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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: WEATHERFORD INTERNATIONAL LTD./SWITZERLAND | Weatherford International, Inc You are currently viewing:
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WEATHERFORD INTERNATIONAL LTD./SWITZERLAND | Weatherford International, Inc

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Title: EMPLOYMENT AGREEMENT
Governing Law: Texas     Date: 6/9/2009
Law Firm: Fulbright Jaworski    

EMPLOYMENT AGREEMENT, Parties: weatherford international ltd./switzerland , weatherford international  inc
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Exhibit 10.5

EMPLOYMENT AGREEMENT

     This Employment Agreement (this “Agreement”) is entered into as of March 30, 2009 (the “Effective Date”), by and between Weatherford International, Inc., a Delaware corporation (the “Company”), and William B. Jacobson (the “Executive”).

W I T N E S S E T H:

     WHEREAS, the Company has determined that it is in the interest of the Company and the shareholders of Weatherford International Ltd. for the Company to commit to provide certain severance benefits to the Executive in the event of his termination of employment under certain conditions;

     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the parties hereto do hereby agree:

1. Certain Definitions.

     (a) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act.

     (b) “Annual Base Salary” shall have the meaning specified in the Employment Agreement.

     (c) “Annual Bonus” shall mean the Executive’s annual bonus under the annual incentive plan of the Company and any of its Affiliates.

     (d) “Annual Bonus Amount” shall mean the sum of (a) the amount of the Annual Bonus, if any, paid or provided in any form (whether in cash, securities or any combination thereof) by the Company or any of its Affiliates to or for the benefit of the Executive for services rendered or labor performed during a fiscal year of the Company and (b) the amount of the discretionary bonus or other bonus paid outside of the Company’s annual incentive plan, if any, paid or provided in any form (whether in cash, securities or any combination thereof) by the Company or any of its Affiliates to or for the benefit of the Employee (it being understood that if multiple bonuses are paid for any given year, or if a bonus is made in multiple installments for a year, all such bonuses or installments shall be aggregated as a single payment for that year in determining the Annual Bonus Amount). The Executive’s Annual Bonus Amount shall be determined by including any portion thereof that the Executive could have received in cash or securities in lieu of (i) any elective deferrals made by the Executive pursuant to all nonqualified deferred compensation plans or (ii) elective contributions made on the Executive’s behalf by the Company pursuant to a qualified cash or deferred arrangement (as defined in section 401(k) of the Code) or pursuant to a plan maintained under section 125 of the Code.

     (e) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.

     (f) “Board” shall mean the Board of Directors of the Parent.

     (g) “Cause” shall mean:

          (i) the willful and continued failure of the Executive to substantially perform the Executive’s duties with the Parent or 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(d) of the Employment Agreement), 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,

          (ii) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Parent or the Company, or

          (iii) the Executive’s refusal to resign from the Company on the first anniversary of the Effective Date following the Board’s good faith written determination (provided to the Executive no later than thirty (30) days before such anniversary) that Executive is unable to devote sufficient time to the Company due to his remaining a partner of Fulbright & Jaworski L.L.P. (“Fulbright”).

     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 Parent or 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 Parent (which may be the General Counsel or other counsel employed by the Parent 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 Parent or 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, or, that subparagraph (iii) applies, and specifying the particulars thereof in detail.

     (h) “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 Parent (the “Outstanding Parent Common Shares”) or (B) the combined voting power of the then outstanding voting securities of the Parent entitled to vote generally in the election of directors (the “Outstanding Parent 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 Parent’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 Parent or any of its subsidiaries or the sale, transfer or other disposition of all or substantially all of the Parent’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

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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 Parent Common Shares and Outstanding Parent 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 Parent or all or substantially all of the Parent’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 Parent Common Shares and the Outstanding Parent 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 Parent 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 Parent 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 Parent’s Assets or the dissolution of the Parent.

     (i) “Disability” shall mean the absence of the Executive from performance of the Executive’s duties with the Parent on a substantial basis for one hundred twenty (120) calendar days as a result of incapacity due to mental or physical illness.

     (j) “Employment Agreement” shall mean the Executive’s employment agreement with the Parent, as it may be amended from time to time.

     (k) “Employment Period” shall have the meaning specified in the Employment Agreement.

     (l) “Entity” shall mean means any corporation, partnership, association, joint-stock company, limited liability company, trust, unincorporated organization or other business entity.

     (m) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

     (n) “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, offices and titles), authority, duties or responsibilities as contemplated by Section 3(a) of the Employment Agreement (including, for example and without limitation, assignment of the Executive to a Chief Compliance Officer position not reporting directly to the Chief Executive Officer and Board of Directors of the ultimate publicly-traded parent company as it may in the future exist), or any other action by the Parent or the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose any not taken in bad faith and which is remedied by the Parent or the Company after receipt of notice thereof given by the Executive;

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          (ii) any failure by the Parent or the Company to comply with any of the provisions of this Agreement or the Employment Agreement (including, without limitation, its obligations under Section 3(a) of the Employment Agreement), other than any failure not occurring in bad faith and which is remedied by the Parent or the Company after receipt of notice thereof given by the Executive;

          (iii) any failure by the Parent or the Company to continue to provide the Executive with benefits enjoyed by the Executive at any time prior to such failure under any of the Parent’s and the Company’s compensation, bonus, retirement, pension, savings, life insurance, medical, health and accident, or disability plans, or the taking of any other action by the Parent or the Company which would directly or indirectly reduce any of such benefits or deprive the Executive of any fringe benefits or perquisites enjoyed by the Executive at any time prior to such action;

          (iv) the Parent’s or the Company’s requiring the Executive to be based at any office or location other than as provided in Section 3(a)(i) of the Employment Agreement or the Parent’s or the Company’s requiring the Executive to travel on business more than 50% of the working days in any given quarter;

          (v) any purported termination by the Parent or the Company of the Executive’s employment (including, without limitation, any secondment of the Executive without the Executive’s prior express agreement in writing);

          (vi) any failure by the Parent to comply with and satisfy Section 9(b) of the Employment Agreement;

          (vii) failure by the Parent (including any successor) to agree, execute and enter into a new employment agreement with the Executive prior to the termination or expiration of this Agreement, with such employment agreement having the same terms and conditions as existed in agreements between the Parent or the Company and its officers prior to December 30, 2008, and incorporating such terms and conditions that are more favorable to the Executive from all agreements existing after 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 Parent’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 Parent or the corporation or other entity 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) of the Employment Agreement.

     For purposes of this Agreement, any good faith determination of “Good Reason” made by the Executive shall be conclusive.

     (o) “IRS” shall mean the Internal Revenue Service.

     (p) “Parent” 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.

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     (q) “Parent’s Assets” shall mean the assets (of any kind) owned by the Parent, including, without limitation, the securities of the Parent’s Subsidiaries and any of the assets owned by the Parent’s Subsidiaries.

     (r) “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 Parent or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering by the Parent of such securities, or (iv) a corporation or other entity owned, directly or indirectly, by the shareholders of the Parent in the same proportions as their ownership of common shares of the Parent.

     (s) “Section 409A” shall mean section 409A of the Internal Revenue Code of 1986, as amended and the final Department of Treasury regulations issued thereunder.

     (t) “Separation From Service” shall have the meaning ascribed to such term in Section 409A.

     (u) “Specified Employee” shall have the meaning ascribed to such term in Section 409A.

     (v) “Subsidiary” shall mean any majority-owned subsidiary of the Parent or any majority-owned subsidiary thereof, or any other Entity in which the Parent owns, directly or indirectly, a significant financial interest provided that the Chief Executive Officer of the Parent designates such Entity to be a Subsidiary for the purposes of this Agreement.

     (w) “Term of the Agreement” shall mean the period commencing on March 30, 2009 and ending on December 31, 2009.

2. Termination of Employment.

     (a) Death or Disability. The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. If the Parent determines in good faith that the Disability of the Executive has occurred during the Employment Period, it may provide the Executive with written notice in accordance with the Employment Agreement of its intention to terminate the Executive’s employment. In such event, the Executive’s employment with the Parent shall terminate effective thirty (30) days after receipt of such notice by the Executive (the “Disability Effective Date”), provided that within the thirty (30)-day period after such receipt, the Executive shall not have returned to full-time performance of the Executive’s duties. In addition, if a physician selected by the Executive determines that the Disability of the Executive has occurred, the Executive (or his representative) may provide the Company with written notice in accordance with the Employment Agreement of the Executive’s intention to terminate his employment. In such event, the Disability Effective Date shall be thirty (30) days after receipt of such notice by the Company.

     (b) Cause. The Parent may terminate the Executive’s employment during the Employment Period for Cause.

     (c) Good Reason. The Executive’s employment may be terminated by the Executive at any time during the Employment Period for Good Reason.

     (d) Notice of Termination. Any termination during the Employment Period shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 11(b)

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of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement or the Employment Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date, in the case of a notice by the Company, shall be not more than 30 days after the giving of such notice). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

     (e) Date of Termination. “Date of Termination” shall mean:

          (i) if the Executive’s employment is terminated by the Company for Cause, or by the Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein, as the case may be;

          (ii) if the Executive’s employment is terminated by the Company or the Parent other than for Cause, the Date of Termination shall be the date on which the Executive receives notice of such termination; and

          (iii) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of the Executive or the Disability Effective Date, as the case may be.

3. Obligations of the Company Upon Termination.

     (a) Death, Disability, Good Reason or Other than For Cause. If, during the Employment Period and prior to the expiration of the Term of the Agreement, the Executive’s employment is terminated by reason of the Executive’s death or Disability, by the Parent or the Company for any reason other than for Cause or by the Executive for Good Reason:

          (i) The Company shall pay to the Executive (or Executive’s heirs, beneficiaries or representatives as applicable), at the times specified in clause (vii), the following amounts:

               (A) an amount equal to the Executive’s Annual Base Salary through the Date of Termination for periods following his Separation From Service to the extent not theretofore paid;

               (B) an amount equal to the product of (x) the higher of (I) the highest Annual Bonus Amount for the preceding five (5) calendar years and (II) the Annual Bonus Amount that would be payable in respect of the then current fiscal year (and annualized for any fiscal year consisting of less than twelve (12) months) (such higher amount being referred to as the “Highest Annual Bonus”, provided that in no case will the Highest Annual Bonus be less than 50% of the Executive’s then current Annual Base Salary) and (y) a fraction, the numerator of which is the number of days in the then current fiscal year through the Date of Termination, and the denominator of which is three hundred sixty-five (365);

               (C) an amount equal to three times the sum of (i) the higher of (1) the Executive’s then current Annual Base Salary and (2) the Executive’s Annual Base Salary at any point during the last five (5) years ended prior to the Termination Date and (ii) the Highest Annual Bonus (for the avoidance of doubt, the Highest Annual Bonus will in no case be less than 50% of the Executive’s then current Annual Base Salary);

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               (D) an amount equal to three times the sum of (i) the total of the employer basic and matching contributions


 
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