UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 18, 2010
Newpark Resources,
Inc.
(Exact name of registrant as
specified in its charter)
| Delaware | 001-02960 | 72-1123385 | ||
| (State or other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
| 2700 Research Forest Drive,
Suite 100 The Woodlands, Texas |
77381 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (281) 362-6800
| Not
applicable |
| (Former name or former address if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On October 18, 2010, Newpark Resources, Inc. (the “Company”) announced that Jeffery L. Juergens, age 54, had joined the Company as Vice President of the Company and President of Newpark Mats and Integrated Services (“NMIS”) and Newpark Environmental Services (“NES”), effective as of that date. Mr. Juergens’ appointment as the President of NMIS and NES fills a vacancy in the position. On an interim basis those responsibilities had been assumed by William Moss, Vice President, Corporate Strategy and Development.
Most recently, Mr. Juergens served as the Chief Executive Officer of B&B Oilfield Services, an oilfield equipment manufacturing company, which was acquired by Halliburton in Mach of 2010. From 2007 to 2009, Mr. Juergens served as General Manager to Omni Energy Services. Prior to that he held the position of Vice President, International Operations/Regional Manager with SPS International, a global company specializing in wellbore cleanup equipment and services, subsequently acquired by M-I Swaco. He then held the position of Business Development Manager, North and South America with M-I Swaco Specialized Tools. Mr. Juergens holds a Bachelors Degree in Business and Economics from Arkansas State University and a Masters in Business Administration from the University of Phoenix.
On October 15, 2010, the Company entered into an Employment Agreement with Mr. Juergens under which Mr. Juergens will serve as Vice President of the Company and President of NMIS and NES (the “Employment Agreement”). Under the terms of the Employment Agreement, the Company has agreed to employ Mr. Juergens for an initial three year term commencing on October 18, 2010 with automatic renewal for successive one-year terms thereafter unless either party seeks to terminate his employment by giving the other party written notice at least 60 days prior to the expiration of the then applicable employment term. The Company will pay Mr. Juergens an annual base salary of $280,000. Mr. Juergens will have an opportunity under the Company’s annual cash incentive plan to earn a cash bonus of between 50% and 100% of his annual base salary based on performance measures and goals to be set by the Company’s Compensation Committee.
Mr. Juergens will also be eligible to receive annual stock options and performance restricted share awards under the Company’s plans, as determined at the discretion of the Company’s Compensation Committee. As an inducement to accept employment with the Company, Mr. Juergens was given equity grants on his first day of employment with the Company of 50,000 time-restricted shares, vesting over four years (the first half to vest on October 18, 2012 and the second half to vest on October 18, 2014). Mr. Juergens is also entitled to four weeks of paid vacation annually and the right to participate in the Company’s life and health insurance plans, 401(k) plan and other employee benefit plans and programs generally made available to the Company’s executive personnel. Mr. Juergens will also receive reimbursement in full for all reasonable and necessary business, entertainment and travel expenses incurred or expended by the executive in the performance of his duties. The Company has also agreed to provide Mr. Juergens a car allowance and the use of a NMIS/NES country club membership for NMIS/NES business.
Under the Employment Agreement, the Company and Mr. Juergens may terminate his employment at any time. If the Company terminates Mr. Juergens other than for “Cause” or Mr. Juergens terminates his employment for “Good Reason” (as such terms are defined in the Employment Agreement), Mr. Juergens will be entitled to receive the following benefits: (i) severance pay in an amount equal to Mr. Juergens’ then-current base salary plus target award incentive for the greater of the remaining initial term of employment or for one year, (ii) full vesting of all inducement options and restricted stock awarded at the commencement of employment, (iii) medical, dental and life insurance coverage continuation for the greater of the remaining period of the employment term or twelve months, subject to an overall maximum of eighteen months, and (iv) payment of cost of outplacement services obtained by Mr. Juergens within one year after termination, not to exceed $20,000. In the event of termination of employment due to death or disability, Mr. Juergens will be entitled to the following: (i) earned but unpaid base salary and earned but unpaid bonuses, and (ii) reimbursement of any unpaid business expenses. If Mr. Juergens’ employment is terminated by the Company for “Cause” or by Mr. Juergens without “Good Reason,” Mr. Juergens will be entitled to receive unpaid base salary and other earned compensation through the date of termination.
Pursuant to the Employment Agreement, on October 15, 2010, Mr. Juergens and the Company executed a change of control agreement in a form consistent with the change of control benefits policy applicable to, and similar to that executed by, other executive officers. The change of control agreement requires a change of control of the Company and the termination of Mr. Juergens’ employment under certain circumstances to trigger the benefits (often referred to as a “double-trigger”). Under the change of control agreement, if Mr. Juergens is terminated Without Cause or resigns for Good Reason after the date of the occurrence of certain specified events constituting a change of control of the Company, Mr. Juergens shall be entitled to receive a payment of two times his annual base salary and the higher of the his target bonus or the highest bonus he earned under the Company’s annual cash incentive plan during his tenure with the Company. Mr. Juergens will also receive full vesting of all options, restricted stock and deferred compensation. In addition, Mr. Juergens shall be eligible for continuation of life insurance, medical and dental health benefits, and disability benefits until he obtains reasonably equivalent employment or for two years from the date of termination, whichever is earlier, as well as direct payment by the Company for the costs of outplacement services obtained within the one year period after termination, not to exceed $10,000.
Other than with respect to his employment with the Company, Mr. Juergens does not have any material relationship with any director or executive officer of the Company, the Company or its affiliates and has no family relationships with any directors or officers of the Company.
The foregoing descriptions of the Employment Agreement and Change in Control Agreements are not complete and are qualified in their entirety to the Employment Agreement, attached as Exhibit 10.1 and the Change in Control Agreement, attached as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
A copy of the press release announcing the appointment of Mr. Juergens as President of NMIS is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit Number
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Description | |
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10.1
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Employment Agreement, dated as of October 15, 2010, by and between Newpark Resources, Inc. and Jeffery L. Juergens. | |
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10.2
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Change in Control Agreement dated as of October 15, 2010, by and between Newpark Resources, Inc. and Jeffery L. Juergens. | |
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99.1
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Press Release dated October 18, 2010. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
NEWPARK RESOURCES, INC.
Date: October 18, 2010
By: /s/ James E.
Braun
James E. Braun
Vice President & Chief Financial Officer
(Principal Financial Officer)
EXHIBIT INDEX
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Exhibit Number
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Description | |
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10.1
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Employment Agreement, dated as of October 15, 2010, by and between Newpark Resources, Inc. and Jeffery L. Juergens. | |
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10.2
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Change in Control Agreement dated as of October 15, 2010, by and between Newpark Resources, Inc. and Jeffery L. Juergens. | |
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99.1
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Press Release dated October 18, 2010. |
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated October 15, 2010 is entered into by Newpark Resources, Inc.
(the “Company ”), a Delaware corporation, and Jeffery Lynn Juergens (the “Executive ”) and is
intended to incorporate and accurately reflect all prior negotiations, discussions, or agreements
between the parties.
WHEREAS, the Company desires: a) to retain the services of the Executive as Vice
President of the Company, President of Newpark Mats and Integrated Services (“NMIS”), and
President of Newpark Environmental Services (“NES”) (collectively these titles will be referred to
as “President, NMIS/NES”); b) for the Executive to assume greater responsibilities; and , c) for
the Executive to enter into certain Non-compete Agreements. All, in order to enhance shareholder
value and grow the Company’s business to its maximum potential, and as Executive has represented
himself as qualified to achieve these objectives, and as the parties mutually desire and agree to
enter into an employment relationship by means of this Employment Agreement.
NOW, THEREFORE in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is mutually covenanted and agreed by and between the parties as follows:
1. Employment of Executive
1.1 Employment Term. The Company hereby offers to employ Executive, and Executive hereby
agrees to serve as the President, NMIS/NES reporting to the President and Chief Executive Officer
of the Company on the terms and conditions set forth in this Agreement. The period during which
Executive is employed hereunder shall be referred to as the “Employment Term.” The Executive’s
Employment Term under this Agreement shall commence on October 18, 2010, and shall continue for a
period of three (3) years (“Initial Term”) subject to the provisions of Section 2 “Termination of
Employment”, and shall automatically be renewed for successive one (1) year periods thereafter
unless Executive’s employment is terminated by either party giving written notice to the other
party at least sixty (60) days in advance of the expiration of the initial or any successive
Employment Term. Termination by sixty (60) days written notice pursuant to this Section 1.1 shall
be treated as a termination by Executive under Section 2.2 if given by Executive or as a
termination without Cause under Section 2.3 if given by the Company.
1.2 Compensation and Benefits.
(a) Base Salary. During the Employment Term, the Company will pay Executive a base
monthly salary at an annualized rate of at least Two Hundred Eighty Thousand Dollars ($280,000) per
year (“Base Salary”). The Company will review annually Executive’s Base Salary and, at its
reasonable discretion, may increase such Base Salary as it deems appropriate, provided Executive’s
Base Salary for any subsequent twelve month year shall not be less than the preceding twelve month
year except with Executive’s prior written agreement. Adjustments in Base Salary shall be
automatically incorporated herein by reference and be contractual obligations of Company. Such
Base Salary shall be paid in accordance with the Company’s standard payroll practice for its senior
staff.
(b) Incentive Compensation. In addition to the Base Salary, during the Employment
Term Executive shall be eligible for participation in the 2003 Long Term Incentive Plan and the
2006 Equity Incentive Plan (the two plans referred to collectively as the “LTIP”), and the 2010
Annual Cash Incentive Plan (“ACIP”) subject to any amendments made at Board’s discretion as
provided herein. Performance measures and goals will be set by the Compensation Committee of the
Board. The Target Award under the ACIP is equal to fifty (50%) percent of Base Salary with a
maximum limitation of one hundred percent (100%) of Executive’s actual Base Salary paid for that
calendar year. Payout under the ACIP for a particular year will be made in cash by March 31 of
the next year, e.g. payout for 2011 will occur prior to March 31, 2012. Executive will not be
eligible to participate in the ACIP and the LTIP from the date of his initial appointment as
President of NMIS/NES, but will be eligible beginning on January 1, 2011. Actual
awards, in accordance with the Board approved plan and any amendments, are at the discretion
of the Compensation Committee, provided the Company represents and warrants to the Executive that
the terms of the ACIP and LTIP will not be amended, modified, changed, or interpreted or applied to
make them less generous than they were on March 31, 2010, without prior written notice.
| Employment Agreement — Jeffery Juergens |
(c) Stock Options and Share Awards. In addition, Executive shall receive such
number of stock options and performance restricted share awards as are granted by the Compensation
Committee in accordance with the Board approved plans (all such plans being referred to as the “Plans”). Vesting shall be as provided in these existing plans, and subject to any amendments.
When used in this Agreement “stock” and “shares” mean the Company’s publicly traded common stock,
$.01 par value. Further, throughout this Agreement, the words “stock options, awards, and grants”
are used separately or in various combinations to describe awards of shares or the right to acquire
shares of Company stock under various benefit plans or this Agreement, or both.
(d) Employment Inducement Awards. As an incentive to accepting employment with the Company
and entering into this Agreement, Executive will be awarded upon the commencement of the Employment
Term the following grants under the terms of the 2006 Equity Incentive Plan: Fifty thousand
(50,000) shares of time restricted stock, which restrictions shall be removed (subject to other
conditions precedent) over a four (4) year period as follows — 50% on the second anniversary of the
commencement of the Employment Term and 50% on the fourth anniversary of the commencement of the
Employment Term.
(e) Benefit Plans and Vacation. Subject to the terms of such Plans, throughout his
employment under this Agreement, Executive shall be entitled to participate in any and all employee
benefits plans or programs of the Company to the extent that he is otherwise eligible to
participate under the terms of those plans, including participation in any welfare benefit programs
provided by the Company (including, without limitation, medical, prescription, dental, disability,
employee life, group life, accidental death and travel accident insurance programs), and fringe
benefits and perquisites available generally to Divisional Presidents of the Company , including
the provision of a car allowance. The Company shall not be obligated to institute, maintain, or
refrain from changing, amending, or discontinuing any benefit plan, or perquisite, so long as such
changes are similarly applicable to other Divisional Presidents of the Company. During the
Employment Term, Executive shall be entitled to life insurance equal to three (3) times his Base
Salary. The Executive shall also be entitled to a car allowance in the amount of One Thousand
Three Hundred Dollars ($1,300.00) per month in accordance with the Company’s Vehicle Policy. The
Executive will be allowed use of a NMIS/NES country club membership (at a club to be mutually
agreed) in the Lafayette area for customer entertainment.
During the Employment Term, but beginning on January 1, 2011 Executive shall be entitled to
four (4) weeks paid vacation each calendar year in accordance with the Company’s policies in effect
from time to time, provided the four (4) of weeks of vacation provided in this paragraph shall not
be reduced under such policies. For the remainder of 2010, Executive shall be entitled to a pro
rated amount of vacation from the start of the Employment Term.
(f) Expense Reimbursement. The Company will reimburse Executive in full for all
reasonable and necessary business, entertainment and travel expenses incurred or expended by
Executive in the performance of the duties hereunder in accordance with the Company’s customary
practices applicable to its senior staff.
(g) Location. Executive will be located at the Company’s offices in Lafayette,
Louisiana.
| Employment Agreement — Jeffery Juergens | Page 2 of 22 |
1.3 Extent of Services; Conflicts of Interest.
(a) Executive shall devote substantially all of his working time, attention and
energies to the business of the Company, and its affiliated entities. Executive may be involved in
charitable and professional activities, trade and industry associations and the like providing
these do not interfere with the requirements of employment with the Company.
(b) During the term of his employment under this Agreement, Executive shall not,
directly or indirectly, without the prior consent of the Chief Executive Officer of Company, render
any services to any other person or entity or acquire any interests of any type in any other
entity, that might be deemed in competition with the Company or any of its subsidiaries or
affiliates or in conflict with his position, provided, however, that the foregoing shall not be
deemed to prohibit Executive from (a) acquiring, solely as an investment, any securities of a
partnership, trust, limited liability company, corporation or other entity (i) so long as he
remains a passive investor in such entity, (ii) so long as he does not become part of any control
group thereof, and (iii) so long as such entity is not, directly or indirectly, in competition with
the Company or any of its subsidiaries or affiliates, or (b) serving as a consultant, advisor or
director of any corporation which has a class of outstanding equity securities registered under
Sections 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”),
and which is not in competition with the Company or any of its subsidiaries or affiliates.
(c) Executive shall execute simultaneously with this Agreement, the two Unfair
Competition, Confidentiality and Non-Competition Agreements attached as Appendix A and Appendix B.
(d) Executive shall execute simultaneously with this Agreement an Indemnification Agreement,
in the form of the attached Appendix C, and that agreement is incorporated by reference.
1.4 Change of Control. Executive and Company shall execute a Change of Control Agreement in
the form of the attached Appendix D, and that agreement is incorporated by reference herein.
2. Termination of Employment.
2.1 Termination. Executive’s employment by the Company shall be terminated (1)
automatically, upon the death or disability (as defined below), of Executive, or (2) at the
election of Executive upon 30 days written notice to the Company by Executive for Good Reason (as
defined below) or his voluntary resignation at his election and without Good Reason, (3) by the
Company for Cause (as defined below), (4) by the Company without Cause, or (5) at the end of the
Employment Term as defined in Section 1.1.
2.2 Early Termination. If Executive’s employment is terminated by Executive at
any time before the end of the Employment Term for any reason other than for Good Reason, Executive
shall be entitled to receive only (i) his Base Salary and other earned compensation through the
date of termination and (ii) such stock options, share awards, and grants as shall have fully
vested before the date of termination.
2.3 Termination by Executive for Good Reason or by Company without Cause. If
Executive’s employment is terminated by Executive for Good Reason or by the Company without Cause,
then Executive shall be entitled to receive: (i) in a lump sum payment within thirty (30) days of
the date of termination, an amount equal to the greater of (A) Executive’s current annual Base
Salary as provided herein plus Target Award incentive (50%) for the remaining period of the
Initial Term or (B) Executive’s current annual Base Salary as provided herein plus Target Award
incentive (50%) for one year; (ii) full vesting of all time related Options and restricted stock
awarded at the commencement of employment, provided however, there shall be no vesting of annual
stock awards in the post-employment exercise period in accordance with the Plans; (iii) the
Company will pay the COBRA premium to continue the same coverage under the Company’s group medical
insurance program period for the greater of the remaining period of the Employment Term or twelve
(12) months subject to an overall maximum of eighteen (18)
months and; (iv) direct payment by the Company for the costs of outplacement services obtained by
the Executive within the one (1) year period after termination, not to exceed $20,000.
| Employment Agreement — Jeffery Juergens | Page 3 of 22 |
2.4 Termination for Cause. If Executive’s employment is terminated at any time
during the Employment Term for Cause (as defined herein), then Executive shall be entitled to
receive only (i) his Base Salary through the date of termination and (ii) such stock options,
restricted stock awards, and grants as shall have fully vested before the date of termination. In
any such event, Executive shall be ineligible for and shall forfeit all rights with respect to
options and grants that have not vested as of the time of termination for Cause.
2.5 Termination as a Result of Death. If Executive dies during the Employment
Term, the Company shall pay to Executive’s surviving spouse or such other person or estate as the
Executive may from time to time designate by written notice to the Company, or such other person as
may be required by law, the Company will pay the following amounts: (i) any unpaid Base Salary or
other compensation for services rendered to the date of death, and any unpaid expenses required to
be reimbursed under this Agreement, and any earned but unpaid bonuses for any prior period; (ii) as
of the date of termination by reason of Executive’s death, stock options previously awarded to
Executive that have vested as of the date of death in keeping with the governing Plans. No awards
or grants contemplated by this Agreement, but not yet awarded to Executive as of the time of his
death shall be granted.
2.6 Termination as a Result of Disability. The Company may terminate Executive’s
employment hereunder upon Executive becoming “Totally Disabled.” For purposes of this Agreement,
Executive shall be considered “Totally Disabled” if Executive has been physically or mentally
incapacitated so as to render Executive incapable of performing the essential functions of
Executive’s position with or without reasonable accommodation. Executive’s receipt of disability
benefits for total disability under the Company’s long-term disability plan or receipt of Social
Security total disability benefits shall be deemed conclusive evidence of Total Disability for
purposes of this Agreement. However, in the absence of Executive’s receipt of such long-term
disability benefits or Social Security benefits, the Chief Executive Officer in good faith may
determine that the Executive is disabled due to the needs of the business and the unacceptable
unavailability of Executive which is expected to last for a continuous period of not less than six
(6) months. In the event of such disability, Executive will continue to receive his Base Salary
for six (6) months or until benefits become payable to the Executive under the terms of the
Company’s disability policy, whichever first occurs.
2.7 No Setoff. The Company’s obligation to make payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right, or action which Company may have against the Executive
or others. In no event shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable, or benefits to be provided to the Executive
under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not
the Executive obtains or seeks to obtain other employment.
2.8. Coordination of Benefits. In the event that the Employee is entitled to benefits
following Termination under any Change in Control Agreement with the Company, the Employee shall
have the right to elect whether to receive such benefits under any such Change in Control Agreement
or this Employment Agreement, but not both.
| Employment Agreement — Jeffery Juergens | Page 4 of 22 |
3. Miscellaneous Matters.
3.1 Exclusive Dispute Resolution Procedure. In the event either party contends
the other has not complied with a provision of this Agreement or asserts any claims under ERISA,
other than the Non-Compete Agreements (which are specifically excluded from this procedure), prior
to seeking arbitration as provided for below, the party claiming a violation of this Agreement,
shall advise the other party, in writing, of the specifics of the claim, including the specific
provision alleged to have been violated, as well
as provide the other party with any supporting documentation the party desires to produce at that
time. If the Company is disputing amounts that Executive contends are due to him, the Company
shall provide a complete statement of the amount it is disputing, the reason it is disputing it,
and supporting documentation upon request by Executive. The parties will thereafter meet and
attempt to resolve their differences in a period not to exceed thirty (30) days, unless the parties
agree in writing to mutually extend the time for one additional thirty (30) day period. Following
such attempts to resolve any such dispute, either party may require arbitration of the other. In
order to do so, the request must be timely made, in writing, and delivered to the other party
(Executive or the Chief Executive Officer) within thirty (30) days following the end of the
resolution period (or any valid extension thereof) referenced herein above. The parties hereto
agree that any controversy or claim arising out of or relating to this Agreement, or any dispute
arising out of the interpretation or application of this Agreement, which the parties hereto are
unable to resolve as provided for above, shall be finally resolved and settled exclusively by
arbitration in the city where the Company’s headquarters are then located or such other location as
the parties may agree, by a single arbitrator in accordance with the substantive laws of the State
of Texas to the extent not preempted by the Employee Retirement Income Security Act, which shall
govern all applicable benefits issues, in keeping with the above required procedure. If the
parties cannot agree upon an arbitrator, then each party shall choose its own independent
representative, and those independent representatives shall choose the single arbitrator within
thirty (30) days of the date of the selection of the first independent representative. The legal
expenses of each party shall be borne by them respectively. However, the cost and expenses of the
arbitrator in any such action shall be borne equally by the parties. The arbitrator’s decision,
judgment and award shall be final, binding and conclusive upon the parties and may be entered in
the highest court, state or federal, having jurisdiction. The arbitrator to which any such dispute
shall be submitted in accordance with the provision of this Article shall only have jurisdiction
and authority to interpret, apply or determine compliance with the provisions of this Agreement,
but shall not have jurisdiction or authority to add to, subtract from, or alter in any way the
provisions of this Agreement.
3.2 Headings. Section and other headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or interpretation of this Agreement.
3.3 Notices. Any notice, communication, request, reply or advice (here severally
and collectively called “Notice”) required or permitted to be given under this Agreement must be in
writing and is effectively given by deposit in the same in the United States mail, postage pre-paid
and registered or certified with return receipt requested, by national commercial courier for next
day delivery, or by delivering in person the same to the address of the person or entity to be
notified. Notice deposited in the mail in the manner herein above described shall be effective 48
hours after such deposit, Notice sent by national commercial courier for next day delivery shall be
effective on the date delivered, and Notice delivered in person shall be effective at the time of
delivery. For purposes of Notice, the address of the parties shall, until changed as hereinafter
provided, be as follows:
| (a) | If to the Company: | ||
| Newpark Resources, Inc. 2700 Research Forest Dr. The Woodlands, Texas 77381 Attention: Chief Executive Officer |
or at such address as the Company may have advised Executive in writing; and
| (b) | If to Executive: | ||
| Jeffery Lynn Juergens |
or at such other address as Executive may have advised the Company in writing.
| Employment Agreement — Jeffery Juergens | Page 5 of 22 |
3.4 Waiver. The failure by any party to enforce any of its rights under this
Agreement shall not be deemed to be a waiver of such rights, unless such waiver is an express
written waiver which has been signed by the waiving party. Waiver of any one breach shall not be
deemed to be a waiver of and other breach of the same or any other provision of this Agreement.
3.5 Choice of Law. The validity of the Agreement, the construction of its terms
and the determination of the rights and duties of the parties hereto shall be governed by and
construed in accordance with the laws of the State of Texas without regard to choice of law
principles.
3.6 Invalidity of Provisions. If any provision of this Agreement is adjudicated
to be invalid, illegal or unenforceable under applicable law, the validity or enforceability of the
remaining provisions shall be unaffected. To the extent that any provision of this Agreement is
adjudicated to be invalid, illegal or unenforceable because it is overbroad, that provision shall
not be void but rather shall be limited only to the extent required by applicable law and enforced
as so limited.
3.7 Entire Agreement; Written Modifications. This Agreement, the Non-Compete
Agreements, and the specific documents referred to and incorporated herein by reference (whether or
not copies thereof are attached to this Agreement) together contain the entire agreement between
the parties and supersedes all prior or contemporaneous representations, promises, understandings
and agreements between Executive and the Company.
3.8 No Assignments; Assumption by Successor. This Agreement is personal to the
Company and the Executive and may not be assigned by either party without the prior written consent
of the other. The Company will require any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all of the business and/or assets of
Company to (i) expressly assume and agree to perform this Agreement in the same manner and the same
extent the Company would be required to perform it as if no such succession had taken place; and
(ii) notify the Executive of the assumption of this Agreement within ten days of such assumption.
Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any
such succession shall be considered a Good Reason for the Executive to resign from the Company.
As used in this Agreement, Company shall mean Newpark Resources, Inc., and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this agreement by operation
of law or otherwise. However, this Agreement shall inure to the benefit of and be enforceable by
the Executive’s personal or legal representatives, executors, administrators’ successors, heirs,
and distributes, devisees, and legatees.
3.9 Attorney’s Fees. The prevailing party in any action brought to enforce this
Agreement shall be entitled, in addition to such other relief that may be granted, to a reasonable
sum for attorney’s fees and costs incurred by such party in enforcing or defending against an
action to enforce this Agreement.
3.10 Definitions. In this Agreement:
(a) “Cause” when used with reference to termination of the employment of Executive
by the Company for “Cause”, shall mean:
| (1) | Executive’s conviction by a court of competent jurisdiction of, or entry of a plea of guilty or nolo contendere for an act on the Executive’s part constituting a felony; or | ||
| (2) | dishonesty; willful misconduct or gross neglect by Executive of his obligations under this Agreement that results in material injury to the Company; | ||
| (3) | appropriation (or an overt act attempting appropriation) by Executive of a material business opportunity of the Company; | ||
| (4) | theft, embezzlement or other similar misappropriation of funds or property of the Company by Executive; or |
| Employment Agreement — Jeffery Juergens | Page 6 of 22 |
| (5) | the failure of Executive to follow the reasonable and lawful written instructions or policy of the Company with respect to the services to be rendered and the manner of rendering such services by Executive provided Executive has been given reasonable and specific written notice of such failure and opportunity to cure and no cure has been effected or initiated within a reasonable time, but not less than 90 days, after such notice. |
(b) “Good Reason ” means any of the following:
| (1) | the Company adversely changes Executive’s title or changes in any material respect the responsibilities, authority or status of Executive without prior notice and acceptance; | ||
| (2) | the substantial or material failure of the Company to comply with its obligations under this Agreement or any other agreement that may be in effect that is not remedied within a reasonable time after specific written notice thereof by Executive to the Company; | ||
| (3) | the diminution of the Executive’s salary and or a material diminution of the Executive’s benefits without prior notice and acceptance; | ||
| (4) | the failure of the Company to obtain the assumption of this Agreement by any successor or assignee of the Company | ||
| (5) | Requiring Executive to relocate more than 50 miles from Lafayette, Louisiana | ||
| (6) | provided that in any of the above situations, Executive has given reasonable and specific written notice to the Chief Executive Officer of such failure and the Company has been given a reasonable opportunity to cure and no cure has been effected or initiated within a reasonable time after such notice. |
3.11 Section 409A.
(a) If Executive is a “key employee,” as defined in Section 416(i) of the Code
(without regard to paragraph 5 thereof), except to the extent permitted under Section 409A of the
Code, no benefit or payment that is subject to Section 409A of the Code (after taking into account
all applicable exceptions to Section 409A of the Code, including but not limited to the exceptions
for short-term deferrals and for “separation pay only upon an involuntary separation from service”)
shall be made under this Agreement on account of the Executive’s “separation from service” as
defined in Section 409A of the Code, with the Company until the later of the date prescribed for
payment in this Agreement and the first day of the seventh calendar month that begins after the
date of the Executive’s separation from service (or, if earlier, the date of death of the
Executive).
(b) For purposes of Section 409A of the Code (including, but not limited to,
application of the exceptions for short-term deferrals and for “separation pay only upon
involuntary separation from service”), each payment provided for under this Agreement is hereby
designated as a separate payment, rather than a part of a larger single payment or one of a series
of payments.
(c) Any amount that Executive is entitled to be reimbursed under this Agreement will be
reimbursed to Executive as promptly as practicable and in any event not later than the last day of
the calendar year after the calendar year in which the expenses to be reimbursed are incurred, and
the amount of the expenses eligible for reimbursement during any calendar year. In addition, any
such reimbursement payments described in this Section shall not be subject to liquidation or
exchange for any other payment or benefit.
(d) In the event that Executive is required to execute a release to receive any payments from
the Company that constitute nonqualified deferred compensation under Section 409A of the Code,
payment of such amounts shall not commence until the sixtieth (60th) day following
Executive’s separation from
service with the Company. Any installment payments suspended during such sixty (60) day
period shall be paid as a single lump sum payment on the first payroll date following the end of
such suspension period.
| Employment Agreement — Jeffery Juergens | Page 7 of 22 |
Executed as of the date first written above.
Signed:
|
/s/ Jeffery Lynn Juergens | Signed: | /s/ Paul L. Howes | |||
| Jeffery Lynn Juergens (Executive) | Paul L. Howes | |||||
| President & CEO | ||||||
| Newpark Resources, Inc | ||||||
Witness:
|
/s/ Andrew Guilbeau | Witness: | /s/ Vicki D. Phillips | |||
| Name: Andrew Guilbeau | Name: Vicki D. Phillips |
| Employment Agreement — Jeffery Juergens | Page 8 of 22 |
APPENDIX A
ANCILLARY LOUISIANA UNFAIR COMPETITION, CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT
THIS LOUISIANA UNFAIR COMPETITION, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
(this “Ancillary Agreement ”) dated and effective as of October 15, 2010 is made by Jeffery
Lynn Juergens (“ Executive ”) and Newpark
Resources, Inc. (the “ Company ”).
RECITALS:
WHEREAS , Executive and the Company have entered into an Agreement dated this date
(the “ Employment Agreement ”), to which this Agreement is ancillary and incorporated by
reference, pursuant to which, among other things, the Company agrees to make certain payments to
Executive; and
WHEREAS , pursuant to the Employment Agreement, the Company and Executive have
agreed to enter into this Ancillary Agreement; and
NOW, THEREFORE , in consideration of Executive’s Employment Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Executive and the Company hereby covenant and agree as follows:
1. Definitions. Each capitalized term not defined herein shall have the
meaning assigned to that term in the Employment Agreement.
2. Confidentiality. Executive acknowledges that in the course of his
relationship with the Company and its related entities Newpark Drilling Fluids, Newpark Mats and
Integrated Services, Newpark Environmental Services, and Newpark Canada, (the “ Related
Entities ” or referred to collectively with Newpark Resources as the “ Company ”) he
will in the future receive certain trade secrets, programs, lists of customers and other
confidential or proprietary information and knowledge concerning the business of the Company and
its Related Entities (hereinafter collective referred to as “ Confidential Information ”)
which the Company desires to protect. Executive understands that the information is confidential
and he agrees not to reveal the Confidential Information to anyone outside the Company so long as
the confidential or secret nature of the Confidential Information shall continue, other than such
disclosure as authorized by the Company or is made to a person transacting business with the
Company who has reasonable need for such Confidential Information. Executive further agrees that
he will at no time use the Confidential Information for or on behalf of any person other than the
Company for any purpose. Executive further agrees to comply with the confidentiality and other
provisions set forth in this Agreement, the terms of which are supplemental to any statutory or
fiduciary or other obligations relating to these matters. On the termination of employment or his
Employment Agreement, Executive shall surrender to the Company all papers, documents, writings and
other property produced by him or coming into his possession by or through his relationship with
the Company or relating to the Confidential Information and Executive agrees that all such
materials will at all times remain the property of the Company.
3. Specific Covenants.
(a) This Agreement. The terms of this Agreement constitute
Confidential Information, which Executive shall not disclose to anyone other than his spouse,
attorney, accountant, or as may be required by the Company or by law.
| Appendix A—Jeffery Juergens | Page 9 of 22 |
(b) Company Property. All written materials, customer or other
lists or data bases, records, data, and other documents prepared or possessed by Executive during
Executive’s employment with the Company are the Company’s property. All information, ideas,
concepts, improvements, discoveries, and inventions that are conceived, made, developed, or
acquired by Executive individually or in conjunction with others during Executive’s employment
(whether during business hours and whether on the Company’s premises or otherwise) which relate to
the Company’s business, products, or services are the Company’s sole and exclusive property. All
memoranda, notes, records, files, correspondence, drawings, manuals, models, specifications,
computer programs, maps, and all other documents, data, or materials of any type embodying such
information, ideas, concepts, recipes, inventory, prices, improvements, discoveries, and inventions
are the Company’s property. At the termination of Executive’s employment with the Company for any
reason, Executive shall return all of the Company’s documents, data, or other Company Property to
the Company. Included in the above are all such data that Executive had access to, over, or
possessed. The Company desires by this Agreement to protect its economic investment in its current
and future operations and business.
(c) Confidential Information; Non-Disclosure. Executive
acknowledges and stipulates that the business of the Company is highly competitive, cost and price
sensitive, and that he in connection with his work and job have had access to Confidential
Information relating to the Company’s businesses and their methods and operations. For purposes of
this Agreement, “ Confidential Information ” means and includes the Company’s confidential
and/or proprietary information and/or trade secrets that have been developed or used and/or will be
developed and that cannot be obtained readily by third parties from outside sources. Confidential
Information includes, by way of example and without limitation, the following information regarding
customers, employees, contractors, its operations and its markets and the industry not generally
known to the public; strategies, methods, books, records, and documents; recipes, technical
information concerning products, equipment, services, and processes; procurement procedures and
pricing techniques; the names of and other information concerning customers and those being
solicited to be customers, investors, and business relations (such as contact name, service
provided, pricing for that customer, type and amount of product used, credit and financial data,
and/or other information relating to the Company’s relationship with that customer); pricing
strategies and price curves; positions, plans, and strategies for expansion or acquisitions;
budgets; customer lists; research; financial and sales data; raw materials purchasing or trading
methodologies and terms; evaluations, opinions, and interpretations of information and data;
marketing and merchandising techniques; prospective customers’ names and locations; grids and maps;
electronic databases; models; specifications; computer programs; internal business records;
contracts benefiting or obligating the Company; bids or proposals submitted to any third party;
technologies and methods; training methods and training processes; organizational structure;
personnel information, including salaries of personnel; labor or employee relations or agreements;
payment amounts or rates paid to consultants or other service providers; and other such
confidential or proprietary information. Information need not qualify as a trade secret to be
protected as Confidential Information under this Agreement, and the authorized and controlled
disclosure of Confidential Information to authorized parties by Company in the pursuit of its
business will not cause the information to lose its protected status under this Agreement.
Executive acknowledges and stipulates that this Confidential Information constitutes a valuable,
special, and unique asset used by the Company in its businesses to obtain a competitive advantage
over its competitors. Executive further acknowledges that protection of such Confidential
Information against unauthorized disclosure and use is of critical importance to the Company in
maintaining its competitive position and economic investment, as well as work for its employees.
(d) Unfair Competition Restrictions. Executive agrees that
for a period of twenty- four (24) months following the date of his termination (“ Restricted
Term ”), he will not, directly or indirectly, for himself or for others, anywhere in those
areas where the Company currently (including the City of New Orleans and its surrounding parishes,
and in those cities or parishes listed in Attachment “A-1” attached hereto) (the “ Restricted
Area ”) conducts or is seeking to conduct business of the same nature as the Company, including
the Related Entities, do any of the following, unless expressly authorized by the Chief Executive
Officer of the Company: Engage in, or assist any person, entity, or business engaged in, the
selling or providing of products or services that would displace the products or services that (i)
the
Company is currently in the business of providing and was in the business of providing, or is
planning to be in the business of providing, at the time of the execution of this Agreement, or
(ii) that Executive had involvement in, access to, or received Confidential Information about in
the course of employment. The foregoing is expressly understood to include, without limitation,
the business of the manufacturing, selling and/or providing products or services of the same type
offered and/or sold by the Company.
| Appendix A—Jeffery Juergens | Page 10 of 22 |
4. Prohibition on Circumvention. It is further agreed that during the
Restricted Term, Executive cannot circumvent these covenants by alternative means or engage in any
of the enumerated prohibited activities in the Restricted Area by means of telephone,
telecommunications, satellite communications, correspondence, or other contact from outside the
Restricted Area. Executive further understands that the foregoing restrictions may limit his
ability to engage in certain businesses during the Restricted Term, but acknowledge that these
restrictions are necessary to protect the Confidential Information and business interests of the
Company.
5. Proviso. It is agreed that these covenants do not prevent Executive
from using and offering the general management or other skills that he possessed prior to receiving
access to Confidential Information and knowledge from the Company. This Agreement creates an
advance approval process, and nothing herein is intended, or will be construed as, a general
restriction against Executive’s pursuit of lawful employment in violation of any controlling state
or federal laws. Executive is permitted to engage in activities that would otherwise be prohibited
by this covenant if such activities are determined in the sole discretion of the Chief Executive
Officer of the Company, and authorized in writing, to be of no material threat to the legitimate
business interests of the Company.
6. Non-Solicitation of Customers. For a period of twenty-four (24)
months following Executive’s termination of employment or employment agreement, Executive agrees
not to call on, service, or solicit competing business from customers of the Company, in the
Restricted Area, whom he, within the previous twenty-four (24) months, (i) had or made contact
with, or (ii) induce or encourage any such customer or other source of ongoing business to stop
doing business with the Company. This provision does not prohibit Executive from managing or
providing other services or products that are not a product or services currently offered by the
Company.
7. Non-Solicitation of Employees. For a period of twenty-four (24)
months following the date of Executive’s termination of employment or employment agreement,
Executive will not, either directly or indirectly, call on, solicit, encourage, or induce any other
employee or officer of the Company, whom he had contact with, knowledge of, or association within
the course of employment with the Company to discontinue his or her employment, and will not assist
any other person or entity in such a solicitation.
8. Non-Disparagement. Executive covenants and agrees he will not engage
in any pattern of conduct that involves the making or publishing of written or oral statements or
remarks (including, without limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging, deleterious or damaging to the
integrity, reputation or good will of the Company or its respective management or products and
services.
9. Separability of Covenants. The covenants contained in Section 3
herein constitute a series of separate but ancillary covenants, one for each applicable parish in
the State of Louisiana set forth in this Agreement or Attachment “A-1” hereto. If in any judicial
proceeding, a court shall hold that any of the covenants set forth in Section 3 exceed the time,
geographic, or occupational limitations permitted by applicable law, Executive and the Company
agree that such provisions shall and are hereby reformed to the maximum time, geographic, or
occupational limitations permitted by such laws, Further, in the event a court shall hold
unenforceable any of the separate covenants deemed included herein, then such unenforceable
covenant or covenants shall be deemed eliminated from the provisions of this Agreement for the
purpose of such proceeding to the extent necessary to permit the remaining separate covenants to be
enforced in such proceeding. Executive and the Company further agree that the covenants in Section
3 shall each be construed as a separate agreement independent of any other provisions of this
Agreement, and
the existence of any claim or cause of action by Executive against the Company, whether predicated
on this Agreement, his Employment Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of any of the covenants of Section 3.
| Appendix A—Jeffery Juergens | Page 11 of 22 |
10. Consideration. Executive acknowledges and agrees that no other
consideration for Executive’s covenants in this Agreement, other than that specifically referred to
in Section 1 of the Employment Agreement, has or will be paid or furnished to him by the Company or
the Related Entities.
11. Return of Items. Upon termination and/or retirement, Executive will
return any computer related hardware or software, cell phone, keys, or other data or company
property in his possession or control, including all customer list(s), pricing documents, etc., to
the Company, except as may be specifically provided for to the contrary in the Employment
Agreement.
12. Meaning of Certain Terms. All non-capitalized terms in Sections 3 and
4 are intended to and shall have the same meanings that those terms (to the extent they appear
therein) have in La. R. S. 23:921.C. Subject to and only to the extent not consistent with the
foregoing sentence, the parties understand the following phrases to have the following meanings:
(a) The phrase “ carrying on or engaging in a business
similar to the business of the Company ” includes engaging, as principal, executive, employee,
agent, trustee, advisor, consultant or through the agency of any corporation, partnership,
association or agent or agency, in any business which conducts business in competition with the
Company (including its Related Entities) or being the owner of more than 1% of the outstanding
capital stock of any corporation, or an officer, director, or employee of any corporation or other
entity, (other than the Company or a corporation or other entity, affiliated with the Company) or a
member or employee or any partnership, or an owner or employee of any other business, which
conducts a business or provides a service in the Restricted Area in competition with the Company or
any affiliated corporation or other entity. Moreover, the term also includes (i) directly or
indirectly inducing any current customers of the Company, or any affiliated corporation or other
entity, to patronize any product or service business in competition with the Company or any
affiliated corporation or other entity, (ii) canvassing, soliciting, or accepting any product or
service business of the type conducted by the Company or any affiliated corporation or other entity
(iii) directly or indirectly requesting or advising any current customers of the Company or any
affiliated corporation or other entity, to withdraw, curtail or cancel such customer’s business
with the Company or any affiliated corporation or other entity; or (iv) directly or indirectly
disclosing to any other person, firm, corporation or entity, the names or addresses of any of the
current customers of the Company or any affiliated corporation or other entity or the rates or
other terms on which the Company provides services to its customers. In addition, the term
includes directly or indirectly, through any person, firm, association, corporation or other entity
with which Executive is now or may hereafter become associated, causing or inducing any present
employee of the Company or any affiliated corporation or other entity to leave the employ of the
Company or any affiliated corporation or other entity to accept employment with Executive or with
such person, firm, association, corporation, or other entity.
(b) The phrase “ a business similar to the business of the
Company ” means environmental services to the exploration, production and maritime industries,
mat sales and rentals, drilling fluids, and water treatment and related technology; and, heavy oil
and air treatment.
(c) The phrase “ carries on a like business ” includes,
without limitation, actions taken by or through a wholly-owned subsidiary or other affiliated
corporation or entity.
(d) All references to the Company shall also be deemed to refer
to and include the Related Entities.
13. Reasonable Restrictions. Executive represents to the Company that the
enforcement of the restrictions contained in this Agreement would not be unduly burdensome to
Executive and
acknowledges that Executive is willing and able, subject to the Restricted Area as defined herein,
to compete in other geographical areas not prohibited by this Agreement. The parties to this
Agreement hereby agree that the covenants contained in this Agreement are reasonable.
| Appendix A—Jeffery Juergens | Page 12 of 22 |
14. Entire Agreement. Except with respect to the Employment Agreement
executed concurrently herewith, and with respect to certain matters included in a separate
Agreement being entered into between Executive and the Company on the date of this Agreement (“
Appendix B and B-1 ”), this Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter of this Agreement and supersedes and is in full substitution for
any and all prior agreements and understandings whether written or oral between said parties
relating to the subject matter of this Agreement. This Agreement shall not supersede or substitute
for, nor be superseded or substituted by, the Employment Agreement, but shall have full force and
effect concurrently therewith.
15. Amendment. This Agreement may not be amended or modified in any
respect except by an agreement in writing executed by the parties in the same manner as this
Agreement except as provided in Section 18 of this Agreement.
16. Assignment. This Agreement (including, without limitation,
Executive’s obligations under Sections 3 and 4) may not be assigned by the Company in a manner
inconsistent with 3.8 of Executive’s Employment Agreement without the consent of Executive in
connection with the sale, transfer or other assignment of all or substantially all of the capital
stock or assets of, or the merger of, the Company, provided that the party acquiring such capital
stock or assets or into which the company merges assumes in writing the obligations of the Company
hereunder and provided further that no such assignment shall release the Company from its
obligations hereunder. This Agreement (including, without limitation, Executive’s obligations
under Sections 3 and 4) may not be assigned or encumbered in any way by Executive without the
written consent of the Company.
17. Successors. This Agreement (including, without limitation,
Executive’s obligations under Sections 3 and 4) shall be binding upon and shall inure to the
benefit of and be enforceable by each of the parties and their respective successors and assigns.
18. Unenforceable Provisions. If, and to the extent that, any section,
paragraph, part, term and/or provision of this Agreement would otherwise be found null, void, or
unenforceable under applicable law by any court of competent jurisdiction, that section, paragraph,
part, term and/or provision shall automatically not constitute part of this Agreement. Each
section, paragraph, part, term and/or provision of this Agreement is intended to be and is
severable from the remainder of this Agreement. If, for any reason, any section, paragraph, part,
term and/or provision herein is determined not to constitute part of this Agreement or to be null,
void, or unenforceable under applicable law by any court of competent jurisdiction, the operation
of the other sections, paragraphs, parts, terms and/or provisions of this Agreement as may remain
otherwise intelligible shall not be impaired or otherwise affected and shall continue to have full
force and effect and bind the parties hereto.
19. Remedies.
(a) Executive agrees that a breach or violation of Section 3
or 4 of this Agreement by Executive shall entitle the Company as a matter of right, to an
injunction, without necessity of posting bond, issued by any court of competent jurisdiction,
restraining any further or continued breach or violation of such provisions. Such right to an
injunction shall be cumulative and in addition, and not in lieu of, any other remedies to which the
Company may show themselves justly entitled, including, but not limited to, specific performance
and damages. The parties specifically agree that the remedy of damages alone is inadequate.
| Appendix A—Jeffery Juergens | Page 13 of 22 |
(b) In the event that Executive knowingly and intentionally
fails in any material respect to perform any of his material obligations under this Agreement, the
Company may elect (i) to
cease any payments under the Employment Agreement and recover all payments made to Executive under
the Employment Agreement on or subsequent to the date of the failure, (ii) obtain an injunction
and/or (iii) exercise any and all other remedies available by law.
(c) Notwithstanding the foregoing subsection (b), Executive
will have no liability or responsibility for: (i) inadvertent disclosure or use of the Information
if (x) he uses the same degree of care in safeguarding the Information that the Company uses to
safeguard information of like importance and (y) upon discovery of such inadvertent disclosure or
use of such material, Executive immediately uses his best efforts, including the commencement of
litigation, if necessary, to prevent any use thereof by the person or persons to whom it has been
disclosed and to prevent any further incidental disclosure thereof; and (ii) , disclosure of
Information (x) that is required by law, (y) that is made pursuant to a proper subpoena from a
court or administrative agency of competent jurisdiction from a court or administrative agency of
competent jurisdiction or (z) that is made upon written demand of an official involved in
regulating Executive if before disclosure is made, Executive immediately notifies the Company of
the requested disclosure by the most immediate means of communication available and confirms in
writing such notification within one business day thereafter.
20. Notice. All notices, consents, requests, approvals or other
communications in connection with this Agreement and all legal process in regard hereto shall be in
writing and shall be deemed validly delivered, if delivered personally or sent by certified mail,
postage prepaid. Unless changed by written notice pursuant hereto, the address of each party for
the purposes hereof is as follows:
If to Executive:
|
If to the Company: | |
Jeffery Lynn Juergens
|
2700 Research Forest , Suite 100 | |
| The Woodlands, Texas 77381 | ||
| Attn: Chief Executive Officer |
Notice given by mail as set out above shall be deemed delivered only when actually received.
21. Descriptive Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
22. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Louisiana without regard to conflicts of law
principles.
IN WITNESS WHEREOF , the parties have duly executed this Louisiana Unfair Competition,
Confidentiality and Non-competition Agreement as of the date first above written.
Signed:
|
Signed: | |||||||||
| President & CEO | ||||||||||
| Newpark Resources, Inc |
| Appendix A—Jeffery Juergens | Page 14 of 22 |
ATTACHMENT A-1 (Restricted Areas)
States and areas in which Newpark Resources, Inc. currently does business:
| 1. | Louisiana | |
| 2. | Texas | |
| 3. | Oklahoma | |
| 4. | Arkansas | |
| 5. | California | |
| 6. | Colorado |
| 7. | Wyoming | |
| 8. | Utah | |
| 9. | Nevada | |
| 10. | New York | |
| 11. | West Virginia | |
| 12. | Montana |
Other areas:
| 9. | The Gulf of Mexico, off what is commonly the “Gulf Coast.” | |
| 10. | Western Canada |
Louisiana Parishes in which Newpark Resources, Inc currently does business:
| 1. | Acadia | |
| 2. | Allen | |
| 3. | Assumption | |
| 4. | Avoyelles | |
| 5. | Beauregard | |
| 6. | Bossier | |
| 7. | Calcasieu | |
| 8. | Cameron | |
| 9. | East Ascension | |
| 10. | East Baton Rouge | |
| 11. | Evangeline | |
| 12. | Grant | |
| 13. | Iberia | |
| 14. | Iberville | |
| 15. | Jeff Davis | |
| 16. | Jefferson |
| 17. | Lafayette | |
| 18. | Lafourche | |
| 19. | Livingston | |
| 20. | Plaquemine | |
| 21. | Pointe Coupee | |
| 22. | Rapides | |
| 23. | Richland | |
| 24. | St. Charles | |
| 25. | St. James | |
| 26. | St. Landry | |
| 27. | St. Martin | |
| 28. | St. Mary | |
| 29. | St. Tammany | |
| 30. | Terrebonne | |
| 31. | Vermilion | |
| 32. | Washington |
| Appendix B—Jeffery Juergens | Page 15 of 22 |
APPENDIX B
TEXAS AND NON-LOUISIANA UNFAIR COMPETITION, CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT
THIS UNFAIR COMPETITION, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “
Ancillary Agreement ”) dated and effective as of October 15, 2010 is made by Jeffery Lynn
Juergens (“ Executive ”) and Newpark Resources, Inc. (the “ Company ”).
RECITALS:
WHEREAS , Executive and the Company have entered into an Agreement dated this date
(the “ Employment Agreement ”), to which this Agreement is ancillary and incorporated by
reference, pursuant to which, among other things, the Company agrees to make certain payments to
Executive; and
WHEREAS , pursuant to the Employment and Settlement Agreement, the Company and
Executive have agreed to enter into this Ancillary Agreement; and
NOW, THEREFORE, in consideration of Executive’s Employment Agreement and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Executive
and the Company hereby covenant and agree as follows:
1. Definitions. Each capitalized term not defined herein shall
have the meaning assigned to that term in the Employment Agreement.
2. Confidentiality. Executive acknowledges that in the course of
his relationship with the Company and its related entities Newpark Drilling Fluids, Newpark Mats
and Integrated Services, Newpark Environmental Services, and Newpark Canada, (the “ Related
Entities ” or referred to collectively with Newpark Resources as the “ Company ”) he
will in the future receive certain trade secrets, programs, lists of customers and other
confidential or proprietary information and knowledge concerning the business of the Company and
its Related Entities (hereinafter collective referred to as “ Confidential Information ”)
which the Company desires to protect. Executive understands that the information is confidential
and he agrees not to reveal the Confidential Information to anyone outside the Company so long as
the confidential or secret nature of the Confidential Information shall continue, other than such
disclosure as authorized by the Company or is made to a person transacting business with the
Company who has reasonable need for such Confidential Information. Executive further agrees that
he will at no time use the Confidential Information for or on behalf of any person other than the
Company for any purpose. Executive further agrees to comply with the confidentiality and other
provisions set forth in this Agreement, the terms of which are supplemental to any statutory or
fiduciary or other obligations relating to these matters. On the termination of employment or his
Employment Agreement, Executive shall surrender to the Company all papers, documents, writings and
other property produced by him or coming into his possession by or through his relationship with
the Company or relating to the Confidential Information and Executive agrees that all such
materials will at all times remain the property of the Company.
| Appendix B—Jeffery Juergens | Page 16 of 22 |
3. Specific Covenants.
(a) This Agreement. The terms of this Agreement constitute
Confidential Information, which Executive shall not disclose to anyone other than his spouse,
attorney, accountant, or as may be required by the Company or by law.
(b) Company Property. All written materials, customer or
other lists or data bases, records, data, and other documents prepared or possessed by Executive
during Executive’s employment with the Company are the Company’s property. All information, ideas,
concepts, improvements, discoveries, and inventions that are conceived, made, developed, or
acquired by Executive individually or in conjunction with others during Executive’s employment
(whether during business hours and whether on the Company’s premises or otherwise) which relate to
the Company’s business, products, or services are the Company’s sole and exclusive property. All
memoranda, notes, records, files, correspondence, drawings, manuals, models, specifications,
computer programs, maps, and all other documents, data, or materials of any type embodying such
information, ideas, concepts, recipes, inventory, prices, improvements, discoveries, and inventions
are the Company’s property. At the termination of Executive’s employment with the Company for any
reason, Executive shall return all of the Company’s documents, data, or other Company Property to
the Company. Included in the above are all such data that Executive had access to, over, or
possessed. The Company desires by this Agreement to protect its economic investment in its current
and future operations and business.
(c) Confidential Information; Non-Disclosure. Executive
acknowledges and stipulates that the business of the Company is highly competitive, cost and price
sensitive, and that he in connection with his work and job have had access to Confidential
Information relating to the Company Resource’s businesses and their methods and operations. For
purposes of this Agreement, “ Confidential Information ” means and includes the Company’s
confidential and/or proprietary information and/or trade secrets that have been developed or used
and/or will be developed and that cannot be obtained readily by third parties from outside
sources. Confidential Information includes, by way of example and without limitation, the
following information regarding customers, employees, contractors, its operations and its markets
and the industry not generally known to the public; strategies, methods, books, records, and
documents; recipes, technical information concerning products, equipment, services, and processes;
procurement procedures and pricing techniques; the names of and other information concerning
customers and those being solicited to be customers, investors, and business relations (such as
contact name, service provided, pricing for that customer, type and amount of product used, credit
and financial data, and/or other information relating to the Company’s relationship with that
customer); pricing strategies and price curves; positions, plans, and strategies for expansion or
acquisitions; budgets; customer lists; research; financial and sales data; raw materials purchasing
or trading methodologies and terms; evaluations, opinions, and interpretations of information and
data; marketing and merchandising techniques; prospective customers’ names and locations; grids and
maps; electronic databases; models; specifications; computer programs; internal business records;
contracts benefiting or obligating the Company; bids or proposals submitted to any third party;
technologies and methods; training methods and training processes; organizational structure;
personnel information, including salaries of personnel; labor or employee relations or agreements;
payment amounts or rates paid to consultants or other service providers; and other such
confidential or proprietary information. Information need not qualify as a trade secret to be
protected as Confidential Information under this Agreement, and the authorized and controlled
disclosure of Confidential Information to authorized parties by Company in the pursuit of its
business will not cause the information to lose its protected status under this Agreement.
Executive acknowledges and stipulates that this Confidential Information constitutes a valuable,
special, and unique asset used by the Company in its businesses to obtain a competitive advantage
over its competitors. Executive further acknowledges that protection of such Confidential
Information against unauthorized disclosure and use is of critical importance to the Company in
maintaining its competitive position and economic investment, as well as work for its employees.
(d) Unfair Competition Restrictions. Executive agrees
that for a period of twenty-four (24) months following the date of his termination or such lesser
period of time as is the maximum amount permitted by law (“ Restricted Term ”), he will
not, directly or indirectly, for himself or for others, anywhere in those areas where the Company
currently (including the City of Houston and its surrounding counties, and in those cities or
counties or states listed in Attachment “B-1” attached hereto) (the “ Restricted Area ”)
conducts or is seeking to conduct business of the same nature as Newpark Resources and its Related
Entities, do any of the following, unless expressly authorized by the Chief Executive Officer of
the Company: Engage in, or assist any person, entity, or business engaged in, the
selling or providing of products or services that would displace the products or services that (i)
the Company is currently in the business of providing and was in the business of providing, or is
planning to be in the business of providing, at the time of the execution of this Agreement, or
(ii) that Executive had involvement in, access to, or received Confidential Information about in
the course of employment. The foregoing is expressly understood to include, without limitation,
the business of the manufacturing, selling and/or providing products or services of the same type
offered and/or sold by the Company.
| Appendix B—Jeffery Juergens | Page 17 of 22 |
4. Prohibition on Circumvention. It is further agreed that during the
Restricted Term, Executive cannot circumvent these covenants by alternative means or engage in any
of the enumerated prohibited activities in the Restricted Area by means of telephone,
telecommunications, satellite communications, correspondence, or other contact from outside the
Restricted Area. Executive further understands that the foregoing restrictions may limit his
ability to engage in certain businesses during the Restricted Term, but acknowledge that these
restrictions are necessary to protect the Confidential Information and business interests of the
Company.
5. Proviso. It is agreed that these covenants do not prevent Executive
from using and offering the general management or other skills that he possessed prior to receiving
access to Confidential Information and knowledge from the Company. This Agreement creates an
advance approval process, and nothing herein is intended, or will be construed as, a general
restriction against Executive’s pursuit of lawful employment in violation of any controlling state
or federal laws. Executive is permitted to engage in activities that would otherwise be prohibited
by this covenant if such activities are determined in the sole discretion of the Board of the
Company, and authorized in writing, to be of no material threat to the legitimate business
interests of the Company.
6. Non-Solicitation of Customers. For a period of twenty-four (24) months
following Executive’s termination of employment or employment agreement, Executive agrees not to
call on, service, or solicit competing business from customers of the Company, in the Restricted
Area, whom he, within the previous twenty-four (24) months, (i) had or made contact with, or (ii)
induce or encourage any such customer or other source of ongoing business to stop doing business
with the Company. This provision does not prohibit Executive from managing or providing other
services or products that are not a product or services currently offered by the Company.
7. Non-Solicitation of Employees. For a period of twenty-four (24) months
following the date of Executive’s termination of employment or employment agreement, Executive will
not, either directly or indirectly, call on, solicit, encourage, or induce any other employee or
officer of the Company, whom he had contact with, knowledge of, or association within the course of
employment with the Company to discontinue his or her employment, and will not assist any other
person or entity in such a solicitation.
8. Non-Disparagement. Executive covenants and agrees he will not engage
in any pattern of conduct that involves the making or publishing of written or oral statements or
remarks (including, without limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging, deleterious or damaging to the
integrity, reputation or good will of the Company or its respective management or products and
services.
9. Separability of Covenants. The covenants contained in Section 3 herein
constitute a series of separate but ancillary covenants, one for each applicable county in the
State of Texas and/or each area of operation in each state, county, and area as set forth in this
Agreement or Attachment “B- 1” hereto. If in any judicial proceeding, a court shall hold that any
of the covenants set forth in Section 3 exceed the time, geographic, or occupational limitations
permitted by applicable law, Executive and the Company agree that such provisions shall and are
hereby reformed to the maximum time, geographic, or occupational limitations permitted by such
laws. Further, in the event a court shall hold unenforceable any of the separate covenants deemed
included herein, then such unenforceable covenant or covenants shall be deemed eliminated from the
provisions of this Agreement for the purpose of such proceeding to the extent necessary to permit
the remaining separate covenants to be enforced in such proceeding. Executive and the
Company further agree that the covenants in Section 3 shall each be construed as a separate
agreement independent of any other provisions of this Agreement, and the existence of any claim or
cause of action by Executive against the Company, whether predicated on this Agreement or
Employment Agreement or otherwise, shall not constitute a defense to the enforcement by the Company
of any of the covenants of Section 3.
| Appendix B—Jeffery Juergens | Page 18 of 22 |
10. Consideration. Executive acknowledges and agrees that no other
consideration for Executive’s covenants in this Agreement, other than that specifically referred to
in Section 1 of the Employment Agreement, has or will be paid or furnished to him by the Company or
the Related Entities.
11. Return of Items. Upon termination and/or retirement, Executive will
return any computer related hardware or software, cell phone, keys, or other data or company
property in his possession or control, including all customer list(s), pricing documents, etc., to
the Company, except as may be specifically provided for to the contrary in Executive’s Employment
Agreement.
12. Meaning of Certain Terms. The parties understand the following phrases
to have the following meanings:
(a) The phrase “ carrying on or engaging in a business
similar to the business of the Company ” includes engaging, as principal, executive, employee,
agent, trustee, advisor, consultant or through the agency of any corporation, partnership,
association or agent or agency, in any business which conducts business in competition with the
Company (including its Related Entities) or being the owner of more than 1% of the outstanding
capital stock of any corporation, or an officer, director, or employee of any corporation or other
entity, (other than the Company or a corporation or other entity, affiliated with the Company) or a
member or employee or any partnership, or an owner or employee of any other business, which
conducts a business or provides a service in the Restricted Area in competition with the Company or
any affiliated corporation or other entity. Moreover, the term also includes (i) directly or
indirectly inducing any current customers of the Company, or any affiliated corporation or other
entity, to patronize any product or service business in competition with the Company or any
affiliated corporation or other entity, (ii) canvassing, soliciting, or accepting any product or
service business of the type conducted by the Company or any affiliated corporation or other entity
(iii) directly or indirectly requesting or advising any current customers of the Company or any
affiliated corporation or other entity, to withdraw, curtail or cancel such customer’s business
with the Company or any affiliated corporation or other entity; or (iv) directly or indirectly
disclosing to any other person, firm, corporation or entity, the names or addresses of any of the
current customers of the Company or any affiliated corporation or other entity or the rates or
other terms on which the Company provides services to its customers. In addition, the term
includes directly or indirectly, through any person, firm, association, corporation or other entity
with which Executive is now or may hereafter become associated, causing or inducing any present
employee of the Company or any affiliated corporation or other entity to leave the employ of the
Company or any affiliated corporation or other entity to accept employment with Executive or with
such person, firm, association, corporation, or other entity.
(b) The phrase “ a business similar to the business of the
Company ” means environmental services to the exploration, production and maritime industries,
mat sales and rentals, drilling fluids, and water treatment and related technology; and, heavy oil
and air treatment.
(c) The phrase “ carries on a like business ”
includes, without limitation, actions taken by or through a wholly-owned subsidiary or other
affiliated corporation or entity.
(d) All references to the Company shall also be deemed to
refer to and include the Related Entities
| Appendix B—Jeffery Juergens | Page 19 of 22 |
13. Reasonable Restrictions. Executive represents to the Company that the
enforcement of the restrictions contained in this Agreement would not be unduly burdensome to
Executive and
acknowledges that Executive is willing and able, subject to the Restricted Area as defined herein,
to compete in other geographical areas not prohibited by this Agreement. The parties to this
Agreement hereby agree that the covenants contained in this Agreement are reasonable.
14. Entire Agreement. Except with respect to the Employment Agreement
executed concurrently herewith, and with respect to certain matters included in a separate
Agreement being entered into between Executive and the Company on the date of this Agreement (“
Appendix A and A-1 ”), this Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter of this Agreement and supersedes and is in full substitution for
any and all prior agreements and understandings whether written or oral between said parties
relating to the subject matter of this Agreement. This Agreement shall not supersede or substitute
for, nor be superseded or substituted by, the Employment Agreement, but shall have full force and
effect concurrently therewith.
15. Amendment. This Agreement may not be amended or modified in any
respect except by an agreement in writing executed by the parties in the same manner as this
Agreement except as provided in Section 18 of this Agreement.
16. Assignment. This Agreement (including, without limitation,
Executive’s obligations under Sections 3 and 4) may not be assigned by the Company in a manner
inconsistent with 3.8 of Executive’s Employment Agreement without the consent of Executive in
connection with the sale, transfer or other assignment of all or substantially all of the capital
stock or assets of, or the merger of, the Company provided that the party acquiring such capital
stock or assets or into which the company merges assumes in writing the obligations of the Company
hereunder and provided further that no such assignment shall release the Company from its
obligations hereunder. This Agreement (including, without limitation, Executive’s obligations
under Sections 3 and 4) may not be assigned or encumbered in any way by Executive without the
written consent of the Company.
17. Successors. This Agreement (including, without limitation,
Executive’s obligations under Sections 3 and 4) shall be binding upon and shall inure to the
benefit of and be enforceable by each of the parties and their respective successors and assigns.
18. Unenforceable Provisions. If, and to the extent that, any section,
paragraph, part, term and/or provision of this Agreement would otherwise be found null, void, or
unenforceable under applicable law by any court of competent jurisdiction, that section, paragraph,
part, term and/or provision shall automatically not constitute part of this Agreement. Each
section, paragraph, part, term and/or provision of this Agreement is intended to be and is
severable from the remainder of this Agreement. If, for any reason, any section, paragraph, part,
term and/or provision herein is determined not to constitute part of this Agreement or to be null,
void, or unenforceable under applicable law by any court of competent jurisdiction, the operation
of the other sections, paragraphs, parts, terms and/or provisions of this Agreement as may remain
otherwise intelligible shall not be impaired or otherwise affected and shall continue to have full
force and effect and bind the parties hereto.
19. Remedies.
(a) Executive agrees that a breach or violation of Section 3
or 4 of this Agreement by Executive shall entitle the Company as a matter of right, to an
injunction, without necessity of posting bond, issued by any court of competent jurisdiction,
restraining any further or continued breach or violation of such provisions. Such right to an
injunction shall be cumulative and in addition, and not in lieu of, any other remedies to which the
Company may show themselves justly entitled, including, but not limited to, specific performance
and damages. The parties specifically agree that the remedy of damages alone is inadequate.
| Appendix B—Jeffery Juergens | Page 20 of 22 |
(b) In the event that Executive knowingly and intentionally
fails in any material respect to perform any of his material obligations under this Agreement, the
Company may elect (i) to
cease any payments due under the Employment Agreement and recover all payments made to Executive
under the Employment Agreement on or subsequent to the date of the failure, (ii) obtain an
injunction and/or (iii) exercise any and all other remedies available by law.
Notwithstanding the foregoing subsection (b), Executive will have no liability or responsibility
for: (i) inadvertent disclosure or use of the Information if (x) he uses the same degree of care in
safeguarding the Information that the Company uses to safeguard information of like importance and
(y) upon discovery of such inadvertent disclosure or use of such material, Executive immediately
uses his best efforts, including the commencement of litigation, if necessary, to prevent any use
thereof by the person or persons to whom it has been disclosed and to prevent any further
incidental disclosure thereof; and (ii) , disclosure of Information (x) that is required by law,
(y) that is made pursuant to a proper subpoena from a court or administrative agency of competent
jurisdiction from a court or administrative agency of competent jurisdiction or (z) that is made
upon written demand of an official involved in regulating Executive if before disclosure is made,
Executive immediately notifies the Company of the requested disclosure by the most immediate means
of communication available and confirms in writing such notification within one business day
thereafter.
20. Notice. All notices, consents, requests, approvals or other
communications in connection with this Agreement and all legal process in regard hereto shall be in
writing and shall be deemed validly delivered, if delivered personally or sent by certified mail,
postage prepaid. Unless changed by written notice pursuant hereto, the address of each party for
the purposes hereof is as follows:
If to Executive:
|
If to the Company: | |
Jeffery Lynn Juergens
|
2700 Research Forest Drive, Suite 100 | |
| The Woodlands, Texas 77381 | ||
| Attn: Chief Executive Officer |
Notice given by mail as set out above shall be deemed delivered only when actually received.
21. Descriptive Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
22. Governing Law. This Appendix B shall be governed by and construed and
enforced in accordance with the laws of the State of Texas (other than the choice of law principles
thereof).
IN WITNESS WHEREOF , the parties have duly executed this Unfair Competition,
Confidentiality and Non-competition Agreement as of the date first above written.
Signed:
|
Signed: | |||||||||
President & CEO Newpark Resources, Inc |
| Appendix B—Jeffery Juergens | Page 21 of 22 |
ATTACHMENT B-1 (Restricted Areas)
Areas in which Newpark Resources, Inc. currently does business:
Areas in which Newpark Resources, Inc. currently does business:
1.
|
Louisiana | 7. | Wyoming | |||||
2.
|
Texas | 8. | Utah | |||||
3.
|
Oklahoma | 9. | Nevada | |||||
4.
|
Arkansas | 10. | New York | |||||
5.
|
California | 11. | West Virginia | |||||
6.
|
Colorado | 12. | Montana |
Other states or areas in which Newpark Resources, Inc currently does business:
| 9. | Western Canada | |
| 10. | Gulf of Mexico (off the “ Gulf Coast ”) |
Texas Counties in which Newpark Resources, Inc currently does business:
1.
|
Andrews | 21. | Ector | 41. | Karnes | 61. | Pecos | 81. | Val Verde | |||||||||||||||||
2.
|
Aransas | 22. | Fayette | 42. | Kenedy | 62. | Polk | 82. | Victoria | |||||||||||||||||
3.
|
Austin | 23. | Fort Bend | 43. | Kleberg | 63. | Reagan | 83. | Waller | |||||||||||||||||
4.
|
Bee | 24. | Freestone | 44. | Lavaca | 64. | Reeves | 84. | Washington | |||||||||||||||||
5.
|
Bienville | 25. | Gaines | 45. | Leon | 65. | Robertson | 85. | Webb | |||||||||||||||||
6.
|
Borden | 26. | Galveston | 46. | Liberty | 66. | Roosevelt | 86. | Wharton | |||||||||||||||||
7.
|
Brazoria | 27. | Glasscock | 47. | Limestone | 67. | Rusk | 87. | Winkler | |||||||||||||||||
8.
|
Brazos | 28. | Goliad | 48. | Live Oak | 68. | San Patricio | 88. | Yoakum | |||||||||||||||||
9.
|
Brooks | 29. | Gregg | 49. | Loving | 69. | Schleicher | 89. | Zapata | |||||||||||||||||
10.
|
Burleson | 30. | Hardin | 50. | Lubbock | 70. | Scurry | |||||||||||||||||||
11.
|
Calhoun | 31. | Harris | 51. | Marion | 71. | Shelby | |||||||||||||||||||
12.
|
Cameron | 32. | Harrison | 52. | Matagorda | 72. | Snyder | |||||||||||||||||||
13.
|
Chambers | 33. | Hidalgo | 53. | McMullen | 73. | Starr | |||||||||||||||||||
14.
|
Cochran | 34. | Hockley | 54. | Motley | 74. | Sterling | |||||||||||||||||||
15.
|
Colorado | 35. | Houston | 55. | Nacogdoches | 75. | Terrell | |||||||||||||||||||
16.
|
Crane | 36. | Howard | 56. | Navarro | 76. | Terry | |||||||||||||||||||
17.
|
Crockett | 37. | Jackson | 57. | Newton | 77. | Titus | |||||||||||||||||||
18.
|
Culberson | 38. | Jefferson | 58. | Nueces | 78. | Tom Green | |||||||||||||||||||
19.
|
Dewitt | 39. | Jim Hogg | 59. | Orange | 79. | Upshur | |||||||||||||||||||
20.
|
Duval | 40. | Jim Wells | 60. | Panola | 80. | Upton | |||||||||||||||||||
| Appendix B—Jeffery Juergens | Page 22 of 22 |
Exhibit 10.2
October 15, 2010
Jeffery Lynn Juergens
|
PERSONAL AND CONFIDENTIAL |
|
Dear Jeff,
Newpark Resources, Inc., a Delaware corporation (“Newpark”), considers you a valuable
executive, and the Board of Directors (the “Board”) has authorized certain actions to reinforce and
encourage your attention and dedication to your duties without distraction if Newpark should become
the target of a hostile takeover attempt or enter into negotiations that could lead to a change in
control of Newpark.
This letter (the “Agreement”) sets forth the understanding between you and Newpark concerning
the continuation of your employment in connection with a “Change in Control” or “Potential Change
in Control” and the “Termination Benefit” you will receive if your employment with Newpark is
“Terminated” by Newpark without “Cause” or by you for “Good Reason” during an “Employment Period,”
as those terms are defined in Annex A attached to this letter.
This Agreement is entered into with the understanding between you and Newpark that you will
have knowledge or otherwise be notified of a Change in Control or Potential Change in Control, or
the Termination thereof, at the time it occurs.
1. Definitions. Capitalized terms used in this Agreement are defined in Annex A
attached hereto and hereby incorporated into this Agreement by reference and in Section 14 hereof.
2. Consideration; Termination During Employment Period.
2.1 Subject to the terms and conditions of this Agreement, you agree that you will not resign
from Newpark during an Employment Period except for Good Reason.
2.2 Newpark shall pay you the Termination Benefit if (1) your employment with Newpark is
Terminated by your resignation for Good Reason or (2) your employment with Newpark is Terminated by
Newpark (i) not for Cause, (ii) by the independent exercise of Newpark’s unilateral authority,
(iii) not due to your implicit or explicit request, (iv) when you are both willing and able to
continue the performance of your duties (and, without limiting the foregoing, therefore not by
reason of your death or your failure to return to the full-time performance of your duties after
the end of a Disability Period), and (v) such Termination otherwise constitutes an “involuntary
separation from service” within the meaning of Section 409A of the Code and the regulations
thereunder.
Jeffery Lynn Juergens
October 15, 2010
Page 2
October 15, 2010
Page 2
2.3 If your employment with Newpark is Terminated by Newpark during an Employment Period for
Cause, Newpark shall give you written notice of Termination specifying the facts and circumstances
constituting such Cause.
3. Compensation Upon Termination or During Disability.
3.1 During any Disability Period occurring during an Employment Period, you shall continue to
receive your full base salary at the rate then in effect and on the dates and at the intervals as
your base salary would be payable under Newpark’s payroll practices at that time, unless and until
your employment is Terminated.
3.2 If your employment is Terminated by Newpark for Cause, Newpark shall pay you your full
base salary at the rate then in effect through the date of Termination, together with any severance
pay, vacation pay and sick leave pay to which you are entitled in accordance with Newpark policy.
Unless otherwise required under Paragraph 9, all of the amounts to which you are entitled under
this Paragraph 3.2 shall be paid in a single lump sum payment made to you on or before the
thirtieth day following the date of Termination. Neither this provision nor any payment made by
Newpark in accordance herewith shall constitute waiver of Newpark’s right to recover from you any
damages caused by your conduct which constituted Cause for such Termination and any similar
conduct.
3.3 If you become entitled to the Termination Benefit in accordance with Paragraph 2.2, you
shall receive, in addition to the Termination Benefit, your full base salary at the rate then in
effect through the date of Termination, plus a pro-rated annual bonus through the date of
Termination. The Termination Benefit shall be in lieu of any severance pay, vacation pay and sick
leave pay to which you would otherwise be entitled in accordance with Newpark policy. Unless
otherwise required under Paragraph 9, all of the amounts to which you are entitled under this
Paragraph 3.3 shall be paid in a single lump sum payment made to you on or before the thirtieth day
following the date of Termination.
3.4 If you become entitled to the Termination Benefit in accordance with Paragraph 2.2, all
unexpired unexercised stock options (“Options”), if any, granted to you prior to a Change in
Control under any stock option plan of Newpark or otherwise, shall become exercisable in full on
the day preceding the date of Termination, whether or not they would have been fully exercisable
but for this provision, and shall remain exercisable during their original exercise period or for a
period of three (3) years from the date of Termination whichever is the shorter, whether or not
they would remain exercisable for such period but for this provision.
3.5 If you become entitled to the Termination Benefit in accordance with Paragraph 2.2, all
unvested shares of restricted stock and all deferred compensation amounts, including restricted
stock or deferred compensation subject to vesting based on time or achieving performance criteria,
if any, granted or awarded to you prior to a Change in Control under any stock plan or deferred
compensation plan of Newpark or otherwise, shall become vested in full on the day preceding the
date of Termination and all restrictions thereon shall lapse, whether or not they would have been
vested in full but for this provision. Newpark shall promptly deliver
all such shares to you, and all such deferred compensation shall be paid to you in a lump sum
on the date of Termination.
Jeffery Lynn Juergens
October 15, 2010
Page 3
October 15, 2010
Page 3
3.6 If you become entitled to the Termination Benefit in accordance with Paragraph 2.2,
Newpark shall continue to provide you and your eligible family members, based on the cost sharing
arrangement between you and Newpark on the date of Termination, with life insurance, medical and
dental health benefits and Disability coverage and benefits at least equal to those which would
have been provided to you if your employment had not Terminated for a period of 24 months.
Notwithstanding the foregoing, if you become re-employed and are eligible to receive life
insurance, medical and dental health benefits and Disability coverage and benefits under another
employer’s plans, Newpark’s obligations under this paragraph shall be reduced to the extent of any
such coverage and benefits. You agree to promptly report any such coverage and benefits to
Newpark. If you are ineligible under the terms of Newpark’s benefit plans or programs to continue
to be so covered, Newpark shall provide you with substantially equivalent coverage through other
sources or will reimburse you for the cost of obtaining such coverage and benefits.
3.7 If you become entitled to the Termination Benefit in accordance with Paragraph 2.2,
Newpark shall provide you with outplacement services, payable by Newpark, with an aggregate cost
not to exceed $10,000 with an executive outplacement service firm reasonably acceptable to you and
Newpark.
3.8 Except as provided in Paragraph 3.6, you shall not be required to mitigate the amount of
any Termination Benefit by seeking other employment or otherwise, nor shall the amount of any
Termination Benefit be reduced by any compensation earned by you as the result of employment by
another employer, or otherwise.
3.9 Except as expressly provided otherwise herein, none of the provisions of this Agreement is
intended to curtail or limit in any way any contractual rights which you may have under any plan in
which you are eligible to participate or under any agreement binding on Newpark to which you are a
party, and all such contractual rights shall survive the execution of this Agreement and any Change
in Control. The Termination Benefit shall not be considered compensation for any benefit
calculation or other purpose under any retirement plan or other benefit plan maintained by Newpark.
4. Successors; Binding Agreement. This Agreement shall be binding on and inure to the
benefit of Newpark and any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of Newpark.
This Agreement shall inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
5. Termination of Agreement. For Officers with Employment Agreements this contract
may only be Terminated in accordance with the provisions of that agreement. For other employees.
Newpark may Terminate this Agreement effective at any time after March 31st 2009, by notice to you,
if no Change in Control has occurred prior to the giving of such notice,
and no Potential Change in Control then exists. Once Terminated, this Agreement shall have no
further force or effect.
Jeffery Lynn Juergens
October 15, 2010
Page 4
October 15, 2010
Page 4
6. Notices. All notices and all other communications provided for in the Agreement
shall be in writing and shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt. Notices to Newpark shall be directed to the
attention of the Secretary of Newpark.
7. Amendments; Waivers. No provision or term of this Agreement may be supplemented,
amended, modified, waived or Terminated except in a writing duly executed by all parties intended
to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided. Failure of a party to insist
on strict compliance with any of the terms and conditions of this Agreement shall not be deemed a
waiver of any such terms and conditions.
8. Coordination of Benefits. In the event that the Employee is entitled to benefits
following Termination under any Employment Agreement with Newpark, the Employee shall have the
right to elect whether to receive such benefits under this Agreement or any Employment Agreement,
but not both.
9. Section 409A.
9.1 If Executive is a “key employee,” as defined in Section 416(i) of the Code (without regard
to paragraph 5 thereof), except to the extent permitted under Section 409A of the Code, no benefit
or payment that is subject to Section 409A of the Code (after taking into account all applicable
exceptions to Section 409A of the Code, including but not limited to the exceptions for short-term
deferrals and for “separation pay only upon an involuntary separation from service”) shall be made
under this Agreement on account of the Executive’s “separation from service,” as defined in Section
409A of the Code, with the Company until the later of the date prescribed for payment in this
Agreement and the first day of the seventh calendar month that begins after the date of the
Executive’s separation from service (or, if earlier, the date of death of the Executive).
9.2 For purposes of Section 409A of the Code (including, but not limited to, to application of
the exceptions for short-term deferrals and for “separation pay only upon an involuntary separation
from service”), each payment provided for under this Agreement is hereby designated as a separate
payment, rather than a part of a larger single payment or one of a series of payments.
9.3 Any amount that Executive is entitled to be reimbursed under this Agreement will be
reimbursed to Executive as promptly as practicable and in any event not later than the last day of
the calendar year after the calendar year in which the expenses to be
reimbursed are incurred, and the amount of the expenses eligible for reimbursement during any
calendar year will not affect the amount of expenses eligible for reimbursement in any other
calendar year. In addition, any such reimbursement payments described in this Section shall not be
subject to liquidation or exchange for any other payment or benefit.
Jeffery Lynn Juergens
October 15, 2010
Page 5
October 15, 2010
Page 5
9.4 In the event that Executive is required to execute a release to receive any payments from
the Company that constitute nonqualified deferred compensation under Section 409A of the Code,
payment of such amounts shall not commence until the sixtieth (60th) day following
Executive’s separation from service with the Company. Any installment payments suspended during
such sixty (60) day period shall be paid as a single lump sum payment on the first payroll date
following the end of such suspension period.
10. No Guarantee of Tax Treatment. The Company makes no representation or warranty,
and undertakes no covenant, regarding any federal, state or local tax treatment of amounts or
matters subject to this Agreement or any federal, state or local tax treatment applicable to or
inapplicable to Executive.
11. Entire Agreement. This Agreement, including Annex A, constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes all
previous agreements, whether written or oral, relating to the same subject matter. All such
previous agreements between the parties hereto are hereby Terminated and shall have no further
force or effect.
12. Attorneys’ Fees. In any litigation relating to this Agreement, including
litigation with respect to any instrument, document or agreement made under or in connection with
this Agreement, the prevailing party shall be entitled to recover its costs and reasonable
attorneys’ fees.
13. Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware.
Your rights hereunder shall terminate if the Change in Control Agreement amended hereby is
terminated in accordance with the provisions of such Change in Control Agreement.
Jeffery Lynn Juergens
October 15, 2010
Page 6
October 15, 2010
Page 6
If this letter correctly sets forth our understanding on the subject matter hereof, kindly
sign and return to Newpark the enclosed copy of this letter, which will then constitute our
Agreement on this subject.
| Very truly yours, NEWPARK RESOURCES, INC. |
||||
| By: | /s/ Paul L. Howes | |||
| Paul L. Howes | ||||
| President and CEO | ||||
Agreed to this 15th day of October, 2010
/s/ Jeffery Lynn Juergens
Jeffery Lynn Juergens
Jeffery Lynn Juergens
ANNEX A TO LETTER AGREEMENT
DATED OCTOBER 15, 2010
DATED OCTOBER 15, 2010
The following terms used herein and in letter agreement (the “Agreement”) dated October 15,
2010 between Newpark Resources, Inc., and Jeffery Lynn Juergens (“Executive”) shall have the
following meanings:
“Cause”, when used with reference to Termination of the employment of Executive by Newpark for
“Cause”, shall mean:
a) Executive’s conviction by a court of competent jurisdiction of, or entry of a plea of
guilty or nolo contendere for an act on the Executive’s part constituting a felony dishonesty,
willful misconduct or material neglect by Executive of his obligations under this Agreement that
results in material injury to the Company;
b) appropriation (or an overt act attempting appropriation) of a material business opportunity
of the Company;
c) theft, embezzlement or other similar misappropriation of funds or property of the Company
by Executive;
d) the failure of Executive to follow the reasonable and lawful written instructions or policy
of Newpark with respect to the services to be rendered and the manner of rendering such services by
Executive, provided Executive has been given reasonable and specific written notice of such failure
and opportunity to cure and no cure has been effected or initiated within a reasonable time, but
not less than 90 days, after such notice
A “Change of Control” shall be deemed to occur if: (i) a “Takeover Transaction” (as defined
below) occurs; or (ii) any election of directors of Newpark takes place (whether by the directors
then in office or by the stockholders at a meeting or by written consent) and a majority of the
directors in the office following such election are individuals who were not nominated by a vote of
two-thirds of the members of the Board of Directors or its nominating committee immediately
preceding such election; or (iii) Newpark effectuates a complete liquidation or a sale or
disposition of all or substantially all of its assets unless immediately following any such sale or
disposition of all or substantially all of its assets the individuals who were members of the Board
of Directors of Newpark immediately prior to such transaction continue to constitute a majority of
the Board of Directors or other governing body of the surviving corporation or entity (or, in the
case of an acquisition involving a holding company, constitute a majority of the Board of Directors
or other governing body of the holding company) for a period of not less than twelve (12) months
following the closing of such transaction. A “Takeover Transaction” shall mean (i) a merger or
consolidation of Newpark with, or an acquisition by Newpark of the equity interests or all or
substantially all of the assets of, any other corporation or entity, other than a merger,
consolidation or acquisition in which the individuals who were members of the Board of Directors of
Newpark immediately prior to such transaction continue to constitute a majority of the Board of
Directors or other governing body of the surviving corporation or entity (or, in the case of an
acquisition involving a holding company, constitute a majority of the Board of Directors or other
governing body of the holding company) for a period of not less than twelve (12) months following
the closing of such transaction, or (ii) one or more
occurrences or events as a result of which any individual, entity or group (as such term is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) becomes the “beneficial owner”
(as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of thirty
percent (30%) or more of the combined voting power of Newpark’s then outstanding securities.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Company” or “Newpark” shall mean Newpark Resource, Inc., and its consolidated subsidiaries
and any successor to its business and/or assets which assumes or becomes subject to this Agreement
by operation of law or otherwise.
“Disability” shall mean Executive’s full-time absence from his duties with Newpark, as a
result of incapacity due to physical or mental illness.
“Disability Period” shall mean a leave of absence for Disability for a period of not more than
six (6) months commencing on the first day of a Disability occurring during the Employment Period.
“Employment Period” shall mean a period (a) commencing when a Potential Change in Control
occurs or, if no Potential Change in Control has occurred with respect to a Change in Control, when
such Change in Control occurs, and (b) ending two years after such Change in Control occurred. If
the event or agreement that gives rise to a Potential Change in Control Terminates or is Terminated
without the Change in Control contemplated thereby having occurred, the Employment Period shall
Terminate upon Termination of such event or agreement; however, a new Employment Period shall
commence under the same conditions upon any subsequent Potential Change in Control or Change in
Control.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Good Reason” shall mean any one or more of the following occurring (i) during the Employment
Period, (ii) without Executive’s express written consent, (iii) for the first time within 45 days
prior to the Executive’s written notice to the Company objecting to the condition or occurrence and
remaining uncured by the Company for at least 30 days after such notice, and (iv) within 90 days
prior to Executive’s resignation as a result thereof:
a) the Company adversely changes Executive’s title or changes in any material respect the
responsibilities, authority or status of Executive the substantial or material failure of the
Company to comply with its obligations under this Agreement or any other agreement that may be in
effect that is not remedied within a reasonable time after specific written notice thereof by
Executive to the Company;
b) the diminution of the Executive’s salary, incentive and or a material diminution of the
Executive’s benefits Newpark’s requiring Executive to be based anywhere outside a 50 mile radius
from the Newpark office at which Executive had been based prior to the Change in Control or
Potential Change in Control, or a 50 mile radius from his present residence, whichever is farther,
except for required travel on Newpark’s business to an extent substantially consistent with
Executive’s present business travel obligations; or
2
c) the failure of the Company to obtain the assumption of this Agreement or other existing
employment agreement by any successor or assignee of the Company.
A “Potential Change in Control” shall be deemed to have occurred on the date that (a) Newpark
first has actual knowledge that any person (as such term is used in Sections 13(d) and 14(d)(2) of
the Exchange Act) has become the beneficial owner (as defined in Rule 13(d)-3 under the Exchange
Act), directly or indirectly, or has initiated an offer which has not expired and which, if
accepted by holders of a sufficient number of Newpark’s then outstanding securities, would result
in such person’s becoming the beneficial owner, directly or indirectly, of securities of Newpark
representing thirty percent (30%) or more of the combined voting power of Newpark’s then
outstanding securities, or (b) Newpark enters into an agreement (including a letter of intent) the
consummation of which would result in a Change in Control.
“Start Date” shall mean the first day of an Employment Period.
“Terminate” and “Termination” and all variants of the foregoing shall mean and refer to the
termination of Executive’s employment with the Company, other than by reason of death, that
constitutes a “separation from service” within the meaning of Section 409A of the Code and the
regulations thereunder.
“Termination Benefit” shall mean the amount determined in accordance with subsection (a)
below. If Executive is entitled to a Termination Benefit, it shall be paid to Executive no later
than the 60th day following the date on which his employment Terminates. The Termination Benefit
shall be an amount equal to (i) 2 times Executive’s annual base salary for the fiscal year of
Newpark immediately preceding the fiscal year in which the Start Date occurs plus (ii) 2
times the higher of: a) the highest bonus actually received by the Executive; or b) the “Target
Award Opportunity” to which Executive would be entitled under the 2010 Annual Cash Incentive Plan
of Newpark for the fiscal year of Newpark immediately preceding the fiscal year in which the Start
Date occurs.
3
Exhibit 99.1
 FOR IMMEDIATE RELEASE |
NEWS RELEASE | |||
| Contacts: | James E. Braun, CFO Newpark Resources, Inc. 281-362-6800 Ken Dennard, Managing Partner Dennard Rupp Gray & Easterly, LLC ksdennard@drg-e.com 713-529-6600 |
|||
NEWPARK RESOURCES ANNOUNCES NEW PRESIDENT OF
MATS AND INTEGRATED SERVICES
AND ENVIRONMENTAL SERVICES BUSINESSES
MATS AND INTEGRATED SERVICES
AND ENVIRONMENTAL SERVICES BUSINESSES
THE WOODLANDS, TX — OCTOBER 18, 2010 — Newpark Resources, Inc. (NYSE: NR) (the “Company”) today
announced that Jeff Juergens, age 54, has been named President of Newpark’s Mats and Integrated
Services and Environmental Services businesses, effective October 18, 2010. Mr. Juergens will also
serve as an Executive Officer of the Company and will be based in Lafayette, Louisiana.
Paul Howes, Newpark’s President and Chief Executive Officer, stated, “We are extremely pleased
to welcome Jeff to our management team. He brings us over 30 years of widespread experience in the
oil and gas services industry, including both domestic and international operations. He has a
successful record of managing multiple operating locations for profitability and growth, and we
look forward to his contribution and leadership.”
Before joining Newpark, Mr. Juergens held the position of Chief Executive Officer of B&B
Oilfield Services, where he successfully led and refocused the company to regain profitability.
Previously from 2007 to 2009, he was at Omni Energy Services, where he led the company’s Seismic
Drilling Division as General Manager. Prior to 2007, he served SPS International, a wellbore
cleanup tools and technology company, as Vice President International Operations, with
responsibility for the development of operations in Canada and Latin America. Mr. Juergens began
his career with BJ Services and also worked for Baker Hughes. Mr. Juergens has a bachelor’s degree
in business and economics from Arkansas State University and a Masters in Business Administration
from University of Phoenix.
Newpark Resources, Inc. is a worldwide provider of drilling fluids, temporary worksites and
access roads for oilfield and other commercial markets, and environmental waste treatment
solutions.
This news release contains forward-looking statements within the meaning of the Private Securities
Litigation Reform Act that are based on management’s current expectations, estimates and
projections. All statements that address expectations or projections about the future, including
Newpark’s strategy for growth, product development, market position, expected expenditures and
financial results are forward-looking statements. Some of the forward-looking statements may be
identified by words like “expects,” “anticipates,” “plans,” “intends,” “projects,” “indicates,” and
similar expressions. These statements are not guarantees of future performance and involve a number
of risks, uncertainties and assumptions. Many factors, including those discussed more fully
elsewhere in this release and in documents filed with the Securities and Exchange Commission by
Newpark, particularly its Annual Report on Form 10-K for the year ended December 31, 2009, as well
as others, could cause results to differ materially from those stated. These risk factors include,
but are not limited to, our customer concentration and cyclical nature of our industry, the
availability of raw materials and skilled personnel, our market competition, the cost and continued
availability of borrowed funds, our international operations, legal and regulatory matters,
including environmental regulations, inherent limitations in insurance coverage, potential
impairments of long-lived intangible assets, technological developments in our industry, the impact
of severe weather, particularly in the U.S. Gulf Coast, and restrictions on offshore drilling
activity in the Gulf of Mexico. Newpark’s filings with the Securities and Exchange Commission can
be obtained at no charge at www.sec.gov, as well as through our website at www.newpark.com.
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