ext10_3.htm


  
     

     

                                                      AGREEMENT

    


     

    This
Agreement (“Agreement”) dated January 21, 2009 is made and entered into between
Best
Energy Services, Inc., a Nevada corporation with offices at 

    1010  Lamar
Suite  1200 
Houston, Texas  77002  (“BES”
or the “Company”),
and James W. Carroll  (“Carroll”)
as follows:

    


     

     

                                                       
    W I T N E S S T
H: 


     

    WHEREAS,
Carroll was employed by BES
as its Executive Vice President and Chief Financial  Officer  pursuant  to  an  Employment  Agreement  dated  March
5, 2008

     (the
“Employment
Agreement”) , a copy of which is attached hereto as Exhibit A; and

    


     

                    WHEREAS,
Carroll’s employment with BES terminated effective October 13, 2008;
and

     

     

    WHEREAS,
Carroll and BES (hereinafter together referred to as the “Parties”) desire to
modify the terms relating to the separation payment to be made to Carroll
pursuant 

    to
Section 6 of the Employment Agreement in order to reduce the financial cost to
the Company of the termination of Carroll’s employment; and

     

     

    WHEREAS,
in furtherance of such agreement, the Parties have agreed to the terms and
conditions of this Agreement as set forth below;

     

     

    Therefore,
as material considerations and inducements to the execution and delivery of this
Agreement and in consideration of the mutual promises set forth herein


    and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby contract, covenant, and agree as
follows:


     

     

    1.    Capitalized
Terms.   Unless otherwise defined herein, capitalized
terms used in this
Agreement shall have the meaning set forth in the Employment
Agreement.

    


     

    2.   Termination.   Effective
as of October 13, 2008 (hereinafter referred to as the “Termination
Date”), Carroll’s status as an employee and officer of BES ceased in its
entirety.

     

     

    3.    Consideration.  Carroll
shall be paid the following:

    


     

    a)           Cash
Payment.   In lieu of a severance payment under Section 6
of the Employment  Agreement,  Carroll  shall  be  paid  a  cash  settlement  in  the  amount  of
$37,500.  

    This
amount shall be paid upon execution of this Agreement.

     

    (b)           Medical  Insurance.  Subject  to  the  terms  of  the  Company’s  medical
insurance
plan in effect as of the date hereof,  BES will pay for Carroll to
remain covered

     

    under the
Company’s current medical insurance plan  (at current levels of
coverage) through February 28, 2009.

     

    (c)           Reimbursement of Business
Expenses.   BES will reimburse Carroll for valid
out-of-pocket expenses incurred by Carroll in the performance of his duties
under

                                                                    the
Employment Agreement.

    


     

    (d)           Taxes and
Withholding.   The Company will determine whether the Cash
Payment
made to Carroll under this Agreement shall be considered compensation, subject
to payroll taxes and federal income tax withholding, or shall be considered a
payment not subject to tax withholding or payroll
deductions.   If it is the former, the amounts will be reported
to Carroll as salary on Form W-2 for 2009; if it is the latter, it will be
reported to Carroll as income on Form 1099 for 2009.

     

    
       

      
         

        
          
          

          
            

          

        

         

      

      The
payments delivered pursuant to Paragraphs (a) through (d) above are referred to
as the
“Consideration.”   BES is not obligated to pay any of the
Consideration if Carroll revokes      
or  breaches
this Agreement.   Carroll acknowledges the sufficiency of the
Consideration together with  the  Release  and  Assignment  of  All  Claims  by  BES  in  Paragraph  (b)  hereof,  as
consideration
to him for executing this Agreement and agreeing to be bound by its
terms.   BES acknowledges
the sufficiency of Carroll’s eliminating his severance under
Section  6 of the Employment
Agreement and accepting the lesser amounts described in Paragraph 3 hereof, as
consideration
to BES for its executing the Agreement and agreeing to be bound by its terms.


                                    


                                                      
 Additionally, Carroll acknowledges and agrees that upon payment of the
Consideration, he will have been paid all moneys owed to him pursuant to the
Employment Agreement.



    
      4.     Release.

       

                         
  (a)           Release and Assignment of All Claims by
Carroll.   In consideration of
BES’s  agreement  to  provide  the  Consideration  described  in  Paragraph3

                                                          of  this 
Agreement and the Release and Assignment of All Claims by BES as set forth in
Paragraph 4
(b)  hereof,  Carroll,  his  spouse,  heirs,  executors,  trustees,  assigns, 

                                                         
and attorneys, if any  (collectively,
the  “Releasors”), hereby release and forever discharge BES and all of
its past, present and future officers, 

                                                          directors,
stockholders,  partners,  representatives,  board  members,  subsidiaries,  parent  companies,  related  entities,
insurance carriers, agents, servants, employees, 

                                                       
  successors, assigns, heirs, legatees, and attorneys, in their
individual and official capacities (the “Released Parties”), from any and all
claims, causes of action, lawsuits, proceedings, 

                                                        
 damages,  interests, benefits, and all other demands of any kind
or character whatsoever, in law or in equity, in any way directly or indirectly
related to or connected with his employment 

                                                        
 or  separation therefrom with the Released Parties, except for
any claims arising under Paragraph  10 of
this  Agreement.  This Release includes, without limitation,
the following:

       

    

    
       

      i)           Claims
related to Carroll’s employment and/or the termination of his
employment including, without limitation, any allegation of a violation of
any

      employment,  bonus,  or  other  compensation  agreement  with  BES,  including,
without limitation, the Employment Agreement;

       

      (ii)           Claims  that  could  have  been  asserted  in  any  Charge  of
Discrimination  filed  by  Carroll  with  the  Equal  Employment  Opportunity


      Commission
and/or the Texas Workforce Commission--Civil Rights Division;

       

      (iii)           Claims
arising under state or federal constitution or state or federal statute
(including, without limitation, all tort claims), city ordinance, or
public

       policy,
including, without limitation, the Securities Exchange Act of  1934,
as amended,
the Employee Retirement Income Security Act of  1974,  29
U.S.C. 

                   
 
§1001  et  seq.  and  claims  involving  employment  discrimination,  harassment,
and/or
retaliation of any form (including, without limitation, claims under the Age


                    
  Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq.,
Title VII of the Civil
Rights Act of 1964 as amended, 42 U.S.C. §2000e et seq., the Civil 

                    
  Rights Act of 1870, 42 U.S.C. §1981, the Americans with Disabilities Act
of 1990, 42
U.S.C. §12101 et seq., the Family and Medical Leave Act of 1993, 29


          
            U.S.C. §2601
et seq., the Equal Pay Act, 29 U.S.C. §206, the Texas Commission on Human Rights
Act, Tex. Lab. Code Ann. §21.001 et seq., and/or 

                      
the Texas Workers’    Compensation Act, Tex. Lab. Code
§451.001 et seq.);

       

      (iv)           Claims
arising under state or federal contract, tort, or common law, including,  without  limitation,  any  claim  of  breach  of  contract,  promissory

      estoppel,
detrimental reliance, wrongful discharge, false imprisonment, assault,
battery,
intentional infliction of emotional distress, defamation, slander,
libel,

      fraud,
invasion of privacy, breach of the covenant of good faith and fair dealing,
breach of
fiduciary duty, conversion, and tortious interference with any type
of

      third-party
relationship, as well as any and all damages that may arise out of any 
such
claims, including, without limitation, claims for economic loss, lost profits,


      loss  of  capital,  lost  wages,  lost  earning  capacity,  emotional  distress,  mental
anguish,
personal injuries, punitive damages, or any future damages; 

       

      (v)           Claims
of retaliation of any nature, including, but not limited to, the
anti-retaliatory provisions of the statues identified in Paragraph 4(a)(iii) of
this

      Agreement;
and

       

      (vi)           CLAIMS  OF  NEGLIGENCE  OF  ANY  KIND  INCLUDING,
WITHOUT
LIMITATION, GROSS NEGLIGENCE AGAINST BES BASED 

      UPON THE
ACTION OR INACTION OF BES.  


    

    
       

                  The
claims  described  in  Paragraph  4
(a)(i)  through(vi)  are  hereinafter  collectively
referred
to as the “Claims.”   This Agreement may be pleaded as, and shall
constitute, an 

      absolute
and final bar to any and all lawsuits or administrative claims now pending, or
that may
hereafter be filed or prosecuted by Releasors against the Released Parties that


      arose out
of or in connection with any of the Claims.   Additionally,
Carroll agrees that at no time
subsequent to the execution of this Agreement will he permit the filing or


      maintenance,
in any state, federal, or foreign court, or before any local, state, federal, or
foreign
administrative agency, or any other tribunal, of any charge, claim, or action of


      any kind
arising out of or in any way related to any of the
Claims.   Finally, it is the intention
of the Parties that this Agreement shall be construed as broadly and all
encompassing
as permitted by law and that, notwithstanding such intention, if it is found
that any
claim of any kind has not been released, Carroll agrees that any such claim is
hereby
assigned to BES, except for any claims arising under Paragraph  10 of
this Agreement.    Nothing
in this Agreement shall be construed to affect the rights and responsibilities
of the Equal Employment Opportunity Commission (the “Commission”), the
National Labor Relations Board (the “NLRB”), or any other federal, state or
local agency  with  similar  responsibilities  to  enforce  any  laws  pertaining  to  employment discrimination
or retaliation, or union activity or participation.  Likewise, this
waiver will not be used to justify interfering with the protected right of any
employee to file a charge or participate in an investigation or proceeding
conducted by the Commission, the NLRB or any similar agency; however, Carroll
waives the right to any benefits or recovery arising out of any such
proceeding.

      
 

      
        
          
          

        

        
          
            

          

        

         

      

      
                                 
b)           Release and Assignment of All Claims by
BES.    In consideration of Carroll’s
reducing the payments otherwise due to him by BES under Section 6 of the
Employment
Agreement and the Release and Assignment of all Claims by Carroll pursuant  to  Paragraph
4
(a),  BES,  its  past,  present  and  future  officers,  directors,
stockholders,
partners, representatives, board members, subsidiaries, parent companies,
related
entities, insurance carriers, agents, servants, employees, successors, assigns,
heirs, legatees,
and attorneys, hereby release Carroll and forever discharge him, his spouse,
heirs,
executors, trustees, and assigns from any and all claims, causes of action,
lawsuits, proceedings,
damages, interests, benefits, and all other demands of any kind or character
whatsoever,
in law or in equity, arising out of or relating in any manner whatsoever,
directly
or indirectly, to his employment with BES or service as a Director of BES, to
the maximum
extent permitted by law.   It is the intention of the Parties
that this Agreement shall  be  construed  as  broadly  and  all-encompassing  as  permitted  by  law  and  that,
notwithstanding
such intention, if it is found that any claim of any kind has not been
released,
BES agrees that any such claim is hereby assigned to Carroll.

        
 

      

       

       5.    Director
Resignation.  Carroll is currently a member of the Board of
Directors of BES with
a term of office expiring at the annual meeting of the Company’s
stockholders in  2009. Upon
execution of this Agreement by both Parties, Carroll shall resign as a director
of BES.

       

        


       6.    No
Future Employment.   Carroll agrees that BES has no
obligation, contractual or
otherwise, to employ Carroll as an employee of BES in the
future.   Carroll
hereby waives any right to
future employment as an employee of BES.

       

       

       7.    Stock
Options.  Carroll has previously been granted the
following options to purchase
shares of the Company’s common stock:

      


      


       

                               Exercise

                            
Number
of                    Price                                                             
  Expiration

                               Options                     Per
Share                  Date of
Grant       
          Date                    
Vesting

       

                               
150,000                        $0.50                      March
5, 2008         March 5,
2013           December 31,
2008

      


       

                        All
of such options shall have vested on December 31, 2008 and shall remain in full
force and effect in accordance with their respective terms.

      


      


       

      8.    No
Wrongdoing.   Both Parties acknowledge and agree
that this Agreement shall not be
construed as an assertion of or an admission by the other of any act of
wrongdoing,  
liability, or responsibility for any wrongdoing of any kind.

       

      9.    Taxation
Consequences.   Carroll acknowledges and agrees
that BES has made no
representations to him regarding the taxation of any portion of the
Consideration.  Carroll also understands
that he is solely responsible for the payment of all taxes owed by him, if any,
related to the Consideration and that BES has no duty to defend him against any
such claims.   Further, Carroll agrees that, if requested by BES
at any time following his execution of this Agreement, he shall complete,
execute, and deliver to BES a Form W-4 and/or Form W-9 providing such
information as may be necessary for any party issuing the appropriate Internal
Revenue Service form related to the Consideration.

       

    

     

    
      
                        10.    Indemnification.  
The
Company agrees to indemnify and to advance funds to pay expenses  to  defend  Carroll  to  the  fullest  extent  permitted  by  the  Company’s  Articles  

                                      
of 
Incorporation, Bylaws and applicable law against all expenses, liabilities,
losses, damages and costs
that are incurred or paid by Carroll in connection with any
Proceeding.   For purposes of 

                                      
this
Section 10,  “Proceeding” shall mean any threatened, pending or
completed action, suit, claim,  demand,  arbitration,  alternate  dispute  resolution  mechanism,  investigation,  

                                      
inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether formal
or
informal, including any and all appeals, whether brought by or in the right of


                                      
the Company or 
otherwise, whether civil, criminal, administrative or investigative, whether
formal or informal, in which
Carroll was, is or will be involved as a party or otherwise, by reason of


                                      
or relating to Carroll’s
former position as a director, officer and employee of the Company and by reason
of or relating
to any action or alleged action taken by Carroll (or failure or alleged failure
to act)

                                     
 or of any
action or alleged action (or failure or alleged failure to act) on Carroll’s
part, while acting in his or
her capacity as a director, officer or employee of the
Company.

         

         

        
          
            
            

          

          
            
              

            

          

           

        

        11.    Entire
Agreement.   Carroll acknowledges and agrees that,
except as expressly set forth
herein, no representations of any kind or character have been made by or on
behalf of BES to
induce his execution of this document and that this Agreement constitutes the
complete understanding
and agreement between him and BES.   Carroll also acknowledges
and  agrees that this
Agreement supersedes any and all prior agreements, promises, or inducements
concerning the
subject matter of this Agreement.   By executing and delivering
this Agreement, Carroll expressly
disclaims any reliance on any representations, promises, or other statements by
BES, except to
the extent such representations, promises, or other statements are expressly
contained in this
Agreement.



                        12.    Confidentiality.   Carroll
and BES agree to maintain the confidentiality of the terms,
contents and conditions of this Agreement and shall not further disclose or
discuss the

                  Agreement except to governmental
officials; as required by law; to tax advisors, accountants and attorneys;
and for other good cause after notice to the other Party and written approval by
the 

                                    
 other Party.  Carroll and BES shall instruct their tax advisors,
accountants, and attorneys as to the terms of
this Paragraph and shall insist upon their compliance with the terms of this
Paragraph. 

                                     
However, Carroll acknowledges and understands that this Agreement may be
required to be attached
to, and filed with, an 8-K, or the terms disclosed as required by applicable
laws, and in 

                                     
such event, BES shall be free to do so and this paragraph shall be cancelled and
have no further effect on
either Party.

         

         

        13.    Property
and Confidential Information.   Carroll represents
and warrants that, to his best recollection and belief, he has returned any and all property,  information         
or documents
including, but not limited to, any and all confidential information belonging to
BES, including
any originals, copies or summaries currently in Carroll’s possession, custody
or  control.

         

        14.    Default
and Notice.   In the event that BES fails to make
any payment due under the
provisions of this Agreement, Carroll shall give written notice of such failure
to BES, and   
BES shall have a period of fifteen (15) business days from receipt of such
notice in which to cure such default.   For purposes of this
Paragraph 14, all notices to BES for failure to make any payment due under this
Agreement shall be in writing and either hand delivered or sent by Certified
Mail, Return Receipt Requested, to Steven R. Jacobs, Jackson Walker L.L.P., 112
East Pecan Street, Suite 2400, San Antonio, Texas 78205.

         

        15.    No
Presumption Against Interest.   This Agreement has
been jointly negotiated, drafted,
and reviewed by Carroll and BES and, therefore, no provision arising directly or
indirectly
herefrom may be construed against any Party as being drafted by that
Party.

         

        16.    Waiver.  No
waiver of any of the terms of this Agreement shall be valid unless in
writing
and signed by all Parties to this Agreement.   The waiver by any
party hereto of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by
any party, nor shall any waiver operate or be construed as a rescission of this
Agreement.

         

        16.    Severability.    The
Parties agree that should any part of this Agreement be declared  or  determined  by  a  court  of  competent  jurisdiction  to  be  illegal,  invalid,  or
unenforceable,
the Parties intend that the legality, validity, and enforceability of the
remaining parts shall not be affected thereby, and said illegal, invalid or
unenforceable part shall be deemed not to be a part of this
Agreement.   However, the Parties have carefully read and
understand the provisions herein and agree that all aspects of this Agreement
are reasonable.

         

         

        18.    Captions.     The  captions  contained  in  this  Agreement  are  intended  for
convenience
only and should not be considered in interpreting the terms of this
Agreement.

         

         

        19.    Understanding   of   Agreement.By   signing   this   Agreement,   Carroll
acknowledges
that he has fully and carefully read this Agreement, that he fully understands
and

        agrees to
its contents and effects, and that he is entering into this Agreement of his own
free will

        and
accord.  Carroll further agrees and acknowledges
that:


         

        !           He
has read and considered the terms of this Agreement, including the Release
and
Assignment of All Claims set forth in Paragraph 4;

         

        !           He
understands and agrees to such terms of his own free will and
accord;

        
           

                         
!           He has had an
opportunity to consult with an attorney prior to executing this Agreement,
and he is hereby advised in writing to consult with counsel of his choice


                                  
   prior to executing and  delivering this
Agreement;


                        
!           The Release
and Assignment of all Claims set forth in Paragraph 4 specifically refers to
rights and/or claims that may arise 

                                     
under the
Age Discrimination in Employment  Act,  29  U.S.C.  §§  621  et
seq.,  and  any  similar  state  or  local
protective statute;

        

         

        !           Through
this Agreement, he is releasing BES, along with the other parties named
above as
the “Released Parties,” from any and all claims that he has or may have
against
them;

         

        !           He
has been given at least twenty-one (21) days to consider this Agreement (but
remains
free to execute this Agreement before the expiration of the twenty-one
(21)
days);

         

        !           For
a seven (7) day period following his execution of this Agreement, he may
revoke
it, and it will not become effective or enforceable until the expiration of the
seven (7) day period; and

         

        !           His
revocation, if any, must be in writing and sent to Steven R. Jacobs, Jackson
Walker
L.L.P., 112 East Pecan Street, Suite 2400, San Antonio, Texas 78205,


                   
on or before
the expiration of the
seventh day after this Agreement is executed by Carroll via facsimile at (210)
978-7790 or hand delivery at the address above 

                   
or e-mail to
Steven R. Jacobs at sjacobs@jw.com.   If Carroll revokes this
Agreement, he shall not be entitled to receive any payments under
it.

        


         

        
          
            

          

        

         

        


         

                                                      
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