ITEM 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On May 5, 2023 (the "Effective Date"), Select Energy Services, LLC (a subsidiary
of Select Energy Services, Inc. ("Select") and herein referred to together with
Select as the "Company")entered into an employment agreement (the "Employment
Agreement") with John D. Schmitz, the Company's Chairman of the Board of
Directors, Chief Executive Officer and President. The Employment Agreement
supersedes and replaces that certain letter agreement by and between Mr. Schmitz
and the Company dated March 1, 2021. The initial term of the Employment
Agreement is for the period beginning on the Effective Date and ending on
December 31, 2025, and the term will automatically renew annually for successive
12-month periods unless either party provides written notice of non-renewal at
least 60 days prior to the expiration of the initial term or renewal term.
Notwithstanding the foregoing, Mr. Schmitz's employment may be earlier
terminated in accordance with the terms of the Employment Agreement.
Pursuant to the Employment Agreement, Mr. Schmitz will receive an annualized
base salary of $800,000 and will continue to be eligible to receive (i) an
annual bonus with an annual bonus target amount of 115% of his annualized base
salary under the Company's short-term incentive bonus program (the "STI Plan")
for each year within the initial term or renewal term, as applicable, provided
that Mr. Schmitz remains employed through the date on which each such bonus is
paid and (ii) annual equity awards pursuant to the Company's equity incentive
plan.
The Employment Agreement also provides for certain severance benefits upon
Mr. Schmitz's termination of employment without "Cause," upon expiration of the
initial term or a renewal term as a result of the Company's issuance of a notice
of non-renewal, upon Mr. Schmitz's resignation for "Good Reason," or due to
Mr. Schmitz's death or "Disability" (each quoted term as defined in the
Employment Agreement), including (i) cash severance equal to two times (or, if
such termination occurs within 60 days prior to, or within 24 months following,
a "Change in Control" (such quoted term as defined in the Employment Agreement),
three times) the sum of (a) the then-current annualized base salary and (b) the
target annual bonus for the year of termination, payable in substantially equal
installments over the 12-month (or, if such termination occurs within 60 days
prior to, or within 24 months following, a Change in Control, 24-month) period
following the termination date, (ii) a pro-rated annual bonus under the STI Plan
for the year in which the termination occurs, based on actual performance and
payable at the time such bonuses are paid to other participants in the STI Plan,
(iii) an annual bonus under the STI Plan for the year prior to the year in which
the termination occurs, to the extent such bonus has not yet been paid as of the
termination date, payable at the time such bonuses are paid to other
participants in the STI Plan and (iv) reimbursement of certain premiums paid for
continuation coverage under the Company's group health plans. All severance
payments and benefits are contingent upon Mr. Schmitz's execution and
non-revocation of a release of claims in favor of the Company and its
affiliates. Additionally, the Employment Agreement contains certain restrictive
covenants regarding confidential information, non-competition, non-solicitation,
and intellectual property. The foregoing description of the Employment Agreement
is not complete and is qualified in its entirety to the full text of the
Employment Agreement, which is filed herewith as Exhibit 10.1 and incorporated
herein by reference.
ITEM 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Years.
As described under Item 5.07 below, the Company held its 2023 Annual Meeting of
Stockholders (the "Annual Meeting") on May 4, 2023. At the Annual Meeting, upon
the recommendation of the board of directors of the Company (the "Board"), the
Company's stockholders approved an amendment and restatement (the "A&R
Certificate") of the Company's Fourth Amended and Restated Certificate of
Incorporation (the "Current Certificate") to, among other things, reflect new
Delaware law provisions regarding officer exculpation and to change the name of
the Company to Select Water Solutions, Inc.
The A&R Certificate became effective upon filing with the Secretary of State of
the State of Delaware on May 8, 2023. A description of the A&R Certificate is
provided in "Proposal No. 3 - Approval of the Amendment and Restatement of the
Company's Fourth Amended and Restated Certificate of Incorporation to Reflect
New Delaware Law Provisions Regarding Officer Exculpation" and "Proposal No. 4
- Approval of the Amendment and Restatement of the Company's Fourth Amended and
Restated Certificate of Incorporation to, Among Other Things, Change the Name of
the Company to Select Water Solutions, Inc." of the Company's definitive proxy
statement, filed with the U.S. Securities and Exchange Commission on March 20,
2023 (the "Proxy Statement"), which description and text are incorporated herein
by reference. The foregoing description of the terms of the A&R Certificate and
the description incorporated by reference from the Proxy Statement do not
purport to be complete and are qualified in their entireties by the full text of
the A&R Certificate, which is filed herewith as Exhibit 3.1 and incorporated
herein by reference.
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The Company's Class A common stock will continue to trade under the ticker
symbol "WTTR" on the New York Stock Exchange.
The Board also approved an amendment and restatement (the "A&R Bylaws") of the
Company's Second Amended and Restated Bylaws to, among other things, reflect the
name change and certain changes to law, including the amendment of Sections
141(k), 222 and 232 of the Delaware General Corporation Law and the adoption of
Rule 14a-19 under the Securities Exchange Act of 1934, as amended. The A&R
Bylaws became effective immediately upon the A&R Certificate becoming effective
on May 8, 2023. The foregoing description of the terms of the A&R Bylaws is not
complete and is qualified in its entirety by reference to the full text of the
A&R Bylaws, which is filed herewith as Exhibit 3.2 and incorporated herein by
reference.
ITEM 5.07 Submission of Matters to a Vote of Security Holders.
The Annual Meeting was held on May 4, 2023. At the Annual Meeting, 99,804,851
shares of the Company's common stock, par value $0.01 per share, or
approximately 78.65%, of the 126,890,588 issued and outstanding ordinary shares
entitled to vote at the Annual Meeting were present in person or by proxies.
The final results of the voting on each matter of business at the Annual Meeting
are as follows:
Proposal 1 - Election of Directors.
NOMINEES FOR AGAINST WITHHOLD BROKER NON-VOTES
Gayle L. Burleson 74,946,796 0 14,272,856 10,585,199
Richard A. Burnett 88,632,605 0 587,047 10,585,199
Luis Fernandez-Moreno 72,436,365 0 16,783,287 10,585,199
Robin H. Fielder 85,909,774 0 3,309,878 10,585,199
John D. Schmitz 88,638,833 0 580,819 10,585,199
Troy W. Thacker 85,834,581 0 3,385,071 10,585,199
Douglas J. Wall 67,314,918 0 21,904,734 10,585,199
Proposal 2 - Ratification of the appointment of Grant Thornton LLP as the
Company's independent registered public accounting firm for fiscal year 2023.
FOR AGAINST ABSTAIN
99,087,138 113,176 604,537
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Proposal 3 - Approval of the amendment and restatement of the Company's Fourth
Amended and Restated Certificate of Incorporation to reflect new Delaware law
provisions regarding officer exculpation.
BROKER NON-
FOR AGAINST ABSTAIN VOTES
78,100,861 10,327,446 791,345 10,585,199
Proposal 4 - Approval of the amendment and restatement of the Company's Fourth
Amended and Restated Certificate of Incorporation to, among other things, change
the name of the Company to Select Water Solutions, Inc.
FOR AGAINST ABSTAIN
98,976,094 247,905 580,852
Item 7.01 Regulation FD Disclosure.
On May 8, 2023, the Company issued a press release announcing, among other
things, the change of the name of the Company. The full text of the press
release is included as Exhibit 99.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
THE INFORMATION FURNISHED UNDER ITEM 7.01 OF THIS CURRENT REPORT ON FORM 8-K,
INCLUDING EXHIBIT 99.1 ATTACHED HERETO, SHALL NOT BE DEEMED "FILED" FOR THE
PURPOSES OF SECTION 18 OF THE SECURITIES AND EXCHANGE ACT OF 1934, NOR SHALL IT
BE DEEMED INCORPORATED BY REFERENCE INTO ANY REGISTRATION STATEMENT OR OTHER
FILING PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, EXCEPT AS OTHERWISE
EXPRESSLY STATED IN SUCH FILING.
ITEM 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
3.1 Fifth Amended and Restated Certificate of Incorporation of Select
Water Solutions, Inc.
3.2 Third Amended and Restated Bylaws of Select Water Solutions, Inc.
10.1 Employment Agreement between John D. Schmitz and Select Energy
Services, LLC, dated May 5, 2023
99.1 Press Release, dated May 8, 2023.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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