Exhibit 10.1
ThisSeveranceAgreement(“Agreement”)ismadeandenteredintobyandbetweenSelect Water Solutions, LLC, a Delaware limited liability company (the “Company”), and Robert A. Wilson (“Executive”), effective as of April 1, 2026 (the “Effective Date”).Executive and the Company are each referred to herein as a “Party” and together as the “Parties.”
W I T N** E S S E **T H:
WHEREAS, the Company acknowledges that Executive possesses skills and knowledge that are valuable to the Company and the Company wishes to enter this Agreement in order to better ensure itself of access to the continued services of Executive, to provide further incentive for Executive to build and preserve the goodwill of the Company, and in order to protect its legitimate business interests, including the preservation of its goodwill and Confidential Information (as defined below); and
WHEREAS, Executive wishes to assume or continue in employment with the Company, advance the business interests of the Company, and be eligible for the benefits set forth herein;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained herein, the Company and Executive agree as follows:
| 1. | ****Definitions. |
In addition to the terms defined in the body of this Agreement, for purposes of this Agreement, the following capitalized words shall have the meanings indicated below:
(a)“Accrued Obligations” means (i) accrued but unpaid base salary through the Date of Termination, (ii) any accrued but unpaid Bonus Award earned for any completed performanceperiodpriortotheDateofTermination,and(iii)anyunreimbursedbusinessexpenses properly incurred prior to the Date of Termination (so long as Executive timely submitted all documentation required for reimbursement in accordance with applicable policies of the Company).
(b)“Affiliate” means any corporation, partnership, limited liability company, limited liability partnership, association, trust or other organization that, directly or indirectly, controls, is controlled by, or is under common control with, the Company.For purposes of the precedingsentence,“control”(including,withcorrelativemeanings,theterms“controlledby”and “under common control with”), as used with respect to any entity or organization, shall mean the possession, directly or indirectly, of the power (i) to vote more than 50% of the securities having ordinary voting power for the election of directors of the controlled entity or organization or (ii) to direct or cause the direction of the management and policies of the controlled entity or organization, whether through the ownership of voting securities, by contract, or otherwise.
| (c) | “Board”meanstheBoardofDirectorsofSelect WaterSolutions,Inc. |
(d)“BonusAward”meansthepaymentdescribedinCompany’sAnnualShort TermIncentivePlan.AsusedinthisAgreement,thistermincorporatesthedefinitionand
Exhibit 10.1
calculationmethodologyofBonusAwarddetailedwithinCompany’sAnnualShortTerm Incentive Plan.
(e)“Bonus Opportunity %” means the percentage described in Company’s AnnualShortTermIncentivePlan.AsusedinthisAgreement,thistermincorporatesthedefinition of Bonus Opportunity % and the Executive’s opportunity percentages referred to within Company’s Annual Short Term Incentive Plan.
(f)“Business” means the business and operations that are the same or similar tothoseengagedinbytheCompanyoranyAffiliateforwhichExecutiveprovidesservicesduring Executive’s employment with the Company or any Affiliates, or in which the Company or any such Affiliate has material plans to engage of which Executive is aware during the period of Executive’s employment with the Company, which business and operations relate to water management(includingwatertransfer)andchemicalsolutions,andrelatedservices,fortheoiland gas industry.
(g)“Business Opportunity” shall mean any commercial, investment or other business opportunity relating to the Business.
(h)“Cause” means a determination by the Company in its sole discretion that Executive has: (i) engaged in gross negligence or willful misconduct in the performance of Executive’s duties with respect to the Company or an Affiliate, (ii) materially breached any material provision of this Agreement or any other written agreement between Executive and the CompanyoranAffiliateorcorporatepolicyorcodeofconductestablishedbytheCompanyoran AffiliateandapplicabletoExecutive;(iii)willfullyengagedinconductthatismateriallyinjurious to the Company or an Affiliate; or (iv) been convicted of, pleaded no contest to or received adjudicated probation or deferred adjudication in connection with, a felony involving fraud, dishonesty or moral turpitude (or a crime of similar import in a foreign jurisdiction).
(i)“Changein Control”shallhavethemeaninggivensuchtermintheSelect Water Solutions, Inc. 2024 Equity Incentive Plan, as amended.
(j)“COBRA”meanstheConsolidatedOmnibusBudgetReconciliationActof 1985, as amended.
(k)“Code” means the Internal Revenue Code of 1986, as amended, and applicable administrative guidance issued thereunder.
(l)“Date of Termination” means the effective date of the termination of Executive’s employment with the Company and its Affiliates, as applicable, such that Executive is no longer employed by the Company or any of its Affiliates.
(m)“Disability”means Executive’s inability to perform theessential functions ofExecutive’sposition(afteraccountingforreasonableaccommodation,ifapplicableandrequired by applicable law), due to physical or mental impairment that continues, or can reasonably be expectedtocontinue,for aperiodinexcessofonehundred-twenty(120)consecutivedaysorone hundred-eighty(180)days,whetherornotconsecutive(orforanylongerperiodasmayberequired by applicable law), in any twelve (12)-month period.
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Exhibit 10.1
(n)“GoodReason”means(i)amaterialdiminutioninExecutive’sbasesalary (otherthan as part ofone ormoredecreases that shall not exceed, in the aggregate, morethan ten percent (10%) of Executive’s base salary as in effect at the time of such reduction and that are applied to all of the Company’s similarly situated executives), (ii) a material diminution in Executive’s title, authority, duties or responsibilities with the Company Group (provided that if Executiveisservingasanofficerormemberoftheboardofdirectors(orsimilargoverningbody) of any member of the Company Group (other than the Company or Parent) or any other entity in which amemberoftheCompany Group holds an equity interest, in no event shall theremoval of Executive as an officer or board member from such entity, regardless of the reason for such removal,constituteGoodReasonorbeconsideredwhendeterminingifGoodReasonexists),(iii) a material reduction in Executive’s Bonus Opportunity %, other than as part of one or more decreases that are applied to all of the Company’s similarly situated executives, or (iv) the relocation of the geographic location of Executive’s principal place of employment by more than fifty(50)milesfromthelocationofExecutive’sprincipalplaceofemploymentasoftheEffective Date; provided that, in the case of Executive’s assertion of Good Reason, (A) the condition described in the foregoing clauses must have arisen without Executive’s consent; (B) Executive mustprovidewrittennoticetotheCompanyofsuchconditioninaccordancewiththisAgreement within forty-five (45) days of the initial existence of the condition; (C) the condition specified in such notice must remain uncorrected for thirty (30) days after receipt of such notice by the Company;and(D)thedateofterminationofExecutive’semploymentorotherservicerelationship withtheCompanyoran Affiliatemustoccurwithinninety(90)days aftersuchnoticeisreceived by the Company.
(o)“MarketArea”shallmean(i)thecountiesandparishessetforthonExhibit**Ahereto; and (ii) and any other geographic area or market where or with respect to which (x) ExecutiveprovidesorhasprovidedservicesonbehalfoftheCompanyoranyothermemberofthe Company Group in the twenty-four (24) months preceding the Date of Termination, or (y) the CompanyoranyothermemberoftheCompanyGrouphasspecificplanstoconductanybusiness asoftheDateofTerminationandExecutiveprovidesmaterialserviceswithrespecttosuchplans.
| (p) | “Parent”meansSelectWaterSolutions,Inc. |
(q)“ProhibitedPeriod”meanstheperiodduringwhichExecutiveisemployed by any member of the Company Group and continuing for a period of twelve (12) months following the Date of Termination.
(r)“Protected Customer or Supplier” means any customer or supplier of any member of the Company Group for whom or which Executive had direct or indirect responsibilitiesoraboutwhomorwhichExecutiveobtainedConfidentialInformation,ineachcase within the twenty-four (24) months prior to the Date of Termination.
(s)“Release Conditions” means Executive’s execution and delivery to the Company on or prior to the Release Expiration Date of a release of claims agreement in a form acceptable to the Company (which form shall be provided by the Company to Executive within seven(7)daysoftheDateofTermination),and,whereapplicable,Executive’snon-revocationof such release in the time set forth within such release to do so.
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Exhibit 10.1
(t)“Release Expiration Date” is that date that is twenty-one (21) days following the date upon which the Company delivers a release of claims to Executive or, in the event that such termination of employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in EmploymentActof1967)andExecutiveisageforty(40)oroverontheDateofTermination,the date that is forty-five (45) days following such delivery date.
| 2. | **Severance **Benefits. |
(a)Termination For Cause, Other than for Good Reason, or due to Death or* Disability.** *If Executive’s employment is terminated (i) by the Company for Cause, (ii) by Executive other than for Good Reason, or (iii) due to Executive’s death or Disability, then ExecutiveshallbeentitledtoreceivetheAccrued Obligations,butExecutiveshallnotbeentitled to any Severance Payment, Pro-Rata Bonus, or additional benefits described in *Section 2(b)*or 2(c)hereunder.
(b)Termination Without Cause or Termination For Good Reason.If Executive’semploymentisterminated(x)bytheCompanywithoutCause,or(y)byExecutivefor Good Reason, then Executiveshall beentitled to receivetheAccrued Obligations and, so long as (andonlyif)ExecutivesatisfiestheReleaseConditionsandabidesbythetermsofSection* *4,then the Company shall provide Executive with the following:
(i)A severance payment in an amount equal to one (1) times the sum of (A) Executive’s annualized base salary immediately prior to the Date of Termination plus* *(B)ifapplicable,theExecutive’sannualizedbasesalaryimmediatelypriortotheDate ofTermination multiplied by theBonus Opportunity %, if any, forthe bonus year during which the Date of Termination occurs (such payment, the “Severance Payment”), which Severance Payment shall be paid as described in Section 2(e);
(ii)An amount equal to the Bonus Award that Executive would have actually been entitled to receive for the calendar year in which the Date of Termination occurs,calculatedbasedonactualperformancefortheapplicableperformanceperiod,and multiplied by a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the calendar year of termination and the denominator of which is 365 (such payment, the “Pro-Rata Bonus”), which Pro-Rata Bonus shall bepayable at thesame timeBonus Awards forsuch calendar year arepaid to similarly-situated executives of the Company, but in no event no later than March 15 of thecalendaryearfollowingthecalendaryearinwhichtheDateofTerminationoccurs;and
(iii)COBRA premium reimbursement for group health care coverage continuationforaperiodofuptotwelve(12)monthsfollowingtheDateofTerminationin accordance with Section 2(d).
(c)Termination* Without Cause or Termination For Good Reason Following a *Change in Control.Notwithstanding *Section 2(b)*to the contrary, if Executive’s employment is terminated(x)bytheCompanywithoutCause,or(y)byExecutiveforGoodReason,ineachcase, withintwenty-four(24)monthsfollowingaChangeinControl,thenExecutiveshallbeentitledto
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Exhibit 10.1
receive the Accrued Obligations, and so long as (and only if) Executive satisfies the Release Conditions and abides by the terms of Section 4, then the Company shall provide Executive with the following instead of the payments and benefits prescribed in Section 2(b):
(i)A severance payment in an amount equal to two (2) times the sum of (1) Executive’s annualized base salary immediately prior to the Date of Termination plus* *(2)ifapplicable,theExecutive’sannualizedbasesalaryimmediatelypriortotheDate ofTerminationmultipliedbytheBonusOpportunity%,ifany,forthecalendaryearduring which the Date of Termination occurs (such payment, the “CIC Severance Payment”), which CIC Severance Payment shall be paid as described in Section 2(e);
(ii)ThePro-Rata Bonus,whichPro-Rata Bonusshall bepayable atthe same time Bonus Awards for such calendar year are paid to similarly-situated executives oftheCompany,butinnoeventnolaterthanMarch15ofthecalendaryearfollowingthe calendar year in which the Date of Termination occurs; and
(iii)COBRA premium reimbursement for group health care coverage continuation for a period of up to twenty-four (24) months following the Date of Termination in accordance with Section 2(d).
(d)COBRA. During the portion, if any, of the applicable period described in *Section 2(b)(iii)*or 2(c)(iii)(as applicable, the “Reimbursement Period”)that Executive elects to continuecoverageforExecutiveandExecutive’sspouseandeligibledependents,ifany,underthe Company’s group health plans pursuant to COBRA, the Company shall promptly reimburse Executiveon amonthly basis forthedifferencebetween the amount Executivepays to effect and continue such coverage and the employee contribution amount that similarly-situated executives oftheCompanypayforthesameorsimilarcoverageundersuchgrouphealthplans(the“COBRA Benefit”).Each payment of the COBRA Benefit shall be paid to Executive on the Company’s firstregularlyscheduledpaydateinthecalendarmonthimmediatelyfollowingthecalendarmonth in which Executive submits to the Company documentation of the applicable premium payment having been paid by Executive, which documentation shall be submitted by Executive to the Company within thirty (30)days following thedateon which theapplicablepremium payment is paid. Notwithstanding the foregoing, Executive shall only be eligible to receive such reimbursementpaymentsuntiltheearliestof:(i)thelastdayoftheReimbursementPeriod;(ii)the date Executive is no longer eligible to receive COBRA continuation coverage; and (iii) the date onwhichExecutivebecomeseligibletoreceivecoverageunderagrouphealthplansponsoredby another employer (and any such eligibility shall be promptly reported to the Company by Executive); provided, however, that the election of COBRA continuation coverage and the payment of any premiums due with respect to such COBRA continuation coverage shall remain Executive’s soleresponsibility, and theCompanyshall not assumeany obligation forpayment of any such premiums relating to such COBRA continuation coverage.Notwithstanding the foregoing, if the provision of the benefits described in this paragraph cannot be provided in the manner described above without penalty, tax or other adverse impact on the Company or an Affiliate,thentheCompanyandExecutiveshallnegotiateingoodfaithtodetermineanalternative mannerinwhichtheCompanymayprovidesubstantiallyequivalentbenefitstoExecutivewithout such adverse impact on the Company or an Affiliate.
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Exhibit 10.1
(e)Timing of Severance* *Payment or CIC Severance Payment.The Severance Payment or the CIC Severance Payment (as applicable) will be divided into substantially equal installments paid over the number of months following the Date of Termination equal to the number of months’ worth of Executive’s base salary included in the Severance Payment or CIC SeverancePayment,asapplicable.NolaterthantheCompany’sfirstregularlyscheduledpaydate thatisonorafterthedatethatissixty(60)daysaftertheDateofTermination(the“FirstPayment Date”),theCompanyshallpaytoExecutive,withoutinterest,anumberofsuchinstallmentsequal to the number of such installments that would have been paid during the period beginning on the Date of Termination and ending on the First Payment Date had the installments been paid on the Company’s regularly scheduled pay dates on or following the Date of Termination, and each of the remaining installments shall be paid on the Company’s regularly scheduled pay dates during the remainder of such twelve (12)-month period (or, if the Date of Termination is on or within twenty-four(24)monthsfollowingthedateofaChangeinControl,suchtwenty-four (24)-month period); provided, however, that (i) to the extent, if any, that the aggregate amount of the installments of the Severance Payment or the CIC Severance Payment (as applicable) that would otherwise be paid pursuant to the preceding provisions of this *Section 2(e)*after March 15 of the calendar year following the calendar year in which the Date of Termination occurs (the “Applicable March 15”) exceeds the maximum exemption amount under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A), then such excess shall be paid to Executive in a lump sum on the Applicable March 15 (or the first business day preceding the Applicable March 15 if the Applicable March 15 is not a business day) and the installments of the Severance Payment or the CIC Severance Payment (as applicable) payable after the Applicable March 15 shall be reduced by such excess (beginning with the installment first payable after the Applicable March 15 and continuingwiththenextsucceedinginstallmentuntiltheaggregatereductionequalssuchexcess), and (ii) all remaining installments of the Severance Payment or the CIC Severance Payment (as applicable), if any, that would otherwise be paid pursuant to the preceding provisions of this *Section 2(e) *after December 31 of the second calendar year following the calendar year in which theDateofTerminationoccursshallbepaidwiththeinstallmentoftheSeverancePaymentorthe CIC Severance Payment (as applicable), if any, due in December of the second calendar year followingthecalendaryearinwhichtheDateofTerminationoccurs.Fortheavoidanceofdoubt, in no event shall Executive be eligible to receive both the Severance Payment and the CIC Severance Payment.
3.Certain** Excise **Taxes.NotwithstandinganythingtothecontraryinthisAgreement,if Executive is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from Company or any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Executive from CompanyoranyofitsAffiliatesshallbeonedollar($1.00)lessthanthreetimesExecutive’s“base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicabletaxes).Thereductionofpaymentsandbenefitshereunder,ifapplicable,shallbemade byreducing,first,paymentsorbenefitstobepaidincashhereunderintheorderinwhichsuch
6
Exhibit 10.1
paymentorbenefitwouldbepaidorprovided(beginningwithsuchpaymentorbenefitthatwould be made last in time and continuing, to the extent necessary, through to such payment or benefit thatwouldbemadefirstintime)and,then,reducinganybenefittobeprovidedin-kindhereunder in a similar order.The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall bemadeby Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from Company or any of its Affiliatesusedindeterminingifa“parachutepayment”exists,exceedsonedollar($1.00)lessthan three times Executive’s base amount, then Executive shall immediately repay such excess to Company upon notification that an overpayment has been made.Nothing in this Section 3 shall require the Company to be responsible for, or have any liability or obligation with respect to, Executive’s excise tax liabilities under Section 4999 of the Code.
| 4. | **Restrictive **Covenants. |
(a)Confidentiality.In the course of Executive’s employment with the Company and the performance of Executive’s duties on behalf of the Company or any of its Affiliates (collectively, the Company and its Affiliates are referred to as the “Company Group”) following the Effective Date, Executive will be provided with, and will have access to, Confidential Information (as defined below).In consideration of Executive’s receipt and access tosuchConfidentialInformationand,asanexpressinducementfortheCompanytoenterintothis Agreement, Executive shall comply with this Section 4.
(i)BothduringthetermofExecutive’semploymentwiththeCompany andthereafter,exceptasexpresslypermittedbythisAgreementorbyanauthorizedrepresentative oftheCompanyinwriting,ExecutiveshallnotdiscloseanyConfidentialInformationtoanyperson or entity and shall not use any Confidential Information except for the benefit of the Company Group.Executive shall follow all Company policies and protocols regarding the security of all documentsandothermaterialscontainingConfidentialInformation(regardlessofthemediumon which Confidential Information is stored).The covenants of this *Section 4(a)*shall apply to all Confidential Information, whether now known or later to become known to Executive during the period that Executive is employed by or affiliated with the Company or any other member of the Company Group.
(ii)Notwithstanding any provision of this Agreement to the contrary, Executive may make the following disclosures and uses of Confidential Information: (A) disclosures to other employees of the Company Group who have a need to know the information in connection with the businesses of the Company Group; (B) disclosures to customers and suppliers when, in the reasonable and good faith belief of Executive, such disclosure is in connection with Executive’s performance of Executive’s duties and is in the best interests of the Company Group; (C) disclosures and uses that are approved in writing by the Company; or (D) disclosurestoapersonorentitythathas(1)beenretainedbyamemberoftheCompanyGroupto provideservicestooneormoremembersoftheCompanyGroupand(2)agreedinwritingtoabide by the terms of a confidentiality agreement in a form acceptable to the Company.
(iii)Upon the Date of Termination, and at any other time upon request of the Company, Executive shall promptly surrender and deliver to the Company all documents
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Exhibit 10.1
(including electronically stored information) and all copies thereof and all other materials of any nature containing or pertaining to all Confidential Information and any other Company Group property (including any Company Group-issued computer, mobile device or other equipment) in Executive’s possession, custody or control and Executive shall not retain any such documents or other materials or property of the Company Group.Within five (5) days of any such request, ExecutiveshallcertifytotheCompanyinwritingthatallsuchdocuments,materialsandproperty have been returned to the Company.
(iv)All trade secrets, non-public information, designs, ideas, concepts, improvements,productdevelopments,discoveries andinventions,whether patentableor not,that areorhavebeenconceived,made,developedoracquiredbyordisclosedtoExecutive,individually or in conjunction with others, during the period that Executive is or has been employed by the Company or any other member of the Company Group (whether during business hours or otherwiseandwhetherontheCompany’spremisesorotherwise)thatrelatetoanymemberofthe Company Group’s businesses or properties, products or services (including all such information relating to corporate opportunities, operations, future plans, methods of doing business, business plans, strategies for developing business and market share, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or acquisition targets or their requirements, the identity of key contacts within customers’ organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names and marks) is defined as “Confidential Information.”For purposes of this Agreement, Confidential Information shall not include any information that (A) is or becomes generally available to the public other than as a result of a disclosure or wrongful act of Executive or any of Executive’s agents; (B) was available to Executive on a non-confidential basis before its disclosure by a member of the Company Group; or (C) becomes available to Executive on a non-confidential basis from a source other than a member of the Company Group; provided, however, that such source is not bound by a confidentialityagreementwith,orotherobligationwithrespecttoconfidentialityto,amemberof the Company Group.
(v)Notwithstandingtheforegoing,nothinginthisAgreementorinany otheragreementbetweenExecutiveandtheCompanyoranyothermemberoftheCompanyGroup shall prohibit or restrict Executive from (A) initiating communications directly with, cooperating with,providinginformationto,causinginformationtobeprovidedto,orotherwiseassistinginan investigation by, any governmental agency (including the Securities and Exchange Commission, Department of Justice, Department of Labor, Equal Employment Opportunity Commission, National Labor Relations Board, Congress, any Inspector General, and any other applicable governmental agency or regulatory authority) regarding a possible violation of any law; (B) responding to any inquiry or legal process directed to Executive from any governmental agency;
(C)testifying,participatingorotherwiseassistinginanyactionorproceedingbyanygovernmental agencyrelatingtoapossibleviolationoflaw,(D)makinganyotherdisclosuresthatareprotected underthewhistleblowerprovisionsofanyapplicablelaw,or(E)disclosinganactofsexualabuse orfactsrelatedtoanactofsexualabusetoanyotherperson.NothinginthisAgreementorinany other agreement between Executive and any member of the Company Group requires Executive to obtain prior authorization before engaging in any conduct described in the immediately preceding sentence, or to notify the Company or any other member of the Company Group that Executivehasengagedinanysuchconduct.Additionally,pursuanttothefederalDefendTrade
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Exhibit 10.1
Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (1) is made (a) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (b) solely for the purpose ofreporting or investigating a suspected violation oflaw; or (2) is made to theindividual’sattorneyinrelationtoalawsuitforretaliationagainsttheindividualforreporting asuspected violation oflawor(3)is madein a complaint orotherdocument filed in alawsuit or proceeding, if such filing is made under seal.
| (b) | Non-Competition;* **Non-*Solicitation. |
(i)The Company shall provide Executive access to Confidential Information,andExecutiveacknowledgesandagreesthattheCompanywillbeentrusting Executive,inExecutive’suniqueandspecialcapacity,withdevelopingthegoodwillofthe CompanyGroup,andinconsiderationoftheCompanyprovidingExecutivewithaccessto Confidential Information and as an express incentive for the Company to enter into this Agreement,ExecutivehasvoluntarilyagreedtothecovenantssetforthinthisSection* *4(b). Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, will not cause Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information, goodwill and legitimate business interests.
(ii)DuringtheProhibitedPeriod,Executiveshallnot,withouttheprior written approval of the Board, directly or indirectly, for Executive or on behalf of or in conjunction with any other person or entity of any nature:
(A)engage or carry on within the Market Area in competition with any member of the Company Group in any aspect of the Business, which prohibition shall prevent Executive from directly or indirectly (A) owning, managing, operating or being an officer or director of any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Areaincompetition,oranticipatedcompetition,withanymemberoftheCompany Groupinanycapacity(withrespecttothisclause(B))inwhichExecutive’sduties or responsibilities involve direct or indirect responsibilities with respect to the Business;
(B)appropriateanyBusinessOpportunityof,orrelatingto,any member of the Company Group located in the Market Area;
(C)solicit, canvass, approach, encourage, entice or induce any ProtectedCustomerorSupplierofanymemberoftheCompanyGrouptoceaseor lessen such Protected Customer’s or Supplier’s business in the Market Area with any member of the Company Group; or
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Exhibit 10.1
(D)solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group with respect to whom or which Executive had direct or indirect responsibilities or about whom Executive obtained Confidential Information to terminate his, her or its employment or engagement with any member of the Company Group.
(iii)Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in this Section 4(b), and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, byinjunctionsandrestrainingordersfromanycourtorarbitratorofcompetentjurisdiction, without the necessity of showing any actual damages or that money damages would not affordanadequateremedy,andwithoutthenecessityofpostinganybondorothersecurity. The aforementioned equitable relief shall not be the Company’s or any other member of theCompanyGroup’sexclusiveremedyforabreach,butinsteadshallbeinadditiontoall other rights and remedies available to the Company and each other member of the Company Group, at law and equity.
(iv)Notwithstandingtheforegoing,nothinginthisSection* **4(b)*shallbe interpreted or applied in a manner to prevent or restrict Executive from practicing law, as it is the intent of this *Section 4(b)*to create certain limitations on Executive’s business activities only, and not to create limitations that would restrict Executive from practicing law.Executive acknowledges and agrees that, both before and after the Date of Termination, Executive shall be bound by all ethical and professional obligations (including those with respect to conflicts and confidentiality) that arise from Executive’s provision of legal services to, and acting as legal counsel for, the Company and (as applicable) the other members of the Company Group.
(v)Further notwithstanding the foregoing, during the portion of the ProhibitedPeriodthatoccursfollowingtheDateofTermination,Sections* *4(b)(i),4(b)(ii), and *4(b)(iii)*of this Agreement shall not apply in that portion of the Market Area located within the State of Oklahoma.Instead, during that portion of the Prohibited Period that occurs following the Date of Termination, within that portion of the Market Area that is within the State of Oklahoma, the restrictions on Executive’s activities (in addition to all restrictions set forth in *Sections 4(a)*and 4(b)(iv), and all restrictions that may be created due to statutory or common law requirements) shall be as follows: during that portion of the Prohibited Period that occurs following the Date of Termination, Executive shall not directly solicit the sale of goods, services or a combination of goods and services from established customers of the Company or any other member of the Company Group.
(vi)The covenants in this Section 4(b), and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover,intheeventanyarbitratororcourtofcompetentjurisdictionshalldeterminethat the scope, time or territorial restrictions set forth are unreasonable, then it is the intention
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Exhibit 10.1
of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
5.At-Will** **Employment.Notwithstandinganythingtothecontraryherein,theCompany shall have the right to terminate Executive’s employment at any time and for any reason or no reason at all, upon written notice to Executive. Executive shall have the right to terminate Executive’s employment with the Company at any time and for any reason or no reason at all, upon thirty days’ advance written notice to the Company.Executive acknowledges that nothing in this Agreement or in any of the Company’s policies will be construed as altering the at-will nature of Executive’s employment. It is understood and agreed that Executive is not being employed for any specific duration or period of time.
6.Withholdings; Deductions.The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all federal, state, local andothertaxesasmayberequiredpursuanttoanylaworgovernmentalregulationorrulingand
(b)anydeductionsconsentedtoinwritingbyExecutive.
7.Applicable Law; Submission to Jurisdiction; Attorneys’ Fees.This Agreement shall in all respects be construed according to the laws of the State of Texas without regard to its conflict of laws principles that would result in the application of the laws of another jurisdiction. WithrespecttoanyclaimordisputerelatedtoorarisingunderthisAgreement,thePartieshereby recognize and agree that should any resort to a court be necessary and permitted under this Agreement(aftergivingeffecttoSection* 8below),thentheyconsenttotheexclusivejurisdiction, forum and venue of the state and federal courts (as applicable) located in Harris County, Texas. Following the occurrence of a Change in Control, if a dispute between the Parties (or between Executive and any successor to the Company or any of its Affiliates) arises: (i) by virtue of the Company’s or its applicable successor’s or Affiliate’s failure to provide the severance payments orbenefitssetforthinSection **2(c)*above,and(ii)followingExecutive’sgoodfaithwrittendemand for such payments or benefits, then the Company shall be responsible for paying Executive’s reasonable legal fees incurred after such written demand is provided.
| 8. | ****Arbitration. |
(a)SubjecttoSection* *8(b)andSection* **8(c)below,anydispute,controversyor claimarisingoutoforrelatingtothisAgreementorExecutive’semploymentorengagementwith anymemberoftheCompanyGroup(“Disputes”)willbefinallysettledbyarbitrationinHouston, Texas in accordance with the then-existing American Arbitration Association (“AAA”) Employment Arbitration Rules.Any arbitration conducted under this Section 8shall be private, and shall be heard by a single arbitrator (the “Arbitrator”) selected in accordance with the then-applicable rules of the AAA.The Arbitrator shall expeditiously hear and decide all matters concerning the Dispute.Except as expressly provided to the contrary in this Agreement, the Arbitrator shall have the power to (i) gather such materials, information, testimony and evidence astheArbitratordeemsrelevanttotheDisputebeforehimorher(andeachpartywillprovidesuch materials, information, testimony and evidence requested by the Arbitrator), and (ii)grant injunctive relief and enforce specific performance.All Disputes shall be arbitrated on an individual basis, and each party hereto hereby foregoes and waives any right to arbitrate any Dispute as a class action or collective action or on a consolidated basis or in a *representative
11
Exhibit 10.1
capacity on behalf of other persons or entities who are claimed to be similarly situated, or to participate as a class member in such a proceeding.* *The decision of the Arbitrator shall be reasoned,renderedinwriting,befinalandbindinguponthedisputingpartiesandthePartiesagree that judgment upon the award may be entered by any court of competent jurisdiction.
(b)Notwithstanding *Section 8(a)*either Party may make a timely application for,andobtain,judicialemergencyortemporaryinjunctiverelieftoenforceanyoftheprovisions of Section 4; provided, however, that the remainder of any such Dispute (beyond the application for emergency or temporary injunctive relief) shall be subject to arbitration under this Section 8. Further, nothing in this Section 8precludes Executive from filing a charge or complaint with a federal, state or other governmental administrative agency, but Executive expressly waives any right to the recovery of monetary damages awarded by such agency.
(c)Further notwithstanding Section 8(a), any dispute, controversy or claim between Executive and any member of the Company Group arising out of or relating to any CompanyGroupequityincentiveplanoranyequityawardbetweenExecutiveandanymemberof the Company Group shall be subject to the dispute resolution terms set forth in and applicable to the applicable equity incentive plan or award agreement.
(d)ByenteringintothisAgreementandenteringintothearbitrationprovisions of this Section 8THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING THEIR RIGHTS TO A JURY TRIAL.
9.Entire Agreement and Amendment.This Agreement contains the entire agreement of the Parties with respect to the matters covered herein and supersede all prior and contemporaneous agreements and understandings, oral or written, between the parties hereto concerning the subject matter hereof; provided, however, this Agreement shall be in addition to and complement (and not replace or supersede) any other obligation that Executive may have to any member of the Company Group with respect to non-disclosure or confidentiality, return of property, non-competition or non-solicitation (regardless of whether such obligation arises by contract, statute, common law or otherwise). This Agreement may be amended only by a written instrument executed by both Parties hereto.
10.Severability and Reformation.If an arbitrator or court of competent jurisdiction determines that any provision of this Agreement (or portion thereof) is invalid or unenforceable, then the invalidity or unenforceability of that provision (or portion thereof) shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.In the event an arbitrator or court of competent jurisdiction shall determinethatthescopeofrestrictionssetforthhereinareunreasonable,thenitistheintentionof ExecutiveandtheCompanythatsuchrestrictionsbeenforcedtothefullestextentwhichthecourt deems reasonable, and this Agreement shall thereby be reformed.
11.Counterparts.This Agreement may be executed in any number of counterparts, including by electronic mail or .pdf, each of which when so executed and delivered shall be an original,butallsuchcounterpartsshalltogetherconstituteoneandthesameinstrument.Each
12
Exhibit 10.1
counterpartmayconsistofacopyhereofcontainingmultiplesignaturepages,eachsignedbyone party, but together signed by both parties hereto.
12.Clawback.Notwithstanding any provision in this Agreement to the contrary, to the extentrequiredby(a)applicablelaw,including,withoutlimitation,therequirementsoftheDodd-Frank Wall Street Reform and Consumer Protection Act of 2010, any Securities and Exchange Commissionruleoranyapplicablesecuritiesexchangelistingstandardsand/or(b)anypolicythat may be adopted or amended by the Board from time to time, all payments hereunder shall be subjecttoforfeiture,repurchase,recoupmentand/orcancellationtotheextentnecessarytocomply with such law(s) and/or policy.
| 13. | **Section **409A. |
(a)Notwithstanding any provision of this Agreement to the contrary, all provisions of this Agreement are intended to comply with Section 409A of the Code, and the applicable Treasury regulations and administrative guidance issued thereunder (collectively, “Section409A”)oranexemptiontherefromandshallbeconstruedandadministeredinaccordance with such intent.Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shallbeexcludedfromSection409Atothemaximumextentpossible.Anypaymentstobemade under this Agreement upon a termination of Executive’s employment shall only be made if such termination of employment constitutes a “separation from service” under Section 409A. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment.
(b)To the extent that any right to reimbursement of expenses or payment of anybenefitin-kindunder thisAgreement constitutesnonqualifieddeferred compensation(within themeaningofSection409A),(i)anysuchexpensereimbursementshallbemadebytheCompany no later than the last day of Executive’s taxable year following the taxable year in which such expensewasincurredbyExecutive,(ii)therighttoreimbursementorin-kindbenefitsshallnotbe subjecttoliquidationorexchangeforanotherbenefit,and(iii)theamountofexpenseseligiblefor reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligiblefor reimbursement orin-kind benefits to beprovided in any other taxableyear; provided, that the foregoing clause shall not be violated with regard to expenses reimbursed under any arrangementcoveredbySection105(b)oftheCodesolelybecausesuchexpensesaresubjecttoa limit related to the period in which the arrangement is in effect.
(c)Notwithstanding any provision in this Agreement to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if Executive’s receipt of such payment or benefit is not delayed until the earlier of
(i)thedateofExecutive’sdeathor(ii)thedatethatissix(6)monthsaftertheDateofTermination (suchdate,the“Section409APaymentDate”),thensuchpaymentorbenefitshallnotbeprovided toExecutiveuntiltheSection409APaymentDate.Notwithstandingtheforegoing,theCompany makes no representations that the payments and benefits provided under this Agreement are exemptfrom,orcompliantwith,Section409AandinnoeventshallanymemberoftheCompany Group be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A.
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Exhibit 10.1
[RemainderofPageIntentionallyBlank; Signature Page Follows]
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Exhibit 10.1
IN** WITNESS WHEREOF, **theCompanyandExecutive havecausedthisAgreementto be executed and effective asof the Effective Date.
COMPANY
SelectWaterSolutions,LLC
By: __
Name:
Title:
EXECUTIVE
_ _
Name:RobertA.Wilson
SIGNATURE PAGE TO SEVERANCE AGREEMENT
Exhibit 10.1
EXHIBIT A MARKET** **AREA
| STATE | COUNTY/PARISH/BOROUGHS | |||
| LOUISIANA | Bossier Caddo | DeSoto Jackson | Lincoln RedRiver | Sabine |
| NEW** **MEXICO | ChavesEddy | Lea | SanJuan | |
| OHIO | Ashland Belmont | Guernsey Harrison | Jefferson Monroe | Summit Trumbull |
| OKLAHOMA | Alfalfa Beckham Blaine Canadian Carter Coal Custer | Dewey Ellis Garfield Garvin Grady Hughes Kingfisher | Lincoln Logan Love Major McClain Oklahoma | Pittsburg RogerMills Stephens Washita Woods Woodward |
| PENNSYLVANIA | Armstrong Bradford Elk | Greene Lycoming Sullivan | Tioga Washington | Westmoreland Wyoming |
| TEXAS | Andrews Angelina Atascosa Borden Culberson DeWitt Dimmit EctorFrio Glasscock Gonzales | Hemphill Henderson Howard Irion Jackson KarnesLa Salle Lavaca LiveOak Loving Martin | Maverick McMullen Midland Nacogdoches PanolaPecos Reagan Reeves Roberts RuskSanAugustine | Shelby Tarrant TomGreen Upton WardWebb Wheeler Winkler Wise Zavala |
| UTAH | Duchesne | |||
| WEST** **VIRGINIA | Brooke Doddridge Harrison | Marion Marshall Monongalia | Ohio Ritchie | Tyler Wetzel |
| WYOMING | Campbell Converse | Johnson | Laramie | Sweetwater |
ExhibitA