RESIGNATION, GENERAL RELEASE AND SETTLEMENT AGREEMENT Supplementing and Amending the Employment Agreement
Supplementing
and Amending the Employment Agreement
This
Resignation, General Release and Settlement Agreement (“Supplement”),
is made and entered into as of the Effective Date (as defined in Section 13
hereof), by and among Xxxxx X. Xxxx (“Employee”)
and Halliburton Energy Services, Inc. (“Employer”),
a subsidiary of Halliburton Company (“Halliburton”),
for and on behalf of itself, its parents, its subsidiaries, and its affiliated
companies (collectively, including Employer, the “Halliburton
Entities”).
WHEREAS, Employee is currently
employed by Employer pursuant to that certain Employment Agreement, dated as of
January 1, 1999 (the “Employment
Agreement”), a copy of which is attached hereto; and
WHEREAS, the parties hereto
contemplate that Employee will voluntarily resign as an officer and director of,
and from all positions, posts, offices and assignments with Employer and any
other Halliburton Entity effective as of March 31, 2010 (the “Termination
Date”), and Employee will take early retirement, following which
termination Employee will not be entitled to receive the benefits provided under
Section 3.3 of the Employment Agreement, but will be entitled to receive the
benefits provided under (i) Section 3 of this Supplement, subject to Employee’s
compliance with the conditions set forth in Section 3.4 of the Employment
Agreement relating to execution of a release in the form established by
Employer, as well as such release contained in this Supplement, and (ii) Section
10 of this Supplement, subject to Employee’s compliance with the conditions set
forth in Sections 8 and 9 of this Supplement relating to protection of
Employer’s legitimate business interests and goodwill; and
WHEREAS, the Employment
Agreement also provides that the severance benefits provided under Section 3.3
thereof are in consideration of Employee’s continuing obligations under the
Employment Agreement following termination of employment, including obligations
under Article 4 relating to ownership and protection of Halliburton intellectual
property and confidential information, Employee agrees that the severance
benefits provided under this Supplement serve the same purpose; and
WHEREAS, the parties desire to
amend and supplement the Employment Agreement by means of this Supplement to,
among other things, provide for a release of any claims or causes of action
Employee may have arising from or relating to his employment or service with
Employer and set forth the terms of Employee’s continuing obligations relating
to the treatment of confidential information and protection of Employer’s
legitimate business interests and goodwill; and
WHEREAS, the parties wish to
affirm that the terms of the Employment Agreement remain in full force and
effect except as amended and supplemented hereby; and
NOW, THEREFORE, in
consideration of the mutual promises, covenants and obligations contained in
this Supplement, the parties agree as follows:
1. Resignation. Employee
shall continue to be employed by Employer through the Termination Date, at which
time he shall voluntarily resign from employment and simultaneously elect early
retirement. Notwithstanding Employee’s voluntary resignation from employment and
voluntary election to take early retirement, Employee shall be entitled to
receive the severance benefits provided under Section 3 of this Supplement in
lieu of the benefits provided under Section 3.3 of the Employment Agreement, and
such other benefits and amounts provided in this Supplement. On the
Termination Date, Employee shall voluntarily resign as an officer and director
of, and from all other positions, posts, offices and assignments with, Employer
and any other Halliburton Entity and sign letters of resignation not
inconsistent with the terms of this Supplement, if requested by Employer.
Employee acknowledges that from and after the Termination Date he shall have no
authority to, and shall not act as an officer, director, employee or in any
other capacity for Employer or any Halliburton Entity.
2. Obligations of
Employee.
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(a)
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Employee
agrees that the terms and conditions of this Supplement and the events
(including negotiations) leading up to its execution shall remain
confidential as between the parties and he shall not disclose them to any
other person. Without limiting the generality of the foregoing,
Employee will not respond to or in any way participate in or contribute to
any public discussion, notice or other publicity concerning, or in any way
relating to, execution of this Supplement or the events (including any
negotiations) which led to its execution. Employee further
agrees that he shall not make, directly or indirectly, whether in writing,
orally or electronically, any negative, derogatory or other comment that
could reasonably be expected to be detrimental to the Halliburton
Entities, their business or operations or any of their current or former
employees, officers or directors. The foregoing
notwithstanding, Employee may disclose the terms of this Supplement to his
immediate family, attorneys and financial advisors provided he informs
them of this confidentiality provision and they agree to abide by
it.
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(b)
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Employee
agrees to an orderly transition of duties and will provide appropriate
details to Employer concerning all of his current business activities and
duties. Employee agrees this transition period will end on the
Termination Date.
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c)
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Employee
reaffirms and acknowledges his existing and continuing obligations under
the Employment Agreement, including, without limitation, the obligations
set forth in Article 4 thereof relating to ownership and protection of
intellectual property and confidential information. Except as may be
required by law, Employee also agrees to maintain in confidence any
proprietary and confidential information of customers, vendors, or other
third parties received or of which he has knowledge as a result of his
employment. The prohibitions of this subsection shall not apply, however,
to information in the public domain (but only if the
same becomes part
of the
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public
domain through means other than a disclosure prohibited hereunder or under the
Employment Agreement).
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(d)
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Employee
agrees to leave in his office or deliver to Employer on or before the
Termination Date all correspondence, memoranda, notes, records, data or
information, analyses, drawings, photographs or other documents
(including, without limitation, any computer-generated, computer-stored or
electronically-stored materials) made, composed or received by Employee,
solely or jointly with others, and which as of the Termination Date are in
his possession, custody or control and which are related in any manner to
the past, present or anticipated business of any of the Halliburton
Entities (collectively, the “Company
Information”) without retaining any copies thereof. It is the
intent of the parties that the foregoing covenant is applicable to all
Company Information and all copies thereof, whether in writing or in
electronic format, wherever located, including Company Information located
on or in Employee’s personally-owned property. Employee hereby grants and
conveys to Employer all right, title and interest in and to, including,
without limitation, the right to possess, print, copy and sell or
otherwise dispose of, all Company Information, and copies, abstracts or
summaries thereof, which may have been prepared by Employee or under his
direction or which may have come into his possession in any way during the
term of his employment with any of the Halliburton Entities and which
relate in any manner to the past, present or anticipated business of any
of the Halliburton Entities.
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(e)
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Employee
represents and acknowledges that he has no claim or right, title or
interest in the property or assets of any of the Halliburton Entities. On
or before the Termination Date, Employee shall deliver any such property
in his possession or control, including, without limitation, any
computers, cellular telephones, any wireless devices such as a
“BlackBerry,” credit cards, telephone cards, office keys and security
badges furnished by any of the Halliburton Entities for his
use.
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3.
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Obligations of
Employer. In lieu of Employer’s obligations under
Article 3 of the Employment Agreement, Employer and Employee agree as
follows:
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(a)
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Employee
shall be entitled to receive his regular salary through the Termination
Date.
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(b)
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In
consideration of Employee’s continuing obligations and promises as set
forth in the Employment Agreement and this Supplement, Employer will make
a one time severance payment to Employee equal to one year’s annual base
salary in effect on the Termination Date, in a single lump sum, less
applicable withholding taxes (the “Severance
Payment”). Employee acknowledges that the Severance
Payment exceeds and fully satisfies
any
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claim for
severance pursuant to any severance plan or program maintained by Employer or
any Halliburton Entity or under any law governing Employer or any of the
Halliburton Entities. In the event that Employee is entitled to
termination benefits, whether for severance pursuant to any severance plan or
program of Employer or any of the Halliburton Entities or under any law
governing any of the Halliburton Entities, that cannot be voluntarily released
by Employee, the Severance Payment shall be offset and reduced by any such
benefits.
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(c)
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Effective
with the later of the Termination Date or the Effective Date, all shares
of stock issued to Employee under the 1993 Stock and Incentive Plan as to
which restrictions have not lapsed as of the Termination Date will be
retained by Employee and all restrictions of any shares thus retained will
lapse, all pursuant to the terms of Employee’s underlying restricted stock
agreements.
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(d)
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Effective
on the later of the Termination Date or the Effective Date, Employee’s
rights to the stock options granted to him under the 1993 Stock and
Incentive Plan shall be treated in accordance with the terms of the
underlying stock option agreements applicable to approved retention of
stock options upon early retirement, after which Employee may exercise
such options, if at all, as permitted by such stock option agreements and
for the length of time permitted
thereby.
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(e)
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Upon
approval of the administrative committee appointed to administer the
Supplemental Executive Retirement Plan and Benefit Restoration Plan,
Employee will receive the aggregate balance of his accounts under such
plans, including applicable interest, in a single lump sum payment, as
soon as administratively feasible after the 2010 allocations to such
accounts have been determined. Employee recognizes that a
portion of such payments may be subject to a six month waiting period
under such plans in accordance with Internal Revenue Code Section
409A.
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(f)
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Employee
shall cease to be a participant in the Halliburton Annual Performance Pay
Plan effective as of the Termination Date. Any annual incentive
compensation earned under such Plan for the 2010 plan year shall be paid
to Employee at the time that incentive compensation amounts are paid to
the other Annual Performance Pay Plan
participants.
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(g)
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Employer
acknowledges that Employee is a participant in certain retirement and
welfare benefit plans and programs of Employer and Halliburton. Upon
termination of Employee’s employment, he shall receive the benefits to
which he is entitled in accordance with such plans’ respective terms;
provided, however, that, since the severance benefits provided under the
Employment Agreement and this Supplement are
in
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excess of
any severance benefits under Employer’s severance benefit plan or program,
Employee waives any right to severance benefits under such plan or program.
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(h)
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Employer
will provide Employee with cash-in-lieu of $12,000 for outplacement
services and $7,500 for financial planning services, as well as
reimbursement or payment for an executive physical examination for
2010.
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(i)
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The
Severance Payment and the payments provided for in Section 3(h) above will be made no
earlier than the later to occur of the Termination Date or Effective Date
and will be made as soon as administratively feasible, but not later than
60 days after the relevant date. Applicable withholding taxes
will be deducted from all payments due Employee
hereunder.
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4. Prior Rights and
Obligations. Employee and Employer acknowledge that all rights and
obligations of the parties relating to the employment or termination of
employment of Employee with Employer or any of the Halliburton Entities are
embodied in this Supplement and the Employment Agreement, as well as that
certain letter of intent dated April 30, 2008, entered into by the parties.
Except as set forth herein and therein, the parties shall have no further
employment or contractual relationship; provided, however, that the foregoing
provision shall not be interpreted or construed in such a manner as to limit,
extinguish or otherwise adversely affect Employee’s rights and the obligations
of any of the Halliburton Entities under any employee retirement or welfare
benefit plans, except severance plans, of Employer or the other Halliburton
Entities in accordance with such plans’ respective terms.
5. No
Admissions. Employee expressly understands and agrees that the
terms of this Supplement and the release contained herein are contractual and
not merely recitals and that the agreements herein and the consideration paid
pursuant to Section 3.3 of the Employment Agreement and Section 3 of this
Supplement is to compromise doubtful and disputed claims, avoid litigation, and
buy peace, having the force of res judicata accorded to
settlements under certain laws applicable to any of the Halliburton Entities,
and that no statement or consideration given shall be construed as an admission
of any claim by any of the Halliburton Entities or their respective employees,
officers, directors, shareholders, trustees, insurers, agents and
representatives (collectively, including Employer, the “Halliburton
Parties”), all such admissions being expressly denied. Moreover, neither
the Employment Agreement, this Supplement nor anything in the Employment
Agreement or this Supplement shall be construed to be or shall be admissible in
any proceeding as evidence of an admission by Employer or Halliburton of any
violation of their policies, procedures, state or federal laws or regulations.
The Employment Agreement and this Supplement may be admitted into evidence,
however, in any proceeding to enforce such agreements. In such event, such
admission shall be pursuant to an order protecting its
confidentiality.
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6. Employee’s
Representation. (a) Employee represents, warrants
and agrees that he has not filed any claims, appeals, complaints, charges or
lawsuits against any of the Halliburton Parties with any governmental agency or
court and that he will not file or permit to be filed or accept any benefit from
any claim, complaint or petition filed with any court by him or on his behalf at
any time hereafter; provided, however, that this shall not limit Employee from
enforcing his rights under the Employment Agreement and this Supplement.
Further, Employee represents and warrants that no other person or entity has any
interest in, or assignment of, any claims or causes of action he may have
against any Halliburton Party and which he now releases in their entirety; (b)
Additionally, Employee specifically acknowledges that he understands that he is
not waiving any right, claim, or legal matter through this Supplement that
cannot be waived, under law, by private agreement. Employee also
understands that this Supplement is not intended to waive or interfere with his
right to institute a proceeding with any government agency where such waiver
would be contrary to law. However, in connection with any such
proceeding, Employee waives any right or entitlement to additional compensation
or other individual relief except to the extent, if any, such waiver is
prohibited by law.
7. General Release and
Discharge. Except for those obligations created or
acknowledged by this Supplement and the Employment Agreement, and in
consideration of the payments and other benefits to be made or provided to
Employee under this Supplement and the Employment Agreement, and as a material
inducement to Employer to enter into this Supplement, Employee, on behalf of
himself and his heirs, executors, administrators, assigns, and successors,
hereby agrees to release, acquit and discharge and does hereby release, acquit
and discharge Employer, all Halliburton Entities and all Halliburton Parties
(both in their official and individual capacities), collectively and
individually, with respect to and from any and all claims and any and all causes
of action, of any kind or character, whether now known or unknown, he may have
against any of them which exist as of the Termination Date, including, but not
limited to, any claim for benefits, compensation, stock, stock options, costs,
damages, expenses, remuneration, salary or wages; and all claims or causes of
action arising from his employment, termination of employment, or any alleged
discriminatory employment practices, including but not limited to, any and all
claims and causes of action arising under the Age Discrimination in Employment
Act, as amended, 29 U.S.C. § 621, et seq. (“ADEA”) and
any and all claims and causes of action arising under any other federal, state
or local laws pertaining to discrimination in employment or equal employment
opportunity; except that the parties agree that Employee’s release, acquittal
and discharge shall not relieve Employer from its obligations under the
Employment Agreement and this Supplement. This release also applies to any
claims brought by any person or agency or class action under which Employee may
have a right or benefit.
8. Proprietary and Confidential
Information/Non-Disclosure. In accordance with
Employee's existing and continuing obligations, Employee agrees and acknowledges
that the various Halliburton Entities have developed and own valuable
information which is confidential, unique, with material pecuniary value on the
open market, and specific to the Halliburton Entities ("Proprietary and
Confidential Information") and which includes, without limitation, trade
secrets; financial information, projections and forecasts; marketing plans and
strategies; business and implementation plans; engineering plans; prospect
lists; technical information concerning
products, equipment, services and processes; procurement procedures and pricing techniques;
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names and
other information (such as credit and financial data) concerning customers and
business affiliates; and all other concepts, ideas, plans, strategies, analyses,
surveys, and proprietary information related to the past, present or anticipated
business of various of the Halliburton Entities. Except as may be required by
law, Employee agrees that he will not at any time disclose to others, permit to
be disclosed, use, permit to be used, copy or permit to be copied, any such
Proprietary and Confidential Information (whether or not developed by Employee
and whether or not received as an employee) without prior written consent of the
Chief Executive Officer of Halliburton. Except as may be required by law,
Employee further agrees to maintain in confidence any proprietary and
confidential information of third parties received or of which he has knowledge
as a result of his employment. Employee further acknowledges and agrees that if
he is required by law, pursuant to a validly issued subpoena or other
governmental or legal process to disclose any Proprietary and Confidential
Information, Employee will immediately advise the Halliburton Entities that a
subpoena or other governmental order has been served, so that the Halliburton
Entities may have an opportunity to object or move to quash the subpoena or
governmental order in question. The prohibitions of this Section 8
shall not apply, however, to information in the public domain (but only if the
same becomes part of the public domain through a means other than a disclosure
prohibited hereunder).
9. Restrictive
Covenants: Protection of Employer’s Interests and
Goodwill.
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(a)
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Halliburton
is one of the world’s largest oilfield services companies, providing a
comprehensive range of services and products for the exploration,
development, and production of oil and gas, to major national,
international, and independent oil and gas companies throughout the
world.
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(b)
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Employee
acknowledges that in his role at Halliburton, he obtained, possessed and
otherwise had substantial access to significant portions of Halliburton’s
Proprietary and Confidential Information as defined herein, including
strategies and business plans; supervised and managed key employees, and
was responsible for key customer and supplier relationships on a worldwide
basis.
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(c)
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Employee
and Employer agree and acknowledge that the Halliburton Entities have
developed and own and will develop and own valuable Proprietary and
Confidential Information and that the Halliburton Entities have goodwill
and will continue to enjoy substantial goodwill unless disturbed by
Employee. Employee and Employer further agree and acknowledge that the
Halliburton Entities, and Employer on their behalf, have a substantial and
legitimate business interest in protecting their Proprietary and
Confidential Information and
goodwill.
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(d)
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Non-Competition
Period: For a 2-year period beginning on the first
business day following the later of the Termination Date or the
Effective Date of this Supplement (the “Non-Competition
Period”), Employee agrees to the following
covenants:
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(i) Non-Competition:
Except as provided below, Employee will not directly or indirectly, for his own
purposes or for the purposes of others, participate in the ownership,
management, operation or control of, or be or become a stockholder, officer,
employee, partner, director, or agent of, or a consultant to, or render advice
or services to, or otherwise assist, any person, business or legal entity, their
respective affiliates (including affiliates formed or acquired after the date
hereof) or successors (collectively, the “Competitive
Businesses”) in competing with any of the Halliburton Entities or any of
the activities relating to, arising under, or included within the business
activities of the Halliburton Entities, including those described in Section
9(a) above, anywhere in the world.
(ii) Non-Solicitation:
Employee will not directly or indirectly, for his own purposes or for the
purposes of others, either as principal, agent, independent contractor,
consultant, director, officer, employee, employer, advisor, stockholder,
partner, or in any other individual or representative capacity whatsoever,
either for his own benefit or for the benefit of any other person or entity: (A)
hire or attempt to hire, contact or solicit with respect to hiring, any person
who is or who has been within the preceding nine-month period or during the
Non-Competition Period, an employee of, full-time consultant to, or contract
employee of any of the Halliburton Entities; or (B) induce or otherwise counsel,
advise or encourage any employee or full-time consultant to leave any of the
Halliburton Entities; or (C) attempt to divert or take away, or induce another
person to attempt to divert or take away, any customer, consultant, franchisee
or vendor of any of the Halliburton Entities with whom Employee dealt, directly
or indirectly, during his employment with Employer or any of the other
Halliburton Entities.
(iii) Geographic Scope of
Restriction: The obligations of this Section 9 shall apply to
any geographic area in which any of the Halliburton Entities:
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a.
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Has
engaged in business by providing services and/or products for the
exploration, development, and production of oil and gas, to major
national, international, and independent oil and gas companies, including
both United States and international locations;
or
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b.
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Has
otherwise established its goodwill, business reputation or any customer or
supplier relations.
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The
above notwithstanding, nothing in this Section 9 shall prohibit Employee and his
affiliates from owning, as passive investors, in the aggregate not more than
five percent of equity securities of any publicly held Competitive
Business.
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(e)
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Employee
represents and warrants that the time, scope and geographic area
restricted by the provisions of this Section are reasonable, that the
enforcement of the restrictions contained herein will not be unduly
burdensome on Employee, and that Employee will be able to earn a
reasonable living while abiding by the terms imposed herein. Employee
agrees that the restraints created by the covenants of this Section 9 are
no greater than necessary to protect the legitimate interests of the
Halliburton Entities, including their Proprietary and Confidential
Information and goodwill. In addition, Employee agrees that the need of
the Halliburton Entities for the protection afforded by such covenants is
not outweighed by the hardship to Employee, nor is any injury to the
public likely to result from such restraints. Employee irrevocably waives
all defenses to the strict enforcement of the covenants contained in this
Section 9 and agrees that his breach or violation of the covenants
contained in Sections 8 and/or 9, or any threatened breach or violation
thereof, shall entitle Employer, on its own behalf or on behalf of any of
the Halliburton Entities, as a matter of right, to specific performance
and injunctive relief issued by any court of competent jurisdiction,
without the requirement to post a bond, restraining any further or
continued breach or violation of any such covenants. Such remedies shall
not be deemed the exclusive remedies for breach of Sections 8 and/or 9,
but shall be in addition to all remedies available at law or in equity to
Employer, including, without limitation, recovery of damages from Employee
and his agents involved in such breach. In addition, Employee agrees that
any breach by him of any of the covenants contained in Sections
8 and 9 will entitle Employer, for and on behalf of the other Halliburton
Entities, to recover the payments or other consideration paid to Employee
under Section 10 hereof. Further, Employee agrees that the Halliburton
Entities are entitled to insist on full compliance by Employee with the
full terms, including time periods, set forth in this Section
9.
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(f)
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It
is expressly understood and agreed that Employer and Employee consider the
restrictions contained in this Section 9 to be reasonable and necessary to
protect the Proprietary and Confidential Information and/or goodwill and
that Employee’s obligations to keep such information confidential shall
survive termination of the Non-Competition Period. Nevertheless, if any of
the aforesaid restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth
to be modified by such courts so as to be reasonable and enforceable and,
as so modified by the court, to be fully enforced, it being expressly
understood and agreed by Employee that the provisions of this Section are
reasonably necessary to protect the Halliburton Entities’ legitimate
business interests and are designed particularly to protect their
Proprietary and Confidential Information and
goodwill.
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10. Non-Competition and
Non-Solicitation Consideration.
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(a)
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In
consideration of Employee's covenants and promises as set forth in
Sections 8 and 9 hereof, but expressly subject to the provisions of
Section 9(e), Employer will make a cash payment to Employee for the
prorated amount earned, if any, under the Performance Unit Program for
only those performance cycles that Employee has been approved for
participation in prior to the Termination Date, which if due will be paid
on the later of (i) the date payments are made to other participants under
the Program, in accordance with the terms of such Program for the
applicable Cycle, or (ii) the end of the Non-Competition
Period. Employee shall not participate in the Performance Unit
Program for any performance cycles other than those for which he has been
approved prior to the Termination Date. Employee shall not
participate in the 2010 Cycle.
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(b)
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Payment
of the amounts set forth in Section 10(a) will be made only if Employee’s
obligations set forth in Sections 8 and 9 are fully satisfied at all times
during the Non-Competition Period and at the time such amounts are
payable. Employee understands and agrees that his right to all or any
portion of the payment provided for herein, and Company's obligation
to make payment of the entire amount or any portion thereof, are dependent
and conditioned on Employee's compliance in full with all provisions
contained in Sections 8 and 9. Any failure on the part of Employee
to comply with each such provision, including any attempt by or on behalf
of Employee to have any such provision declared unenforceable in whole or
in part by an arbitrator or court, shall excuse Employer forever from
the obligation to make the payments, in whole or in part, provided for in
Section 10(a).
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11. ADEA
Rights. Employee expressly acknowledges and agrees that by
entering into this Supplement, he is waiving any and all rights or claims that
he may have arising under ADEA. Employee further expressly
acknowledges and agrees that:
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(a)
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In
return for the release contained in this Supplement, he will receive
consideration beyond that which he would have been entitled to receive but
for the Employment Agreement and this
Supplement;
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(b)
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He
was given a copy of this Supplement on April 30, 2008, and he has
twenty-one (21) days from such date to review it before accepting, and
that subsequent changes to this Supplement, whether material or
immaterial, shall not restart such 21-day review
period;
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(c)
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He
has been advised in writing by Employer to consult with an attorney before
signing this Supplement; and
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(d)
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If
he accepts this Supplement, he will have seven (7) days following the date
of execution of this Supplement to revoke this
Supplement.
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12. Agreement
Voluntary. Employee acknowledges and agrees that he has
carefully read this Supplement and understands that, except as expressly
reserved herein, it is a release of all claims, known and unknown, past or
present, including all claims under the ADEA. He further agrees that he has
entered into this Supplement for the above stated consideration. He warrants
that he is fully competent to execute this Supplement which he understands to be
contractual. He further acknowledges that he executes this Supplement of his own
free will, after having a reasonable period of time to review, study and
deliberate regarding its meaning and effect, and after being advised to consult
with an attorney, and without reliance on any representation of any kind or
character not expressly set forth herein. Finally, he executes this Supplement
fully knowing its effect and voluntarily for the consideration stated
above.
13. Effective
Date. The Effective Date shall be eight (8) days after the
execution of this Supplement by Employee and Employer, provided Employee has not
exercised his right of revocation pursuant to Section 11(d) above. This
Supplement will become binding in its entirety upon Employee and Employer, and
all of its provisions will be irrevocable on the Effective Date.
14. Payment of
Taxes. Employee agrees that he shall be exclusively liable for
the payment of all employee federal and state taxes which may be due as a result
of the consideration received herein and Employee represents that he shall make
payments of such taxes at the time and in the amount required.
15. Dispute
Resolution. Each of the parties affirm that Section 5.6 of the
Employment Agreement pertaining to resolution of disputes likewise controls with
respect to the resolution of disputes hereunder; provided, however, that
Employer, for and on behalf of itself and the other Halliburton Entities, shall
be entitled to seek a restraining order or injunction in any court of competent
jurisdiction to prevent any breach or a continuation of any breach of the
provisions of Sections 8 and/or 9 and Employee hereby consents that such
restraining order or injunction may be granted without the necessity of Employer
posting any bond.
16. Further
Executions. The parties agree to cooperate fully and to
execute any and all supplementary documents and to take all additional actions
that may be necessary or appropriate to give full force to the basic terms and
intent of this Supplement and which are not inconsistent with its terms or the
terms of the Employment Agreement.
17. Entire
Agreement. This Supplement, as well as that certain letter of
intent dated April 30, 2008, between Employee and Employer, amends and
supplements the Employment Agreement to the extent set forth herein and therein.
The parties hereto expressly affirm that, except as amended and supplemented
hereby and thereby, the provisions of the Employment Agreement remain in full
force and effect. This Supplement, the letter of intent, and the Employment
Agreement constitute the entire agreement and understanding of the parties with
regard to the terms of Employee's employment, termination of employment and
severance benefits and contain all of the covenants, promises, representations,
warranties and agreements between the parties with
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respect
to such matters. Each party to this Supplement acknowledges that no
representation, inducement, promise, or agreement, oral or written, has been
made by either party with respect to the foregoing matters which is not embodied
in the aforementioned agreements, and that no agreement, statement, or promise
relating to the employment or termination of employment of Employee that is not
contained in such agreements shall be valid and binding. No amendment to or
modification of this Supplement shall be effective unless reduced to writing and
signed by the parties.
18. Notice. For purposes
of this Supplement and the Employment Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when received by or tendered to Employee or Employer, as
applicable, by pre-paid courier or by United States registered or certified
mail, return receipt requested, postage pre-paid, addressed as
follows:
If to
Employer, to Halliburton Company at Five Houston Center, 0000 XxXxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000, to the attention of the General Counsel of
Halliburton Company; or to such other address of which Employee has been duly
notified.
If to
Employee, to his last known personal address.
19. Section 409A of the
Code. Notwithstanding any provision of this Supplement to the
contrary, the following provisions shall apply for purposes of complying with
Section 409A of the Internal Revenue Code and applicable Treasury authorities
(“Section
409A”):
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(a)
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If
Employee is a “specified
employee,” as such term is defined in Section 409A and determined
as described below in this Section 19, any payments or benefits payable or
provided as a result of Employee’s termination of employment shall not be
payable before the earlier of (i) the date that is six months after
Employee’s termination, (ii) the date of Employee’s death, or (iii) the
date that otherwise complies with the requirements of Section
409A.
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(b)
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If
any provision of this Supplement would result in the imposition of an
applicable tax under Section 409A, Employee and Employer agree that such
provision will be reformed to avoid imposition of the applicable tax in a
manner that will result in the least adverse economic impact on
Employee.
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IN WITNESS WHEREOF, Employer
and Employee have duly executed this Supplement in multiple originals to be
effective on the Effective Date.
HALLIBURTON
ENERGY SERVICES, INC.
By:
/s/ Xxxxxxxx X.
Xxxx /s/ Xxxxx X.
Xxxx
Xxxxxxxx X.
Xxxx
Xxxxx X. Xxxx
Executive Vice President,
Administration
& Chief HR Officer, Halliburton
Company Date:
3/17/2010
Date:
3/22/2010
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