exv10w1






Exhibit 10.1




EMPLOYMENT AGREEMENT

Vice President, Operations




 





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



WITNESSETH:




     WHEREAS, Executive is to be employed by Company; and



     WHEREAS, Company is desirous of employing Executive in an executive capacity on the terms and
conditions and for the consideration, hereinafter set forth (which includes new and additional
consideration to that which Executive is currently receiving), and Executive is desirous of being
employed by 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, Company and Executive agree as follows:



ARTICLE 1: CERTAIN DEFINITIONS AND INTERPRETATIONS




     1.1 Definitions.




     (a) “Affiliate” shall mean with respect to any natural person, firm, partnership,
association, corporation, limited liability company, company, trust, entity, public body or
government (a “Person”), any Person which, directly or indirectly, controls, is controlled
by, or is under a common control with, such Person. The term “control” (including the terms
“controlled by” and “under common control with”) as used in this definition means the
possession, directly or indirectly, of the power to direct or cause the direction of
management and policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise. With respect to any natural person, the term “Affiliate” shall also
mean (i) the spouse or children (including those by adoption) and siblings of such Person;
and any trust whose primary beneficiary is such Person, such Person’s spouse, such Person’s
siblings and/or one or more of such Person’s lineal descendants, (ii) the legal
representative or guardian of such Person or of any such immediate family member in the
event such Person or any such immediate family member becomes mentally incompetent and (iii)
any Person controlled by or under the common control with any one or more of such Person and
the Persons described in clauses (i) or (ii) preceding.




     (b) “Annual Base Salary” shall mean, as of a specified date, Executive’s annual base
salary as of such date determined pursuant to Section 4.1.




     (c) “Annual Compensation” shall mean an amount equal to the greater of:



 









 






     (i) Executive’s Annual Base Salary at the annual rate in effect at the date of
his Involuntary Termination;




     (ii) Executive’s Annual Base Salary at the annual rate in effect 60 days prior
to the date of his Involuntary Termination; or




     (iii) Executive’s Annual Base Salary at the annual rate in effect immediately
prior to a Change of Control if Executive’s employment shall be subject to an
Involuntary Termination during the Change of Control Period.




     (d) “Board” means the Board of Directors of Company.




     (e) “Cause” shall mean Executive (i) has engaged in gross negligence, gross
incompetence, or willful misconduct in the performance of his duties, (ii) has refused,
without proper reason, to perform his duties, (iii) has willfully engaged in conduct which
is materially injurious to Company or its subsidiaries (monetarily or otherwise), (iv) has
committed an act of fraud, embezzlement, or willful breach of a fiduciary duty to Company or
an Affiliate (including the unauthorized disclosure of confidential or proprietary material
information of Company or an Affiliate), (v) has been convicted of (or pleaded no contest
to) a crime involving fraud, dishonesty, or moral turpitude or any felony, or (vi) has
engaged in any other act of misconduct.




     (f) “Change in Terms of Service” shall mean:




     (i) The occurrence, prior to a Change of Control or after the expiration of a
Change of Control Period, of any one or more of the following:




     (1) a material reduction in Executive’s Annual Base Salary; or




     (2) a material diminution in employee benefits (including but not
limited to medical, dental, life insurance, and long-term disability plans)
and perquisites applicable to Executive from those substantially similar to
the employee benefits and perquisites provided by Company (including its
subsidiaries) to executives with comparable duties; provided that such
diminution in employee benefits, when aggregated with all other compensation
to be paid or provided to Executive under Article IV, results in a material
negative change in the total compensation to be received by Executive on an
annual basis for performing services under this Agreement.




     (ii) The occurrence, within a Change of Control Period, of any one or more of
the following:




     (1) a material reduction in Executive’s Annual Base Salary from that
provided to him immediately prior to the date on which a Change of Control
occurs;



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     (2) a material diminution in Executive’s eligibility to participate in
bonus, stock option, incentive award, and other compensation plans which
provide opportunities to receive compensation which are the greater of (A)
the opportunities provided by Company (including its subsidiaries) for
executives with comparable duties or (B) the opportunities under any such
plans under which he was participating immediately prior to the date on
which a Change of Control occurs; provided that such diminished
opportunities, when aggregated with all other compensation to be paid or
provided to Executive under Article IV, results in a material negative
change in the total compensation to be received by Executive on an annual
basis for performing services under this Agreement; or




     (3) a material diminution in employee benefits (including but not
limited to medical, dental, life insurance, and long-term disability plans)
and perquisites applicable to Executive from the greater of (A) the employee
benefits and perquisites provided by Company (including its subsidiaries) to
executives with comparable duties or (B) the employee benefits and
perquisites to which he was entitled immediately prior to the date on which
a Change of Control occurs; provided that such diminution in employee
benefits, when aggregated with all other compensation to be paid or provided
to Executive under Article IV, results in a material negative change in the
total compensation to be received by Executive on an annual basis for
performing services under this Agreement.




Notwithstanding the foregoing provisions of this Section 1.1(f) or any other provision in
this Agreement to the contrary, any assertion by Executive of a termination of employment
for “Change in Terms of Service” shall not be effective unless all of the following
conditions are satisfied: (A) the condition described above in Section 1.1(f)(i) or (ii)
giving rise to Executive’s termination of employment must have arisen without Executive’s
written consent; (B) Executive must provide written notice to Company of such condition in
accordance with Section 3.4 within 50 days of the initial existence of the condition; (C)
the condition specified in such notice must remain uncorrected for 30 days after receipt of
such notice by Company; and (D) the termination of Executive’s employment must occur within
90 days after the initial existence of the condition specified in such notice.




     (g) “Change of Control” shall mean:




     (i) a merger of Company with another entity, a consolidation involving Company,
or the sale of all or substantially all of the assets of Company to another entity
if, in any such case, (1) the holders of equity securities of Company immediately
prior to such transaction or event do not beneficially own immediately after such
transaction or event equity securities of the resulting entity entitled to 50% or
more of the votes then eligible to be cast in the election of directors generally
(or comparable governing body) of the resulting entity in substantially the same
proportions that they owned the equity securities of



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Company immediately prior to such transaction or event or (2) the persons who
were members of the Board immediately prior to such transaction or event shall not
constitute at least a majority of the board of directors of the resulting entity
immediately after such transaction or event;




     (ii) the dissolution or liquidation of Company; or




     (iii) when any person or entity (other than the Snyder Holders or any Snyder
Holder or any other Affiliate of Company), including a “group” as contemplated by
section 13(d)(3) of the Securities Exchange Act of 1934, acquires or gains ownership
or control (including, without limitation, power to vote) of more than 50% of the
combined voting power of the outstanding securities of Company.




For purposes of the preceding sentence, (A) “resulting entity” in the context of a
transaction or event that is a merger, consolidation or sale of all or substantially
all assets shall mean the surviving entity (or acquiring entity in the case of an
asset sale) unless the surviving entity (or acquiring entity in the case of an asset
sale) is a subsidiary of another entity and the holders of common stock of Company
receive capital stock of such other entity in such transaction or event, in which
event the resulting entity shall be such other entity, and (B) subsequent to the
consummation of a merger or consolidation that does not constitute a Change of
Control, the term “Company” shall refer to the resulting entity.




     (h) “Change of Control Period” means, with respect to a Change of Control, the
six-month period beginning on the date upon which such Change of Control occurs.




     (i) “Code” shall mean the Internal Revenue Code of 1986, as amended.




     (j) “Compensation Committee” shall mean the Compensation Committee of the Board.




     (k) “Disability” shall mean that, as a result of Executive’s incapacity due to physical
or mental illness, he shall have been absent from the full-time performance of his duties
for six consecutive months and he shall not have returned to full-time performance of his
duties within 30 days after written notice of termination is given to Executive by Company
(provided, however, that such notice may not be given prior to 30 days before the expiration
of such six-month period).




     (l) “Effective Date” shall mean December 21, 2009.




     (m) “Involuntary Termination” shall mean any termination of Executive’s employment with
Company which:




     (i) does not result from a resignation by Executive (other than a resignation
pursuant to clause (ii) of this Section 1.1(m)); or



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     (ii) results from a resignation by Executive in accordance with the provisions
of Section 1.1(f) following the date upon which Executive receives notice of a
Change in Terms of Service;




provided, however, the term “Involuntary Termination” shall not include a termination for
Cause or any termination as a result of death or Disability.




     (n) “Monthly Severance Amount” shall mean an amount equal to one-twelfth of Executive’s
Annual Compensation.




     (o) “Section 409A Change of Control” shall mean a change of control event as defined in
Treasury regulation section 1.409A-3(i)(5).




     (p) “Section 409A Payment Date” shall mean the earlier of: (i) the date of Executive’s
death, or (ii) the date that is six months after the termination of Executive’s employment
with Company; provided, that any payment made within the five day period following such date
will be deemed made on the Section 409A Payment Date.




     (q) “Severance Amount” shall mean an amount equal to one times the amount of
Executive’s Annual Compensation.




     (r) “Severance Period” shall mean the period commencing on the date of Executive’s
Involuntary Termination and continuing for twelve months.




     (s) “Snyder Holders” shall mean each of Thomas C. Snyder, David E. Snyder, Mark A.
Snyder, Dennis C. Snyder, Richard G. Snyder, C.H. Snyder, Jr. Grantor Retained Annuity Trust
dated November 1, 2004, a Pennsylvania trust, Snyder Industries, a Pennsylvania corporation,
and any of their respective Affiliates.



     1.2 Interpretations. In this Agreement, unless a clear contrary intention appears, (a) the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section, or other subdivision, (b) reference to any Article or
Section, means such Article or Section hereof, (c) the words “including” (and with correlative
meaning “include”) means including, without limiting the generality of any description preceding
such term, and (d) where any provision of this Agreement refers to action to be taken by either
party, or which such party is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such party.



ARTICLE 2: EMPLOYMENT AND DUTIES




     2.1 Employment. Effective as of the Effective Date and continuing for the period of time set forth in
Section 3.1 of this Agreement, Executive’s employment by Company shall be subject to the terms and
conditions of this Agreement.



     2.2 Positions. From and after the Effective Date, Company shall employ Executive in the position of Vice
President of Operations of the Company, or in such other position(s) as the parties mutually may
agree.



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     2.3 Duties and Services. Executive agrees to serve in the positions referred to in Section 2.2 and to perform
diligently and to the best of his abilities the duties and services appertaining to such office(s),
as well as such additional duties and services appropriate to such office(s) which the parties
mutually may agree upon from time to time. Executive’s employment shall also be subject to the
policies maintained and established by Company that are of general applicability to Company’s
executive employees, as such policies may be amended from time to time.



     2.4 Other Interests. Executive agrees, during the period of his employment by Company, to devote substantially
all of his business time, energy, and best efforts to the business and affairs of Company and its
Affiliates and not to engage, directly or indirectly, in any other business or businesses, whether
or not similar to that of Company, except with the consent of the Board. The foregoing
notwithstanding, the parties recognize and agree that Executive may engage in passive personal
investment and charitable activities that do not conflict with the business and affairs of Company
or interfere with Executive’s performance of his duties hereunder, which shall be at the sole
determination of the Board.



     2.5 Duty of Loyalty. Executive acknowledges and agrees that Executive owes a fiduciary duty of loyalty to act at
all times in the best interests of Company. In keeping with such duty, Executive shall make full
disclosure to Company of all business opportunities pertaining to Company’s business and shall not
appropriate for Executive’s own benefit business opportunities concerning Company’s business.



ARTICLE
3: TERM AND TERMINATION OF EMPLOYMENT




     3.1 Term. Unless sooner terminated pursuant to other provisions hereof, Company agrees to employ
Executive for the period beginning on the Effective Date and ending on the third anniversary of the
Effective Date (the “Initial Expiration Date”); provided, however, that beginning on the Initial
Expiration Date, and on each anniversary of the Initial Expiration Date thereafter, if this
Agreement has not been terminated pursuant to Section 3.2 or 3.3, then said term of employment
shall automatically be extended for an additional one-year period unless on or before the date that
is 90 days prior to the first day of any such extension period either party shall give written
notice to the other that no such automatic extension shall occur.



     3.2 Company’s Right to Terminate. Notwithstanding the provisions of Section 3.1, Company shall have the right to terminate
Executive’s employment under this Agreement at any time for any of the following reasons:




     (a) upon Executive’s death;




     (b) upon Executive’s Disability;




     (c) for Cause; or




     (d) for any other reason whatsoever, in the sole discretion of the Board.



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     3.3 Executive’s Right to Terminate. Notwithstanding the provisions of Section 3.1 Executive shall have the right to terminate
his employment under this Agreement for any of the following reasons:




     (a) as a result of a Change in Terms of Service, in accordance with the terms specified
under Section 1.1(f); or




     (b) at any time for any other reason whatsoever, in the sole discretion of Executive.



     3.4 Notice of Termination. If Company desires to terminate Executive’s employment hereunder at any time prior to
expiration of the term of employment as provided in Section 3.1, it shall do so by giving written
notice to Executive that it has elected to terminate Executive’s employment hereunder and stating
the effective date and reason for such termination, provided that no such action shall alter or
amend any other provisions hereof or rights arising hereunder. If Executive desires to terminate
his employment hereunder at any time prior to expiration of the term of employment as provided in
Section 3.1, he shall do so by giving written notice to Company that he has elected to terminate
his employment hereunder and stating the effective date (which shall be no earlier than 30 days
from such date of notice) and reason for such termination, provided that no such action shall alter
or amend any other provisions hereof or rights arising hereunder.



     3.5 Deemed Resignations. Any termination of Executive’s employment shall constitute an automatic resignation of
Executive as an officer of Company and each Affiliate of Company, and an automatic resignation of
Executive from the Board (if applicable) and from the board of directors of any Affiliate of
Company and from the board of directors or similar governing body of any corporation, limited
liability company or other entity in which Company or any Affiliate holds an equity interest and
with respect to which board or similar governing body Executive serves as Company’s or such
Affiliate’s designee or other representative.



     3.6 Meaning of Termination of Employment. For all purposes of this Agreement, Executive shall be considered to have terminated
employment with Company when Executive incurs a “separation from service” with 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 20% of the average level of bona fide services provided in
the immediately preceding 36 months.



     COMPENSATION AND BENEFITS




     3.7 Base Salary. During the period of this Agreement, Executive shall receive a minimum Annual Base Salary
of $208,000. Executive’s Annual Base Salary shall be reviewed by the Compensation Committee on an
annual basis, and, in the sole discretion of the Compensation Committee, such Annual Base Salary
may be increased, but not decreased, effective as of any date determined by the Compensation
Committee. Executive’s Annual Base



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Salary shall be paid in equal installments in accordance with
Company’s standard policy regarding payment of compensation to executives but no less frequently
than monthly.



     3.8 Bonuses. Executive shall be eligible to participate in Company’s annual bonus plan or plans
applicable to Executive as approved from time to time by the Board or the Compensation Committee in
amounts to be determined by the Compensation Committee based upon criteria established by the
Compensation Committee.



     3.9 Other Perquisites. During his employment hereunder, Executive shall be afforded the following benefits as
incidences of his employment:




     (a) Business and Entertainment Expenses - Subject to Company’s standard policies and
procedures with respect to expense reimbursement as applied to its executive employees
generally, Company shall reimburse Executive for, or pay on behalf of Executive, reasonable
and appropriate business expenses incurred by Executive in performing services hereunder,
including dues and fees to industry and professional organizations and costs of
entertainment and business development. Any such reimbursement of expenses shall be made by
Company upon or as soon as practicable following receipt of supporting documentation
reasonably satisfactory to 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 the termination of Executive’s employment with 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. The
amount of expenses eligible for reimbursement during Executive’s taxable year shall not
affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding
the foregoing, in no event shall any reimbursement be made to Executive for such fees and
expenses after the later of (1) the first anniversary of the date of Executive’s death
or (2) the date that is five years after the date of Executive’s termination of employment
with Company (other than by reason of Executive’s death).




     (b)
Vacation — During his employment hereunder, Executive shall be entitled to four
weeks of paid vacation each calendar year (or such greater amount of vacation as provided to
executives of Company generally) and to all holidays provided to executives of Company
generally; provided, however, that for the period beginning on the Effective Date and ending
on the last day of the calendar year in which the Effective Date occurs, Executive shall be
entitled to three weeks of paid vacation (or such greater amount of vacation as provided to
executives of Company generally), reduced by the number of vacation days that Executive has
already used during such calendar year and prior to the Effective Date.




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




     (d) Other Company Benefits — Executive and, to the extent applicable, Executive’s
spouse, dependents and beneficiaries, shall be allowed to participate in all



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benefits, plans, and programs, including improvements or modifications of the same, which are now, or
may hereafter be, available to other executive employees of Company. Such benefits, plans,
and programs shall include, without limitation, any profit sharing plan, thrift plan, health
insurance or health care plan, life insurance, disability insurance, pension plan,
supplemental retirement plan, vacation and sick leave plan, and the like which may be
maintained by Company. Company shall not, however, by reason of this paragraph be obligated
to institute, maintain, or refrain from changing, amending, or discontinuing, any such
benefit plan or program, so long as such changes are similarly applicable to executive
employees generally.



ARTICLE 4: EFFECT OF TERMINATION ON COMPENSATION; ADDITIONAL PAYMENTS




     4.1 Termination Other Than an Involuntary Termination. If Executive’s employment hereunder shall terminate upon expiration of the term provided in
Section 3.1 hereof because either party has provided the notice contemplated in such paragraph, or
if Executive’s employment hereunder shall terminate for any other reason except those described in
Sections 5.2 and 5.3, then all compensation and all benefits to Executive hereunder shall terminate
contemporaneously with such termination of employment, except that Executive shall be entitled to
(a) payment of all accrued and unpaid Base Salary to the date of employment’s termination of
employment, (b) reimbursement for all incurred but unreimbursed expenses for which Executive is
entitled to reimbursement in accordance with Section 4.3(a), and (c) benefits to which Executive is
entitled under the terms of any applicable benefit plan or program.



     4.2 Involuntary Termination Other Than During a Change of Control Period. If Executive’s employment by Company or any subsidiary thereof or successor thereto shall
be subject to an Involuntary Termination which occurs prior to a Change of Control or after the
expiration of a Change of Control Period, then all compensation and all benefits to Executive
hereunder shall terminate contemporaneously with such termination of employment, except that:




     (a) Executive shall be entitled to receive the compensation and benefits described in
clauses (a) through (c) of Section 5.1; and




     (b) Subject to Executive’s delivery, within 50 days after the date of his termination
of employment, and non-revocation of an executed release substantially in the form attached
hereto as Exhibit A (with such changes to such form as Company may reasonably require to
reflect the circumstances relating to the termination of Executive’s employment and/or
changes in applicable law) (the “Release”), Company shall, as additional compensation for
services rendered to Company (including its subsidiaries), pay to Executive the following
amounts and take the following actions after the last day of Executive’s employment with
Company:




     (i) Pay Executive the Monthly Severance Amount on the first day of each month
throughout the Severance Period.




     (ii) During the portion, if any, of the Severance Period that Executive is
eligible to elect and elects to continue coverage for himself and his



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eligible dependents under 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, 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 Company pay for the
same or similar coverage under Company’s group health plans.



     4.3 Involuntary Termination During a Change of Control Period. If Executive’s employment by Company or any subsidiary thereof or successor thereto shall
be subject to an Involuntary Termination during a Change of Control Period, then all compensation
and all benefits to Executive hereunder shall terminate contemporaneously with such termination of
employment, except that




     (a) Executive shall be entitled to receive the compensation and benefits described in
clauses (a) through (c) of Section 5.1; and




     (b) Subject to Executive’s delivery, within 50 days after the date of Executive’s
termination of employment, and non-revocation of the Release, Company shall, as additional
compensation for services rendered to Company (including its subsidiaries), pay to Executive
the following amounts and take the following actions after the last day of Executive’s
employment with Company:




     (i) Provide for one of the following forms of cash payment, determined as
follows:




     (1) If the Change of Control relating to such Change of Control Period
constitutes a Section 409A Change of Control, then Company shall pay
Executive a lump sum cash payment in an amount equal to the Severance Amount
on or before the fifth day following the date of Executive’s termination of
employment; or




     (2) If the Change of Control relating to such Change of Control Period
does not constitute a Section 409A Change of Control, then Company shall pay
Executive the Monthly Severance Amount on the first day of each month
throughout the Severance Period.




     (ii) Cause any and all outstanding options to purchase common stock of Company
held by Executive to become immediately exercisable in full and cause Executive’s
accrued benefits under any and all nonqualified deferred compensation plans
sponsored by Company to become immediately nonforfeitable.




     (iii) Cause Executive and those of his dependents (including his spouse) who
were covered under Company’s medical and dental benefit plans on the day prior to
Executive’s Involuntary Termination to continue to be covered under such plans (or
to receive equivalent benefits) throughout the Severance



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Period at no greater cost to Executive than that applicable to a similarly situated Company executive who has
not terminated employment; provided, however, that (1) such coverage shall terminate
if and to the extent Executive becomes eligible to receive medical and dental
coverage from a subsequent employer (and any such eligibility shall be promptly
reported to Company by Executive); (2) if Executive (and/or his spouse) would have
been entitled to retiree medical and/or dental coverage under Company’s plans had
Executive voluntarily retired on the date of such Involuntary Termination, then such
coverages shall be continued as provided under such plans; and (3) such coverage to
Executive (or the receipt of equivalent benefits) shall be provided as follows: (A)
through arrangements that satisfy the requirements of section 105 and 106 of the
Code such that the benefits or reimbursements under such arrangements are not
includible in the Executive’s income, and, if continued coverage under Company’s
plans does not satisfy this requirement, then Company shall arrange, upon comparable
terms, for coverage providing substantially equivalent benefits to be provided under
one or more insurance policies that will satisfy this requirement, or (B) if any
such reimbursement or payment of benefits is taxable, then Company shall pay to
Executive an additional amount as shall be required to hold Executive harmless from
any additional tax liability resulting from the failure by Company to so provide
insurance policies so that the net result is that reimbursement or payment of
benefits to Executive thereunder shall not result in taxable income to Executive;
provided, however, that any such tax gross-up payment shall be made
by Company no later than the close of Executive’s taxable year following the taxable
year in which Executive remits the related taxes to the taxing authority.



     4.4 Section 409A Payment Dates and Interest on Late Payments.




     (a) Notwithstanding the time-of-payment provisions of Sections 5.2(b)(i), 5.3(b)(i),
and 5.3(b)(iii)(3)(B) above and Section 5.4(b)(ii) below, if Executive is a “specified
employee” (as such term is defined in Section 409A of the Code and as determined by Company
in accordance with any method permitted under Section 409A of the Code), then, with respect
to any such referenced payment(s) (or portions of such payments) that (i) are not short-term
deferrals within the meaning of Section 409A of the Code, (ii) would be paid during the
first six months following the date of Executive’s termination of employment, and (iii)
exceed, when aggregated with all other such payment(s) made during such six-month period, an
amount that is equal to two times the lesser of (1) Executive’s annualized compensation
based upon Executive’s annual rate of pay for services during the taxable year of Executive
preceding the year in which the termination of employment occurs (adjusted for any increase
during that year that was expected to continue indefinitely had no termination of employment
occurred) or (2) the maximum amount that may be taken into account under a qualified plan
pursuant to Section 401(a)(17) of the Code for the year in which the termination of
employment occurs, such payments of such amounts in excess of the amount described in clause
(iii) of this Section 5.4(a) that would otherwise have been paid during such six-month
period (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 JPMorgan Bank (or any successor thereto) at its



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principal office in New York on the date of Executive’s termination of employment (or the
first business day following such date if the termination of employment does not occur on a
business day)) shall be accumulated and paid on the Section 409A Payment Date. The right to
payment of the installment amounts pursuant to this paragraph shall be treated as a right to
a series of separate payments for purposes of section 409A of the Code.




     (b) If any payment provided for in Section 5.2 or Section 5.3 hereof is not made when
due (treating the Section 409A Payment Date as the date that payment is due for any payment
required to be delayed under Section 5.4(a)) then Company (i) shall pay to Executive
interest on the amount payable from the date that such payment should have been made under
such Section until such payment is made, which interest shall be calculated at 2% plus the
prime or base rate of interest announced by JPMorgan Chase Bank (or any successor thereto)
at its principal office in New York, and shall change when and as any such change in such
prime or base rate shall be announced by such bank, and (ii) shall further hold Executive
harmless from any liability under Section 409A of the Code arising from a failure to make a
payment when due; provided, however, that any such tax gross-up payment shall be made no
later than the end of Executive’s taxable year next following Executive’s taxable year in
which Executive remits the related taxes to the taxing authority.



     4.5 Parachute Payment. Notwithstanding anything to the contrary in this Agreement, if Executive is a “disqualified
individual” (as defined in section 280G(c) of the Code), and the benefits provided for in this
Article, together with any other payments and benefits which Executive has the right to receive
from Company and its Affiliates, would constitute a “parachute payment” (as defined in section
280G(b)(2) of the Code), then the benefits provided hereunder (beginning with any benefit to be
paid in cash hereunder) shall be either (1) reduced (but not below zero) so that the present value
of such total amounts and benefits received by Executive from Company will be one dollar ($1.00)
less than three times Executive’s “base amount” (as defined in section 280G(b)(3) of the Code) and
so that no portion of such amounts and benefits received by Executive shall be subject to the
excise tax imposed by section 4999 of the Code or (2) paid in full, whichever produces the better
net after-tax position to Executive (taking into account any applicable excise tax under section
4999 of the Code and any other applicable taxes). The determination as to whether any such
reduction in the amount of the benefits provided hereunder is necessary shall be made by the
Compensation Committee in good faith. If a reduced cash payment is made and through error or
otherwise that payment, when aggregated with other payments and benefits from Company (or its
Affiliates) used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less
than three times Executive’s base amount, then Executive shall immediately repay such excess to
Company upon notification that an overpayment has been made. Nothing in this Section 5.5 shall
require Company to be responsible for, or have any liability or obligation with respect to,
Executive’s excise tax liabilities under section 4999 of the Code.



     4.6 Liquidated Damages. In light of the difficulties in estimating the damages for an early termination of
Executive’s employment under this Agreement, Company and Executive hereby agree that the payments,
if any, to be received by Executive pursuant to this Article 5 shall be received by Executive as
liquidated damages.



12









 





     4.7 Other Benefits. This Agreement governs the rights and obligations of Executive and Company with respect to
Executive’s base salary and certain perquisites of employment. Except as expressly provided
herein, Executive’s rights and obligations both during the term of his employment and thereafter
with respect to stock options, restricted stock, incentive and deferred compensation, life
insurance policies insuring the life of Executive, and other benefits under the plans and programs
maintained by Company shall be governed by the separate agreements, plans, and other documents and
instruments governing such matters.



ARTICLE 5: PROTECTION OF CONFIDENTIAL INFORMATION




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



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



     5.3 No Unauthorized Use or Disclosure. Executive agrees that he will not, at any time during or after Executive’s employment by
Company, make any unauthorized disclosure of, and will prevent the removal from Company premises
of, Confidential Information or Work Product of Company (or its Affiliates), or make any use
thereof, except in the carrying out of Executive’s responsibilities during the course of
Executive’s employment with Company.



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Executive shall use commercially reasonable efforts to cause
all persons or entities to whom any Confidential Information shall be disclosed by him hereunder to
observe the terms and conditions set forth herein as though each such person or entity was bound
hereby. Executive shall have no obligation hereunder to keep confidential any Confidential
Information if and to the extent disclosure thereof is specifically required by law; provided,
however, that in the event disclosure is required by applicable law, Executive shall provide
Company with prompt notice of such requirement prior to making any such disclosure, so that Company
may seek an appropriate protective order. At the request of Company at any time, Executive agrees
to deliver to Company all Confidential Information that he may possess or control. Executive
agrees that all Confidential Information of Company (whether now or hereafter existing) conceived,
discovered or made by him during the period of Executive’s employment by Company exclusively
belongs to Company (and not to Executive), and Executive will promptly disclose such Confidential Information to Company and perform all
actions reasonably requested by Company to establish and confirm such exclusive ownership.
Affiliates of Company shall be third party beneficiaries of Executive’s obligations under this
Article 6. As a result of Executive’s employment by Company, Executive may also from time to time
have access to, or knowledge of, Confidential Information or Work Product of third parties, such as
customers, suppliers, partners, joint venturers, and the like, of Company and its Affiliates.
Executive also agrees to preserve and protect the confidentiality of such third party Confidential
Information and Work Product to the same extent, and on the same basis, as Company’s Confidential
Information and Work Product.



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



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



14









 





     5.6 Remedies. Executive acknowledges that money damages would not be sufficient remedy for any breach of
this Article 6 by Executive, and Company or its Affiliates shall be entitled to enforce the
provisions of this Article 6 by terminating payments then owing to Executive under this Agreement
or otherwise and to specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies for
a breach of this Article 6 but shall be in addition to all remedies available at law or in
equity, including the recovery of damages from Executive and his agents.



ARTICLE 6: NON-COMPETITION OBLIGATIONS




     6.1 General. As part of the consideration for Company’s employment of Executive and the compensation and
benefits that may be paid to Executive hereunder; to protect the trade secrets and Confidential
Information of Company or its Affiliates that have been and will in the future be disclosed or
entrusted to Executive, the business good will of Company or its Affiliates that has been and will
in the future be developed in Executive, or the business opportunities that have been and will in
the future be disclosed or entrusted to Executive by Company or its Affiliates; and as an
additional incentive for Company to enter into this Agreement, Company and Executive agree to the
provisions of this Article 7. Executive agrees that during his employment with Company and for a
period of one (1) year following the termination of Executive’s employment with Company for any
reason (the “Non-Compete Period”), Executive shall not:




     (a) directly or indirectly, either as principal, agent, independent contractor,
consultant, director, officer, employee, employer, advisor, stockholder, partner or in any
other individual or representative capacity whatsoever, either for his own benefit or for
the benefit of any other person or entity either (i) hire, contract or solicit, or attempt
any of the foregoing with respect to hiring any employee of Company or its Affiliates, or
(ii) induce or otherwise counsel, advise, or encourage any employee of Company or its
Affiliates to leave the employment of Company or its affiliates; and




     (b) within 150 air miles of any office or shop of Company existing at the time of such
employment or such termination, as applicable:




     (i) directly or indirectly participate in the ownership, management, operation
or control of, or be connected as an officer, employee, partner, director,
contractor or otherwise with, or have any financial interest in or act as a
consultant to any business in any of the business territories in which Company is
presently or from time-to-time conducting business that either conducts a business
substantially similar to that conducted by Company or its Affiliates or provides or
sells a service or product that is the same, substantially similar to or otherwise
competitive with the products and services provided or sold by Company or its
Affiliates (a “Competitive Operation”); provided, however, that this provision shall
not preclude Executive after the termination of his employment with Company from
owning less than 2% of the equity securities of any publicly held Competitive
Operation so long as Executive does not serve as an employee, officer, director or
consultant to such business;



15









 






     (ii) directly or indirectly, either as principal, agent, independent
contractor, consultant, director, officer, employee, employer, advisor, stockholder,
partner or in any other individual or representative capacity whatsoever, either for
his own benefit or for the benefit of any other person or entity call upon, solicit,
divert or take away, any customer or vendor of Company or its Affiliates with
whom Executive dealt, directly or indirectly, during his engagement with Company or
its Affiliates, in connection with a Competitive Operation; or




     (iii) call upon any prospective acquisition candidate on Executive’s own behalf
or on behalf of any Competitive Operation, which candidate is a Competitive
Operation or which candidate was, to Executive’s knowledge after due inquiry, either
called upon by Company or for which Company or any of its Affiliates made an
acquisition analysis, for the purpose of acquiring such entity.



     6.2 Non-Disparagement. During Executive’s employment with Company and following any termination of employment with
Company, each of Company and Executive agree not to disparage, either orally or in writing, the
other, or any of the business, products, services or practices of Company, or any of their
directors, officers, agents, representatives, stockholders, employees or Affiliates.



     6.3 Remedies. Executive acknowledges that money damages would not be sufficient remedy for any breach of
this Article 7 by Executive, and Company or its Affiliates shall be entitled to enforce the
provisions of this Article 7 by terminating payments then owing to Executive under this Agreement
or otherwise and to specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies for a breach of this
Article 7 but shall be in addition to all remedies available at law or in equity, including the
recovery of damages from Executive and his agents.



     6.4 Reformation. Company and Executive agree that the foregoing restrictions are reasonable under the
circumstances and that any breach of the covenants contained in this Article 7 would cause
irreparable injury to Company. Executive understands that the foregoing restrictions may limit
Executive’s ability to engage in certain businesses anywhere in the United States during the
Non-Compete Period, but acknowledges that Executive will receive sufficiently high remuneration and
other benefits from Company to justify such restriction. Further, Executive acknowledges that his
skills are such that he can be gainfully employed in non-competitive employment, and that the
agreement not to compete will in no way prevent him from earning a living. Nevertheless, if any of
the aforesaid restrictions are found by a court of competent jurisdiction to be unreasonable, or
overly broad as to geographic area or time, or otherwise unenforceable, the parties intend for the
restrictions therein set forth to be modified by the court making such determination so as to be
reasonable and enforceable and, as so modified, to be fully enforced. By agreeing to this
contractual modification prospectively at this time, Company and Executive intend to make this
provision enforceable under the law or laws of all applicable States so that the entire agreement
not to compete and this Agreement as prospectively modified shall remain in full force and effect
and shall not be rendered void or illegal. Such modification shall not affect the payments made to
Executive under this Agreement.



16









 





ARTICLE 7: MISCELLANEOUS




     8.1 Indemnification. If Executive shall obtain any money judgment or otherwise prevail with respect to any
litigation brought by Executive or Company to enforce or interpret any provision contained herein,
Company, to the fullest extent permitted by applicable law, hereby indemnifies Executive for his
reasonable attorneys’ fees and disbursements incurred in such litigation and hereby agrees (a) to
pay in full all such fees and disbursements and (b) to pay prejudgment interest on any money
judgment obtained by Executive from the earliest date that payment to him should have been made
under this Agreement until such judgment shall have been paid in full, which interest shall be
calculated at 2% plus the prime or base rate of interest announced by JPMorgan Chase Bank (or any
successor thereto) at its principal office in New York, and shall change when and as any such
change in such prime or base rate shall be announced by such bank. Notwithstanding anything to the
contrary provided herein, any reimbursement of attorneys’ fees and related expenses required under
this 8.1 shall be made by 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 fee or expense is incurred by
Executive); provided, however, that upon Executive’s termination of employment with 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 disbursements incurred after the
later of (i) Executive’s death or (ii) the date that is ten years after the date of Executive’s
termination of employment with the Company.



     8.2 Payment Obligations Absolute. Except as specifically provided in Sections 6.6 and 7.4, Company’s obligation to pay (or
cause one of its subsidiaries to pay) Executive the amounts and to make the arrangements provided
herein shall be absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim, recoupment, defense, or other right which
Company (including its subsidiaries) may have against him or anyone else. All amounts payable by
Company (including its subsidiaries hereunder) shall be paid without notice or demand. Executive
shall not be obligated to seek other employment in mitigation of the amounts payable or
arrangements made under any provision of this Agreement, and, except as provided in Sections
5.2(b)(ii) or 5.3(b)(iii) hereof, the obtaining of any such other employment shall in no event
effect any reduction of Company’s obligations to make (or cause to be made) the payments and
arrangements required to be made under this Agreement.



     8.3 Notices. For purposes of this Agreement, notices and all other communications provided for herein
shall be in writing and shall be deemed to have been duly given when personally delivered or when
mailed by United States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:



	 	 	 
	     If to Company to:

	 	Superior Well Services, Inc.

121 Airport Professional Building

Indiana, Pennsylvania 15701

Attention: Chairman of the Board of Directors






17









 






	 	 	 
	     If to Executive to:

	 	Michael Seyman

8518 Carriage Hill Drive

Warren, OH 44484





or to such other address as either party may furnish to the other in writing in accordance
herewith, except that notices or changes of address shall be effective only upon receipt.




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



     8.5 No Waiver. No failure by either party hereto at any time to give notice of any breach by the other
party of, or to require compliance with, any condition or provision of this Agreement shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.



     8.6 Severability. Any provision in this Agreement which is prohibited or unenforceable in any jurisdiction by
reason of applicable law shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating or affecting the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     8.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed
to be an original, but all of which together will constitute one and the same Agreement.



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



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



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



     8.11 Assignment. This Agreement shall be binding upon and inure to the benefit of Company and any successor
of Company, by merger or otherwise. This Agreement shall also be binding upon and inure to the
benefit of Executive and his estate. If Executive shall die prior to full payment of amounts due
pursuant to this Agreement, such amounts shall be payable pursuant to the terms of this Agreement
to his estate. Executive shall not have any right to pledge, hypothecate, anticipate, or assign
this Agreement or the rights hereunder, except by will or the laws of descent and distribution.



     8.12 Term. This Agreement has a term co-extensive with the term of employment provided in Section 3.1.
Termination shall not affect any right or obligation of any party which is accrued or vested prior
to such termination.



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     8.13 Entire Agreement. This Agreement constitutes the entire agreement of the parties with regard to the subject
matter hereof, and contains all the covenants, promises, representations, warranties and agreements
between the parties with respect to such subject matter. Without limiting the scope of the
preceding sentence, all understandings and agreements preceding the date of execution of this
Agreement and relating to the subject matter hereof are hereby null and void and of no further
force and effect, including, without limitation, all prior employment and severance agreements, if
any, by and between Company and Executive. Any modification of this Agreement will be effective
only if it is in writing and signed by the party to be charged.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 21 day of December,
2009, to be effective as of the Effective Date.



	 	 	 	 	 
	 	SUPERIOR WELL SERVICES, INC.

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

 	 
	 	By:  	/s/
Michael Seyman	 
	 	 	Name:  	Michael Seyman 	 
	 	 	Title:  	Vice President of Operations
 	 
	 
	 	EXECUTIVE
 	 



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EXHIBIT A

RELEASE AGREEMENT





     This Release Agreement (this “Agreement”) constitutes the release referred to in that certain
Employment Agreement (the “Employment Agreement”) dated as of December 21, 2009, by and between
Michael Seyman (“Executive”) and Superior Well Services, Inc. (the “Company”).



     For good and valuable consideration, including the Company’s provision of certain payments and
benefits to Executive in accordance with Section 5.2 or 5.3 of the Employment Agreement, Executive
hereby releases, discharges and forever acquits the Company, its Affiliates and the past, present
and future stockholders, members, partners, directors, 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 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 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) sections 1981 through 1988 of Title 42 of the United
States Code, as amended; (v) the 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 Fair Labor Standards Act, as amended; (ix) the Occupational Safety and
Health Act, as amended; (x) the Worker Adjustment and Retraining Notification Act of 1988; (xi)
the Sarbanes-Oxley Act of 2002; (xii) the Pennsylvania Human Relations Act; (xiii) the
Pennsylvania Minimum Wage Act; (xiv) the Pennsylvania Equal Pay Law, as amended; (xv) the
Pennsylvania Wage Payment and Collection Law, as amended; (xvi) any other state anti-discrimination
law; (xvii) any other state wage and hour law; (xviii) any other local, state or federal law,
regulation, or ordinance; (xix) any public policy, contract, tort, or common law claim; (xx) any
allegation for costs, fees, or other expenses including attorneys’ fees incurred in these matters;
(xxi) any and all rights, benefits, or claims Executive may have under 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 and any
incentive equity or stock option agreement between Executive and the Company; and (xxii) any claim
for compensation or benefits of any kind not expressly set forth in the Employment Agreement or any
such incentive equity or stock option agreement (collectively, the “Released Claims”). 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 this paragraph, 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. 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



20









 




PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY, OF
ANY OF THE COMPANY PARTIES.




     Executive affirms that he has not filed, caused to be filed, and presently is not a party to,
any claim, complaint, or action against Employer in any forum or form. Executive further affirms
that he has been paid and/or has received all leave (paid or unpaid), compensation, wages,
bonuses, commissions, and/or benefits to which he may be entitled and that no other leave (paid or
unpaid), compensation, wages, bonuses, commissions, and/or benefits are due to him, except as
provided in the Employment Agreement. Executive furthermore affirms that he has no known workplace
injuries or occupational diseases and has been provided and/or has not been denied any leave
requested under the Family and Medical Leave Act of 1993. 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 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 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. If Executive brings or
joins any lawsuit against any of the Company Parties in any court (except as necessary to protect
Executive’s rights under this release or with respect to Executive’s entry into this release)
relating to any of the Released Claims, and Executive is the prevailing party in such lawsuit,
Executive shall be obligated to return to the Company all amounts paid to Executive under this
release, to the extent permitted under applicable law and ordered by the court. Further, if
Executive violates the covenant not to sue set forth in this paragraph, Executive shall be required
to pay all costs and expenses (including the reasonable fees of counsel, related disbursements of
counsel and court costs) incurred by any Company Party to defend such lawsuit or other claim.



     By executing and delivering this Agreement, Executive acknowledges that:




(a) Executive has carefully read this Agreement;




(b) Executive has had at least 21 days to consider this Agreement before the execution and
delivery hereof to the Company;




(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.


Notwithstanding the initial effectiveness of this Agreement, Executive may revoke the delivery (and
therefore the effectiveness) of this Agreement within the seven day period beginning on the date
Executive 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
Executive and must be delivered to January 11, 2010 before 11:59 p.m., Pennsylvania






21









 







time, on the last day of the Release Revocation Period.
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. No consideration shall be paid or provided if this Agreement is
revoked by Executive in the foregoing manner.



Executed on this __________ day
of __________________, _________.






 





	 	 	 
	STATE OF
                     
                                      

	 	§
	 

	 	§
	COUNTY OF
                                
                      

	 	§






     BEFORE ME, the undersigned authority personally appeared                     , 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:





22