exh1022020tscashsettleme






                                                                                                     INDEPENDENCE CONTRACT DRILLING, INC.                     PERFORMANCE UNIT AWARD AGREEMENT                          TOTAL SHAREHOLDER RETURN                                 CASH SETTLEMENT                                  Grantee:  [NAME]          1.    Grant of Performance Unit Award.                  (a)   As of [DATE] (the “Effective Date”), the date of this agreement (this   “Agreement”), Independence Contract Drilling, Inc., a Delaware corporation (the “Company”),  hereby grants to the Grantee (identified above) ________ restricted stock units (the “RSUs” or  “Target RSUs”) pursuant to the Amended and Restated Independence Contract Drilling, Inc. 2019  Omnibus Incentive Plan, as may be amended from time to time (the “Plan”).  The RSUs represent  the opportunity to receive a cash payment equal to the Fair Market Value of a share of common  stock on the Vesting Date multiplied by the number of Earned RSU’s (defined below) determined  based upon satisfaction of certain TSR targets and the “Payout Multiplier” as defined in Exhibit  A, subject to Exhibit C.                    (b)   To determine the number, if any, of RSUs that shall be deemed earned  (“Earned RSUs”), the methodology on Exhibit A shall be followed, subject to Exhibit C.  For  purposes of this Agreement, there shall be three performance periods:  (a) “Performance Period  I” shall be deemed to begin on the Effective Date and end on the one year anniversary of the  Effective Date (the “Performance Period 1 Determination Date”); (b) “Performance Period  II” shall be deemed to begin on the Effective Date and end on the second anniversary of the  Effective Date (the “Performance Period II Determination Date”, and (c) “Performance  Period III” shall be deemed to begin on the Effective Date and end on the third anniversary of the  Effective Date (the “Performance Period III Determination Date”).                        For purposes of this Agreement, each of Performance Period I, Performance  Period II and Performance Period III shall be considered a “Performance Period”, and each of  Performance Period I Determination Date, Performance Period II Determination Date and  Performance Period III Determination Date shall be considered a “Determination Date”.                     It is understood that Earned RSU’s are also subject to a three-year time- based vesting requirement that begins on the Effective Date, as described in paragraph 3 below.          2.    Definitions.  Exhibits A, B and C are incorporated into this Agreement by   reference.  Unless otherwise provided, all capitalized terms used herein shall have the meanings   set forth in the Plan, or as set forth in Exhibits A, B and C.  In the event of a conflict between the   terms of the Plan and terms of this Agreement, the terms of the Plan shall control.                                            1      HOU:3760738.2 





 






                                                                                       3.    Vesting and Forfeiture.  Subject to Grantee’s continued employment with the  Company or its affiliates (the “Company Group”), and subject further to Exhibits A, B and C,  and any change of control or employment agreement between Grantee and a member of the  Company Group, only RSUs that become Earned RSUs shall have the opportunity to vest, and  Earned RSUs shall vest, if at all, on the third anniversary of the Effective Date (the “Vesting  Date”).  RSUs with respect to a Performance Period that fail to become Earned RSUs as of the  respective Determination Date (as determined by the Committee) shall immediately and  automatically be forfeited for no consideration.  Additionally, except to the extent a change of  control or employment agreement between Grantee and a member of the Company Group provides  otherwise, a failure of Grantee to continue his or her employment through the Vesting Date shall  result in an immediate and automatic forfeiture of outstanding RSUs and Earned RSUs under this  Agreement.              4.    Purchase Price.  No consideration shall be payable by the Grantee to the Company  for the RSUs.         5.    Restrictions on RSUs and Settlement of Vested RSUs.                 (a)   No Dividend Equivalents are granted with respect to any RSUs.               (b)   Subject to Section 11(e) and the other terms of the Plan, the Company shall  settle vested Earned RSUs within 30 days of the date such Earned RSUs become vested in  accordance with Section 3, above.  Each vested Earned RSU shall entitle the Grantee to receive a  cash payment equal to the Fair Market Value of a share of Common Stock on the Vesting Date  multiplied by the number of Earned RSUs.                 (c)   Nothing in this Agreement or the Plan shall be construed to:                     (i)   give the Grantee any right to be awarded any further RSUs or any        other Award in the future, even if RSUs or other Awards are granted on a regular or        repeated basis, as grants of RSUs and other Awards are completely voluntary and made        solely in the discretion of the Committee;                     (ii)  give the Grantee or any other person any interest in any fund or in        any specified asset or assets of the Company or any Affiliate; or                     (iii) confer upon the Grantee the right to continue in the employment or        service of the Company or any Affiliate, or affect the right of the Company or any Affiliate        to terminate the employment or service of the Grantee at any time or for any reason.              (d)   The Grantee shall not have any voting rights with respect to the RSUs.         6.    Independent Legal and Tax Advice.  Grantee acknowledges that the Company  has advised Grantee to obtain independent legal and tax advice regarding the grant, holding,  vesting and settlement of the RSUs in accordance with this Agreement and any disposition of any  such Awards or the shares of Common Stock issued with respect thereto.                                         2    HOU:3760738.2 





 






                                                                                       7.    Reorganization of Company.  The existence of this Agreement shall not affect in  any way the right or power of the Company or its stockholders to make or authorize any or all  adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure  or its business, or any merger or consolidation of the Company, or any issue or bonds, debentures,  preferred stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale  or transfer of all or any part of its assets or business, or any other corporate act or proceeding,  whether of a similar character or otherwise.  Except as otherwise provided herein, in the event of  a Corporate Change as defined in the Plan, Section 4.5 of the Plan shall be applicable.         8.    Investment Representation.  Grantee will enter into such written representations,  warranties and agreements as the Company may reasonably request in order to comply with any  federal or state securities law.           9.    No Guarantee of Employment.  This Agreement shall not confer upon Grantee  any right to continued employment with the Company or any Affiliate thereof.         10.   Withholding of Taxes.  The Company or an Affiliate shall be entitled to satisfy,  pursuant to Section 16.3 of the Plan, any and all tax withholding requirements with respect to  RSUs.         11.   General.               (a)   Notices.  All notices under this Agreement shall be mailed or delivered by  hand to the parties at their respective addresses set forth beneath their signatures below or at such  other address as may be designated in writing by either of the parties to one another, or to their  permitted transferees if applicable.  Notices shall be effective upon receipt.               (b)   Transferability of Award.  The rights of the Grantee pursuant to this  Agreement are not transferable by Grantee.  No right or benefit hereunder shall in any manner be  liable for or subject to any debts, contracts, liabilities, obligations or torts of Grantee or any  permitted transferee thereof. Any purported assignment, alienation, pledge, attachment, sale,  transfer or other encumbrance of the RSUs, prior to the lapse of restrictions, that does not satisfy  the requirements hereunder shall be void and unenforceable against the Company.               (c)   Amendment and Termination.  No amendment, modification or termination  of this Agreement shall be made at any time without the written consent of Grantee and the  Company.               (d)   No Guarantee of Tax Consequences.  The Company and the Committee  make no commitment or guarantee that any federal, state, local or other tax treatment will (or will  not) apply or be available to any person eligible for compensation or benefits under this  Agreement.  The Grantee has been advised and been provided the opportunity to obtain  independent legal and tax advice regarding the granting, vesting and settlement of RSUs pursuant  to the Plan and this Agreement and the disposition of any Common Stock acquired thereby.                (e)   Section 409A.  The award of RSUs hereunder is intended to either comply  with or be exempt from Section 409A, and the provisions of this Agreement shall be administered,  interpreted and construed accordingly. If the award of RSUs is not exempt from Section 409A and                                        3    HOU:3760738.2 





 






                                                                                   the Grantee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code   on the date on which the Grantee has a “separation from service” (other than due to death) within   the meaning of Section 1.409A-1(h) of the Treasury Regulations, then notwithstanding the   provisions of this Agreement, any compensation payable on account of Grantee’s separation from   service that constitute deferred compensation under Section 409A shall take place on the earlier of   (i) the first business day following the expiration of six months from the Grantee’s separation from   service, or (ii) such earlier date as complies with the requirements of Section 409A. To the extent   required under Section 409A, the Grantee shall be considered to have terminated employment with   the Company or its affiliates (the “Company Group”) when the Grantee incurs a “separation from   service” with respect to the Company Group within the meaning of Section 409A(a)(2)(A)(i) of   the Code.                (f)   Severability.  In the event that any provision of this Agreement shall be held   illegal, invalid or unenforceable for any reason, such provision shall be fully severable, but shall   not affect the remaining provisions of the Agreement, and the Agreement shall be construed and   enforced as if the illegal, invalid or unenforceable provision had not been included therein.                (g)   Supersedes Prior Agreements.  This Agreement shall supersede and replace   all prior agreements and understandings, oral or written, between the Company and the Grantee   regarding the grant of the RSUs covered hereby.                (h)   Governing Law.  This Agreement shall be construed in accordance with the   laws of the State of Delaware without regard to its conflict of law provisions, to the extent federal   law does not supersede and preempt Delaware law.                (i)   No Trust or Fund Created.  This Agreement shall not create or be construed   to create a trust or separate fund of any kind or a fiduciary relationship between the Company or   any Affiliate and a Grantee or any other Person.  To the extent that any Person acquires a right to   receive payments from the Company or any Affiliates pursuant to this Agreement, such right shall   be no greater than the right of any general unsecured creditor of the Company or any Affiliate.                (j)   Clawback Provisions.  Notwithstanding any other provisions in this   Agreement or the Change of Control Agreement to the contrary, any incentive-based   compensation, or any other compensation, payable pursuant to this Agreement or any other   agreement or arrangement with the Company or an affiliate which is subject to recovery under any   law, government regulation or stock exchange listing requirement, will be subject to such   deductions and clawback as may be required to be made pursuant to such law, government  regulation or stock exchange listing requirement (or any policy adopted by the Company or an  affiliate pursuant to such law, government regulation or stock exchange listing requirement).                  (k)   Restrictive Covenants.  Grantee agrees to the restrictive covenants   contained in Exhibit D to this Agreement.                (l)   Other Laws.  The Company retains the right to refuse to issue or transfer   any Stock if it determines that the issuance or transfer of such shares might violate any applicable   law or regulation or entitle the Company to recover under Section 16(b) of the Securities Exchange   Act of 1934.                                          4      HOU:3760738.2 





 






                                                                                             (m)   Binding Effect.  This Agreement shall be binding upon and inure to the  benefit of any successors to the Company and all persons lawfully claiming under the Grantee.                           [SIGNATURES ON NEXT PAGE]                                                                     5    HOU:3760738.2 





 






                                                                                       IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its  behalf by its duly authorized officer and Grantee has hereunto executed this Agreement as of the  date set forth above.                                   INDEPENDENCE CONTRACT DRILLING, INC.                                   By:                                                                              Name:  J. Anthony Gallegos                                  Title: President & Chief Executive Officer                                   Address for Notices:                                                                    Independence Contract Drilling, Inc.                                  20475 Hwy 249, Suite 300                                  Houston, Texas 77070                                  Attn:  Chief Executive Officer                                   GRANTEE                                                                                                                                                                                                                        [NAME]                                   Address for Notices:                                                                    Executive’s then current address shown in the                                  Company’s records.                                          6    HOU:3760738.2 





 






                                                                                                                     Exhibit A                                                                 Methodology for Calculating Earned RSUs                                                   1.    Definitions. For purposes of determining the number of RSUs that are deemed to   be Earned RSUs, the following definitions shall apply:                  (a)   Peer Group means the following eight companies to the extent such entities   or their successors are in existence and publicly traded as of the Performance End Date:   ______________                                             (b)   Total Shareholder Return or TSR means shall be defined and calculated as   follows, where “Beginning Price” is (1) with respect to the Company or with respect to members  of the Peer Group, the average closing price on the New York Stock Exchange (“NYSE”) for the   last 20 NYSE trading days prior to and including the Effective Date, and “Ending Price” is the  average closing price on the NYSE for the last 20 NYSE trading prior to and including the  applicable Determination Date, in each case as applied to the applicable equity security:                  TSR = (Ending Price – Beginning Price + cash dividends (if any) per share paid*)                                   Beginning Price            * Stock dividends paid in securities rather than cash in which there is a distribution of less          than 25 percent of the outstanding shares (as calculated prior to the distribution) shall be          treated as cash for purposes of this calculation.                  To the extent a security of the Company or any member of the Peer Group is not listed or   traded on the NYSE, “NYSE” as used above shall mean the principal national securities exchange   or quotation service on which the security is listed or quoted.  TSR of the Company or of any   member of the Peer Group shall be equitably adjusted, as determined by the Committee, to reflect   any spin-off, stock split, reverse stock split, stock dividend, recapitalization, reclassification or   other similar change in the number of outstanding shares of common stock.              2.  Committee Methodology.  The RSUs and Target RSUs shall be trifurcated into   three equal parts, with one-third being allocated to each Performance Period (to avoid partial   shares, the portion of RSUs and Target RSUs allocated to a specific Performance Period shall be   reduced to the nearest whole number, with the excess rolling forward into the next sequentially   ordered Performance Period).  The Committee shall calculate the number of Earned RSU’s   applicable to each Performance Period as soon as reasonably practicable following expiration of   the applicable Performance Period, and in all events as soon as practicable in order to determine   the number of Earned RSU’s existing on the Vesting Date.    Subject to Exhibit C, for purposes of   determining the number of Earned RSUs for a particular Performance Period, the Committee shall:                        (a)   Calculate the Total Shareholder Return for the Company and each member   of the Peer Group for the Performance Period.                                          7      HOU:3760738.2 





 






                                                                                             (b)   Rank the Company and each member of the Peer Group based on Total  Shareholder Return with the entity having the highest Total Shareholder Return ranking in the first  position and the entity with the lowest Total Shareholder Return ranking in the ninth position.                            (c)   Determine the Payout Multiplier to be utilized in determining the number  of RSUs that vest, and thus the number of shares of Common Stock to be issued to the Grantee  based on the Payout Schedule below:                                                                 Eight Company Payout Schedule                      Company Ranking     Payout Multiplier                             1                  2.00                             2                  2.00                             3                  1.67                             4                  1.33                             5                  1.00                             6                  0.67                             7                  0.33                             8                  0.00                             9                  0.00                (d)   For the applicable Performance Period, calculate the number of Earned  RSUs for such Performance Period as follows:                 i.   Performance Period I:  Multiply the number of Target RSUs allocable to              Performance Period I by the Multiplier in the chart above, with such answer being              the Earned RSUs for the Performance Period I.  To the extent the number of RSUs              allocated to Performance Period I exceed the Earned RSU’s for Performance Period              I, such excess RSUs shall be immediately and automatically forfeited.                       ii.  Performance Period II:  Multiply the number of Target RSUs allocable to             Performance Period II by the Multiplier in the chart above, with such answer being             the Earned RSUs for the Performance Period II. To the extent the number of RSUs             allocated to Performance Period II exceed the Earned RSU’s for Performance             Period II, such excess RSUs shall be immediately and automatically forfeited.            iii. Performance Period III:  Multiply the number of Target RSUs allocable to              Performance Period III by the Multiplier in the chart above, with such answer being              the Earned RSUs for the Performance Period III. To the extent the number of RSUs              allocated to Performance Period III exceed the Earned RSU’s for Performance              Period III, such excess RSUs shall be immediately and automatically forfeited.                                         8    HOU:3760738.2 





 






                                                                                              (e)  If any calculation with respect to the number of RSUs that are earned, and  thus the number of shares of Common Stock to be issued hereunder would result in a fractional  share, the number of shares of Common Stock to be issued shall be rounded down to the nearest  whole share.                 3.   Peer Group Changes.                 If a member of the Peer Group declares bankruptcy or ceases to be publicly traded as a  result of bankruptcy, it shall be deemed to remain in the Peer Group until the expiration of the  Performance Period and shall occupy the lowest ranking in the Payout Schedule. If, as a result of  a merger, acquisition or a similar corporate transaction, in which any member of the Peer Group  ceases to be publicly traded, the Committee may in its sole discretion, revise the makeup of the  Peer Group and calculate the resulting Total Shareholder Return for such affected member of the  Peer Group, adjusting accordingly, the associated Payout Multipliers in a manner consistent with  the methodologies contained herein.                                               9    HOU:3760738.2 





 






                                                                                                                   Exhibit B                                 Certain Definitions.                      1.    Change of Control shall mean                A.    The acquisition by any individual, entity or group (within the meaning of        Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the        “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-      3 promulgated under the Exchange Act) of 50 percent or more of either (A) the then       outstanding shares of common stock or membership interests of the Company (the       “Outstanding Company Common Stock”) or (B) the combined voting power of the then       outstanding voting securities of the Company entitled to vote generally in the election of       directors or managers (the “Outstanding Company Voting Securities”); provided,        however, that for purposes of this subsection A, the following acquisitions shall not        constitute a Change of Control:  (1) any acquisition directly from the Company or any        acquisition by the Company; or (2) any acquisition by any employee benefit plan (or related        trust) sponsored or maintained by the Company or any corporation controlled by the        Company; or (3) any acquisition by any corporation pursuant to a transaction that complies        with clauses (1), (2) and (3) of subsection C of this definition; or               B.     Individuals, who, as of the date hereof constitute the Board (the        "Incumbent Board") cease for any reason to constitute at least a majority of the Board;        provided, however, that any individual becoming a director subsequent to the date hereof        whose election, or nomination for election by the Company's stockholders or members,        was approved by a vote of at least a majority of the directors then comprising the Incumbent        Board shall be considered as though such individual was a member of the Incumbent        Board, but excluding, for purpose of this subsection B, any such individual whose initial        assumption of office occurs as a result of an actual or threatened election contest with        respect to the election or removal of directors or other actual or threatened solicitation of        proxies or consents by or on behalf of a Person other than the Board; or               C.    Consummation of a reorganization, merger or consolidation or sale or other        disposition of all or substantially all of the assets of the Company (a "Corporate        Transaction") in each case, unless, following such Corporate Transaction, (1) all or        substantially all of the individuals and entities who were the beneficial owners,        respectively, of the Outstanding Company Common Stock and Outstanding Company        Voting Securities immediately prior to such Corporate Transaction beneficially own,        directly or indirectly, more than 60 percent of, respectively, the then outstanding shares of        common stock and the combined voting power of the then outstanding voting securities        entitled to vote generally in the election of directors, as the case may be, of the corporation        resulting from such Corporate Transaction (including, without limitation, a corporation that        as a result of such transaction owns the Company or all or substantially all of the        Company's assets either directly or through one or more subsidiaries) in substantially the        same proportions as their ownership, immediately prior to such Corporate Transaction, of        the Outstanding Company Common Stock and the Outstanding Company Voting        Securities, as the case may be, (2) no Person (excluding any corporation resulting from                                        10    HOU:3760738.2 





 






                                                                                       such Corporate Transaction or any employee benefit plan (or related trust) of the Company        or such corporation resulting from such Corporate Transaction) beneficially owns, directly       or indirectly, 20 percent or more of, respectively, the then outstanding shares of common       stock of the corporation resulting from such Corporate Transaction or the combined voting       power of the then outstanding voting securities of such corporation except to the extent that       such ownership existed prior to the Corporate Transaction and (3) at least a majority of the       members of the board of directors of the corporation resulting from such Corporate       Transaction were members of the Incumbent Board at the time of the execution of the       initial agreement, or of the action of the Board, providing for such Corporate Transaction;       or              D.    Approval by the stockholders of the Company of a complete liquidation or       dissolution of the Company.        Notwithstanding the foregoing, however, in any circumstance or transaction in which       compensation would be subject to the income tax under Section 409A if the foregoing       definition of “Change of Control” were to apply, but would not be so subject if the term       “Change of Control” were defined herein to mean a “change in control event” within the       meaning of Treasury Regulation Section 1.409A-3(i)(5), then “Change of Control” means,       but only to the extent necessary to prevent such compensation from becoming subject to       the income tax under  Section 409A, a transaction or circumstance that satisfies the       requirements of both (1) a Change of Control under the applicable clauses (A) through (D)       above, as applicable, and (2) a “change in control event” within the meaning of Treasury       Regulation Section 1.409A-3(i)(5).                                          11    HOU:3760738.2 





 






                                                                                                                      Exhibit C                                                    Change of Control.           1. RSUs Becoming Earned RSUs.  If prior to any Determination Date, a Change of           Control occurs, and the Grantee has remained continuously employed by the Company           Group from the Effective Date to the date of such Change of Control, then,           notwithstanding any other provision of this Agreement to the contrary, a portion of the           outstanding Target RSUs that have not previously forfeited or previously converted to           Earned RSUs shall automatically and immediately become Earned RSUs on the date           of such Change of Control in accordance with the following fraction (not greater than           1.0): the numerator being the number of months (not including any partial months) that           have elapsed since the Effective Date to the date of the Change of Control, and the           denominator being the total number of months in the period beginning on the Effective           Date and ending on the third anniversary of the Effective Date.  For example:                a. If the Change of Control occurs prior to the Performance Period I Determination                 Date, all Target RSUs (to the extent not previously forfeited) in all Performance                 Periods shall be included in the above fraction to determine what portion of the                 RSUs are Earned RSUs.              b. If the Change of Control occurs prior to the Performance Period II                Determination Date, all Target RSUs subject to Performance Period II (to the                extent not previously forfeited) and all Target RSUs subject to Performance                Period III (to the extent not previously forfeited) shall be included in the above                fraction to determine what portion of RSUs are Earned RSUs.               c. If the Change of Control occurs after the Performance Period II Determination                 Date but prior to the Performance Period III Determination Date, all Target                 RSUs subject to Performance Period III (to the extent not previously forfeited)                 shall be included in the above fraction to determine what portion of RSUs are                 Earned RSUs.         2. Earned RSUs Becoming Vested.  If a Change of Control occurs and the Grantee has           remained continuously employed by the Company Group from the Effective Date to           the date of such Change of Control, then, notwithstanding any other provision of this           Agreement to the contrary, all Earned RSU’s (determined after calculating 1, above)           shall vest on the date of such Change of Control.            It is understood that to the extent a Change of Control occurs after an applicable           Determination Date or Performance Period, any Earned RSUs relating to such           previously occurring Determination Date and Performance Period (as determined by          the Committee pursuant to Exhibit A) shall be considered, in addition to the Earned          RSUs calculated pursuant to paragraph 1 above, Earned RSUs for purposes of this          paragraph 2.                                                    12    HOU:3760738.2 





 






                                                                                                                      Exhibit D                                  Restrictive Covenants                                                    In consideration for the grant of RSU’s hereunder, which are expected to vest during  Grantee’s employment with the Company Group over the vesting period, as well as the  protection of the Company Group’s goodwill and Confidential Information, Grantee agrees to  the following:                (a)   Certain Definitions. For purposes of this Exhibit D, the following terms shall have  the following meanings:               (i)   “Cause” shall mean Grantee’s:                          A.     willful and continued failure to comply with the reasonable              written directives of the Company for a period of thirty (30) days after written              notice from the Company;                            B.    willful and persistent inattention to duties for a period of              thirty (30) days after written notice from the Company, or the commission of acts              within employment with the Company Group amounting to gross negligence or              willful misconduct;                           C.    misappropriation of funds or property of the Company              Group or committing any fraud against the Company Group or against any other              person or entity in the course of employment with the Company Group;                           D.    misappropriation of any corporate opportunity, or otherwise              obtaining personal profit from any transaction which is adverse to the interests of              the Company Group or to the benefits of which the Company Group is entitled;                            E.    conviction of a felony involving moral turpitude;                           F.    willful failure to comply in any material respect with the              terms of this Agreement and such non-compliance continues uncured after thirty              (30) days after written notice from the Company;                           G.    chronic substance abuse, including abuse of alcohol, drugs              or other substances or use of illegal narcotics or substances, for which Grantee fails              to undertake treatment immediately after requested by the Company or to complete              such treatment and which abuse continues or resumes after such treatment period,              or possession of illegal narcotics or substances on Company premises or while              performing Grantee’s duties and responsibilities.         For purposes of this definition, no act, or failure to act, by Grantee will be considered        “willful” if done, or omitted to be done, by Grantee in good faith and in the reasonable        belief that the act or omission was in the best interest of the Company or required by        applicable law.                                         13    HOU:3760738.2 





 






                                                                                       Any termination during the Employment Term by the Company for Cause shall be        communicated by Notice of Termination to the Grantee.  For purposes of this Agreement,        a “Notice of Termination” means a written notice which sets forth in reasonable detail the        facts and circumstances claimed to provide a basis for termination of the Grantee’s        employment for “Cause”   The failure by the Company to set forth in the Notice of        Termination any fact or circumstance which contributes to a showing of Cause shall not        waive any right of the Company from asserting such fact or circumstance in enforcing the        Company’s rights hereunder.                 (ii)  “Confidential Information” means any information, knowledge or data of        any nature and in any form (including information that is electronically transmitted or        stored on any form of magnetic or electronic storage media) relating to the past, current or        prospective business or operations of the Company Group, that is not generally known to        persons engaged in a business similar to that conducted by the Company Group, whether        produced by the Company Group or any of its consultants, agents or independent        contractors or by Grantee, and whether or not marked confidential.   Confidential        information does not include information that (1) at the time of disclosure is, or thereafter        becomes, generally available to the public, (2) prior to or at the time of disclosure was        already in the possession of Grantee, (3) is obtained by Grantee from a third party not in        violation of any contractual, legal or fiduciary obligation to the Company Group with        respect to that information or (3) is independently developed by Grantee, but not including        the confidential information provided by the Company Group.               (iii) “Restricted Business” means any the oil and natural gas land contract       drilling business conducted in the United States of America.           (b)   Nondisclosure of Confidential Information.  Grantee shall hold in a fiduciary  capacity for the benefit of the Company Group all Confidential Information which shall have been  obtained by Grantee during Grantee’s employment and shall not use such Confidential Information  other than within the scope of Grantee’s employment with and for the exclusive benefit of the  Company Group.  Following any termination of employment with the Company Group, Grantee  agrees (i) not to communicate, divulge or make available to any person or entity (other than the  Company Group) any such Confidential Information, except (A) upon the prior written  authorization of the Company Group, (B) as may be required by law or legal process, (C) as  reasonably necessary in connection with the enforcement of any right or remedy related to this  Agreement, or (D) unless no longer Confidential Information, and (ii) to deliver promptly to the  Company Group any Confidential Information in Grantee’s possession, including any duplicates  thereof and any notes or other records Grantee has prepared with respect thereto. In the event that  the provisions of any applicable law or the order of any court would require Grantee to disclose or  otherwise make available any Confidential Information then Grantee shall, to the extent  practicable, give the Company prior written notice of such required disclosure and an opportunity  to contest the requirement of such disclosure or apply for a protective order with respect to such  Confidential Information by appropriate proceedings.            (c)   Limited Covenant Not to Compete.  In the event Grantee’s employment is  terminated by Grantee for any reason or by the Company Group for Cause, Grantee agrees that                                         14    HOU:3760738.2 





 






                                                                                   during the period beginning on the date of such termination and ending on the twelve (12) month   anniversary of the date of such termination:                  (i)   Grantee shall not, directly or indirectly, for himself or others, own, manage,         operate, control or participate in the ownership, management, operation or control of any         business, whether in corporate, proprietorship or partnership form or otherwise, that is         engaged, directly or indirectly, in the United States in the Restricted Business; provided,         however, that the restrictions contained herein shall not restrict (A) the acquisition by         Grantee of less than 2% of the outstanding capital stock of any publicly traded company         engaged in a Restricted Business or (B) Grantee from being employed by an entity in which         the majority of such entity’s revenues on a consolidated basis determined in accordance         with generally accepted accounting principles are from activities and businesses that do         not constitute a Restricted Business and provided that Grantee is only employed by and         engaged with divisions and units of such entity that are not engaged in the Restricted         Business; and                (ii)  Grantee shall not, directly or indirectly (A) solicit any individual, who, at         the time of time of such solicitation is an employee of the Company Group, to leave such         employment or hire, employ or otherwise engage any such individual (other than         employees of the Company Group who respond to general advertisements for employment         in newspapers or other periodicals of general circulation (including trade journals)), or         (B) cause, induce or encourage any material actual or prospective client, customer,         supplier, landlord, lessor or licensor of the Company Group to terminate or modify any         such actual or prospective contractual relationship that exists on the date of termination of         employment.      For purposes of clarity, it is understood that the provisions of this paragraph D are not applicable   if Grantee’s employment with the Company Group is terminated by the Company Group without   Cause.    In addition, it is understood that the provisions of this paragraph C shall terminate in all   respects on the fourth anniversary of the date of the Agreement to which this Exhibit D is a  part.          (d)   Injunctive Relief; Remedies.  The covenants and undertakings contained in this   Exhibit D relate to matters which are of a special, unique and extraordinary character and a   violation of any of the terms of this Exhibit D will cause irreparable injury to the Company Group,   the amount of which will be impossible to estimate or determine and which cannot be adequately   compensated.  Accordingly, the remedy at law for any breach of this Exhibit D may be inadequate.    Therefore, notwithstanding anything to the contrary, the Company will be entitled to an injunction,   restraining order or other equitable relief from any court of competent jurisdiction in the event of   any breach of any provision of this Exhibit C without the necessity of proving actual damages or   posting any bond whatsoever.  The rights and remedies provided by this Exhibit C are cumulative   and in addition to any other rights and remedies which the Company Group may have hereunder   or at law or in equity.  The parties hereto further agree that, if any court of competent jurisdiction   in a final nonappealable judgment determines that a time period, a specified business limitation or   any other relevant feature of this Exhibit D is unreasonable, arbitrary or against public policy, then                                         15      HOU:3760738.2 





 






                                                                                 a lesser time period, geographical area, business limitation or other relevant feature which is  determined by such court to be reasonable, not arbitrary and not against public policy may be  enforced against the applicable party.           (e)   Governing Law of this Exhibit D; Consent to Jurisdiction. Any dispute regarding  the reasonableness of the covenants and agreements set forth in this Exhibit C, or the territorial  scope or duration thereof, or the remedies available to the Company upon any breach of such  covenants and agreements, shall be governed by and interpreted in accordance with the laws of the  state of Texas, without regard to conflict of law provisions thereof, and, with respect to each such  dispute, the Company and Grantee each hereby irrevocably consent to the exclusive jurisdiction  of the State of Texas for resolution of such dispute, and further agree that service of process may  be made upon Grantee in any legal proceeding relating to this Exhibit D by any means allowed  under the laws of such state.          (f)   Grantee’s Understanding of this Section.  Grantee hereby represents to the  Company that Grantee has read and understands, and agrees to be bound by, the terms of this  Exhibit D. Grantee acknowledges that the geographic scope and duration of the covenants  contained in Exhibit D are the result of arm’s-length bargaining and are fair and reasonable in light  of (i) the importance of the functions performed by Grantee and the length of time it would take  the Company Group to find and train a suitable replacement, (ii) the nature and wide geographic  scope of the operations of the Company Group, (iii) Grantee’s level of control over and contact  with the Company Group’s business and operations in all jurisdictions where they are located, and  (iv) the fact that the Restricted Business is potentially conducted throughout the geographic area  where competition is restricted by this Agreement. It is the desire and intent of the parties that the  provisions of this Agreement be enforced to the fullest extent permitted under applicable law,  whether now or hereafter in effect and therefore, to the extent permitted by applicable law, the  parties hereto waive any provision of applicable law that would render any provision of this Exhibit  D invalid or unenforceable.                                                                           *     *     *     *     *                                                                                    16    HOU:3760738.2