EXHIBIT 10.25
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement"), dated this 18th day
of February, 2002, is entered into by and between Dresser Inc. and any of its
subsidiaries and affiliates as may employ Employee from time to time,
(collectively, "Employer" or "Dresser, Inc.") Xxxxxxx X. Xxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employee desires to be employed by Dresser, Inc.; and
WHEREAS, Employer desires to employ Employee pursuant to the terms and
conditions set forth herein and Employee desires to be employed by Employer
pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, Employer and Employee agree as
follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, beginning as of February 18, 2002 (the Effective Date) and
continuing until the date of termination of Employee's employment pursuant to
the provisions of Article 3 (the "Term"), subject to the terms and conditions of
this Agreement.
1.2 Beginning as of the Effective Date, Employee shall be employed as
the President, Measurement of Employer. Employee agrees to serve in the assigned
position or in such other executive capacities as may be requested from time to
time by Employer and to perform diligently and to the best of Employee's
abilities the duties and services pertaining to such positions as reasonably
determined by Employer, as well as such additional or different duties and
services appropriate to such positions which Employee from time to time may be
reasonably directed to perform by Employer.
1.3 Employee shall at all times comply with and be subject to such
policies and procedures as Employer may establish from time to time, including,
without limitation, Employer's Company Code of Business Conduct (the "Code of
Business Conduct").
1.4 Employee shall, during the period of Employee's employment by
Employer, devote Employee's full business time, energy, and best efforts to the
business and affairs of Employer. Employee may not engage, directly or
indirectly, in any other business, investment, or activity that interferes with
Employee's performance of Employee's duties hereunder, is contrary to the
interest of Employer or any of its affiliated subsidiaries and divisions, (each
a "Dresser, Inc. Entity", or collectively, the
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"Dresser, Inc. Entities"), or requires any significant portion of Employee's
business time. The foregoing notwithstanding, the parties recognize and agree
that Employee may engage in passive personal investments and other business
activities which do not conflict with the business and affairs of Dresser, Inc.
Entities or interfere with Employee's performance of his or her duties
hereunder. Employee may not serve on the board of directors of any entity other
than a Dresser, Inc. Entity during the Term without the approval thereof in
accordance with Employer's policies and procedures regarding such service.
Employee shall be permitted to retain any compensation received for approved
service on any unaffiliated corporation's board of directors.
1.5 Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity, and allegiance to act at all times in the best
interests of the Employer and the other Dresser, Inc. Entities and to do no act
which would, directly or indirectly, injure any such entity's business,
interests, or reputation. It is agreed that any direct or indirect interest in,
connection with, or benefit from any outside activities, particularly commercial
activities, which interest might in any way adversely affect Employer, or any
Dresser, Inc. Entity, involves a possible conflict of interest. In keeping with
Employee's fiduciary duties to Employer, Employee agrees that Employee shall not
knowingly become involved in a conflict of interest with Employer or any
Dresser, Inc. Entity, or upon discovery thereof, allow such a conflict to
continue. Moreover, Employee shall not engage in any activity that might involve
a possible conflict of interest without first obtaining approval in accordance
with Employer's policies and procedures.
1.6 Nothing contained herein shall be construed to preclude the
transfer of Employee's employment to another Dresser, Inc. Entity ("Subsequent
Employer") as of, or at any time after, the Effective Date and no such transfer
shall be deemed to be a termination of employment for purposes of Article 3
hereof; provided, however, that, effective with such transfer, all of Employer's
obligations hereunder shall be assumed by and be binding upon, and all of
Employer's rights hereunder shall be assigned to, such Subsequent Employer and
the defined term "Employer" as used herein shall thereafter be deemed amended to
mean such Subsequent Employer. Except as otherwise provided above, all of the
terms and conditions of this Agreement, including without limitation, Employee's
rights and obligations, shall remain in full force and effect following such
transfer of employment.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee's base salary during the Term shall be not less than
$210,000.00 per annum which shall be paid in accordance with the Employer's
standard payroll practice for its executives. Employee's base salary may be
increased from time to time. Such increased base salary shall become the minimum
base salary under this Agreement and may not be decreased thereafter without the
written consent of Employee.
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2.2 During the Term, Employee shall participate in an annual
incentive plan, as approved by Dresser, Inc. Notwithstanding the aforementioned,
it is specifically understood and agreed that all determinations relating to
Employee's participation, including, without limitation, those relating to the
performance goals applicable to Employee and Employee's level of participation
and payout opportunity, shall be made in the sole discretion of the person or
committee to whom such authority has been granted.
2.3 During the Term, Employer shall pay or reimburse Employee for all
actual, reasonable and customary expenses incurred by Employee in the course of
his or her employment; including, but not limited to, travel, entertainment,
subscriptions, and dues associated with Employee's membership in professional,
business and civic organizations; provided that such expenses are incurred and
accounted for in accordance with Employer's applicable policies and procedures.
2.4 While employed by Employer, Employee shall be allowed to
participate, on the same basis generally as other executive employees of
Employer, in all general employee benefit plans and programs, including
improvements or modifications of the same, which on the Effective Date or
thereafter are made available by Employer to all or substantially all of
Employer's similarly situated executive employees. Such benefits, plans, and
programs may include, without limitation, medical, health, and dental care, life
insurance, disability protection, and qualified and non-qualified retirement
plans. Except as specifically provided herein, nothing in this Agreement is to
be construed or interpreted to increase or alter in any way the rights,
participation, coverage, or benefits under such benefit plans or programs than
provided to similarly situated executive employees pursuant to the terms and
conditions of such benefit plans and programs.
2.5 Notwithstanding anything to the contrary in this Agreement, it is
specifically understood and agreed that Employer shall not be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing any
incentive, compensation, employee benefit or stock or stock option program or
plan, so long as such actions are similarly applicable to covered employees
generally.
2.6 Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
ARTICLE 3: TERMINATION OF EMPLOYMENT AND EFFECTS OF SUCH TERMINATION:
3.1 Employee's employment with Employer shall be terminated (i) upon
the death of Employee, (ii) upon Employee's Retirement (as defined below), (iii)
upon Employee's Permanent Disability (as defined below), or (iv) at any time by
Employer upon notice to Employee, or (v) by Employee upon thirty (30) days'
notice to Employer, for any or no reason.
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3.2 If Employee's employment is terminated by reason of any of the
following circumstances (i), (ii), or (iii), Employee shall be entitled to
receive the benefits set forth only in Section 3.3 below:
(i) Retirement. "Retirement" shall mean either (a) Employee's
retirement at or after normal retirement age (either voluntarily
or pursuant to Employer's retirement policy) or (b) the
voluntary termination of Employee's employment by Employee in
accordance with Employer's early retirement policy.
(ii) Employer Termination for Cause. Termination of Employee's
employment by Employer shall mean a termination of employment at
the election of the Employer when there is "Employer Cause".
"Employer Cause" shall mean any of the following: (a) Employee's
gross negligence or willful misconduct in the performance of the
duties and services required of Employee pursuant to this
Agreement, (b) Employee's final conviction of or plea of guilty
or nolo contendere to a felony or Employee engaging in
fraudulent or criminal activity relating to the scope of
Employee's employment (whether or not prosecuted), (c) a
material violation of Employer's Code of Business Conduct, (d)
Employee's material breach of any material provision of this
Agreement, provided that Employee has received written notice
from the Employer and been afforded a reasonable opportunity
(not to exceed 30 days) to cure such breach, or (e) any
continuing or repeated failure to perform the duties as
requested in writing by the Board of Directors of Dresser, Inc.
after Employee has been afforded a reasonable opportunity (not
to exceed 30 days) to cure such breach. Determination as to
whether or not Employer Cause exists for termination of
Employee's employment will be made by Dresser, Inc.
(iii) Resignation, Other Than For Cause. Termination of Employee's
employment by resignation other than for Employee Cause as
described in Section 3.4(i).
3.3 If Employee's employment is terminated by reason of Section 3.2
(i), (ii), or (iii), Employee shall be entitled to each of the following:
(i) The cash value of Employee's stock, options, or other equity
interests in Dresser, Inc. for the following categories: (1)
stock or other equity interests which represent a direct
investment in Dresser, Inc. by the Employee; (2) vested options
which were previously granted to Employee and based on
Employee's continuity of employment; (3) any restricted stock
previously granted to Employee; and (4) any vested
performance-based options granted to the Employee. For purposes
of clarification, it is specifically understood and agreed that:
(a) all options previously granted under categories (2) and (4)
above that are unvested at the time of the
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Employee's termination of employment shall be forfeited by the
Employee; and (b) all restricted stock previously granted to
Employee under category (3) above shall have all restrictions
lapse on the date of Employee's termination. The valuation,
timing of payment, and other related matters regarding the
payment of the aforesaid stock, other equity interests, or
options shall be as set forth in a separate agreement between
Employee and Employer (including any restrictions contained in
financing agreements of the Employer).
(ii) Employee shall be entitled to a pro rata base salary
through the date of such termination and shall be entitled to
any individual bonuses or individual incentive compensation not
yet paid, but payable under Employer's plans for years prior to
the year of Employee's termination of employment, but shall not
be entitled to any bonus or incentive compensation for the year
in which he or she terminates employment or any other payments
or benefits by or on behalf of Employer except for those which
may be payable pursuant to the terms of Employer's employee
benefit plans (as defined in Section 3.7), stock, option, or
other equity interests or the applicable agreements underlying
such plans.
(iii) Except for (i) and (ii) above, and, at the option of the
Employer, (iv) below, it is specifically understood that all
future compensation to which Employee is entitled and all future
benefits for which Employee is eligible, shall cease and
terminate as of the date of termination.
(iv) If Employee's employment is terminated for reasons under
Section 3.2 (i), (ii) or (iii), then Employer, at its sole
option, shall be entitled to enforce the covenant not to compete
and other conditions set forth in Article 5 herein for a period
not to exceed one (1) year. In the event that Employer elects to
trigger such option, Employer agrees to pay an amount equal to
Employee's base salary and the individual bonus or incentive
compensation at the level of 50% of Employee's base salary for a
period of one (1) year. Such amount shall be based upon
Employee's last base salary amount prior to termination.
Payments to the Employee for the base salary amount shall be in
equal installments in accordance with Employer's customary
payroll practices over the one year period. Payments of the
individual bonus or incentive compensation shall be made at the
time such a payment is made to similarly situated employees. In
the event that Employee breaches any of the terms of Article 5
during the aforementioned one (1) year period, then Employer
shall be entitled to immediately cease making further payments
to Employee and, in addition, shall be entitled to seek damages
and such other relief, (including an injunction against
Employee) to which it is entitled under the law. Employee agrees
that any payment under this Article constitutes full and
adequate consideration to the Employee's obligations under
Article 5.
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3.4 If Employee's employment is terminated by reason of (i), (ii),
(iii), or (iv) below, Employee shall be entitled to receive the benefits set
forth in Section 3.5 or Section 3.6, as applicable.
(i) Employee Termination For Cause. "Employee Termination For Cause"
shall mean a termination of employment at the election of
Employee when there is "Employee Cause". "Employee Cause" shall
mean (a) a termination of employment by Employee because of a
material breach by Employer of any material provision of this
Agreement which remains uncorrected for thirty (30) days
following notice of such breach by Employee to Employer,
provided such termination occurs within sixty (60) days after
the expiration of the notice period or (b) a termination of
employment by Employee within six (6) months after a material
reduction in Employee's rank or responsibility with Employer.
(ii) Employer Termination Without Cause. Termination of Employee's
employment by Employer shall mean a termination of employment at
the sole election and option of the Employer for the Employer's
convenience and without Employer Cause.
(iii) Death.
(iv) Permanent Disability. "Permanent Disability" shall mean
Employee's physical or mental incapacity to perform his or her
usual duties with such condition likely to remain continuously
and permanently as determined by Employer.
3.5 If Employee's employment is terminated by Employee under Section
3.4 (i) or by Employer under Section 3.4 (ii), Employee shall be entitled to
each of the following:
(i) The cash value of Employee's stock, options, or other equity
interests in Dresser, Inc. for the following categories: (1)
stock or other equity interests which represent a direct
investment in Dresser, Inc. by the Employee; (2) options, both
vested and unvested, which were previously granted to Employee
and based on Employee's continuity of employment; (3) any
restricted stock previously granted to Employee; and (4) any
performance-based options granted to the Employee, to the extent
that said options are vested at the time of termination of
employment of the Employee. For purposes of clarification, it is
specifically understood and agreed that: (a) all options
previously granted under category (2) above that are unvested at
the time of the Employee's termination of employment shall be
immediately vested as of said date; (b) all restricted stock
previously granted to Employee under category (3) above shall
have all restrictions lapse on the date of Employee's
termination; and (c) all
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options previously granted to Employee under category (4) above
that are unvested on the date of Employee's termination of
employment, shall be forfeited by the Employee. The valuation,
timing of payment, and other related matters regarding the
payment of the aforesaid stock, other equity interests, or
options shall be as set forth in a separate agreement between
Employee and Employer (including any restrictions contained in
financing agreements of the Employer).
(ii) Subject to the provisions of Section 3.7, Employer shall pay to
Employee a severance benefit consisting of continued periodic
payments of Employee's base salary as in effect at the date of
Employee's termination of employment in accordance with
Employer's customary payroll practices during the period
commencing on the effective date of such termination and ending
on the earlier of (A) the second anniversary of the date of such
termination, or (B) the date Employee violates any of the
covenants set forth in Article 4 or Article 5 hereof.
(iii) Employee shall be entitled to any individual bonuses or
individual incentive compensation not yet paid but payable under
Employer's plans for years prior to the year of Employee's
termination of employment. Such amounts shall be paid to
Employee in a single lump sum cash payment no later than sixty
(60) days following Employee's termination of employment.
(iv) Employee shall be entitled to any individual bonuses or
individual incentive compensation under Employer's plans for the
year of Employee's termination of employment determined as if
Employee had remained employed by the Employer for the entire
year. In addition thereto, for the time that Employee is
receiving continued periodic payments under Section 3.5 (ii)
above, Employee shall be entitled to receive any individual
bonuses or individual incentive compensation under Employer's
plans for the year(s) in which such periodic payments are made
to Employee. When the periodic payments expire or are otherwise
discontinued, Employee shall only be entitled to receive a
pro-rata share of said bonus or incentive compensation payment
based on the portion of the year in which the periodic payments
under Section 3.5 (ii) were made. All amounts for individual
bonuses or incentive compensation due to Employee under this
Section 3.5 (iv), shall be paid at the time that such amounts
are paid to similarly situated employees. Any payments for
bonuses or incentive compensation that are beyond the year in
which Employee was terminated shall be paid at the level of 50%
of Employee's base salary regardless of the performance of the
Employer in the applicable year(s).
(v) Employer shall maintain Employee's medical, dental and life
insurance benefits for a period of eighteen (18) months from the
date of Employee's
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termination on substantially the same basis as would have
otherwise been provided had Employee not been terminated. To the
extent that such benefits are available under Employer's
insurance and Employee had such coverage immediately prior to
termination, such continuation of benefits for Employee shall
also cover Employee's dependents.
3.6 If Employee's employment is terminated by reason of Section 3.4
(iii) or (iv), Employee's estate, in the case of death, or Employee or his legal
guardian, in the case of Permanent Disability, shall be entitled to payment of
all amounts determined under Section 3.5 (i) through (iv), except that: (1) the
two years' of base salary to be paid under Section 3.5 (ii) shall be paid in a
lump sum within sixty (60) days after termination of Employee's employment; and
(2) Employee's estate, Employee, or his legal guardian, as applicable, shall,
under Section 3.5 (iv), only be entitled to receive any individual bonus or
incentive compensation under Employer's plans for the year in which Employee was
terminated. In the case of death or Permanent Disability, Employer shall not be
liable for any further bonus or incentive compensation plans otherwise payable
under Section 3.5 (iv). All payments due under Section 3.5 (iii) shall be paid
in a single lump sum payment no later than sixty (60) days after Employee's
termination of employment. All payments due under Section 3.5 (iv), as modified
herein, shall be paid no later than sixty (60) days after the bonus or incentive
compensation is capable of being determined.
3.7 The severance benefit paid to Employee pursuant to Section 3.2 or
Section 3.5 above shall be in consideration of Employee's continuing obligations
hereunder after such termination, including, without limitation, Employee's
obligations under Article 4 and Article 5. Further, as a condition to the
receipt of such severance benefit, Employer, in its sole discretion, may require
Employee to first execute a release, in the form established by Employer,
releasing Employer and all other Dresser, Inc. Entities, and their officers,
directors, employees, and agents, from any and all claims and from any and all
causes of action of any kind or character, including, but not limited to, all
claims and causes of action arising out of Employee's employment with Employer
and any other Dresser, Inc. Entities or the termination of such employment. The
performance of Employer's obligations under Section 3.3 or Section 3.5 and the
receipt of the severance benefit provided thereunder by Employee shall
constitute full settlement of all such claims and causes of action. Employee
shall not be under any duty or obligation to seek or accept other employment
following a termination of employment pursuant to which a severance benefit
payment under Section 3.3 or Section 3.5 is owing and the amounts due Employee
pursuant to Section 3.3 or Section 3.5 shall not be reduced or suspended if
Employee accepts subsequent employment or earns any amounts as a self-employed
individual. Employee's rights under Section 3.3 or Section 3.5 are Employee's
sole and exclusive rights against the Employer, or any affiliate of Employer,
and the Employer's sole and exclusive liability to Employee under this
Agreement, whether such claim is based in contract, tort or otherwise, for the
termination of his or her employment relationship with Employer. Employee agrees
that all disputes relating to Employee's employment or termination of employment
shall be resolved through Employer's Dispute Resolution Plan as provided in
Section 6.6 hereof; provided, however, that decisions as to whether there is
"Employer Cause" for termination of the employment relationship with
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Employee and whether and as of what date Employee has become permanently
disabled shall be limited to whether such decision was reached in good faith.
Nothing contained in this Article 3 shall be construed to be a waiver by
Employee of any benefits accrued for or due Employee under any employee benefit
plan (as such term is defined in the Employees' Retirement Income Security Act
of 1974, as amended) maintained by Employer except that Employee shall not be
entitled to any severance benefits pursuant to any severance plan or program of
the Employer.
3.8 Termination of the employment relationship does not terminate
those obligations imposed by this Agreement, which are continuing obligations,
including, without limitation, Employee's obligations under Article 4 and
Article 5.
3.9 The payment of any monies to Employee under this Agreement after
the date of termination of employment do not constitute an offer or a
continuation of employment of the Employee. In no event, shall Employee
represent or hold himself out to be an employee of Employer after the date of
termination of employment. Except where Employer is lawfully required to
withhold any federal, state, or local taxes, Employee shall be responsible for
any and all federal, state, or local taxes that arise out of any payments to
Employee hereunder.
3.10 During any period during which any monies are being paid to
Employee under this Agreement after the date of termination, Employee shall
provide to Employer reasonable levels of assistance to Employer in answering
questions concerning the business of Employer, transition of responsibility, or
litigation, provided that all out of pocket expenses of Employee reasonably
incurred in connection with such assistance is fully and promptly reimbursed and
that any such assistance after the Non-Compete Period (as defined below) shall
not interfere or conflict with the obligations which Employee may owe to any
other employer.
ARTICLE 4: OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY AND CONFIDENTIAL
INFORMATION:
4.1 All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer or any of the Dresser, Inc. Entities (whether
during business hours or otherwise and whether on Employer's premises or
otherwise) which relate to the business, products or services of Employer or the
Dresser, Inc. Entities (including, without limitation, all such information
relating to corporate opportunities, research, financial and sales data, pricing
and trading terms, evaluations, opinions, interpretations, acquisition
prospects, the identity of customers or their requirements, the identity of key
contacts within the customer's organizations or within the organization of
acquisition prospects, or marketing and merchandising techniques, prospective
names, and marks), and all writings or materials of any type embodying any of
such items, shall be the sole and exclusive property of Employer or a Dresser,
Inc. Entity, as the case may be, and shall be treated as "work for hire".
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4.2 Employee acknowledges that the businesses of Employer and the
Dresser, Inc. Entities are highly competitive and that their strategies,
methods, books, records, and documents, their technical information concerning
their products, equipment, services, and processes, procurement procedures and
pricing techniques, the names of and other information (such as credit and
financial data) concerning their customers and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer or the Dresser, Inc. Entities use in their
business to obtain a competitive advantage over their competitors. Employee
further acknowledges that protection of such confidential business information
and trade secrets against unauthorized disclosure and use is of critical
importance to Employer and the Dresser, Inc. Entities in maintaining their
competitive position. Employee hereby agrees that Employee will not, at any time
during or after his or her employment by Employer, make any unauthorized
disclosure of any confidential business information or trade secrets of Employer
or the Dresser, Inc. Entities, or make any use thereof, except in the carrying
out of his or her employment responsibilities hereunder. Confidential business
information shall not include 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). The above notwithstanding, a disclosure shall not be
unauthorized if (i) it is required by law or by a court of competent
jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute
resolution or other legal proceeding in which Employee's legal rights and
obligations as an employee or under this Agreement are at issue; provided,
however, that Employee shall, to the extent practicable and lawful in any such
events, give prior notice to Employer of his or her intent to disclose any such
confidential business information in such context so as to allow Employer or a
Dresser, Inc. Entity an opportunity (which Employee will not oppose) to obtain
such protective orders or similar relief with respect thereto as may be deemed
appropriate.
4.3 All written materials, records, and other documents made by, or
coming into the possession of, Employee during the period of Employee's
employment by Employer which contain or disclose confidential business
information or trade secrets of Employer or the Dresser, Inc. Entities shall be
and remain the property of Employer, or the Dresser, Inc. Entities, as the case
may be. Upon termination of Employee's employment by Employer, for any reason,
Employee promptly shall deliver the same, and all copies thereof, to Employer.
ARTICLE 5: COVENANT NOT TO COMPETE:
5.1 During the Term of Employment and for a period of one (1) year
thereafter, if termination of employment is under Section 3.4 above or for the
period that payments are made pursuant to Section 3.3 (iv) if termination of
employment is under Section 3.2, (the "Non-Compete Period"), he will not, in
association with or as an officer, principal, member, advisor, agent, partner,
director, material stockholder, employee or consultant of any corporation (or
sub-unit, in the case of a diversified business) or other enterprise, entity or
association, work on the acquisition or development of, or engage in any line of
business, property or project in which Employee (i) is involved in or
responsible for on the date of such termination, or (ii) has worked with or
evaluated in the
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last year and which were still being pursued or evaluated by Employer within one
month of the time of such termination. Such restriction shall cover Employee's
activities anywhere in the world.
5.2 During the Term of Employment and the Non-Compete Period,
Employee will not solicit or induce any person who is or was employed by any of
the Dresser, Inc. Entities at any time during such term or period, excluding
employees who may have left their employment by Employer more than 60 days prior
to being hired or solicited for employment by Employee, (A) to interfere with
the activities or businesses of any Company or (B) to discontinue his or her
employment with any of the Dresser, Inc. Entities, or employ any such person in
a business or enterprise which competes with any of the Dresser, Inc. Entities.
5.3 During the Term of Employment or the Non-Compete Period, Employee
will not, directly or indirectly, influence or attempt to influence any
customers, distributors or suppliers of any of the Dresser, Inc. Entities to
divert their business to any competitor of the Company.
5.4 Employee understands that the provisions of Section 5.1 hereof
may limit his ability to earn a livelihood in a business similar to the business
in which he is involved, but as an executive officer of Employer he nevertheless
agrees and hereby acknowledges that (i) such provisions do not impose a greater
restraint than is necessary to protect the goodwill or other business interests
of Employer and any of the Dresser, Inc. Entities; (ii) such provisions contain
reasonable limitations as to time, scope of activity, and geographical area to
be restrained; and (iii) the consideration provided hereunder, including without
limitation, any amounts or benefits provided under Article 3 hereof, is
sufficient to compensate Employee for the restrictions contained in Section 5.1
hereof. In consideration of the foregoing and in light of Employee's education,
skills and abilities, Employee agrees that he will not assert that, and it
should not be considered that, any provisions of Section 5.1 otherwise are void,
voidable or unenforceable or should be voided or held unenforceable.
5.5 Employee acknowledges and agrees that his duties with Employer
are of an executive nature and that he is a member of Employer's management
group. Employee agrees that the remedy at law for any breach by him of any of
the covenants and agreements set forth in this Article 5 will be inadequate and
that in the event of any such breach, Employer may, in addition to the other
remedies which may be available to it at law, obtain injunctive relief
prohibiting Employee (together with all those persons associated with him) from
the breach of such covenants and agreements.
5.6 Each of the covenants of this Article 5 are given by Employee as
part of the consideration for this Agreement and as an inducement to Employer to
enter into this Agreement and accept the obligations hereunder and is a material
inducement to the Investor Group to purchase Employer.
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ARTICLE 6: MISCELLANEOUS:
6.1 For purposes of this Agreement, the terms "affiliate" or
"affiliated" means an entity or entities in which Employer has a 20% or more
direct or indirect equity interest or entity or entities that have a 20% or more
direct or indirect equity interest in Employer.
6.2 For purposes of this 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, Employer, as
applicable, by pre-paid courier or by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to Employer: Dresser, Inc., 00000 Xxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, to the attention of the
Vice-President & General Counsel.
If to Employee: To his or her last known personal residence
6.3 This Agreement shall be governed by and construed and enforced,
in all respects in accordance with; the law of the State of Delaware, without
regard to principles of conflicts of law, unless preempted by federal law, in
which case federal law shall govern; provided, however, that Employer's Dispute
Resolution Plan, or if no such plan is in place, then the rules of the American
Arbitration Association shall govern in all respects with regard to the
resolution of disputes hereunder.
6.4 No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require compliance with, any condition
or provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
6.5 It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision,
covenant, or remedy shall be construed in a manner so as to permit its
enforceability under the applicable law to the fullest extent permitted by law.
In any case, the remaining provisions of this Agreement or the application
thereof to any person, association, or entity or circumstances other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
6.6 It is the mutual intention of the parties to have any dispute
concerning this Agreement resolved out of court. Accordingly, the parties agree
that any such dispute shall, as the sole and exclusive remedy, be submitted for
resolution through Employer's Dispute Resolution Plan or, if no such plan is in
place, then pursuant to binding
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arbitration to be held in Dallas, Texas, under the rules of the American
Arbitration Association; provided, however, that the Employer, on its own behalf
and on behalf of any of the Dresser, Inc. Entities, shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction to
prevent any breach or the continuation of any breach of the provisions of
Article 4 and Employee hereby consents that such restraining order or injunction
may be granted without the necessity of the Employer posting any bond. The
parties agree that the resolution of any such dispute through such Plan shall be
final and binding.
6.7 This Agreement shall be binding upon and inure to the benefit of
Employer, its successors in interest, or any other person, association, or
entity which may hereafter acquire or succeed to all or substantially all of the
business assets of Employer by any means, whether indirectly or directly, and
whether by purchase, merger, consolidation, or otherwise. Employee's rights and
obligations under this Agreement are personal and such rights, benefits, and
obligations of Employee shall not be voluntarily or involuntarily assigned,
alienated, or transferred, whether by operation of law or otherwise, without the
prior written consent of Employer, other than in the case of death or permanent
disability of Employee.
6.8 This Agreement replaces and merges any previous agreements and
discussions pertaining to the subject matter covered herein. This Agreement
constitutes the entire agreement of the parties with regard to the terms of
Employee's employment, termination of employment and severance benefits, and
contains all of the covenants, promises, representations, warranties, and
agreements between the parties with respect to such matters. Each party to this
Agreement 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 herein, and that no agreement,
statement, or promise relating to the employment of Employee by Employer that is
not contained in this Agreement shall be valid or binding. Any modification of
this Agreement will be effective only if it is in writing and signed by each
party whose rights hereunder are affected thereby.
6.9 The Investor Group shall be a third party beneficiary of this
Agreement and no change in this Agreement may be made prior to the Effective
Date without the written consent of First Reserve Corporation.
IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement in multiple originals to be effective on the Effective Date.
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DRESSER, INC.
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
EMPLOYEE
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
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