EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between W-H
Energy Services, Inc., a Texas corporation ("Company"), and Xxxx X. Xxxxxx
("Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently employed by a subsidiary of 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 and Executive is desirous of being so 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: EMPLOYMENT AND DUTIES
1.1 EMPLOYMENT; EFFECTIVE DATE. Effective as of April 14, 2005
(the "Effective Date"), and continuing for the period of time set forth in
Article 2 of this Agreement, Company agrees to employ Executive and Executive
agrees to be employed by Company, subject to the terms and conditions of this
Agreement.
1.2 POSITIONS. From and after the Effective Date, Company shall
employ Executive in the position of Vice President of Company, or in such other
positions as the parties mutually may agree.
1.3 DUTIES AND SERVICES. Executive agrees to serve in the position
referred to in paragraph 1.2 and to perform diligently and to the best of his
abilities the duties and services appertaining to such offices, as well as such
additional duties and services appropriate to such offices 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.
1.4 OTHER INTERESTS. Executive agrees, during the period of his
employment by Company, to devote his primary 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 of
Directors. The foregoing notwithstanding, the parties recognize and agree that
Executive may engage in other business 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 Company's
President and Chief Executive Officer.
1.5 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 2: TERM AND TERMINATION OF EMPLOYMENT
2.1 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 December 31, 2007 (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 paragraph 2.2 or 2.3, 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.
2.2 COMPANY'S RIGHT TO TERMINATE. Notwithstanding the provisions
of paragraph 2.1, Company shall have the right to terminate Executive's
employment under this Agreement at any time for any of the following reasons:
(i) upon Executive's death;
(ii) upon Executive's becoming incapacitated by accident,
sickness or other circumstance which, in the opinion of a physician
selected by Company, renders him mentally or physically incapable of
performing the duties and services required of him hereunder;
(iii) for cause, which for purposes of this Agreement shall
mean Executive (A) has willfully breached any of his duties and
obligations hereunder resulting in materially adverse consequences to
Company or any of its affiliates, (B) has misappropriated funds or
property of Company or any of its affiliates, or (C) has engaged in
conduct that is materially adverse to the interests of Company or any
of its affiliates; or
(iv) for any other reason whatsoever, in the sole discretion
of the Board of Directors.
2.3 EXECUTIVE'S RIGHT TO TERMINATE. Notwithstanding the provisions
of paragraph 2.1, Executive shall have the right to terminate his employment
under this Agreement for any of the following reasons:
(i) within 60 days of and in connection with or based upon (A)
a material breach by Company of any material provision of this
Agreement, (B) a significant reduction in the nature or scope of
Executive's duties and responsibilities, (C) the assignment to
Executive of duties and responsibilities that are materially
inconsistent with the positions referred to in paragraph 1.2, or (D)
any requirement that Executive relocate to a site more than 25 miles
from his present business address; provided, however, that, prior to
Executive's termination of employment under this paragraph 2.3(i),
Executive must give written notice to Company of any such breach,
reduction, assignment or requirement and such breach, reduction,
assignment or requirement must remain uncorrected for 10 days following
such written notice;
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(ii) at any time after there is a Change in Control (as such
term is defined in paragraph 6.1); or
(iii) at any time for any other reason whatsoever, in the sole
discretion of Executive.
2.4 NOTICE OF TERMINATION. If Company or Executive desires to
terminate Executive's employment hereunder at any time prior to expiration of
the term of employment as provided in paragraph 2.1, it or he shall do so by
giving written notice to the other party that it or he 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.
ARTICLE 3: COMPENSATION AND BENEFITS
3.1 BASE SALARY. During the period of this Agreement, Executive
shall receive a minimum annual base salary of $340,000. Executive's annual base
salary shall be reviewed by the Board of Directors (or a committee thereof) on
an annual basis, and, in the sole discretion of the Board of Directors (or such
committee), such annual base salary may be increased, but not decreased,
effective as of January 1 of each year. Executive's annual base salary shall be
paid in equal installments in accordance with the Company's standard policy
regarding payment of compensation to executives but no less frequently than
monthly.
3.2 INCENTIVE COMPENSATION. Executive shall be eligible to receive
incentive compensation up to a maximum of 100% of his annual base salary each
calendar year as shall be determined in the sole discretion of the Board of
Directors.
3.3 OTHER PERQUISITES. During his employment hereunder, Executive
shall be afforded the following benefits as incidences of his employment:
(i) 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 expenses incurred by Executive for business related
purposes, including dues and fees to industry and professional
organizations and costs of entertainment and business development.
(ii) CAR ALLOWANCE - Company shall provide to Executive an
automobile or automobile allowance as approved by the President and
Chief Executive Officer.
(iii) OTHER COMPANY BENEFITS - Executive and, to the extent
applicable, Executive's spouse, dependents and beneficiaries, shall be
allowed to participate in all 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
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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: PROTECTION OF INFORMATION
4.1 DISCLOSURE TO EXECUTIVE. Company shall disclose to Executive,
or place Executive in a position to have access to or develop, trade secrets or
confidential information of Company or its affiliates; and/or shall entrust
Executive with business opportunities of Company or its affiliates; and/or shall
place Executive in a position to develop business good will on behalf of Company
or its affiliates.
4.2 PROPERTY OF COMPANY. All documents, drawings, memoranda,
notes, records, files, correspondence, manuals, models, specifications, computer
programs, e-mail, voice mail, electronic databases, maps, and all other writings
or materials of any type embodying any information relating to Company or its
business are and shall be the sole and exclusive property of Company. Upon
termination of Executive's employment by Company, for any reason, Executive
promptly shall deliver the same, and all copies thereof, to Company.
4.3 NO UNAUTHORIZED USE OR DISCLOSURE. Executive will not, at any
time during or after Executive's employment by Company, make any unauthorized
disclosure of any confidential business information or trade secrets of Company
or its affiliates, or make any use thereof, except in the carrying out of
Executive's employment responsibilities hereunder. Affiliates of the Company
shall be third party beneficiaries of Executive's obligations under this
paragraph. As a result of Executive's employment by Company, Executive may also
from time to time have access to, or knowledge of, confidential business
information or trade secrets 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 trade secrets to the same extent, and on the
same basis, as Company's confidential business information and trade secrets.
4.4 REMEDIES. Executive acknowledges that money damages would not
be sufficient remedy for any breach of this Article by Executive, and Company
shall be entitled 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, but shall be in addition to all
remedies available at law or in equity to Company, including the recovery of
damages from Executive.
ARTICLE 5: NONCOMPETITION OBLIGATIONS
5.1 IN GENERAL. As part of the consideration for the compensation
and benefits to be paid to Executive hereunder; to protect the trade secrets and
confidential information of Company and its affiliates that have been and will
in the future be disclosed or entrusted to Executive, the business good will of
Company and 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 and its affiliates; and as an
additional incentive for Company to enter into this Agreement, Company and
Executive agree to the
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noncompetition obligations hereunder. Executive shall not, directly or
indirectly for Executive or for others, in the State of Texas and in all
parishes of the State of Louisiana:
(i) engage in any business competitive with the business
conducted by Company during the term of employment of Executive in such
states; or
(ii) render advice or services to, be employed by, acquire an
ownership interest in, or otherwise assist, any other person,
association, or entity who is engaged, directly or indirectly, in any
business competitive with the business conducted by Company during the
term of employment of Executive in such states with respect to such
competitive business, except that Executive may hold up to 2% of the
outstanding shares of any publicly held company engaged in such
competitive activities.
The noncompetition obligations set forth above shall apply only during the
period that Executive is employed by Company and for two years thereafter;
provided, however, that such noncompetition obligations shall only apply after
Executive's termination of employment hereunder if such termination shall be as
a result of a resignation by Executive other than under circumstances described
in paragraph 2.3(i).
5.2 ENFORCEMENT AND REMEDIES. Executive acknowledges that money
damages would not be sufficient remedy for any breach of this Article by
Executive, and Company shall be entitled 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, but shall be
in addition to all remedies available at law or in equity to Company, including
without limitation, the recovery of damages from Executive.
5.3 REFORMATION. It is expressly understood and agreed that
Company and Executive consider the restrictions contained in this Article to be
reasonable and necessary to protect the proprietary information of Company.
Nevertheless, if any of the aforesaid restrictions are found by a court having
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 such court so as to be reasonable and enforceable and,
as so modified by the court, to be fully enforced.
ARTICLE 6: EFFECT OF TERMINATION ON COMPENSATION;
ADDITIONAL PAYMENTS
6.1 DEFINED TERMS. For purposes of this Article 6, the following
terms shall have the meanings indicated:
"Change in Control" means (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, (A) 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 60% 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 Company immediately prior to such
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transaction or event or (B) the persons who were members of the Board
of Directors 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, (iii) when any person or entity,
including a "group" as contemplated by Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, 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, (A) if Company has not engaged in a merger or
consolidation, Company, or (B) if Company has engaged in a merger or
consolidation, the resulting entity, or (iv) as a result of or in
connection with a contested election of directors, the persons who were
members of the Board of Directors immediately before such election
shall cease to constitute a majority of the Board of Directors. For
purposes of the preceding sentence, (1) "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 (2) subsequent to the consummation of a merger or consolidation
that does not constitute a Change in Control, the term "Company" shall
refer to the resulting entity and the term "Board of Directors" shall
refer to the board of directors (or comparable governing body) of the
resulting entity.
"Termination Benefits" means (i) a lump sum cash payment equal
to 200% of the sum of (A) Executive's annual base salary at the rate in
effect under paragraph 3.1 on the date of termination of Executive's
employment and (B) the highest annual incentive compensation payment
paid to Executive by Company (pursuant to paragraph 3.2 or otherwise)
during the three years prior to the date of termination of Executive's
employment, and (ii) all of the outstanding stock options, restricted
awards and other equity based awards granted by Company to Executive
shall become fully vested and immediately exercisable in full on the
date of termination of Executive's employment.
6.2 BY EXPIRATION. If Executive's employment hereunder shall
terminate upon expiration of the term provided in paragraph 2.1 hereof because
Executive has provided the notice contemplated in such paragraph to Company,
then all compensation and all benefits to Executive hereunder shall continue to
be provided until the expiration of such term and such compensation and benefits
shall terminate contemporaneously with termination of his employment. If
Executive's employment hereunder shall terminate upon expiration of the term
provided in paragraph 2.1 hereof because Company has provided the notice
contemplated in such paragraph to Executive, then (i) all compensation and all
benefits to Executive hereunder shall continue to be provided until the
expiration of such term, (ii) such compensation and benefits shall terminate
contemporaneously with termination of his employment, and (iii) Company shall
provide Executive with the Termination Benefits. Any lump sum cash payment due
to Executive pursuant to clause (iii) of the preceding sentence shall be paid to
Executive within five business days of the date of Executive's termination of
employment with Company.
6.3 BY COMPANY. If Executive's employment hereunder shall be
terminated by Company prior to expiration of the term provided in paragraph 2.1,
then, upon such termination,
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regardless of the reason therefor, all compensation and benefits to Executive
hereunder shall terminate contemporaneously with the termination of such
employment; provided, however, that:
(i) if such termination shall be for a reason encompassed by
paragraph 2.2(i), then, for a period of 6 months beginning on the date
of such termination, Company shall pay to Executive's designated
beneficiary (or his estate if Executive does not have a beneficiary
designation on file with Company for this purpose) his base salary at
the rate in effect under paragraph 3.1 on the date of such termination;
(ii) if such termination shall be for a reason encompassed by
paragraph 2.2(ii), then, for a period of 6 months beginning on the date
of such termination, Company shall pay to Executive (or, in the event
of Executive's death, his designated beneficiary (or his estate if
Executive does not have a beneficiary designation on file with Company
for this purpose)) his base salary at the rate in effect under
paragraph 3.1 on the date of such termination; and
(iii) if such termination shall be for any reason other than
those encompassed by paragraphs 2.2(i), (ii), or (iii), then Company
shall provide Executive with the Termination Benefits. Any lump sum
cash payment due to Executive pursuant to the preceding sentence shall
be paid to Executive within five business days of the date of
Executive's termination of employment with Company.
6.4 BY EXECUTIVE. If Executive's employment hereunder shall be
terminated by Executive prior to expiration of the term provided in paragraph
2.1, then, upon such termination, regardless of the reason therefor, all
compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment; provided, however,
that:
(i) if such termination occurs for a reason encompassed by
paragraph 2.3(i), then Company shall provide Executive with the
Termination Benefits; and
(ii) if such termination shall occur within the 180-day period
beginning on the date upon which a Change in Control occurs, then
Company shall provide Executive with the Termination Benefits.
If Executive is entitled to Termination Benefits under either clause (i) or
clause (ii) of the preceding sentence, then Executive shall not also be entitled
to additional Termination Benefits under the other clause. Any lump sum cash
payment due to Executive pursuant to this paragraph shall be paid to Executive
within five business days of the date of Executive's termination of employment
with Company.
6.5 ADDITIONAL PAYMENTS BY COMPANY. Notwithstanding anything to the
contrary in this Agreement, in the event that any payment or distribution by
Company to or for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"), would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended, or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest or penalties, are hereinafter collectively referred to as the
"Excise Tax"), Company shall pay to Executive an additional payment (a "Gross-up
Payment") in an amount such that after payment by Executive of all taxes
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(including any interest or penalties imposed with respect to such taxes),
including any Excise Tax imposed on any Gross-up Payment, Executive retains an
amount of the Gross-up Payment equal to the Excise Tax imposed upon the
Payments. Company and Executive shall make an initial determination as to
whether a Gross-up Payment is required and the amount of any such Gross-up
Payment. Executive shall notify Company in writing of any claim by the Internal
Revenue Service which, if successful, would require Company to make a Gross-up
Payment (or a Gross-up Payment in excess of that, if any, initially determined
by Company and Executive) within 10 days of the receipt of such claim. Company
shall notify Executive in writing at least 10 days prior to the due date of any
response required with respect to such claim if it plans to contest the claim.
If Company decides to contest such claim, Executive shall cooperate fully with
Company in such action; provided, however, Company shall bear and pay directly
or indirectly all costs and expenses (including additional interest and
penalties) incurred in connection with such action and shall indemnify and hold
Executive harmless, on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as a result of
Company's action. If, as a result of Company's action with respect to a claim,
Executive receives a refund of any amount paid by Company with respect to such
claim, Executive shall promptly pay such refund to Company. If Company fails to
timely notify Executive whether it will contest such claim or Company determines
not to contest such claim, then Company shall immediately pay to Executive the
portion of such claim, if any, which it has not previously paid to Executive.
6.6 NO DUTY TO MITIGATE LOSSES. Executive shall have no duty to
find new employment following the termination of his employment under
circumstances which require Company to pay any amount to Executive pursuant to
this Article 6. Any salary or remuneration received by Executive from a third
party for the providing of personal services (whether by employment or by
functioning as an independent contractor) following the termination of his
employment under circumstances pursuant to which this Article 6 apply shall not
reduce Company's obligation to make a payment to Executive (or the amount of
such payment) pursuant to the terms of this Article 6.
6.7 LIQUIDATED DAMAGES. In light of the difficulties in estimating
the damages for an early termination of this Agreement, Company and Executive
hereby agree that the payments, if any, to be received by Executive pursuant to
this Article 6 shall be received by Executive as liquidated damages.
6.8 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 7: MISCELLANEOUS
7.1 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
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personally delivered or when mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to Company to: W-H Energy Services, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
If to Executive to: 0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxx 00000
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.
7.2 APPLICABLE LAW. This Agreement is entered into under, and
shall be governed for all purposes by, the laws of the State of Texas.
7.3 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.
7.4 SEVERABILITY. If a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable, then the
invalidity or unenforceability of that provision shall not affect the validity
or enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.
7.5 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.
7.6 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.
7.7 HEADINGS. The paragraph headings have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
7.8 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.
7.9 AFFILIATE. As used in this Agreement, the term "affiliate"
shall mean any entity which owns or controls, is owned or controlled by, or is
under common ownership or control with, Company.
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7.10 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of Company and any successor of Company, by merger or otherwise.
Except as provided in the preceding sentence, this Agreement, and the rights and
obligations of the parties hereunder, are personal and neither this Agreement,
nor any right, benefit, or obligation of either party hereto, shall be subject
to voluntary or involuntary assignment, alienation or transfer, whether by
operation of law or otherwise, without the prior written consent of the other
party.
7.11 TERM. This Agreement has a term co-extensive with the term of
employment provided in paragraph 2.1. Termination shall not affect any right or
obligation of any party which is accrued or vested prior to such termination.
7.12 ENTIRE AGREEMENT. Except as provided in (i) the written
benefit plans and programs referenced in paragraph 6.8 (and any agreements
between Company and Executive that have been executed under such plans and
programs) and (ii) any signed written agreement contemporaneously or hereafter
executed by Company and Executive, this Agreement constitutes the entire
agreement of the parties with regard to the subject matter hereof, and contains
all the covenants, promises, representations, warranties and agreements between
the parties with respect to employment of Executive by Company. Without limiting
the scope of the preceding sentence, all understandings and agreements preceding
the date of execution of this Agreement and relating to the subject matter
hereof (other than the agreements described in clause (i) of the preceding
sentence) are hereby null and void and of no further force and effect. Any
modification of this Agreement will be effective only if it is in writing and
signed by the party to be charged.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the 6th day of May, 2005, to be effective as of the Effective Date.
W-H ENERGY SERVICES, INC.
By: /s/ XXXXXXX X. XXXXX, XX.
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Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chairman & Chief Executive Officer
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
