RESIGNATION, GENERAL RELEASE AND SETTLEMENT AGREEMENT Supplementing and Amending the Executive Employment Agreement
Supplementing
and Amending the Executive 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 C. Xxxxxxxxxxx Xxxx (“Employee”)
and Halliburton Company (“Employer”
or “Halliburton”),
for and on behalf of itself, its subsidiaries, and its affiliated companies
(collectively, the “Halliburton
Entities”).
WHEREAS, Employee is currently
employed by Employer pursuant to that certain Executive Employment Agreement,
dated as of March 3, 2003, and as amended as of December 31, 2008 (the “Employment
Agreement”), copies of which are 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, 2009, and that Employee’s
employment as a regular employee will terminate on August 1, 2009
(the “Termination
Date”), and Employee will take early retirement, following which
termination Employee will be entitled to receive the benefits provided under (i)
Section 3.3 of the Employment Agreement, 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; 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 3.3 of the Employment
Agreement and such other benefits and amounts provided in this
Supplement. On March 31, 2009, Employee shall become a regular
employee and he 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. Employee agrees to sign letters of resignation
not inconsistent with the terms of this Supplement, if requested by Employer,
effective as of March 31, 2009. Employee acknowledges that from March
31, 2009 through the Termination Date he shall continue as a regular employee,
but that he shall have no authority to, and shall not act as an officer,
director, 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 events (including negotiations) leading up to the
execution of this Supplement shall remain confidential as between the
parties and he shall not disclose them to any other person. The
parties acknowledge that Employer will be required to provide a copy of
this Supplement with a filing of an SEC Form 8-K. 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.
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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,
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to
information in the public domain (but only if the same becomes part of the
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. Obligations of
Employer. In addition to Employer’s obligations under Article
3 of the Employment Agreement, Employer agrees as follows:
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(a)
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Employee
shall be entitled to receive his regular monthly salary through the
Termination Date, but acknowledges and agrees that he will not be entitled
to any payment for any 2009 vacation
time.
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(b)
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Effective
with the later of the Termination Date or the Effective Date, the parties
agree that in accordance with Section 3.3(i)(b) of the Employment
Agreement 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
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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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(c)
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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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(d)
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Upon
approval of the administrative committee appointed to administer the
Supplemental Executive Retirement Plan (the “SERP”) 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 2009 plan year
for such plans; provided, however, that Employee will not receive an
allocation under the SERP for 2009 other than applicable
interest. 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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(e)
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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 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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(f)
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Employer will
provide Employee with ten (10) months of outplacement services or pay him
a lump sum payment of $15,000 at his election (please initial for lump sum
payment).
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(g)
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Employer
will reimburse Employee for financial planning assistance during 2009 up
to $10,000 or pay him a lump sum payment of $10,000 at his election
(please initial for lump sum
payment).
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(h)
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Employer
will reimburse Employee for or pay for an executive physical on or before
December 31, 2009 or pay him a lump sum payment of $2,650 (please initial
for lump sum payment).
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(i)
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Applicable
withholding taxes will be deducted from all payments and other
compensation due Employee under this Supplement or under the Employment
Agreement when, as and if paid to
Employee.
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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. 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.
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; 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;
and
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(b)
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Employee
acknowledges that in his role as President, Drilling and Evaluation
Division, 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;
and
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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 three (3) 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 : Employee
will not engage, directly or indirectly, either as proprietor,
stockholder, partner, officer, member, employee, consultant, or otherwise,
in any existing or future business or in any existing or future division
or unit of a commercially diverse business enterprise, that is owned in
whole or in part or effectively controlled by any of the
following companies: Xxxxx Xxxxxx Inc.; BJ Services Company; Cameron
International Corporation; Exterran Holdings; National Oilwell Varco;
Paradigm B.V.; Schlumberger Ltd.; Xxxxx International, Inc.; or
Xxxxxxxxxxx International New (collectively, the “Competitive
Businesses”) in competing with any of the Halliburton Entities or
any of the activities relating to, arising under, or
included within
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the business
activities of the Halliburton Entities, including those described in
Section 9(a) above, anywhere in the world in accordance with Section
9(d)(iii) below. The parties acknowledge and agree that
Employee may associate with or work for an investment banking, financial
or consulting organization without violating this Section 9 provided such
organization does not fall into the definition of the Competitive
Businesses.
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(ii) (A)
Non-Solicitation
of Former or Current Employees: Employee
agrees that Employee will not, during the Non-Competition Period, solicit,
directly or indirectly, or cause or permit others to solicit, directly or
indirectly, any person (i) formerly employed by Employer as an employee,
contractor, consultant or otherwise during the one-year period immediately
preceding Employee’s termination of employment or during the
Non-Competition Period (“Former
Employee”) or (ii) employed by Employer as an employee, contractor,
consultant or otherwise during the Non-Competition Period (“Current
Employee”). The term “solicit”
includes, but is not limited to, the following (regardless of whether done
directly or indirectly): (a) requesting that a Former or
Current Employee change employment; (b) informing a Former or Current
Employee that an opening exists elsewhere; (c) assisting a Former or
Current Employee in finding employment elsewhere; (d) inquiring if a
Former or Current Employee “knows of anyone who might be interested” in a
position elsewhere; (e) inquiring if a Former or Current Employee might
have an interest in employment elsewhere in any capacity; (f) informing
others of the name or status of, or other information about, a Former or
Current Employee; or (g) any other similar conduct, the intended or actual
effect of which is that a Former Employee affiliates with another employer
in any capacity or a Current Employee leaves the employment of
Employer. (B) Non-Solicitation or
Diversion of Commercial Relationships: Employee further
agrees that he will not directly or indirectly, for his own purposes or
for the purposes of others, 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 Halliburton
Entities.
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(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 agrees that his breach or
violation of the covenants contained in Sections 8 and/or 9(d)(ii), or any
threatened breach or violation thereof, shall entitle Employer, on its own
behalf or on behalf of any of the Halliburton Entities, to seek 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(d)(ii),
but shall be in addition to all remedies available at law or in equity to
Employer 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
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and are
designed particularly to protect their Proprietary and Confidential Information
and goodwill.
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 (i) continue Employee’s monthly base salary
through the Termination Date and (ii) make a cash payment to Employee for
the prorated amount earned, if any, under the Performance Unit Program for
the 2007, 2008 and 2009 performance cycles, which if due will be paid
without interest on the later of the date payments are made to other
participants under the Program or July 1, 2012, in accordance with the
terms of such Program. Employee shall not participate in the
Performance Unit Program for any performance cycles other than the 2007,
2008 and 2009 cycles.
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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 payments 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. Employer agrees to provide
written notice to Employee, as provided in Section 18 hereof, of any
circumstances Employer has knowledge of that Employer claims constitute a
breach of Sections 8 or 9 within ninety (90) calendar days of its
knowledge of such breach and allow Employee to correct or cure any such
breach, if possible, during the thirty (30) calendar days following such
written notice by Employer. 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 March 17, 2009, 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
is hereby 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(d)(ii) 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 amends and supplements the
Employment Agreement to the extent set forth herein. The parties
hereto expressly affirm that, except as amended and supplemented hereby, the
provisions of the Employment Agreement remain in full force and
effect. This Supplement 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 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
COMPANY
/s/
Xxxxxxxx X.
Xxxx /s/
C. Xxxxxxxxxxx Xxxx
Name: Xxxxxxxx
X.
Xxxx C.
Xxxxxxxxxxx Xxxx
Title: Executive
Vice
President, Date: March
19, 2009
Administration
& Chief Human
Resources
Officer
Date: March
31, 2009
