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”).
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:
(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.
(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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