the Board at or near the beginning of each such year; provided, however, that it is expected (subject to and contingent upon Board approval each year at the time such criteria are determined by the Board) that (a) the target (expected value) amount of Executive’s annual incentive bonus for each such calendar year shall be 80% of Executive’s Base Salary earned for such calendar year, and (b) Executive’s annual incentive bonus for each such calendar year will 


		 


		

			7

		


		

			 

		





 


have an entry and maximum range, depending on achievement of entry, target and stretch goals, with zero to be earned if performance falls below entry goals, target (expected value) to be earned if target performance is achieved, maximum to be earned if performance meets or exceeds stretch goals, and pro-rated amounts earned if performance falls between entry, target and maximum goals. The metrics to be used to calculate the actual target annual incentive bonus and range of annual incentive bonus opportunity shall be determined in the reasonable discretion of the Board at or near the beginning of the calendar year for each year after 2011. The Company shall pay each Annual Bonus, if any, with respect to a calendar year (the “Bonus Year”) on or before March 15 of the year following the Bonus Year; provided, however, that if audited financial statements for the Company for the Bonus Year are not completed on or before March 5 of the year following the Bonus Year, then the Annual Bonus, if any, for the Bonus Year shall be paid within 10 days after the completion of such audited financial statements but in no event shall any such Annual Bonus be paid after June 30 of the year following the Bonus Year. Except as otherwise provided in Section 7.1, Executive will be entitled to receive payment of an Annual Bonus for a Bonus Year only if Executive is employed by the Company on December 31 of such Bonus Year.
		

		
			4.3Other Benefits. During Executive’s employment hereunder, Executive shall be eligible to participate in all benefit plans and programs of the Company, including improvements or modifications of the same, which are now, or may hereafter be, available to other senior executives of the Company. The Company shall not, however, by reason of this Section 4.3, 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 other senior executives generally.
		

		
			4.4Expenses. The Company shall reimburse Executive for all reasonable business expenses incurred by Executive in performing services hereunder, including all expenses of travel and living expenses while away from home on business or at the request of and in the service of the Company; provided, in each case, that such expenses are incurred and accounted for in accordance with the policies and procedures established by the Company. Any such reimbursement of expenses shall be made by the Company upon or as soon as practicable following receipt of supporting documentation reasonably satisfactory to the Company (but in any event not later than the close of Executive’s taxable year following the taxable year in which the expense is incurred by Executive); provided, however, that, upon Executive’s termination of employment with the Company, in no event shall any additional reimbursement be made prior to the Section 409A Payment Date to the extent such payment delay is required under section 409A(a)(2)(B)(i) of the Code. In no event shall any reimbursement be made to Executive for such fees and expenses after the later of (a) the first anniversary of the date of Executive’s death or (b) the date that is five years after the date of Executive’s termination of employment with the Company (other than by reason of Executive’s death).
		

		
			4.5Vacation and Sick Leave. During Executive’s employment hereunder, Executive shall be entitled to (a) sick leave in accordance with the Company’s policies applicable to its senior executives and (b) four weeks paid vacation each calendar year (none of which may be carried forward to a succeeding year).
		

		
			4.6Offices. Subject to Articles II, III, and IV hereof, and provided Executive is employed in the position of Chief Financial Officer of the Company, Executive agrees to serve 


		 


		

			8

		


		

			 

		





 


without additional compensation, if elected or appointed thereto, as a director of the Company or any of the Company’s affiliates and as a member of any committees of the board of directors of any such entities, and in one or more executive positions of any of the Company’s affiliates.
		

		
			ARTICLE V
		

		
			PROTECTION OF INFORMATION
		

		
			5.1Disclosure to and Property of the Company. For purposes of this Article V, the term “the Company” shall include the Company and any of its affiliates, and any reference to “employment” or similar terms shall include a director and/or consulting relationship. All information, trade secrets, designs, ideas, concepts, improvements, product developments, discoveries and inventions, whether patentable or not, that are conceived, made, developed, disclosed to or acquired by Executive, individually or in conjunction with others, during the period of Executive’s employment by the Company (whether during business hours or otherwise and whether on the Company’s premises or otherwise) that relate to the Company’s or any of its affiliates’ businesses, trade secrets, products or services (including, without limitation, all such information relating to corporate opportunities, strategies, business plans, product specifications, compositions, manufacturing and distribution methods and processes, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisition 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, or production, marketing and merchandising techniques, prospective names and marks) and all writings or materials of any type embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression (collectively, “Confidential Information”) shall be disclosed to the Company and Executive acknowledges and agrees that Executive shall have no right, title, interest or claim to any Confidential Information. 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 the Company (or its affiliates). Executive agrees to perform all actions reasonably requested by the Company or its affiliates to establish and confirm such exclusive ownership. Upon termination of Executive’s employment with the Company, for any reason, Executive promptly shall deliver such Confidential Information and Work Product, and all copies thereof, to the Company. Notwithstanding the preceding provisions of this Section 5.1, the term “Confidential Information” shall not include any information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression that (a) are generally known or available to the public other than as a result of a disclosure by Executive or anyone to whom Executive transmits such information, ideas, concepts, improvements, discoveries, inventions or other similar forms of expression, (b) were known by Executive prior to March 14, 2011, or (c) become known to Executive after the Date of Termination from a source who is not bound by a confidentiality agreement or other obligation of secrecy with the Company with respect to such matters.
		

		
			5.2Disclosure to Executive. The Company shall disclose to Executive and place Executive in a position to have access to or develop Confidential Information and Work Product of the Company (or its affiliates); and shall entrust Executive with business opportunities of the 


		 


		

			9

		


		

			 

		





 


Company (or its affiliates); and shall place Executive in a position to develop business good will on behalf of the Company (or its affiliates).
		

		
			5.3No Unauthorized Use or Disclosure. Subject to the provisions of Section 5.5, Executive agrees to preserve and protect the confidentiality of all Confidential Information and Work Product of the Company and its affiliates. Executive agrees that Executive will not, at any time during or after Executive’s employment with the Company, make any unauthorized disclosure of, and Executive shall not remove from the Company premises, Confidential Information or Work Product of the Company or its affiliates, or make any use thereof, except, in each case, in the carrying out of Executive’s responsibilities hereunder. Subject to the provisions of Section 5.5, Executive shall use all reasonable efforts to cause all persons or entities to whom any Confidential Information shall be disclosed by Executive hereunder to preserve and protect the confidentiality of such Confidential Information. 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 disclosure is required by applicable law, Executive shall provide the Company with prompt notice of such requirement prior to making any such disclosure, so that the Company may seek an appropriate protective order. At the request of the Company at any time, Executive agrees to deliver to the Company all Confidential Information that Executive may possess or control. Executive agrees that all Confidential Information of the Company (whether now or hereafter existing) conceived, discovered or made by Executive during the period of Executive’s employment by the Company exclusively belongs to the Company (and not to Executive), and upon request by the Company for specified Confidential Information, Executive will promptly disclose such Confidential Information to the Company and perform all actions reasonably requested by the Company to establish and confirm such exclusive ownership. Affiliates of the Company shall be third party beneficiaries of Executive’s obligations under this Article V. As a result of Executive’s employment by the 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 the Company and its affiliates. Subject to the provisions of Section 5.5, Executive also agrees to preserve and protect the confidentiality of such third party Confidential Information and Work Product.
		

		
			5.4Ownership by the Company. If, during Executive’s employment by the 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 the 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 the Company’s premises or otherwise), including any Work Product, the 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 relating to the Company’s business, products, or services is not prepared by Executive within the scope of Executive’s employment but is specially ordered by the 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 the Company shall be the author of the work. If the work relating to the Company’s business, products, or services is neither prepared by Executive within the scope of Executive’s employment 


		 


		

			10

		


		

			 

		





 


nor a work specially ordered that is deemed to be a work made for hire during Executive’s employment by the Company, then Executive hereby agrees to assign, and by these presents does assign, to the Company all of Executive’s worldwide right, title, and interest in and to such work and all rights of copyright therein.
		

		
			5.5Assistance by Executive. During the period of Executive’s employment by the Company, Executive shall, at the expense of the Company or its affiliates, assist the Company and its nominee, at any time, in the protection of the Company’s or its affiliates’ worldwide right, title and interest in and to Confidential Information and Work Product and the execution of all formal assignment documents requested by the Company or its nominee(s) and the execution of all lawful oaths and applications for patents and registration of copyright in the United States and foreign countries. After Executive’s employment with the Company terminates, at the request from time to time and expense of the Company or its affiliates, Executive shall assist the Company or its nominee(s) in the protection of the Company’s or its affiliates’ worldwide right, title and interest in and to Confidential Information and Work Product and the execution of all formal assignment documents requested by the 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; provided, however, that such assistance from Executive after Executive’s employment with the Company terminates shall not require Executive to expend unreasonable periods of time or unreasonably interfere with any obligations Executive may have to provide services to other persons or entities.
		

		
			5.6Remedies. Executive acknowledges that money damages would not be a sufficient remedy for any breach of this Article V by Executive, and the Company or its affiliates shall be entitled to enforce the provisions of this Article V 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 V but shall be in addition to all remedies available at law or in equity, including the recovery of damages from Executive and Executive’s agents. However, if it is determined that Executive has not committed a breach of this Article V, then the Company shall resume the payments and benefits due under this Agreement and pay to Executive and Executive’s spouse, if applicable, all payments and benefits that had been suspended pending such determination.
		

		
			ARTICLE VI
		

		
			STATEMENTS CONCERNING THE COMPANY AND EXECUTIVE
		

		
			6.1Statements Concerning the Company. Executive shall refrain, both during and after the termination of the employment relationship, from publishing any oral or written statements about the Company, any of its affiliates or any of the Company’s or such affiliates’ directors, officers, employees, consultants, agents or representatives that (a) are slanderous, libelous or defamatory, (b) disclose private information or Confidential Information of the Company, any of its affiliates or any of the Company’s or any such affiliates’ business affairs, directors, officers, employees, consultants, agents or representatives, or (c) place the Company, any of its affiliates, or any of the Company’s or any such affiliates’ directors, officers, employees, consultants, agents or representatives in a false light before the public. A violation or threatened violation of this prohibition may be enjoined by the courts. The rights afforded the Company and 


		 


		

			11

		


		

			 

		





 


its affiliates under this provision are in addition to any and all rights and remedies otherwise afforded by law.
		

		
			6.2Statements Concerning Executive. The Company shall refrain, both during and after the termination of the employment relationship, from publishing any oral or written statements about Executive that (a) are slanderous, libelous or defamatory, (b) disclose private or confidential information about Executive or Executive’s business affairs, or (c) place Executive in a false light before the public. A violation or threatened violation of this prohibition may be enjoined by the courts. The rights afforded Executive under this provision are in addition to any and all rights and remedies otherwise afforded by law.
		

		
			ARTICLE VII
		

		
			EFFECT OF TERMINATION OF EMPLOYMENT ON COMPENSATION
		

		
			7.1Effect of Termination of Employment on Compensation.
		

		
			(a)If Executive’s employment hereunder shall terminate at the expiration of the term provided in Section 3.1 because Executive provided written notice of non-renewal to the Company, for any reason described in Section 3.2(a), 3.2(b), or 3.2(c) or pursuant to Executive’s resignation for other than Good Reason, then all compensation and all benefits to Executive hereunder shall terminate contemporaneously with such termination of employment, except that Executive’s equity incentive awards shall be governed by the terms thereof (subject to clause (v) below) and Executive shall be entitled to (i) payment of all accrued and unpaid Base Salary to the Date of Termination (or, to the extent specifically provided in Section 3.3, to the Specified Date of Termination), (ii) reimbursement for all incurred but unreimbursed expenses for which Executive is entitled to reimbursement in accordance with Section 4.4, (iii) payment of all accrued and unused paid vacation for the calendar year in which the Date of Termination occurs, (iv) benefits to which Executive is entitled under the terms of any applicable benefit plan or program, (v) if such termination is a result of Executive’s resignation for other than Good Reason and if the Company required a Date of Termination prior to the Specified Date of Termination pursuant to Section 3.3, then the Company shall cause all stock options and other equity-based incentive awards, if any, awarded to Executive by the Company that become vested based solely on continued employment to have the same vesting status as of the Date of Termination as Executive would have achieved under the terms of such awards had Executive remained continuously employed by the Company until the Specified Date of Termination, and (vi) if, on the Date of Termination, the Company does not have a right to terminate Executive’s employment under Section 3.2(c), any unpaid Annual Bonus for the calendar year ending on or prior to the Date of Termination (or, to the extent specifically provided in Section 3.3, ending on or prior to the Specified Date of Termination), which amount shall be payable in a lump-sum on the date such annual bonuses are paid to executives who have continued employment with the Company (provided, however, that if Executive is a specified employee (as such term is defined in section 409A of the Code and as determined by the Company in accordance with any method permitted under section 409A of the Code (a “Specified Employee”)) and the payment of the amount described in this clause (vi) would be subject to additional taxes and interest under section 409A of the Code because the timing of such payment is not 


		 


		

			12

		


		

			 

		





 


delayed as provided in section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, then such amount (together with interest on a non-compounded basis, from the date such payment would have been made had this payment delay not applied to the actual date of payment, at the prime rate of interest announced by Wells Fargo Bank, National Association (or any successor thereto) at its principal office in Charlotte, North Carolina on the date of Executive’s termination of employment (or the first business day following such date if such termination does not occur on a business day) (the “Applicable Rate”)) shall be paid within five business days after the Section 409A Payment Date).
		

		
			(b)If Executive’s employment hereunder shall terminate at expiration of the term provided in Section 3.1 because the Company provided written notice of non-renewal to Executive, pursuant to Executive’s resignation for Good Reason or by action of the Company pursuant to Section 3.2 for any reason other than those encompassed by Section 3.2(a), 3.2(b), or 3.2(c), then all compensation and all benefits to Executive hereunder shall terminate contemporaneously with such termination of employment, except that Executive’s equity incentive awards shall be governed by the terms thereof and (i) Executive shall be entitled to receive the compensation and benefits described in clauses (i) through (iv) of Section 7.1(a), (ii) if, on the Date of Termination, the Company does not have a right to terminate Executive’s employment under Section 3.2(c), Executive shall be entitled to receive the compensation described in clause (vi) of Section 7.1(a), and (iii) if, on the Date of Termination, the Company does not have a right to terminate Executive’s employment under Section 3.2(a), 3.2(b), or 3.2(c) and subject to Executive’s delivery, within 50 days after the Date of Termination, and non-revocation of an executed release substantially in the form of the release contained at Appendix B (the “Release”), Executive shall receive the following additional compensation and benefits from the Company:
		

		
			(A)the Company shall pay to Executive a bonus for the calendar year in which the Date of Termination occurs in an amount equal to the Annual Bonus for such year as determined in good faith by the Board in accordance with the criteria established pursuant to Section 4.2 and based on the Company’s performance for such year, which amount shall be prorated through and including the Date of Termination (based on the ratio of the number of days Executive was employed by the Company during such year (or, to the extent specifically provided in Section 3.3, the number of days Executive would have been employed by the Company during such year as of the Specified Date of Termination) to the number of days in such year), payable in a lump-sum on or before the date such annual bonuses are paid to executives who have continued employment with the Company (but in no event earlier than 60 days after the Date of Termination nor later than the June 30 next following such calendar year); provided, however, that if Executive is a Specified Employee and the payment of the amount described in this clause (A) would be subject to additional taxes and interest under section 409A of the Code because the timing of such payment is not delayed as provided in section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, then such amount (together with interest on a non-compounded basis, from the date such payment would have been made had this payment delay not applied to the actual date of 


		 


		

			13

		


		

			 

		





 


payment, at the Applicable Rate) shall be paid within five business days after the Section 409A Payment Date;
		

		
			(B)the Company shall pay to Executive an amount equal to the Severance Multiple times the sum of (i) Executive’s Base Salary as of the Date of Termination and (ii) 80% of Executive’s Base Salary as of the Date of Termination, which amount shall be paid in a lump sum payment on the date that is 60 days after the Date of Termination occurs; and
		

		
			(C)during the portion, if any, of the 18-month period following the Date of Termination that Executive elects to continue coverage for Executive and Executive’s spouse and eligible dependents, if any, under the Company’s group health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), and/or sections 601 through 608 of the Employee Retirement Income Security Act of 1974, as amended, the Company shall promptly reimburse Executive on a monthly basis for the difference between the amount Executive pays to effect and continue such coverage and the employee contribution amount that active senior executive employees of the Company pay for the same or similar coverage under such group health plans. Notwithstanding the preceding provisions of this clause (C), if the provision of the benefit described in such clause cannot be provided in the manner described in such clause without penalty, tax or other adverse impact on the Company, then the Company and Executive shall negotiate in good faith to determine an alternative manner in which the Company may provide a substantially equivalent benefit to Executive without such adverse impact on the Company.
		

		
			ARTICLE VIII
		

		
			NON-COMPETITION AGREEMENT
		

		
			8.1Definitions. As used in this Article VIII, the following terms shall have the following meanings:
		

		
			“Business” means (a) during the period of Executive’s employment by the Company, the design, manufacture and supply of products and services provided by the Company and its subsidiaries during such period and other products and services that are functionally equivalent to the foregoing, and (b) during the portion of the Prohibited Period that begins on the termination of Executive’s employment with the Company, the design, manufacture and supply of products and services provided by the Company and its subsidiaries at the time of such termination of employment (or, if earlier, at the time immediately preceding the date upon which a Change in Control occurs) and other products and services that are functionally equivalent to the foregoing.
		

		
			“Competing Business” means any business, individual, partnership, firm, corporation or other entity (other than an affiliate of the Company, L.E. Simmons & Associates, Incorporated (“LESA”) and its affiliates, or another entity in which SCF-V, L.P., a Delaware limited partnership, SCF-VI, L.P., a Delaware limited partnership, SCF-VII, L.P., a Delaware limited partnership, or any future limited partnership established by an affiliate of LESA has an ownership interest) which wholly or in any significant part engages in any business competing with the 


		 


		

			14

		


		

			 

		





 


Business in the Restricted Area. In no event will the Company or any of its subsidiaries be deemed a Competing Business.
		

		
			“Governmental Authority” means any governmental, quasi-governmental, state, county, city or other political subdivision of the United States or any other country, or any agency, court or instrumentality, foreign or domestic, or statutory or regulatory body thereof
		

		
			“Legal Requirement” means any law, statute, code, ordinance, order, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization, or other directional requirement (including, without limitation, any of the foregoing that relates to environmental standards or controls, energy regulations and occupational, safety and health standards or controls including those arising under environmental laws) of any Governmental Authority.
		

		
			“Prohibited Period” means the period during which Executive is employed by the Company hereunder and a period of two years following the end of Executive’s employment with the Company.
		

		
			“Restricted Area” means any geographical area within 100 miles in which the Company and its subsidiaries engage in the Business during the period during which Executive is employed hereunder, which such area includes, without limitation, the geographic areas set forth on Appendix C hereto.
		

		
			8.2Non-Competition; Non-Solicitation. Executive and the Company agree to the non-competition and non-solicitation provisions of this Article VIII in consideration for the Confidential Information provided by the Company to Executive pursuant to Article V of this Agreement, to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Executive by the Company or its affiliates or created or developed by Executive for the Company or its affiliates, to protect the business goodwill of the Company or its affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company or its affiliates and as an additional incentive for the Company to enter into this Agreement.
		

		
			(a)Subject to the exceptions set forth in Section 8.2(b) below, Executive expressly covenants and agrees that during the Prohibited Period (i) Executive will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the Restricted Area (excluding hiring, engaging or paying a Competing Business as a contractor or subcontractor for services) and (ii) Executive will not, and Executive will cause Executive’s affiliates not to, directly or indirectly, own, manage, operate, join, become an employee of, partner in, owner or member of (or an independent contractor to), control or participate in, be connected with or loan money to, sell or lease equipment or property to, or otherwise be affiliated with any business, individual, partnership, firm, corporation or other entity which engages in a Competing Business in the Restricted Area, as Executive expressly agrees that each of the foregoing activities would represent carrying on or engaging in a Competitive Business, as prohibited by this Section 8.2(a).
		

		
			


		 


		

			15

		


		

			 

		





 



		

		
			(b)Notwithstanding the restrictions contained in Section 8.2(a): (i) Executive or any of Executive’s affiliates may own an aggregate of not more than 2% of the outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a national securities exchange, without violating the provisions of Section 8.2(a), provided that neither Executive nor any of Executive’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the management of such corporation (except to the extent permitted in clause (ii) of this sentence); and (ii) Executive may serve in a senior executive or director capacity for a corporation which (directly or through its subsidiaries) is engaged in a Competing Business, without violating the provisions Section 8.2(a), provided that the revenues attributable to such Competing Business for the four fiscal quarters of such corporation ending on or before the date of the commencement of Executive’s service in such capacity comprise less than 10% of the consolidated total revenue of such corporation for such four fiscal quarters.
		

		
			(c)Executive further expressly covenants and agrees that during the Prohibited Period, Executive will not, and Executive will cause Executive’s affiliates not to (i) engage or employ, solicit or contact with a view to the engagement or employment of, or recommend or refer to any person or entity (other than the Company or one of its affiliates) for engagement or employment any person who is an officer or employee of the Company or any of its affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its affiliates any person or entity who or which is a customer of any of such entities during the period during which Executive is employed by the Company.
		

		
			(d)The restrictions contained in Section 8.2 shall not apply to any product or service that the Company provided during Executive’s employment but that the Company no longer provides at the Date of Termination. Further, notwithstanding the other provisions of this Section 8.2, within the State of Oklahoma, the restrictions of Sections 8.2(a) and 8.2(c)(ii) shall be limited to preventing Executive from directly soliciting the sale of goods, services or a combination of goods and services from any established customer of the Company, as may exist from time-to-time.
		

		
			(e)Before accepting employment with any other person or entity while employed by the Company or during the Prohibited Period, the Executive will inform such person or entity of the restrictions contained in this Article VIII.
		

		
			8.3Relief. Executive and the Company agree and acknowledge that the limitations as to time, geographical area and scope of activity to be restrained as set forth in Section 8.2 are reasonable and do not impose any greater restraint than is necessary to protect the legitimate business interests of the Company. Executive and the Company also acknowledge that money damages would not be sufficient remedy for any breach of this Article VIII by Executive, and the Company or its affiliates shall be entitled to enforce the provisions of this Article VIII 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 VIII but shall be 


		 


		

			16

		


		

			 

		





 


in addition to all remedies available at law or in equity, including the recovery of damages from Executive and Executive’s agents. However, if it is determined that Executive has not committed a breach of this Article VIII, then the Company shall resume the payments and benefits due under this Agreement and promptly pay to Executive all payments (together with interest on a non-compounded basis, from the date each such payment would have been made had such payment not been suspended to the actual date of payment, at the Applicable Rate) and benefits that had been suspended pending such determination.
		

		
			8.4Reasonableness; Enforcement. Executive hereby represents to the Company that Executive has read and understands, and agrees to be bound by, the terms of this Article VIII. Executive acknowledges that the geographic scope and duration of the covenants contained in this Article VIII are the result of arm’s-length bargaining and are fair and reasonable in light of (a) the nature and wide geographic scope of the operations of the Business, (b) Executive’s level of control over and contact with the Business in all jurisdictions in which it is conducted, (c) the fact that the Business is conducted throughout the Restricted Area and (d) the amount of Confidential Information that Executive is receiving in connection with the performance of Executive’s duties hereunder. It is the desire and intent of the parties that the provisions of this Article VIII be enforced to the fullest extent permitted under applicable Legal Requirements, whether now or hereafter in effect and therefore, to the extent permitted by applicable Legal Requirements, Executive and the Company hereby waive any provision of applicable Legal Requirements that would render any provision of this Article VIII invalid or unenforceable.
		

		
			8.5Reformation. The Company and Executive agree that the foregoing restrictions are reasonable under the circumstances and that any breach of the covenants contained in this Article VIII would cause irreparable injury to the Company. Executive understands that the foregoing restrictions may limit Executive’s ability to engage in certain businesses anywhere in the Restricted Area during the Prohibited Period, but acknowledges that Executive will receive sufficient consideration from the Company to justify such restriction. Further, Executive acknowledges that Executive’s skills are such that Executive can be gainfully employed in non-competitive employment, and that the agreement not to compete will not prevent Executive 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 herein 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, the Company and Executive intend to make this provision enforceable under the law or laws of all applicable States, Provinces and other jurisdictions 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 IX
		

		
			DISPUTE RESOLUTION
		

		
			9.1Arbitration. All claims or disputes between Executive and the Company or its parents, subsidiaries and affiliates (including, without limitation, claims relating to the validity, scope, and enforceability of this Article IX and claims arising under any federal, state or local law regarding the terms and conditions of employment or prohibiting discrimination in employment or 


		 


		

			17

		


		

			 

		





 


governing the employment relationship in any way) shall be submitted for final and binding arbitration in Houston, Texas in accordance with the then-applicable rules for resolution of employment disputes of the American Arbitration Association (“AAA”). The arbitration shall be conducted by a single arbitrator chosen pursuant to the then-applicable rules for resolution of employment disputes of the AAA, and the Company shall bear the costs of such arbitration. For the avoidance of doubt, the Company’s assumption of costs referenced in the previous sentence applies to the costs of the AAA only, and does not include attorney or expert fees or other fees or costs incurred by Executive. The arbitrator shall apply the substantive law of the State of Texas (excluding Texas choice-of-law principles that might call for the application of some other state’s law), or federal law, or both as applicable to the claims asserted. The results of the arbitration and the decision of the arbitrator will be final and binding on the parties and each party agrees and acknowledges that these results shall be enforceable in a court of law. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute(s) of limitations. In the event either party must resort to the judicial process to enforce the provisions of this Agreement, the award of an arbitrator or equitable relief granted by an arbitrator, the party successfully seeking enforcement shall be entitled to recover from the other party all costs of such litigation including, but not limited to, reasonable attorney’s fees and court costs. To the fullest extent permitted by law, all proceedings conducted pursuant to this agreement to arbitrate, including any order, decision or award of the arbitrator, shall be kept confidential by all parties. Notwithstanding the foregoing, Executive and the Company further acknowledge and agree that a court of competent jurisdiction residing in Houston, Texas shall have the power to maintain the status quo pending the arbitration of any dispute under this Article IX, and this Article IX shall not require the arbitration of any application for emergency, temporary or preliminary injunctive relief (including temporary restraining orders) by either party pending arbitration, including, without limitation, any application for emergency, temporary or preliminary injunctive relief for any claim arising out of Article V or Article VIII of this Agreement; provided, however, that the remainder of any such dispute beyond the application for such emergency, temporary or preliminary injunctive relief shall be subject to arbitration under this Article IX.  THE PARTIES ACKNOWLEDGE THAT, BY SIGNING THIS AGREEMENT, THEY ARE KNOWINGLY AND VOLUNTARILY WAIVING ANY RIGHTS THAT THEY MAY HAVE TO A JURY TRIAL OR, EXCEPT AS EXPRESSLY PROVIDED HEREIN, A COURT TRIAL OF ANY CLAIM THAT IS SUBJECT TO THIS ARTICLE IX.
		

		
			ARTICLE  X
		

		
			CERTAIN EXCISE TAXES
		

		
			10.1Certain Excise Taxes. 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 payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its affiliates, would constitute a “parachute payment” (as defined in section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and its affiliates 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 


		 


		

			18

		


		

			 

		





 


the Code or (b) 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 reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the 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 the Company upon notification that an overpayment has been made. Nothing in this Section 10.1 shall require the 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. Notwithstanding the foregoing, if shareholder approval (obtained in a manner that satisfies the requirements of section 280G(b)(5) of the Code) of a payment or benefit to be provided to Executive by the Company or any other person (whether under this Agreement or otherwise) would prevent Executive from receiving a “parachute payment” (as defined in section 280G(b)(2) of the Code), then, upon the request of Executive and his agreement (to the extent necessary) to subject his entitlement to the receipt of such payment or benefit to shareholder approval, the Company shall seek such approval in a manner that satisfies the requirements of section 280G of the Code and the regulations thereunder.
		

		
			ARTICLE XI
		

		
			MISCELLANEOUS
		

		
			11.1Notices. 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 (a) when received if delivered personally or by courier, (b) on the date receipt is acknowledged if delivered by certified mail, postage prepaid, return receipt requested or (c) one day after transmission if sent by facsimile transmission with confirmation of transmission, as follows:
		

			
					
						 

					
					
						 

				
	
					
						If to Executive, addressed to:

					
					
						Ms. Holli C. Nichols

				
	
					
						 

					
					
						1621 Kipling

				
	
					
						 

					
					
						Houston, Texas 77006

				
	
					
						 

					
					
						 

				
	
					
						 

					
					
						 

				
	
					
						If to the Company, addressed to:

					
					
						Rockwater Energy Solutions, Inc.

				
	
					
						 

					
					
						600 Travis, Suite 6600

				
	
					
						 

					
					
						Houston, Texas 77002

				
	
					
						 

					
					
						Attention: Chief Executive Officer

				
	
					
						 

					
					
						Fax: 713.227.7850

				



		
			 
		

		
			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.
		

		
			


		 


		

			19

		


		

			 

		





 



		

		
			11.2Applicable Law; Submission to Jurisdiction.
		

		
			(a)This Agreement is entered into under, and shall be governed for all purposes by, the laws of the State of Texas, without regard to conflicts of laws principles thereof.
		

		
			(b)With respect to any claim or dispute related to or arising under this Agreement for which an application for emergency or temporary injunctive relief may be made (as provided in Article IX), the parties hereto hereby consent to the exclusive jurisdiction, forum and venue of the state and federal courts located in Harris County, Texas.
		

		
			11.3No 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.
		

		
			11.4Severability. 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.
		

		
			11.5Counterparts. 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.
		

		
			11.6Withholding of Taxes and Other Employee Deductions. The Company may withhold from any benefits and payments made pursuant to this Agreement all federal, state, city and other taxes and withholdings as may be required pursuant to any law or governmental regulation or ruling and all other customary deductions made with respect to the Company’s employees generally.
		

		
			11.7Headings. The Section headings have been inserted for purposes of convenience and shall not be used for interpretive purposes.
		

		
			11.8Gender and Plurals. Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely.
		

		
			11.9Affiliate and Subsidiary. As used in this Agreement, (a) the term “affiliate” as used with respect to a particular person or entity shall mean any other person or entity which owns or controls, is owned or controlled by, or is under common ownership or control with, such particular person or entity and (b) the term “subsidiary” as used with respect to a particular entity shall mean a direct or indirect subsidiary of such entity.
		

		
			11.10Successors. This Agreement shall be binding upon and inure to the benefit of the Company and any successor of the Company. Except as provided in the 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, 


		 


		

			20

		


		

			 

		





 


without the prior written consent of the other party. In addition, any payment owed to Executive hereunder after the date of Executive’s death shall be paid to Executive’s estate.
		

		
			11.11Effect of Termination of Employment Relationship. The provisions of Articles V, VI, VII, VIII, IX, X and XI shall survive any termination of the employment relationship between Executive and the Company.
		

		
			11.12Entire Agreement. Except as provided in any signed written agreement contemporaneously or hereafter executed by the Company and Executive and except for the agreements described on Appendix D attached hereto, 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 the 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 including, without limitation, any prior employment agreement between Executive and the Company or an affiliate, are hereby null and void and of no further force and effect.
		

		
			11.13Modification; Waiver. Any modification to or waiver of this Agreement will be effective only if it is in writing and signed by the parties to this Agreement.
		

		
			11.14Actions by the Board. Any and all determinations or other actions required of the Board hereunder that relate specifically to Executive’s employment by the Company or the terms and conditions of such employment shall be made by the members of the Board other than Executive if Executive is a member of the Board, and Executive shall not have any right to vote or decide upon any such matter.
		

		
			11.15Executive’s Representations and Warranties. Executive represents and warrants to the Company that (a) Executive does not have any agreements with Executive’s prior employer that will prohibit Executive from working for the Company or fulfilling Executive’s duties and obligations to the Company pursuant to this Agreement and (b) Executive has complied with all duties imposed on Executive with respect to Executive’s former employer, e.g., Executive does not possess any tangible property belonging to Executive’s former employer.
		

		
			11.16Delayed Payment Restriction. Notwithstanding any provision in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under section 409A of the Code if Executive’s receipt of such payment or benefit is not delayed until the Section 409A Payment Date, then such payment or benefit shall not be provided to Executive (or Executive’s estate, if applicable) until the Section 409A Payment Date.
		

		
			[Signatures begin on next page.]
		

		
			 
		

		
			


		 


		

			21

		


		

			 

		





 



		

		
			IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of June 1, 2011.
		

			
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						ROCKWATER ENERGY SOLUTIONS, INC.

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						By:

					
					
						/s/ Lawrence O’Donnell, III

				
	
					
						 

					
					
						 

					
					
						Name:

					
					
						Lawrence O’Donnell, III

				
	
					
						 

					
					
						 

					
					
						Title:

					
					
						Chairman, President & CEO

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						HOLLI C. NICHOLS

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						/s/ Holli C. Nichols

				



		
			 
		

		
			 
		

		
			


		 


		

			22

		


		

			 

		





 



		

		
			APPENDIX A
		

		
			PERMITTED ACTIVITIES
		

		
			As of the Effective Date, Executive is serving on the board of directors or similar governing body of the following entities:
		

		
			Atlantic Power Corporation
		

		
			His Grace Foundation
		

		
			 
		

		
			


		 


		

			A-1

		





 



		

		
			APPENDIX B
		

		
			RELEASE AGREEMENT
		

		
			This Release Agreement (this “Agreement”) constitutes the release referred to in that certain Employment Agreement (the “Employment Agreement”) dated as of June 1, 2011, by and between Holli C. Nichols (“Executive”) and Rockwater Energy Solutions, Inc. (the “Company”).
		

		
			1.General Release.
		

		
			(a)For good and valuable consideration, including the Company’s provision of certain payments and benefits to Executive in accordance with Section 7.1(b)(iii) of the Employment Agreement, Executive hereby releases, discharges and forever acquits the Company, its affiliates and subsidiaries, the past, present and future stockholders, members, partners, directors, managers, employees, agents, attorneys, heirs, legal representatives, successors and assigns of the foregoing, as well as all employee benefit plans maintained by the Company or any of its affiliates or subsidiaries and all fiduciaries and administrators of any such plan, in their personal and representative capacities (collectively, the “Company Parties”), from liability for, and hereby waives, any and all claims, rights, damages, or causes of action of any kind related to Executive’s employment with any Company Party, the termination of such employment, and any other acts or omissions related to any matter on or prior to the date of this Agreement (collectively, the “Released Claims”).
		

		
			(b)The Released Claims include without limitation those arising under or related to: (i) the Age Discrimination in Employment Act of 1967; (ii) Title VII of the Civil Rights Act of 1964; (iii) the Civil Rights Act of 1991; (iv) sections 1981 through 1988 of Title 42 of the United States Code; (v) the Employee Retirement Income Security Act of 1974, including, but not limited to, sections 502(a)(1)(A), 502(a)(1)(B), 502(a)(2), and 502(a)(3) to the extent the release of such claims is not prohibited by applicable law; (vi) the Immigration Reform Control Act; (vii) the Americans with Disabilities Act of 1990; (viii) the National Labor Relations Act; (ix) the Occupational Safety and Health Act; (x) the Family and Medical Leave Act of 1993; (xi) any state or federal anti-discrimination law; (xii) any state or federal wage and hour law; (xiii) any other local, state or federal law, regulation or ordinance; (xiv) any public policy, contract, tort, or common law; (xv) costs, fees, or other expenses including attorneys’ fees incurred in these matters; (xvi) any employment contract, incentive compensation plan or stock option plan with any Company Party or to any ownership interest in any Company Party except as expressly provided in the Employment Agreement, any stock option agreement, any stockholders agreement or other equity compensation agreement between Executive and the Company; and (xvii) compensation or benefits of any kind from any Company Party (other than benefits vested as of the date of this Agreement) not expressly set forth in the Employment Agreement or any such stock option or other equity compensation agreement.
		

		
			(c)In no event shall the Released Claims include (i) any claim which arises after the date of this Agreement, (ii) any claims for the payments and benefits payable to Executive under Section 7.1(b) of the Employment Agreement, (iii) any claims to the equity interests in the Company Parties that Executive holds as of the date of this Agreement which remain subject to the terms and conditions, as applicable, of the Company’s stockholders agreement (as may be 


		 


		

			B-1

		





 


amended from time to time) and any specific equity award agreement between Executive and a Company Party, and (iv) any claim for or right to indemnification under the policies or governing instruments of the Company Parties and for coverage under any directors and officers liability insurance policies maintained by the Company Parties.
		

		
			(d)Notwithstanding this release of liability, nothing in this Agreement prevents Executive from filing any non-legally waivable claim (including a challenge to the validity of this Agreement) with the Equal Employment Opportunity Commission (“EEOC”) or comparable state or local agency or participating in any investigation or proceeding conducted by the EEOC or comparable state or local agency; however, Executive understands and agrees that Executive is waiving any and all rights to recover any monetary or personal relief or recovery as a result of such EEOC, or comparable state or local agency proceeding or subsequent legal actions.
		

		
			(e)This Agreement is not intended to indicate that any such claims exist or that, if they do exist, they are meritorious. Rather, Executive is simply agreeing that, in exchange for the consideration recited in the first sentence of Section 1(a) of this Agreement, any and all potential claims of this nature that Executive may have against the Company Parties, regardless of whether they actually exist, are expressly settled, compromised and waived.
		

		
			(f)By signing this Agreement, Executive is bound by it. Anyone who succeeds to Executive’s rights and responsibilities, such as heirs or the executor of Executive’s estate, is also bound by this Agreement. This release also applies to any claims brought by any person or agency or class action under which Executive may have a right or benefit. THIS RELEASE INCLUDES MATTERS ATTRIBUTABLE TO THE SOLE OR PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY, OF ANY OF THE COMPANY PARTIES.
		

		
			2.Covenant Not to Sue; Executive’s Representation. Executive agrees not to bring or join any lawsuit against any of the Company Parties in any court relating to any of the Released Claims. Executive represents that Executive has not brought or joined any claim, lawsuit or arbitration against any of the Company Parties in any court or before any administrative agency or arbitral authority and has made no assignment of any rights Executive has asserted or may have against any of the Company Parties to any person or entity, in each case, with respect to any Released Claims.
		

		
			3.Acknowledgments. By executing and delivering this Agreement, Executive acknowledges that:
		

		
			(a)Executive has carefully read this Agreement;
		

		
			(b)Executive has had at least [twenty-one (21)] [forty-five (45)] days to consider this Agreement before the execution and delivery hereof to the Company [Add if 45 days applies: , and Executive acknowledges that attached to this Agreement is a list provided to Executive by the Company of (i) the job titles and ages of all employees selected for participation in the employment termination or exit incentive program pursuant to which Executive is being offered this Agreement, (ii) the job titles and ages of all employees in the same job classification or organizational unit who were not selected for participation in the program, and (iii) information 


		 


		

			B-2

		





 


about the unit affected by the program, including any eligibility factors for such program and any time limits applicable to such program];
		

		
			(c)Executive has been and hereby is advised in writing that Executive may, at Executive’s option, discuss this Agreement with an attorney of Executive’s choice and that Executive has had adequate opportunity to do so; and
		

		
			(d)Executive fully understands the final and binding effect of this Agreement; the only promises made to Executive to sign this Agreement are those stated in the Employment Agreement and herein; and Executive is signing this Agreement voluntarily and of Executive’s own free will, and that Executive understands and agrees to each of the terms of this Agreement.
		

		
			4.Revocation Right. Executive may revoke this Agreement within the seven day period beginning on the date Executive signs this Agreement (such seven day period being referred to herein as the “Release Revocation Period”). To be effective, such revocation must be in writing signed by Executive and must be delivered to the Chief Executive Officer of the Company before 11:59 p.m., Houston, Texas time, on the last day of the Release Revocation Period. This Agreement is not effective, and no consideration shall be paid to Executive, until the expiration of the Release Revocation Period without Executive’s revocation. If an effective revocation is delivered in the foregoing manner and timeframe, this Agreement shall be of no force or effect and shall be null and void ab initio.
		

			
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						Executed on this

					
					
						 

					
					
						day of

					
					
						 

					
					
						,

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

					
					
						Holli C. Nichols

				
	
					
						STATE OF

					
					
						 

					
					
						§

					
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

					
					
						§

					
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						COUNTY OF

					
					
						 

					
					
						§

					
					
						 

					
					
						 

					
					
						 

					
					
						 

				



		
			 
		

		
			 BEFORE ME, the undersigned authority personally appeared Holli C. Nichols, by me known or who produced valid identification as described below, who executed the foregoing instrument and acknowledged before me that he subscribed to such instrument on this _____ day of _______________, __________.
		

		
			 
		

			
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						 

				
	
					
						 

					
					
						NOTARY PUBLIC in and for the

				
	
					
						 

					
					
						 

				
	
					
						 

					
					
						State of

					
					
						 

				
	
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						My Commission Expires:

					
					
						 

				
	
					
						 

					
					
						 

				
	
					
						 

					
					
						Identification produced:

				



		
			 
		

		
			 
		

		
			


		 


		

			B-3

		





 



		

		
			APPENDIX C
		

		
			RESTRICTED AREA
		

			
					
						 

					
					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						Bend 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						 

					
						Zavala

					
						 

				
	
					
						COUNTRY/STATE

					
					
						COUNTY/PARISH/PROVINCE 

				
	
					
						CANADA 

					
					
						Alberta 

					
						British Columbia 

					
						Saskatchewan 

				
	
					
						ALASKA 

					
					
						North Slope 

				
	
					
						ARKANSAS 

					
					
						Cleburne 

					
						Columbia 

					
						Conway 

					
						Craighead

					
						Crawford

					
						Faulkner

					
						Franklin 

					
						Fulton 

					
						Independence 

					
						Johnson

					
						Lafayette 

					
					
						Logan 

					
						Miller

					
						Nevada 

					
						Ouachita

					
						Pope

					
						Pulaski

					
						Sebastian

					
						Union 

					
						Van Buren

					
						White

				
	
					
						COLORADO 

					
					
						Adams 

					
						Garfield 

					
						Mesa 

					
						Morgan

					
						Rio Blanco

					
						Weld

				
	
					
						FLORIDA 

					
					
						Duval

				
	
					
						ILLINOIS 

					
					
						McLean 

				
	
					
						KANSAS 

					
					
						Barber

					
						Butler 

					
						Chase

					
						Chautauqua

					
						Clark 

					
						Coffey

					
						Comanche

					
						Cowley

					
						Dickinson 

					
						Elk

					
						Ellis

					
						Finney

					
					
						Grant

					
						Greenwood 

					
						Harper

					
						Harvey 

					
						Haskell

					
						Kingman

					
						Kiowa

					
						Labette

					
						Marion 

					
						McPherson

					
						Meade

					
						Montgomery 

					
					
						Morris

					
						Morton

					
						Neosho

					
						Pratt

					
						Reno

					
						Rice

					
						Saline

					
						Sedgwick

					
						Seward

					
						Stafford 

					
						Stevens

					
						Sumner

				




		 


		

			C-1

		


		

			 

		





 


	

      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Bend 

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Zavala

      


      

         

      


    
	

      

        COUNTRY/STATE

      


    	

      

        COUNTY/PARISH/PROVINCE

         

      


    
	
					
						

					
						LOUISIANA 

					
					
						Acadia

					
						Bienville

					
						Bossier

					
						Caddo

					
						Calcasieu

					
						Cameron

					
						Claiborne

					
						DeSoto

					
						Iberia

					
						Jefferson Davis

					
						Lafayette 

					
					
						Lafourche

					
						Natchitoches

					
						Plaquemines

					
						Red River

					
						Sabine

					
						St. Landry

					
						St. Martin 

					
						St. Mary

					
						Terrebonne

					
						Vermillion

					
						Webster

				
	
					
						MASSACHUSETTS 

					
					
						Middlesex

					
						Worcester 

				
	
					
						MICHIGAN 

					
					
						Kalkaska

					
						Otsego

				
	
					
						MISSISSIPPI 

					
					
						Marion 

				
	
					
						MISSOURI 

					
					
						Perry

				
	
					
						MONTANA 

					
					
						Sheridan 

					
						Roosevelt 

					
						Richland 

				
	
					
						NEBRASKA 

					
					
						Douglas 

				
	
					
						NEVADA 

					
					
						Washoe

				
	
					
						NEW HAMPSHIRE 

					
					
						Hillsborough

					
						Rockingham

				
	
					
						NEW MEXICO 

					
					
						Bernalillo

					
						Catron

					
						Chaves

					
						Cibola

					
						Colfax

					
						Curry

					
						De Baca

					
						Dona Ana

					
						Eddy

					
						Grant

					
						Guadalupe

					
					
						Harding

					
						Hidalgo

					
						Lea

					
						Lincoln

					
						Luna

					
						McKinley

					
						Mora

					
						Otero

					
						Quay

					
						Rio Arriba

					
						Roosevelt 

					
					
						San Juan

					
						San Miguel

					
						Sandoval

					
						Santa Fe

					
						Sierra

					
						Socorro

					
						Taos

					
						Torrance

					
						Union

					
						Valencia

				
	
					
						NEW YORK 

					
					
						Cattaraugus

					
						Chautauqua

					
						Chemung

					
						Chenango

					
						Cortland 

					
						Delaware 

					
						Erie 

					
						Ostego

					
						Steuben

					
						Tioga

				




		 


		

			C-2

		


		

			 

		





 


	

      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Bend 

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Zavala

      


      

         

      


    
	

      

        COUNTRY/STATE

      


    	

      

        COUNTY/PARISH/PROVINCE

         

      


    
	
					
						

					
						NORTH DAKOTA 

					
						 

					
					
						Adams 

					
						Billings 

					
						Bottineau

					
						Bowman

					
						Burke

					
						Burleigh

					
						Divide

					
						Dunn

					
						Golden Valley

					
						Grant

					
						Hettinger

					
						McHenry

					
						McKenzie

					
					
						McLean 

					
						Mercer

					
						Morton

					
						Mountrail

					
						Oliver

					
						Pierce

					
						Renville

					
						Rolette

					
						Sheridan 

					
						Sioux

					
						Slope

					
						Stark

					
						Ward

					
						Williams

				
	
					
						OHIO 

					
					
						Allen

					
						Coshocton

					
						Cuyahoga

					
						Guernsey 

					
						Harrison 

					
						Knox

					
						Licking

					
						Morgan

					
						Portage 

					
						Trumbull 

					
						Washington 

					
						Wayne 

				
	
					
						OKLAHOMA 

					
					
						Alfalfa

					
						Atoka

					
						Beaver

					
						Beckham

					
						Blaine 

					
						Bryan 

					
						Caddo

					
						Canadian

					
						Carter

					
						Cimarron 

					
						Cleveland 

					
						Coal

					
						Comanche

					
						Cotton

					
						Creek

					
						Custer

					
						Dewey

					
						El Reno 

					
					
						Ellis

					
						Garfield 

					
						Garvin

					
						Grady

					
						Grant

					
						Greer

					
						Harmon

					
						Harper

					
						Haskell

					
						Hughes

					
						Jackson 

					
						Jefferson 

					
						Kay

					
						Kingfisher

					
						Kiowa

					
						Latimer

					
						LeFlore

					
					
						Lincoln 

					
						Logan 

					
						Love

					
						Major

					
						Marshall 

					
						Mayes

					
						McClain

					
						McCurtain

					
						McIntosh

					
						Murray 

					
						Noble

					
						Nowata

					
						Okfuskee

					
						Oklahoma 

					
						Okmulgee 

					
						Osage

					
						Pawnee

					
					
						Payne

					
						Pittsburg 

					
						Pontotoc

					
						Pottawatomie

					
						Roger Mills

					
						Rogers 

					
						Seminole

					
						Sequoyah

					
						Stephens

					
						Texas 

					
						Tillman

					
						Tulsa 

					
						Wagoner

					
						Washington 

					
						Washita 

					
						Woods

					
						Woodward

				




		 


		

			C-3

		


		

			 

		





 


	

      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Bend 

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Zavala

      


      

         

      


    
	

      

        COUNTRY/STATE

      


    	

      

        COUNTY/PARISH/PROVINCE

         

      


    
	
					
						

					
						PENNSYLVANIA 

					
					
						Allegheny

					
						Armstrong

					
						Beaver

					
						Bedford 

					
						Berks

					
						Bradford 

					
						Butler 

					
						Cambria 

					
						Cameron

					
						Centre

					
						Chester 

					
					
						Clarion

					
						Clearfield 

					
						Clinton 

					
						Columbia 

					
						Crawford

					
						Elk

					
						Fayette

					
						Forest 

					
						Fulton 

					
						Greene

					
						Indiana 

					
					
						Jefferson 

					
						Lackawanna 

					
						Lawrence 

					
						Lebanon 

					
						Luzerne

					
						Lycoming

					
						McKean

					
						Mercer

					
						Montour

					
						Pittsburg 

					
						Potter

					
					
						Somerset

					
						Sullivan

					
						Susquehanna

					
						Tioga

					
						Venango

					
						Warren

					
						Washington 

					
						Wayne 

					
						Westmoreland

					
						Wetzel

					
						Wyoming 

				
	
					
						TENNESSEE 

					
					
						Shelby 

				
	
					
						TEXAS 

					
					
						Anderson 

					
						Andrews

					
						Archer

					
						Armstrong

					
						Atascosa

					
						Bailey

					
						Baylor

					
						Bee

					
						Bexar

					
						Borden

					
						Bosque

					
						Bowie 

					
						Brazoria

					
						Brazos 

					
						Brewster

					
						Briscoe

					
						Brooks

					
						Brown

					
						Burleson

					
						Callahan

					
						Cameron

					
						Carson 

					
						Cass

					
						Castro

					
						Cherokee

					
						Childress

					
						Clay

					
						Cochran

					
						Coke

					
						Coleman

					
						Collingsworth

					
						Comanche

					
						Concho

					
						Cooke

					
						Cottle

					
						Crane

					
						Crockett

					
					
						Crosby 

					
						Culberson

					
						Dallam

					
						Dawson 

					
						Deaf Smith

					
						Denton 

					
						DeWitt

					
						Dickens

					
						Dimmit

					
						Donley

					
						Duval

					
						Eastland

					
						Ector

					
						Edwards

					
						Ellis

					
						Erath

					
						Fayette

					
						Fisher

					
						Floyd

					
						Foard

					
						Fort Bend 

					
						Freestone

					
						Frio 

					
						Gaines

					
						Garza

					
						Glasscock

					
						Goliad

					
						Gonzales

					
						Gray

					
						Grayson

					
						Gregg

					
						Hale

					
						Hall

					
						Hamilton

					
						Hansford

					
						Hardeman

					
						Harris 

					
					
						Harrison 

					
						Hartley

					
						Haskell

					
						Hemphill

					
						Hidalgo 

					
						Hill

					
						Hockley

					
						Hood

					
						Houston 

					
						Howard

					
						Hutchinson 

					
						Irion

					
						Jack

					
						Jackson 

					
						Jeff Davis

					
						Jefferson 

					
						Jim Hogg

					
						Jim Wells

					
						Johnson

					
						Jones

					
						Karnes

					
						Kenedy

					
						Kent

					
						Kimble

					
						King

					
						Kinney

					
						Kleberg

					
						Knox

					
						La Salle

					
						Lamb

					
						Lavaca

					
						Leon

					
						Limestone

					
						Lipscomb

					
						Live Oak

					
						Loving

					
						Lubbock

					
					
						Lynn 

					
						Marion 

					
						Martin

					
						Maverick

					
						McCulloch

					
						McMullen

					
						Medina 

					
						Menard

					
						Midland 

					
						Mitchell

					
						Montague

					
						Moore 

					
						Motley

					
						Nacogdoches 

					
						Nolan

					
						Nueces 

					
						Ochiltree

					
						Oldham 

					
						Orange 

					
						Palo Pinto

					
						Panola

					
						Parker

					
						Parmer

					
						Pecos 

					
						Potter

					
						Randall

					
						Reagan

					
						Reeves

					
						Refugio

					
						Roberts

					
						Robertson

					
						Runnels

					
						Rusk

					
						Sabine

					
						San Augustine

					
						San Patricio

					
						Schleicher

					
					
						Scurry

					
						Shackelford

					
						Shelby 

					
						Sherman 

					
						Somervell

					
						Smith

					
						Starr

					
						Stephens

					
						Sterling 

					
						Stonewall

					
						Sutton

					
						Swisher

					
						Tarrant

					
						Taylor 

					
						Terrell

					
						Terry

					
						Throckmorton

					
						Tom Green

					
						Upton 

					
						Uvalde

					
						Val Verde

					
						Victoria 

					
						Ward

					
						Webb

					
						Wheeler

					
						Wichita 

					
						Wilbarger

					
						Willacy

					
						Wilson 

					
						Winkler

					
						Wise

					
						Wood

					
						Yoakum

					
						Young

					
						Zapata

					
						Zavala

				




		 


		

			C-4

		


		

			 

		





 


	

      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Bend 

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


    	

      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

         

      


      

        Zavala

      


      

         

      


    
	

      

        COUNTRY/STATE

      


    	

      

        COUNTY/PARISH/PROVINCE

         

      


    
	
					
						

					
						UTAH 

					
					
						Uintah

				
	
					
						VIRGINIA 

					
					
						Wise

				
	
					
						WASHINGTON 

					
					
						Jefferson 

					
						Pierce

				
	
					
						WEST VIRGINIA 

					
					
						Barbour

					
						Boone

					
						Braxton

					
						Calhoun

					
						Clay

					
						Doddridge

					
						Gilmer

					
						Harrison 

					
						Kanawha

					
						Lewis

					
						Lincoln 

					
						Logan 

					
						Marion 

					
						Marshall 

					
					
						Monongalia

					
						Ohio 

					
						Preston 

					
						Putnam

					
						Raleigh 

					
						Ritchie

					
						Roane

					
						Taylor 

					
						Tyler 

					
						Upshur

					
						Wetzel

					
						Wirt

					
						Wood

					
						Wyoming 

				
	
					
						WYOMING 

					
					
						Campbell 

					
						Converse

					
						Fremont 

					
						Natrona

					
						Sweetwater

					
						Washakie

				



		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			


		 


		

			C-5

		


		

			 

		





 



		

		
			APPENDIX D
		

		
			EXISTING AGREEMENTS
		

		
			Unit Option Agreement dated March 14, 2011 with EnerMAX Services Limited Partnership
		

		
			Nonstatutory Stock Option Agreement dated March 14, 2011 with Benchmark Performance Group, Inc.
		

		
			Nonstatutory Stock Option Agreement dated March 14, 2011 with Reef Services Holdings, Inc. Nonstatutory Stock Option Agreement dated March 14, 2011 with Red Oak Water Transfer, Inc.
		


		 


		

			D-1