This Employment
Agreement (this “Agreement”) is entered into as of
June 8, 2009, by and between Weatherford International Ltd., a
Swiss company (the “Company”), and Joseph C. Henry (the
“Executive”).
WHEREAS, the Board
has previously determined that it is in the best interests of the
Company and its shareholders to retain the Executive and to induce
the employment of the Executive for the long-term benefit of the
Company;
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the parties hereto do hereby agree as
follows:
(a) “Affiliate”
shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
(b) “Beneficial
Owner” shall have the meaning set forth in Rule 13d-3
under the Exchange Act
(c) “Board”
shall mean the Board of Directors of the Company.
(i) the
willful and continued failure of the Executive to substantially
perform the Executive’s duties with the Company (other than
any such failure resulting from incapacity due to physical or
mental illness or anticipated failure after the issuance of a
Notice of Termination for Good Reason by the Executive pursuant to
Section 4(c)), after a written demand for substantial
performance is delivered to the Executive by the Board which
specifically identifies the manner in which the Executive has not
substantially performed the Executive’s duties, or
(ii) the
willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Company.
No act, or failure
to act, on the part of the Executive shall be considered
“willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer or of a more senior
officer of the Company or based upon the advice of counsel for the
Company (which may be the General Counsel or other counsel employed
by the Company or its subsidiaries) shall be conclusively presumed
to be done, or omitted to be done, by the Executive in good faith
and in the best interests of the Company. The cessation of
employment of the Executive shall not be deemed to be for
Cause
unless and
until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a meeting
of the Board called and held for such purpose (after reasonable
notice is provided to the Executive, and the Executive is given an
opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive
is guilty of the conduct described in subparagraph (i) or
(ii) above, and specifying the particulars thereof in
detail.
(e) “Change
of Control” shall be deemed to have occurred if any event set
forth in any one of the following paragraphs shall have
occurred:
(i) any
Person is or becomes the Beneficial Owner, directly or indirectly,
of twenty percent (20%) or more of either (A) the then
outstanding common shares of the Company (the “Outstanding
Company Common Shares”) or (B) the combined voting power
of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
“Outstanding Company Voting Securities”), excluding any
Person who becomes such a Beneficial Owner in connection with a
transaction that complies with clauses (A), (B) and
(C) of paragraph (iii) below;
(ii) individuals,
who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least two-thirds (2/3) of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least two-thirds (2/3)
of the Incumbent Board shall be considered as though such
individual was a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or any
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
(iii) the
consummation of a reorganization, merger, amalgamation,
consolidation, scheme of arrangement, exchange offer or similar
transaction of the Company or any of its subsidiaries or the sale,
transfer or other disposition of all or substantially all of the
Company’s Assets (any of which a “Corporate
Transaction”), unless, following such Corporate Transaction
or series of related Corporate Transactions, as the case may be,
(A) all of the individuals and entities (which, for purposes
of this Agreement, shall include, without limitation, any
corporation, partnership, association, joint-stock company, limited
liability company, trust, unincorporated organization or other
business entity) who were the beneficial owners, respectively, of
the Outstanding Company Common Shares and Outstanding Company
Voting Securities immediately prior to such Corporate Transaction
beneficially own, directly or indirectly, more than sixty-six and
two-thirds percent (66-2/3%) of, respectively, the then outstanding
common shares and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors (or other governing body), as the case may be, of the
entity resulting from such Corporate Transaction (including,
without limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company’s
Assets either directly or through one (1) or more subsidiaries
or entities) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of the
Outstanding Company Common Shares and the Outstanding
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Company Voting
Securities, as the case may be, (B) no Person (excluding any
entity resulting from such Corporate Transaction or any employee
benefit plan (or related trust) of the Company or such entity
resulting from such Corporate Transaction) beneficially owns,
directly or indirectly, twenty percent (20%) or more of,
respectively, the then outstanding shares of common stock of the
entity resulting from such Corporate Transaction or the combined
voting power of the then outstanding voting securities of such
entity except to the extent that such ownership existed prior to
the Corporate Transaction and (C) at least two-thirds (2/3) of
the members of the board of directors (or other governing body) of
the entity resulting from such Corporate Transaction were members
of the Incumbent Board at the time of the approval of such
Corporate Transaction; or
(iv) Approval
or adoption by the Board of Directors or the shareholders of the
Company of a plan or proposal which could result directly or
indirectly in the liquidation, transfer, sale or other disposal of
all or substantially all of the Company’s Assets or the
dissolution of the Company.
(f) “Company”
shall mean Weatherford International Ltd. or any successor to
Weatherford International Ltd., including but not limited to any
Entity into which Weatherford International Ltd. is merged,
consolidated or amalgamated, or any Entity otherwise resulting from
a Corporate Transaction.
(g) “Company’s
Assets” shall mean the assets (of any kind) owned by the
Company, including, without limitation, the securities of the
Company’s Subsidiaries and any of the assets owned by the
Company’s Subsidiaries.
(h) “Disability”
shall mean the absence of the Executive from performance of the
Executive’s duties with the Company on a substantial basis
for one hundred twenty (120) calendar days as a result of
incapacity due to mental or physical illness.
(i) “Employment
Period” shall mean the period commencing on the Effective
Date and ending on the third anniversary of the Effective Date;
provided, however, that commencing on the date one year after the
Effective Date, and on each annual anniversary of such date (such
date and each annual anniversary thereof shall be hereinafter
referred to as the “Renewal Date”), unless previously
terminated, the Employment Period shall be automatically extended
so as to terminate three (3) years after such Renewal Date,
unless at least sixty (60) days prior to the Renewal Date the
Company shall give notice to the Executive that the Employment
Period shall not be so extended.
(j) “Entity”
shall mean means any corporation, partnership, association,
joint-stock company, limited liability company, trust,
unincorporated organization or other business entity.
(k) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(l) “Good
Reason” shall mean the occurrence of any of the
following:
(i) the
assignment to the Executive of any position, authority, duties or
responsibilities that are not materially consistent with the
Executive’s position (including status,
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offices and
titles), authority, duties or responsibilities as contemplated by
Section 3(a) of this Agreement, or any other action by the Company
or any Subsidiary which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose
any action not taken in bad faith and which is remedied by the
Company after receipt of notice thereof given by the
Executive;
(ii) any
failure by the Company or any Subsidiary to comply with any of the
provisions of this Agreement (including, without limitation, its
obligations under Section 3(a)) or any other agreements
between the Executive and the Company or any Subsidiary, other than
any failure not occurring in bad faith and which is remedied by the
Company, or a Subsidiary, as appropriate, after receipt of notice
thereof given by the Executive;
(iii) any
failure by the Company or any Subsidiary to continue to provide the
Executive with benefits currently or previously enjoyed by the
Executive under any of the Company’s or any
Subsidiary’s compensation, bonus, retirement, pension,
savings, life insurance, medical, health and accident, or
disability plans, or the taking of any other action by the Company
which would directly or indirectly reduce any of such benefits or
deprive the Executive of any fringe benefits or perquisites
currently enjoyed by the Executive;
(iv) the
Company’s requiring the Executive to be based at any office
or location other than as provided in Section 3(a)(i) hereof
or the Company’s requiring the Executive to travel to a
substantially greater extent than required immediately prior to the
date hereof;
(v) any
purported termination by the Company of the Executive’s
employment;
(vi) any
failure by the Company to comply with and satisfy Section 9(b) of
this Agreement;
(vii) failure
of the Company (including any successor) to agree, execute and
enter into a new employment agreement and a new executive
retirement plan with the Executive prior to the termination or
expiration of this Agreement, with such employment agreement and
executive retirement plan having the same terms and conditions as
existed in agreements and plans between the Company and the
Executive prior to December 30, 2008, and incorporating such
terms and conditions that are more favorable to the Executive from
all agreements and retirement plans existing on January 1,
2009; or
(viii) in
connection with, as a result of, or following a Change of Control,
the giving of notice to the Executive that the Employment Period
shall not be extended.
In the event of a
Change of Control or other Corporate Transaction in which the
Company’s common shares may cease to be publicly traded,
following the Change of Control or the consummation of such other
Corporate Transaction, “Good Reason” shall be deemed to
exist upon the occurrence of any of the events listed in clauses
(i) through (vii) above and also in the event Executive
is assigned to any position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities that
are (A) not at or with the publicly-traded ultimate parent
company of the successor to the Company or the corporation or other
Entity
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surviving or
resulting from such Corporate Transaction or (B) inconsistent
with the Executive’s position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a).
For purposes of
this Agreement, any good faith determination of “Good
Reason” made by the Executive shall be conclusive.
(m) “Person”
shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any of its Affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering by the
Company of such securities, or (iv) a corporation or other
entity owned, directly or indirectly, by the shareholders of the
Company in the same proportions as their ownership of common shares
of the Company.
(n) “Section 409A”
means Section 409A of the Internal Revenue Code of 1986, as
amended and the final Department of Treasury regulations issued
thereunder.
(o) “Section 409A
Amounts” means those amounts that are deferred compensation
subject to Section 409A.
(p) “Separation
From Service” shall have the meaning ascribed to such term in
Section 409A.
2. Employment
Period. The C
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