exv10w1






Exhibit 10.1




CHANGE OF CONTROL AGREEMENT 




     This Change of Control Agreement (this “Agreement”) is made and entered into effective
as of October 4, 2010 (the “Effective Date”) by and between T-3 Energy Services, Inc. (the
“Company” or the “Employer”) a Delaware corporation, currently located at 7135
Ardmore, Houston, Texas 77054, and Keith A. Klopfenstein (the “Employee”). The
Company and the Employee are sometimes herein referred to individually as a “Party” and
collectively as the “Parties.”



RECITALS




     WHEREAS, the Company recognizes that the Employee’s contribution to the Company’s growth and
success has been and continues to be significant;



     WHEREAS, the Company desires to encourage the Employee to remain with and devote full time and
attention to the business affairs of the Company and desires to provide income protection to the
Employee for a period of time in the event of a Change of Control; and



     WHEREAS, the Parties desire to memorialize their agreement with respect thereto in the manner
set forth herein;



     NOW, THEREFORE, in consideration of the Employee’s past and future services to the Company and
the mutual covenants herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:




	 	1.	 	Definitions
	 
	 	a.	 	“Base Salary” shall mean the Employee’s regular annualized base salary in gross
as of the date of the Employee’s Termination of Employment.
	 
	 	b.	 	“Cause” shall mean:






	 	(i)	 	Employee’s conviction of, or plea of no lo contendere to, a
felony punishable by imprisonment;
	 
	 	(ii)	 	Employee’s commission of an act of fraud with respect to the
business and affairs of the Employer;
	 
	 	(iii)	 	Employee’s willful failure to perform his duties;
	 
	 	(iv)	 	Gross negligence, theft of Employer property, material
violation by Employee of any duty of loyalty to Employer, or any other willful
material misconduct on the part of Employee which results in or could cause a
material financial loss by Employer;





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	 	(v)	 	Material violation of any written employee policy promulgated
by the Company or its affiliate and applicable to Employee, as in effect at
that time, including, without limitation, the receipt of any kick-back or side
payment from any customer, supplier or vendor; or
	 
	 	(vi)	 	Material breach by Employee of any confidentiality agreement
between Employee and the Employer.






	 	c.	 	“Change of Control” shall mean the closing of a transaction or series
of transactions in which either:






	 	(i)	 	More than fifty percent (50%) of the voting power of the
Company or,
	 
	 	(ii)	 	All or substantially all of the assets of the Company are
transferred to a party that was not a significant stockholder, member, or
partner in the Company or any of its subsidiaries, ventures or affiliates prior
to such transaction or series of transactions.






	 	d.	 	“Change of Control Date” shall mean the date immediately prior to the
effectiveness of the Change of Control.
	 
	 	e.	 	“Employer” means the Company and any successor to the Company in a
Change of Control.
	 
	 	f.	 	“Good Reason” shall mean the occurrence of any of the following (i)
Employee experiences a material diminution in job responsibility, authority or duties;
(ii) material diminution in base compensation; (iii) material change in the geographic
location at which Employee must perform his services whereby the Employee’s commute
from his primary residence to the primary office of the Company increases by more than
fifty (50) miles one way prior to the Change of Control; or (iv) the failure of any
successor in a Change of Control to assume this Agreement; provided, however, that
Employee within ninety (90) days of the occurrence of such event must notify the
Employer of such occurrence, and if within thirty (30) days following receipt of such
notice the Employer has failed to remedy the condition, Employee must then resign and
his resignation shall be deemed a termination for Good Reason.
	 
	 	g.	 	“Target Bonus” shall mean the higher of: (i) the Employee’s target
annual incentive bonus for the calendar year in which the Change of Control occurs; or
(ii) the actual incentive bonus received by Employee for the calendar year that
preceded the year in which the Change of Control occurs.
	 
	 	h.	 	“Termination of Employment” shall mean the Employee’s “separation from
service” with the Employer within the meaning of Treasury Regulation 1.409A-1(h). In
the event Employee’s employment with the Company is terminated in




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	 	 	 	connection with a Change of Control but the successor to the Company in the Change
of Control offers employment to the Employee that would not entitle the Employee to
resign for Good Reason, such termination of employment with the Company will not
constitute a Termination of Employment.






	 	2.	 	Term of Agreement.






          This Agreement shall commence on the Effective Date and shall continue in effect until
the earlier of (i) Employee’s separation of service other than within twelve (12) months of
a Change of Control; (ii) such time as Employee experiences a material diminution in job
responsibilities, authority or duties other than within twelve (12) months of a Change of
Control; (iii) the Company’s satisfaction of all of its obligations under this Agreement;
(iv) the execution of a written agreement between the Company and Employee terminating this
Agreement; or (v) the first day of the thirteenth (13th) month following a Change
of Control provided that a Termination of Employment described in Section 4 did not occur
during the preceding twelve (12) months.




	 	3.	 	Employment At-Will.






          The Company and Employee acknowledge that Employee’s employment with the Employer is
not for any specified term and may be terminated by the Employee or by the Employer at any
time, for any reason, with or without cause, without any liability, except with respect to
the payments provided hereunder or as required by law or any other contract or employee
benefit plan. Nothing in this Agreement shall be deemed to constitute a contract for
employment.




	 	4.	 	Severance Benefits.






          If at any time within twelve (12) months following a Change of Control, the Employee
incurs a Termination of Employment by the Employer without Cause, or by the Employee for
Good Reason, then, provided that Employee satisfies the provisions of Section 4.e herein,
Employee shall be entitled to the following benefits:




	 	a.	 	Cash Payment. The Employee shall be paid a cash severance payment
equal to the sum of:






	 	(i)	 	one (1) times the Employee’s Base Salary as of the
Termination of Employment; plus
	 
	 	(ii)	 	one (1) times the Employee’s Target Bonus as of the
Termination of Employment; and






	 	b.	 	Accelerated Vesting. All outstanding stock options and other
equity-based compensation awards held by the Employee at the time of his Termination of
Employment shall automatically vest in full. Restricted stock awards granted to
Employee which are subject to meeting performance goals shall only vest upon




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	 	 	 	determination that such goals were met as of the date of Termination of Employment.






	 	c.	 	Withholding. The Employer shall withhold any and all state, federal or
local taxes and deductions attributable to the payment of severance benefits and the
accelerated vesting of the Employee’s equity-based compensation awards as may be
required by applicable law.
	 
	 	d.	 	Compliance with Internal Revenue Code Section 409A. Payment shall be
made in a single lump sum within seventy-five (75) days of the effective date of
Employee’s Termination of Employment. This Agreement is not intended to provide
benefits that would constitute a deferral of compensation within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended and the regulations promulgated
thereunder (the “Code”).
	 
	 	e.	 	General Release of Claims. The amounts payable pursuant to this
Section 4 are subject to the condition that Employee has delivered to the Employer an
executed copy of a no longer revocable general release of all claims in a form set
forth in Exhibit B attached hereto within the sixty (60) day period immediately
following the Employee’s Termination of Employment (the “Release Period”).
	 
	 	5.	 	No Mitigation Required.






          In no event shall Employee be obligated to seek other employment or take other action
by way of mitigation of the amounts payable to Employee under the terms of this Agreement,
and all such amounts shall not be reduced whether or not Employee obtains other employment.




	 	6.	 	Waiver of Other Severance Benefits.






          The benefits payable pursuant to this Agreement are in lieu of any other severance
benefits which may otherwise be payable by the Company or its affiliates to the Employee
upon termination of employment pursuant to a severance program of the Company or its
affiliates.




	 	7.	 	Arbitration.






          Any dispute, controversy or claim arising out of, relating to or in connection with
this Agreement, including without limitation any question regarding its existence,
interpretation, validity or termination, the scope of authority given under this Section 7,
or a breach of this Agreement, shall be referred to, and finally settled by, arbitration
before a single arbitrator under and in accordance with the then-existing rules for
arbitration of the American Arbitration Association (“AAA”), or any successor organization.
The place of arbitration shall be in Houston, Texas and judgment upon any award rendered by
the arbitrator may be entered by the State or Federal Court having jurisdiction thereof. If
the Parties cannot agree upon an arbitrator to hear the matter



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within thirty (30) days after the submission of a dispute by either Party to
arbitration, the arbitrator shall be appointed pursuant to the applicable rules of the AAA.
The award shall be in writing and state the reasons upon which it is based. It may be made
public only with the consent of the Parties. The award shall be final and binding on the
Parties. The arbitrator(s) shall be empowered to award all or a portion of the costs of the
arbitration to either Party, to the same extent that a judge or jury, as applicable, would
have such power and consistent with Section 19 below. Nothing in this Agreement shall be
construed to deny either Party the right to seek an injunction in any court of competent
jurisdiction in order to enforce the provisions of Sections 8, 9 and 10 hereof. THE PARTIES
EXPRESSLY ACKNOWLEDGE THAT, BY SIGNING THIS AGREEMENT, THEY ARE WAIVING ANY RIGHT THAT THEY
MAY HAVE TO A JURY TRIAL OR, EXCEPT AS EXPRESSLY PROVIDED HEREIN, A COURT TRIAL OF ANY CLAIM
THAT MAY RELATE TO THIS AGREEMENT.




	 	8.	 	Confidential Information.
	 
	 	a.	 	The Company, its successor, or any affiliate of either, will disclose to
Employee, and place Employee in a position to have access to or develop, Confidential
Information (as defined below).
	 
	 	b.	 	Employee agrees not to disclose, either while in the employ of the Company or
its successor or at any time thereafter, to any person not employed by the Company or
its successor, or not engaged to render services to the Company or its successor, any
information, trade secrets, designs, ideas, concepts, improvements, product
developments, data, discoveries and inventions (whether patentable or not) that relate
to the Company’s, its successor’s or any of either’s affiliates’ businesses, products
or services (including without limitation all such information relating to corporate
opportunities, product specifications, compositions, manufacturing and distribution
methods and processes, research, financial and sales data, pricing terms, evaluations,
opinions, interpretations, strategies, acquisition prospects, the identity of customers
or their requirements, the identity of key contacts within customers’ organizations or
within the organizations of acquisition prospects, or exploration, production,
marketing and merchandising techniques, prospective names and marks) and all writings
or materials embodying any of such information, ideas, concepts, improvements,
discoveries, inventions and other similar forms of expression (collectively,
“Confidential Information”) obtained by him while in the employ of the Company
or its successor. Notwithstanding the foregoing, this Section 8.b shall not preclude
the Employee from use or disclosure of information: (i) known generally to the public
other than as a result of Employee’s violation of this Agreement or another person’s
violation of a similar confidentiality obligation; or (ii) required to be disclosed by
law or Court order.
	 
	 	c.	 	Employee acknowledges that money damages would not be a sufficient remedy for
any breach of this Section 8 by Employee, and the Company, its successor or affiliates
of either shall be entitled to enforce the provisions of this Section 8 by





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	 	 	 	terminating payments then owing to Employee under this Agreement or otherwise and to
specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall be in addition to all remedies available at
law or in equity, including the recovery of damages from Employee or Employee’s
agents. However, if it is determined that Employee has not committed a breach of
this Section 8, then the Company or its successor shall resume the payments due
under this Agreement and pay Employee all payments and benefits that had been
suspended pending such determination.






	 	9.	 	Covenant Not to Compete.






	 	a.	 	During the Term of Employment and until the first anniversary of the Employee’s
Termination of Employment (the “Non-Compete Period”), Employee shall not,
directly or indirectly, within the state of Texas, the parishes of Louisiana listed on
Exhibit A, and Canada and Mexico (the “Restricted Area”):






	 	(i)	 	perform, assist with, advise with regard to or otherwise be involved in, any
duties similar in nature to the duties performed by the Employee for the Company,
its successor or the affiliates of either after the Effective Date for any
Competitor of the Company, its successor or the affiliates of either, whether as an
employee, officer, principal, member, advisor, agent, partner, director,
stockholder, owner or consultant; provided, however, that Employee shall not be
deemed to be an owner of an entity where Employee’s ownership interest is less than
five percent (5%) of the outstanding stock or membership units of a that entity, or
	 
	 	(ii)	 	compete against any actual or potential acquisition of the Company, its
successor or the affiliates of either or be involved in the development of any line
of business, property, or project on which the Company, its successor or the
affiliates of either is involved.






	 	b.	 	It is the intention of the Company and Employee that insofar as this Agreement
affects the Parishes of Louisiana listed in the attached Exhibit A, that it be
enforceable under La R.S. 23:921; and the Parties agree that within the Parishes listed
on the attached Exhibit A, the Agreement should be interpreted to fully comply with La.
R.S. 23:921.
	 
	 	c.	 	“Competitor” means any entity engaged in the business of manufacture,
remanufacture, sale and distribution of same or similar oilfield products and services
to customers in the drilling and completion of new oil and gas wells, and the work-over
of existing wells.
	 
	 	d.	 	Employee expressly acknowledges and agrees that the Company and its affiliates
provide products and services through facilities located throughout the Restricted Area
and that the geographic scope and durations of the covenants contained in this Section
9 are the result of arm’s length bargaining and fair and reasonable in





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	 	 	 	light of: (i) the nature and wide geographic scope of the operations of the
Company’s business; (ii) Employee’s level of control over and contact with the
Company’s business throughout the Restricted Area; and (iii) the amount of
Confidential Information that Employee shall receive and to which he shall have
access pursuant to Section 8.a hereof, and the Company’s or its successor’s
legitimate business need to protect that Confidential Information. It is the desire
and intent of the Parties that the provisions of this Section 9 be enforceable to
the fullest extent permitted by law, whether now or hereafter in effect and
therefore, to the extent permitted by law, the Parties expressly waive any provision
of applicable law that would render any provision of this Section 9 unenforceable.






	 	e.	 	The Company and Employee expressly agree that the foregoing restrictions are
reasonable under the circumstances and that any breach of this Section 9 would cause
irreparable injury to the Company. Nevertheless, if any of the aforesaid restrictions
are found by an arbitrator or 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 arbitrator or court
making such determination so as to be reasonable and enforceable and, as so modified,
to be fully enforced.






	 	10.	 	Non-Solicitation.






          During the Term of Employment and during the Non-Compete Period, and as a
condition to Employee receiving the Confidential Information set forth in
Section 8.a and the other consideration set forth in this Agreement,
Employee shall not directly or indirectly, individually or on behalf of
any person other than the Company, its successor or the affiliates of
either: (a) solicit for employment or employ any person who is employed
by the Company, its successor or the affiliates of either or has been so
employed within the previous sixty (60) days; if such person is solicited
for (or employed in) a position or opportunity that would interfere with
or compete against the Company’s business; (b) otherwise induce any
person to discontinue his or her employment with the Company, its
successor or the affiliates of either; (c) request any present or future
customer or supplier of the Company, its successor or the affiliates of
either to curtail or cancel its business with the Company, its successor
or the affiliates of either; or (d) unless otherwise required by law,
disclose to any person, firm or corporation any details of organization
or business affairs of the Company, its successor or the affiliates of
either, any names of past or present customers or any other non-public
information concerning the Company, its successor or the affiliates of
either.




	 	11.	 	Severability.






          If any of the provisions of this Agreement shall otherwise contravene or
be invalid under the laws of any state or other jurisdiction where it is
applicable but for such contravention or invalidity, such contravention
or invalidity shall not invalidate all of the provisions of this
Agreement, but rather this Agreement shall be reformed and construed,
insofar as the laws of that state or jurisdiction are concerned, as not
containing the








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provision or provisions, but only to the extent that they are contravening or are invalid
under the laws of that state or jurisdiction, and the rights and obligations created hereby
shall be reformed and construed and enforced accordingly.




	 	12.	 	Modification and Waiver of Breach.






          No waiver or modification of this Agreement shall be binding unless it is in writing
signed by the Parties hereto. No waiver of a breach hereof shall be deemed to constitute a
waiver of a future breach, whether of a similar or dissimilar nature.




	 	13.	 	Assignment.






          The rights and obligations of the Company under this Agreement may,
without the consent of Employee, be assigned by the Company, in its sole
discretion, to any successor, subsidiary, venture or affiliate of the
Company.




	 	14.	 	Notices.






          Except as otherwise required by law, any notice, consent, request,
instruction, approval and other communication provided for herein (other
than routine correspondence in the ordinary course of business) shall be
in writing and shall be deemed validly given, made or served:




	 	a.	 	On the date on which it is delivered personally with receipt acknowledged,
	 
	 	b.	 	Five (5) business days after it shall have been sent by registered or certified
mail (return receipt requested and postage prepaid), or
	 
	 	c.	 	One (1) business day after it is sent by overnight
courier (charges prepaid; confirmation of receipt documented), or
	 
	 	d.	 	On the same business day when sent before 5:00 p.m., recipient’s time, and on
the next business day when sent after 5:00 p.m., recipient’s time, by telephone
facsimile transmission, provided that the sender receives electronic confirmation that
the document has been received by the recipient’s facsimile transmission equipment.
	 
	 	 	 	Notices to the Company shall be addressed as follows or to the Company’s current
address at the time notice is given:





	 	 	 

	T-3 Energy Services, Inc.
	7135 Ardmore
	Houston, Texas  77054
	Attention:

	 	General Counsel
	Phone:

	 	713-996-4136 
	Fax:

	 	713-996-4123 






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	 	 	 	Notices to Employee shall be addressed as follows:






	 	 	 	To the current residential address or fax number of Employee, as indicated
in the Human Resources Department files kept by the Company or its designee.






	 	 	 	Either Party shall also be entitled from time to time to provide any other address
for notices to be received under this Agreement.
	 
	 	15.	 	Counterparts.






          This Agreement may be executed in several counterparts and all such executed
counterparts shall constitute a single agreement, binding on all Parties and their
successors and permitted assigns, notwithstanding that not all Parties may be signatories to
the original or to the same counterpart. Each counterpart signature page so executed may be
attached to another counterpart of this Agreement and such counterparts, when so attached,
shall constitute a single agreement. Delivery of an executed counterpart of a signature page
of this Agreement by electronic transmission shall be as effective as delivery of a manually
executed original counterpart of this Agreement.




	 	16.	 	Construction of Agreement.






          This Agreement shall be construed in accordance with, and governed by, the laws of the
State of Texas without regard to any principles of conflicts of law which would require the
application of the laws of another jurisdiction.




	 	17.	 	Merger; Complete Agreement.






          This Agreement and any other documents executed contemporaneously
herewith, contain the entire agreement between the Parties with respect
to the transactions contemplated in this Agreement and supersedes all
previous oral and written and all contemporaneous oral negotiations or
commitments and other understandings.




	 	18.	 	Legal Fees.






          If any legal action, arbitration or other proceeding is brought for the
enforcement of this Agreement, or because of any alleged dispute, breach,
default or misrepresentation in connection with this Agreement, the
successful or prevailing party shall be entitled to recover such
reasonable attorneys’ fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.




	 	19.	 	Submission to Jurisdiction.






          Each Party expressly acknowledges and agrees that any action for
injunctive relief, any action to enforce an arbitration award, and any
other judicial proceeding that



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may be brought hereunder, to the extent that such proceeding exists, must be brought in a
State or Federal court in Harris County, Texas. By the execution and delivery of this
Agreement, each Party irrevocably submits, with regard to any such action or proceeding for
itself and in respect of its property, generally and unconditionally, to the exclusive
jurisdiction of the aforesaid courts.





	 	20.	 	Headings.






          The headings to sections in this Agreement are intended solely for
convenience and no provision of this Agreement is to be construed by
reference to the heading of any section.



[Signature Page Follows]





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     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the date
first above written, and warrant that they have the full right, power and authority to enter into
this Agreement on behalf of the respective Parties hereto.



	 	 	 	 	 

	AGREED:	 	 
	 
	 	 	 	 
	COMPANY:	 	 
	 
	 	 	 	 
	T-3 ENERGY SERVICES, INC.	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:

	 	/s/ Steven W. Krablin	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Name:

	 	Steven W. Krablin	 	 
	 
	 	 	 	 
	Title:

	 	President and Chief Executive Officer
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	EMPLOYEE:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Keith A. Klopfenstein	 	 
	 	 	 
	Name:

	 	Keith A. Klopfenstein	 	 






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Exhibit A




PARISHES IN LOUISIANA WHERE THE COMPANY

CONDUCTS ITS BUSINESS



Acadia Parish

Allen Parish

Ascension Parish

Assumption Parish

Ayoyelles Parish

Bearegard Parish

Bienville Parish

Bossier Parish

Caddo Parish

Calcasieu Parish

Caldwell Parish

Cameron Parish

Catahoula Parish

Claiborne Parish

Concordia Parish

Desoto Parish

East Baton Rouge Parish

East Carroll Parish

East Feliciana Parish

Evangeline Parish

Franklin Parish

Grant Parish

Iberia Parish

Iberville Parish

Jackson Parish

Jefferson Parish

Jeff Davis Parish

Lafayette Parish

Lafourche Parish

Lasalle Parish

Lincoln Parish

Livingston Parish

Madison Parish

Morehouse Parish

Natchitoches Parish

Orleans Parish

Ouachita Parish

Plaquemines Parish

Pointe Coupee Parish

Rapides Parish

Red River Parish

Richland Parish

Sabine Parish

St. Bernard Parish

St. Charles Parish

St. Helen Parish

St. James Parish

St. John the Baptist Parish

St. Landry Parish

St. Martin Parish




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Exhibit A




PARISHES IN LOUISIANA WHERE THE COMPANY

CONDUCTS ITS BUSINESS



St. Mary Parish

St. Tammany Parish

Tangipahoa Parish

Tensas Parish

Terrebonne Parish

Union Parish

Vermilion Parish

Vernon Parish

Washington Parish

Webster Parish

West Baton Rouge Parish

West Carroll Parish

West Feliciana Parish

Winn Parish




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Exhibit B




RELEASE AGREEMENT



     This Release Agreement (this “Agreement”) constitutes the release referred to in
that certain Change of Control Agreement dated as of October ___, 2010 (the “Change of Control
Agreement”), by and among Keith A. Klopfenstein (“Employee”) and T-3 Energy Services,
Inc.(the “Company”).




     (a) For good and valuable consideration, including the Company’s contemporaneous
provision of certain payments and benefits to Employee in accordance with Section 4 of the
Change of Control Agreement, Employee hereby releases, discharges and forever acquits the
Company, its Affiliates and the past, present and future stockholders, members, partners,
directors, officers, managers, employees, agents, attorneys, heirs, legal representatives,
successors and assigns of the foregoing, in their personal and representative capacities
(collectively, the “Company Parties”), from liability for, and hereby waives, any
and all claims, damages, or causes of action of any kind related to Employee’s employment
with any Company Party, the termination of such employment, and any other acts or omissions
related to any matter on or prior to the date of this Agreement, including, without
limitation, any alleged violation through the date of this Agreement of: (i) the Age
Discrimination in Employment Act of 1967, as amended; (ii) Title VII of the Civil Rights Act
of 1964, as amended; (iii) the Civil Rights Act of 1991; (iv) Section 1981 through 1988 of
Title 42 of the United States Code, as amended; (v) Employee Retirement Income Security Act
of 1974, as amended; (vi) the Immigration Reform Control Act, as amended; (vii) the
Americans with Disabilities Act of 1990, as amended; (viii) the National Labor Relations
Act, as amended; (ix) the Fair Labor Standards Act, as amended; (x) the Occupational Safety
and Health Act, as amended; (xi) the Family and Medical Leave Act of 1993; (xii) any state
anti-discrimination law; (xiii) any state wage and hour law; (xiv) any other local, state or
federal law, regulation or ordinance; (xv) any public policy, contract, tort, or common law
claim; (xvi) any allegation for costs, fees, or other expenses including attorneys’ fees
incurred in these matters; (xvii) any and all rights, benefits or claims Employee may have
under any employment contract, incentive or deferred compensation plan or equity-based plan
with Company Party (collectively, the “Released Claims”). In no event shall the
Released Claims include (a) any claim which arises after the date of this Agreement, or (b)
any claim to vested benefits under an employee benefit plan. This Agreement is not intended
to indicate that any such claims exist or that, if they do exist, they are meritorious.
Rather, Employee is simply agreeing that, in exchange for the consideration recited in the
first sentence of this paragraph, any and all potential claims of this nature that Employee
may have against the Company Parties, regardless of whether they actually exist, are
expressly settled, compromised and waived. By signing this Agreement, Employee is bound by
it. Anyone who succeeds to Employee’s rights and responsibilities, such as heirs or the
executor of Employee’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 Employee 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.




     (b) Employee agrees not to bring or join any lawsuit against any of the Company Parties
in any court relating to any of the Released Claims. Employee represents that Employee has
not brought or joined any lawsuit or filed any charge or claim against any of the Company
Parties in any court or before any government agency and has made no assignment of any
rights



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Employee 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.



     By executing and delivering this Agreement, Employee acknowledges that:




     (i) Employee has carefully read this Agreement;




     (ii) Employee has had at least 21 / 45 days (the “Consideration Period”) to
consider this Agreement before the execution and delivery hereof to the Company;




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




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




     (v) Employee must return this Agreement to the Company prior to the end of the
Consideration Period.




     Payment shall be made to Employee pursuant to Section 4 of the Agreement, as
applicable, within seventy-five (75) days of the effective date of his termination of
employment, but only if Employee has executed the Release Agreement as set forth in Exhibit
B and such Release Agreement has become irrevocable. In addition, if on his termination of
employment Employee is a “specified employee”, as defined in Section 409A of the Internal
Revenue Code and the Treasury Regulations thereunder, the Employer shall not make or begin
to make any payments to Employee until the first (1st) day that is six (6) months
after Employee’s termination, other than any payment that qualifies as a “short-term
deferral” under Section 409A or qualifies as an exempt separation payment, as provided in
Treasury Regulations Sec. 409A-1(b)(9) — the “two-year, two-time rule”. Any payments that
are so delayed as provided above shall be paid to Employee in a single payment on the first
day that is six months after his termination of employment (or death if earlier).



     Notwithstanding the initial effectiveness of this Agreement, Employee may revoke the delivery
(and therefore the effectiveness) of this Agreement within the seven (7) day period beginning on
the date Employee delivers this Agreement to the Company (such seven day period being referred to
herein as the “Release Revocation Period”). To be effective, such revocation must be in
writing signed by Employee and must be delivered to the Company before 11:59 p.m., Houston, Texas
time, on the last day of the Release Revocation Period. If an effective revocation is delivered in
the foregoing manner and time frame, this Agreement shall be of no force or effect and shall be
null and void ab initio. No consideration shall be paid if this Agreement is revoked by
Employee in the foregoing manner.


Executed on this ____day of _________, 20_.




	 	 	 

	 
	 	 
	 

	 	 
	 

	 	Signature







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