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 17, 2011
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 17, 2011, Newpark Resources, Inc. (the “Company”) announced that Gregg S. Piontek, age 41, was promoted to Vice President and Chief Financial Officer of the Company, effective as of November 1, 2011. Mr. Piontek’s appointment as the Chief Financial Officer of the Company fills a vacancy in the position left by James E. Braun.
Mr. Piontek joined the Company as Vice President, Controller and Chief Accounting Officer in April 2007. Prior to joining the Company, Mr. Piontek was Vice President and Chief Accounting Officer of Stewart & Stevenson LLC from February 2006 to March 2007, where he served as the lead executive financial officer for the asset acquisition from Stewart & Stevenson Services, Inc. and $150 million public debt offering. From 2001 to 2006, Mr. Piontek held the positions of Assistant Corporate Controller and Division Controller for Stewart & Stevenson Services, Inc. Prior to that, Mr. Piontek served in various financials roles at General Electric and CNH Global N.V., after beginning his career as an auditor for Deloitte & Touche LLP. Mr. Piontek is a Certified Public Accountant and holds a bachelor degree in Accountancy from Arizona State University and a Master of Business Administration degree from Marquette University.
On October 18, 2011, the Company entered into an Employment Agreement with Mr. Piontek under which Mr. Piontek will serve as Vice President and Chief Financial Officer of the Company (the “Employment Agreement”). Under the terms of the Employment Agreement, the Company has agreed to employ Mr. Piontek for an initial three year term commencing on November 1, 2011 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. Piontek an annual base salary of $300,000. Mr. Piontek will have an opportunity under the Company’s annual cash incentive plan to earn a cash bonus of between 0% (in the event target objectives are not met) and 110% of his annual base salary based on performance measures and goals to be set by the Company’s Compensation Committee. The target award for Mr. Piontek is equal to 55% of his annual base salary. In addition, at the discretion of the Compensation Committee based upon goals to be established by the Committee at the beginning of each year, he may have the opportunity to earn an incentive bonus beyond 110% of his base salary, subject to the deferred payment requirements of the annual cash incentive plan.
Mr. Piontek will also be eligible to receive annual stock options and restricted share awards under the Company’s plans, as determined at the discretion of the Company’s Compensation Committee. In connection with his promotion, Mr. Piontek was given equity grants of 20,000 time-restricted shares, vesting annually over three years. Mr. Piontek 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. Piontek 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. Piontek a car allowance of $1,300 per month.
Under the Employment Agreement, the Company and Mr. Piontek may terminate his employment at any time. If the Company terminates Mr. Piontek other than for “Cause” or Mr. Piontek terminates his employment for “Good Reason” (as such terms are defined in the Employment Agreement), Mr. Piontek will be entitled to receive the following benefits: (i) severance pay in an amount equal to Mr. Piontek’s then-current base salary plus target award incentive for the greater of the remaining initial term of employment or for one year, (ii) 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 (iii) payment of cost of outplacement services obtained by Mr. Piontek within one year after termination, not to exceed $20,000. In the event of termination of employment due to death or disability, Mr. Piontek 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. Piontek’s employment is terminated by the Company for “Cause” or by Mr. Piontek without “Good Reason,” Mr. Piontek will be entitled to receive unpaid base salary and other earned compensation through the date of termination.
The Company and Mr. Piontek previously entered into a Change of Control Agreement dated January 7, 2008. The Change of Control Agreement was in a form similar to the form of Change of Control previously filed by the Company with the SEC and the benefits thereunder are described in the Company’s Proxy Statement for the 2011 Annual Meeting, filed with the SEC on April 28, 2011. On June 2, 2011, the Company and Mr. Piontek executed an amendment to the Change of Control Agreement to provide to increase the benefit from one times base salary and incentive to two times base salary and incentive. The Change of Control Agreement, as previously amended, is not being amended in connection with his promotion to Vice President and Chief Financial Officer of the Company.
Other than with respect to his employment with the Company, Mr. Piontek 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 description of the Employment Agreement is not complete and is qualified in its entirety to the Employment Agreement attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
A copy of the press release announcing the appointment of Mr. Piontek as Vice President and Chief Financial Officer of the Company is attached as Exhibit 99.1 to the Current Report on Form 8-K filed with the SEC on October 17, 2011.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit Number | Description | |
|
10.1
|
Employment Agreement, dated as of October 18, 2011, by and between Newpark Resources, Inc. and Gregg S. Piontek. |
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 21, 2011
By: /s/ Mark J. Airola
Mark J. Airola
Senior Vice President,
General Counsel, and
Corporate Secretary
EXHIBIT INDEX
| Exhibit Number | Description | |
|
10.1
|
Employment Agreement, dated as of October 18, 2011, by and between Newpark Resources, Inc. and Gregg S. Piontek. |
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated October 18, 2011 is entered into by Newpark Resources, Inc. (the
“Company ”), a Delaware corporation, and Gregg Steven Piontek (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
and Chief Financial Officer of the Company (referred to as “CFO”); 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 CFO 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 November 1, 2011, 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 Three Hundred Thousand Dollars ($300,000) 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-five (55%) percent 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, except
to the extent payments associated with achievement beyond the “over-achievement” level are
deferred, as provided for in the ACIP. The bonus awarded to Executive for 2011 shall be calculated
using a Target Award of 46.67%, (equivalent to pro-rating 45% for the first 10 months of 2011, and
55% for the last 2 months of 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 October 18, 2011, without prior written notice.
Employment
Agreement—Gregg Piontek
(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) 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 Executive Officers 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 Executive Officers 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.
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.
(e) 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.
(f) Location. Executive will be located at the Company’s offices in The Woodlands, Texas.
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.
Employment
Agreement—Gregg Piontek
Page 2 of 22
(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 have executed a Change of Control Agreement
dated January 7, 2008, as amended, which shall remain in effect in accordance with its own terms.
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 (55%) for the remaining period of the Initial Term
or (B) Executive’s current annual Base Salary as provided herein plus Target Award incentive (55%)
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.
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
Employment
Agreement—Gregg Piontek
Page 3 of 22
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.
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.
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Agreement—Gregg Piontek
Page 4 of 22
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: | ||
| Gregg Steven Piontek 67 S. Taylor Point Drive The Woodlands, TX 77382 |
or at such other address as Executive may have advised the Company in writing.
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.
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Agreement—Gregg Piontek
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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 | ||
| (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; |
Employment
Agreement—Gregg Piontek
Page 6 of 22
| (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 The Woodlands, Texas | ||
| (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.
[Remainder of page to be left blank]
Employment
Agreement—Gregg Piontek
Page 7 of 22
Executed as of the date first written above.
Signed:
|
/s/ Gregg S. Piontek | Signed: | /s/ Paul L. Howes | |||||||
| Gregg Steven Piontek (Executive) | Paul L. Howes President & CEO Newpark Resources, Inc |
|||||||||
Witness:
|
/s/ Vicki D. Phillips | Witness: | /s/ Vicki D. Phillips | |||||||
Employment
Agreement—Gregg Piontek
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 18, 2011 is made by Gregg Steven
Piontek (“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—Gregg Piontek
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—Gregg Piontek
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—Gregg Piontek
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.
Appendix
A—Gregg Piontek
Page 12 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 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.
(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.
Appendix
A—Gregg Piontek
Page 13 of 22
(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 : | |
Gregg Steven Piontek
|
2700 Research Forest , Suite 100 | |
67 S. Taylor Point Drive
|
The Woodlands, Texas 77381 | |
The Woodlands, TX 77382
|
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:
|
/s/ Gregg S. Piontek
|
Signed: | /s/ Paul L. Howes
|
|||||||
| Gregg Steven Piontek | Paul L. Howes President & CEO Newpark Resources, Inc |
Appendix
A—Gregg Piontek
Page 14 of 22
ATTACHMENT A-1 (Restricted Areas)
States and areas in which Newpark Resources, Inc. currently does business:
States and areas in which Newpark Resources, Inc. currently does business:
1.
|
Louisiana | 9. | New York | |||||
2.
|
Texas | 10. | West Virginia | |||||
3.
|
Oklahoma | 11. | Montana | |||||
4.
|
Arkansas | 12. | North Dakota | |||||
5.
|
Colorado | 13. | Pennsylvania | |||||
6.
|
Wyoming | 14. | Ohio | |||||
7.
|
Utah | 15. | New Mexico | |||||
8.
|
Nevada |
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 | 17. | Lafayette | |||||
2.
|
Allen | 18. | Lafourche | |||||
3.
|
Assumption | 19. | Livingston | |||||
4.
|
Avoyelles | 20. | Plaquemine | |||||
5.
|
Beauregard | 21. | Pointe Coupee | |||||
6.
|
Bossier | 22. | Rapides | |||||
7.
|
Calcasieu | 23. | Richland | |||||
8.
|
Cameron | 24. | St. Charles | |||||
9.
|
East Ascension | 25. | St. James | |||||
10.
|
East Baton Rouge | 26. | St. Landry | |||||
11.
|
Evangeline | 27. | St. Martin | |||||
12.
|
Grant | 28. | St. Mary | |||||
13.
|
Iberia | 29. | St. Tammany | |||||
14.
|
Iberville | 30. | Terrebonne | |||||
15.
|
Jeff Davis | 31. | Vermilion | |||||
16.
|
Jefferson | 32. | Washington |
Appendix
A—Gregg Piontek
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 18, 2011 is made by Gregg Steven Piontek (“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.
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
B—Gregg Piontek
Page 16 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 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—Gregg Piontek
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—Gregg Piontek
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—Gregg Piontek
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—Gregg Piontek
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 : | |
Gregg Steven Piontek
|
2700 Research Forest Drive, Suite 100 | |
67 S. Taylor Point Drive,
|
The Woodlands, Texas 77381 | |
The Woodlands, TX 77382
|
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:
|
/s/ Gregg S. Piontek
|
Signed: | /s/ Paul L. Howes
|
|||||||
| Gregg Steve Piontek (Executive) | Paul L. Howes President & CEO Newpark Resources, Inc |
Appendix
B—Gregg Piontek
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 | 9. | New York | |||||
2.
|
Texas | 10. | West Virginia | |||||
3.
|
Oklahoma | 11. | Montana | |||||
4.
|
Arkansas | 12. | North Dakota | |||||
5.
|
Colorado | 13. | Pennsylvania | |||||
6.
|
Wyoming | 14. | Ohio | |||||
7.
|
Utah | 15. | New Mexico | |||||
8.
|
Nevada |
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—Gregg Piontek
Page 22 of 22