Exhibit 10.27
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement"), dated effective the
14/th/ day of April, 2003 (the "Effective Date"), is entered into by and between
Dresser, Inc., a Delaware corporation (the "Employer") and Xxxxxx Xxxxxx
("Employee").
W I T N E S S E T H:
WHEREAS, Employer, as of April 14, 2003 (the "Agreement Date"), desires to
employ Employee pursuant to the terms and conditions set forth herein and
Employee desires to accept such employment pursuant to the terms and conditions
set forth herein;
WHEREAS, 85% of the outstanding voting securities (on a fully diluted
basis) of Dresser, Ltd., a Bermuda corporation, are owned by DEG Acquisitions,
L.L.C. ("DEG");
WHEREAS, Dresser Holding, Ltd. ("DHL") is a wholly owned subsidiary of
Dresser, Ltd.;
WHEREAS, Dresser Holding, Inc. ("DHI") is a wholly owned subsidiary of DHL;
WHEREAS, Employer is a wholly owned subsidiary of DHI;
WHEREAS, Dresser, Ltd. and Employer are referred to collectively as the
"Principal DEG Entities";
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 the Agreement Date and continuing until
the third anniversary of the Agreement Date (the "Initial Term"), subject to the
terms and conditions of this Agreement. Commencing on the second anniversary of
the Agreement Date, the Initial Term will be automatically extended each day by
one day, until one year following the date on which either party delivers to the
other written notice of termination in accordance with the provisions of Section
7.3 below. Employer acknowledges and agrees that Employee is accepting
employment hereunder in reliance upon the facts set forth in the Whereas clauses
set forth above, which Employer represents and warrants to be true and correct
in all respects.
1.2 Beginning as of the Agreement Date, Employee shall be employed as the
President of the Dresser Flow Solutions division of Employer (the "DFS
Division"). As President of the DFS Division, Employee will report directly to
the President of Employer, and Employee's duties will include such functions and
operations consistent with Employee's title and assigned him from time to time
by the President of Employer. Employee agrees to perform such functions and
operations diligently and to the best of Employee's abilities 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 the
President of 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 Code of Business Conduct (the "Code of Business
Conduct"), which at any time during the period of his employment by Employer
have been furnished in writing to Employee.
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 materially
interferes with Employee's performance of Employee's duties hereunder, is
contrary to the interest of Employer or any of Dresser, Ltd.'s current or future
affiliated subsidiaries (each a "Dresser Entity", or collectively, the "Dresser
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 the Dresser Entities or materially
interfere with Employee's performance of his duties hereunder. In addition,
Employee may serve (i) in any capacity with any civic, charitable, educational
or professional organization; provided such service does not materially
interfere with Employee's duties, and provided further that service with more
than two (2) such organizations requires the prior written consent of Employer,
which will not be withheld unreasonably, and (ii) on one (1) for-profit
corporate board of directors, provided that he first obtain approval to serve on
such for-profit corporate boards in accordance with Employer's policies and
procedures regarding such service to the extent previously furnished in writing
to Employee. 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 Employer and the other Dresser 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
other Dresser 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
Entity, or upon discovery thereof, allow such a conflict to continue. Moreover,
Employee shall not engage in any activity that is reasonably likely to 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 Entity or Entities ("Subsequent
Employer") as of, or at any time after, the Agreement Date and no such transfer
shall be deemed to be a termination of employment for purposes of Article 3
hereof; provided, however, that (1)
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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, jointly and severally with Employer in
all respects, and the defined term "Employer" as used herein shall thereafter be
deemed amended to include such Subsequent Employer, (2) Employee shall be a
president of each of the one or more companies that in the aggregate hold and/or
are the successor or successors to all or substantially all of the business of
the DFS Division ("Employer Successors"), (3) Employer shall remain jointly and
several liable and bound by this Agreement, and (4) nothing in this Section 1.6
shall alter the definition of, or Employee's rights associated with, Employee
Cause (as defined in Section 3.4(i) below), or a Change of Control (as defined
in Section 7.2 below). 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. An example of such an assignment may be the division of the DFS
Division into two separate corporate entities which each assume a portion of the
DFS Division's business and which each then shall become Employers, or the
assignment of Employee's contract to a Dresser Entity which purchases all or
substantially all of the assets of Employer, which purchaser will then become an
Employer.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 From the Agreement Date to the date of termination of Employee's
employment pursuant to the provisions of Article 3 (the "Termination Date"),
Employee's base salary shall be not less than $350,000 per annum, which shall be
paid by Employer in accordance with its 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.
2.2 From the Agreement Date to the Termination Date, Employee will be
eligible for an Annual Bonus to be awarded, if at all, based on achievement of
performance goals established annually by the Board of Director of Employer
("Board"), in consultation with Employee, within the first ninety days of
Employer's fiscal year. The Board will reasonably determine whether these
performance goals have been met and the amount of any Annual Bonus in its sole
discretion, subject to the following guidelines: (1) the Target Annual Bonus
will be equal to 50% of Employee's base salary and the Maximum Annual Bonus will
be equal to 100% of Employee's base salary; (2) the Board may increase the
Target Annual Bonus or the Maximum Annual Bonus at any time, but may not
decrease them without Employee's express written consent; and (3) the Annual
Bonus to be paid under the severance provisions of Sections 3.3 or 3.5, should
they become applicable, will be the Target Annual Bonus.
2.3 Employer shall reimburse Employee for all reasonable expenses
incurred by Employee as a result of Employee relocating to Houston, Texas that
are approved by the Employer's senior vice president of Human Resources and
Employer's compensation committee.
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2.4 From the Agreement Date to the Termination Date, Employee will
receive a perquisite allowance as the Board may establish from time to time for
senior executive employees. In addition, Employer shall pay or reimburse
Employee for all actual, reasonable and customary expenses incurred by Employee
in the course of his employment; provided that such expenses are incurred and
accounted for in accordance with Employer's applicable policies and procedures.
2.5 From the Agreement Date to the Termination Date, Employee shall be
allowed to participate, on the same basis as other senior executive employees of
Employer, in all general employee benefit plans and programs, including
improvements or modifications of the same, which on the Agreement Date or
thereafter are made available by Employer to Employer's similarly situated
executive employees, excluding, however, those plans established by predecessors
of Employer which as of the Effective Date are not generally open to new
participants. 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.
2.6 Notwithstanding anything to the contrary in this Agreement, with the
exception of equity based incentives and option plans pursuant to which Employee
has received, or is contractually entitled to receive, any awards, 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, or employee benefit program or plan, so long as such
actions are similarly applicable to covered employees generally.
2.7 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), (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.
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
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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 for Employer Cause shall mean a termination of employment
at the election of 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 that results
in or with the passage of time poses a reasonable risk of material
financial detriment to Employer, (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 the Code of Business Conduct, provided that it has been
provided to Employee in writing prior to such alleged violation; (d)
Employee's material breach of any material provision of this
Agreement, provided that Employee has received written notice from
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 material duties as requested in writing by the Board
after Employee has been afforded a reasonable opportunity (not to
exceed 30 days) to cure such material breach. Determination as to
whether or not Employer Cause exists for termination of Employee's
employment will be made by not less than 75% of the members of the
Board at a meeting in which Employee shall have the right (a) to have
received not less than ten (10) days prior to the meeting written
notice of the date, time and place of the meeting and the charges (in
reasonable detail) to be considered, (b) to appear at the meeting
with counsel, and (c) to answer any charges made concerning the
existence of Employer Cause. Any determination by the Board of
Employer Cause at such meeting shall not be entitled to any
deferential or evidentiary weight or presumption of correctness, and
at the election of Employee, shall be determined pursuant to Section
7.7 in a de novo review, with Employer having the obligation to prove
Employer Cause by clear and convincing evidence. During the foregoing
process, Employer may, without Employer creating any default under
this Agreement or incurring any additional liability of any kind and
at Employer's sole discretion, place Employee on paid administrative
leave and relieve Employee of all or any part of his
responsibilities. Notwithstanding the foregoing, and regardless of
whether the process results in a finding that Employer Cause existed
for the termination, the year in which such termination shall be
deemed to have occurred, for purposes of determining Employee's
entitlement to payments of unpaid Annual Bonus shall be the year in
which Employer first informs Employee that he is terminated for
Employer Cause. "Employer Cause" shall not mean any of the following:
(a) Employee's bad judgment; (b) Employee's negligence; (c) any act
or omission that Employee believed in good faith was in or was not
opposed to the interests of Employer; or (d) any act or omission of
which any non-employee member of the
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Board who is not a party to such act or omission had actual knowledge
for at least six (6) months.
(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) Employee shall be entitled to a pro rata base salary (pro rated
through the date of termination as if it accrued throughout the year
on a daily basis) and any accrued but unpaid vacation through the
date of such termination and shall be entitled to any earned but
unpaid Annual Bonus payable for years prior to the year of Employee's
termination of employment, but shall not be entitled to any Annual
Bonus for the year in which he 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 options or other
equity interests or the applicable agreements underlying such plans,
or, Section 3.3(ii) of this Agreement in the event that Employer
makes the applicable election thereunder.
(ii) 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 two (2)
years. In the event that Employer elects to trigger such option,
Employer agrees to pay an amount equal to Employee's base salary and
the Target Annual Bonus (both based upon Employee's last base salary
amount prior to termination) for a period of two (2) years. Payments
to Employee for the base salary amount shall be in equal installments
in accordance with Employer's customary payroll practices over such
period. Payment of the Target Annual Bonus shall be made at the time
such a payment is made to similarly situated employees. In the event
that in accordance with Section 7.7 it is determined that Employee
willfully and materially breaches any of the terms of Article 5
during the aforementioned two (2) year period, then Employer shall be
entitled to immediately cease making further payments to Employee,
retroactively treat Employee's termination as being an "Employer
Termination For Cause" and recover from Employee any consideration
that has previously been paid to Employee which is inconsistent with
an "Employer Termination For Cause," 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 Employee's obligations under Article 5.
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.
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(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
termination of employment by Employee for any reason or no reason
within the ninety (90) calendar day period commencing twelve (12)
calendar months after a Change of Control as defined in Section 7.2
of Employer; or a termination of employment by Employee because and
within six months of: (a) a material breach by Employer of any
material provision of this Agreement which remains uncorrected for
thirty (30) days following written notice of such breach by Employee
to Employer; (b) a material reduction in Employee's status, position,
responsibilities, or compensation which remains unrestored for thirty
(30) days following written notice of such occurrence by Employee to
Employer; (c) any failure to employ, maintain, nominate, or elect
Employee as President of the DFS Division; (d) an act causing or
requiring Employee to report to anyone other than the President of
Employer; (e) an assignment of duties materially inconsistent with
Employee's position and responsibilities described in this Agreement
which is not promptly changed within ten (10) days of written notice
by Employee to the Board of such material inconsistency; (f) the
failure of an Employer to assign this Agreement, as permitted
pursuant to Section 1.6, to any one or more Employer Successor; (g)
material interference by any officer, employee, director, board of
directors, member, partner, manager or other agent of any Dresser
Entity (other than Employer) in Employee's performance of his duties
hereunder or exercise of his authority as President of the DFS
Division which, to the extent it is capable of correction, remains
uncorrected for thirty (30) days following written notice of such
breach by Employee to Employer. Determination as to whether or not
Employee Cause exists for termination of Employee's employment will
be made by the Board at a meeting in which Employee shall have the
right to present his case for the existence of Employee Cause with,
at his election, the assistance of counsel. Any determination by the
Board of Employee Cause at such meeting shall not be entitled to any
deferential or evidentiary weight or presumption of correctness and
at the election of Employee shall be determined pursuant to Section
7.7 in a de novo review, with the Employee having the obligation to
prove Employee Cause by clear and convincing evidence. During the
foregoing process, Employer may, without Employer creating any
default under this Agreement or incurring any additional liability of
any kind and at Employer's sole discretion, place Employee on paid
administrative leave and relieve Employee of all or any part of his
responsibilities. Notwithstanding the foregoing, and regardless of
whether the process results in a finding that Employee Cause existed
for the termination, the year in which such termination shall be
deemed to have occurred, for purposes of determining Employee's
entitlement to payments of unpaid Annual Bonus shall be the year in
which Employee first informs Employer that he is terminating his
employment for Employee Cause.
(ii) Employer Termination Without Employer Cause. Termination of
Employee's employment by Employer without Employer Cause shall mean a
termination of
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employment of Employee by Employer for no reason or any reason other
than one set forth in Section 3.2(ii).
(iii) Death.
(iv) Permanent Disability. "Permanent Disability" shall mean Employee's
physical or mental incapacity to perform his usual duties with or
without reasonable accommodations for a period of not less than 90
days within a given twelve month period 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) Employee's (1) earned but unpaid base salary; (2) earned but unpaid
Annual Bonus payable for years prior to the year of Employee's
termination of employment; and (3) unpaid Target Annual Bonus for the
year of termination, pro rated through the date of termination as if
it accrued throughout the year on a daily basis. Such amounts shall
be paid to Employee in a single lump sum cash payment no later than
thirty (30) days following Employee's termination of employment.
(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 and his Target Annual Bonus
(based upon Employee's last base salary amount prior to termination)
for each year during the Severance Term (as defined below) in
accordance with Employer's customary payroll practices during the
period (the "Severance Term") commencing on the effectiveness of such
termination and ending on the earlier of (A) the second anniversary
of the date of such termination, or (B) the date Employee willfully
and materially violates any of the covenants set forth in Article 4
or Article 5 hereof. Notwithstanding the foregoing, if Employer
terminates Employee's employment in anticipation of or within one
year following a Change of Control (and excluding a termination for
Employer Cause), Employer shall pay to Employee a severance benefit
consisting of two times Employee's base salary as in effect at the
date of Employee's termination of employment and two times his Target
Annual Bonus (based upon Employee's last base salary amount prior to
termination) in a single lump sum cash payment no later than thirty
(30) days following Employee's termination of employment.
(iii) For as long as Employee continues to receive a severance benefit
pursuant to Section 3.5(ii) (or for a period of two years following
Employee's termination because of a Change of Control), Employee
shall be allowed to participate, on the same basis generally as other
senior executive employees of Employer, in all applicable employee
benefit plans and programs, including improvements or
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modifications of the same, which are made available by Employer to
Employer's similarly situated actively employed executive employees,
excluding, however, those plans established by predecessors of
Employer which as of the Effective Date are not generally open to new
participants. 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; provided, however, at the option of
Employer, Employer may upon sixty (60) days advance written notice
effective at any time more than eighteen months after such
termination elect to provide Employee with the cash value of
providing such benefits from a third party (which cash value shall
not exceed 125% of Employer's historic out-of-pocket cost of
providing such benefits). In addition, Employer shall pay up to
$20,000 for senior executive level career transition assistance
services by a career transition assistance firm selected by Employee
and reasonably acceptable to Employer
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
Employee's (1) unpaid base salary; (2) earned but unpaid Annual Bonus payable
for years prior to the year of Employee's termination of employment; and (3)
earned but unpaid Annual Bonus for the year of termination, pro rated through
the date of termination as if it accrued throughout the year on a daily basis,
of the Target Amount. Such amounts shall be paid in a single lump sum cash
payment no later than thirty (30) days following Employee's termination of
employment.
3.7 The severance benefit paid to Employee pursuant to Section 3.3 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 mutual release, in the form established by Employer,
releasing Employer and all other Dresser 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
or any other Dresser Entities or the termination of such employment; provided
that Employee shall not be expected to waive any rights accruing under this
Agreement, including but not limited to rights to indemnification and coverage
under directors' and officers' liability insurance, rights to benefits under the
terms of applicable benefit plans of Employer including health benefits, rights
to option and/or equity incentive plan participation and rights with respect to
any stock or other rights acquired thereunder ("Retained Rights"). 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 and provision
of the Retained Rights shall constitute full settlement of all such claims and
causes of action.
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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 and
the Retained Rights are Employee's sole and exclusive rights against Employer,
or any affiliate of Employer, and 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 employment relationship with Employer.
Employee agrees that all disputes relating to Employee's employment or
termination of employment shall be resolved as provided in Section 7.7 hereof;
provided, however, that decisions as to whether and as of what date Employee has
become permanently disabled shall be limited to whether such decision was
reached by a mutually acceptable medical expert. 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 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 does not constitute an offer or a continuation
of employment of 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 as provided in Article 6, Employee shall be responsible for any and all
federal, state, or local taxes that arise out of any payments to Employee
hereunder (subject to the obligation of Employer under law to submit to the
applicable taxing authorities any amounts withheld from Employer's compensation
on account of any such taxes).
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 during or 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
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of the other Dresser 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 other Dresser 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 another Dresser Entity, as the case may be,
and shall be treated as "work for hire".
4.2 Employee acknowledges that the businesses of Employer and the other
Dresser 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 other Dresser 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 other Dresser Entities in maintaining their
competitive position. Employee hereby agrees that Employee will not, at any time
during or after his employment by Employer, make any unauthorized disclosure of
any confidential business information or trade secrets of Employer or the other
Dresser Entities, or make any use thereof, except in the carrying out of his
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 intent to disclose any such confidential business information in
such context so as to allow Employer or any other Dresser 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 other Dresser Entities shall be
and remain the property of Employer, or the other Dresser 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.
11
ARTICLE 5: COVENANT NOT TO COMPETE:
5.1 From the Agreement Date to the Termination Date, and for a period of
two (2) years 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 last year and which were still being pursued or
evaluated by a Dresser Entity within one month of the time of such termination.
Such restriction shall cover Employee's activities anywhere in the world.
5.2 From the Agreement Date to the Termination Date and during the
Non-Compete Period, Employee will not solicit or induce any person who is or was
employed by any of the Dresser Entities at any time during such term or period,
excluding employees who may have left their employment by such Dresser Entity
more than 60 days prior to being hired or solicited for employment by Employee,
(A) to interfere with the activities or businesses of any Dresser Entity or (B)
to discontinue his or her employment with any of the Dresser Entities, or employ
any such person in a business or enterprise which competes with any of the
Dresser Entities.
5.3 From the Agreement Date to the Termination Date or during 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 Entities to divert their business to any competitor of the Dresser
Entities or their affiliates.
5.4 Employee understands that the provisions of Article 5 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 other Dresser 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 Article 5
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 Article 5 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, and pursuant to Section 5.7
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of this Agreement 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.
5.7 In the event of a willful and material breach of any of the covenants
of this Article 5, the parties agree that the damages to Employer could be
significant and will be extremely difficult or impracticable to ascertain. Based
upon the facts as known by the parties at the time of this Agreement, the
parties agree that any payments Employee has received pursuant to Article 3 as
of the date of any willful breach constitutes reasonable liquidated damages due
Employer.
ARTICLE 6: EXCISE TAX GROSS-UP PROVISIONS:
6.1 Anything in this Agreement to the contrary notwithstanding, and
except as set forth below, in the event it shall be determined that any Payment
would be subject to the Excise Tax, then Employee shall be entitled to receive
an additional payment (the "Gross-Up Payment") in an amount such that, after
payment by Employee of all Taxes, including any income taxes and Excise Tax
imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the
foregoing provisions of this Section 6.1, if it shall be determined that
Employee is entitled to the Gross-Up Payment, but that the Parachute Value of
all Payments does not exceed one hundred and ten percent (110%) of the Safe
Harbor Amount, then except as provided below, no Gross-Up Payment shall be made
to Employee and the amounts payable under this Agreement or under any other
agreement between Employee and Employer or its affiliates, other than amounts or
benefits provided under any option or equity grants to Employee (the "Subject
Payments"), shall be reduced (but not below zero) so that the Parachute Value of
all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of
the amounts payable hereunder, if applicable, shall be made by first reducing
any payments under Section 3.3(ii) or Section 3.5(ii) of this Agreement, and in
any event shall be made in such a manner as to maximize the Value of all
Payments actually made to Employee. For purposes of reducing the Parachute Value
of all Payments to the Safe Harbor Amount, only the Subject Payments shall be
reduced. If the reduction of the Subject Payments would not result in a
reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no
amounts payable under the Agreement shall be reduced pursuant to this Section
6.1, and the Gross-Up Payment shall be made to Employee. Employer's obligation
to make Gross-Up Payments under this Section 6.1 shall not be conditioned upon
Employee's Termination of Employment.
6.2 Subject to the provisions of Section 6.3, all determinations required
to be made under this Article 6, including whether and when a Gross-Up Payment
is required, the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by
PricewaterhouseCoopers, or if such firm is unwilling to act in such capacity,
13
such other nationally recognized certified public accounting firm as may be
mutually agreed upon by Employee and Employer (the "Accounting Firm"). The
Accounting Firm shall provide detailed supporting calculations both to Employer
and Employee within fifteen (15) business days of the receipt of notice from
Employee that there has been a Payment or such earlier time as is requested by
Employer. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the change of control, at
Employee's request Employee and Employer shall mutually agree upon another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by Employer. Any Gross-Up Payment, as determined pursuant to this Article
6, shall be paid by Employer to or on behalf of Employee within five (5)
business days of the receipt of the Accounting Firm's determination, provided
that no such payment shall be due under this Article 6 before five (5) days
prior to the date the related payments of Taxes are required to be paid by
Employee to the applicable taxing authority. Any determination by the Accounting
Firm shall be binding upon Employer and Employee, absent manifest error. As a
result of the uncertainty in the application of Sections 280G and 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder,
it is possible that Gross-Up Payments that will not have been made by Employer
should have been made (the "Underpayment"), consistent with the calculations
required to be made hereunder. In the event Employer exhausts its remedies
pursuant to Section 6.3 and Employee thereafter is required to make a payment of
any additional Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by Employer to or for the benefit of Employee.
6.3 Employee shall notify Employer in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by
Employer of the Gross-Up Payment. Such notification shall be given as soon as
practicable, but no later than ten (10) business days after Employee is informed
of such claim. Employee shall apprise Employer of the nature of such claim and,
if applicable, the date on which such claim is requested to be paid. Employee
shall not pay such claim prior to the expiration of the thirty (30) calendar day
period following the date on which Employee gives such notice to Employer (or
such shorter period ending on the date that any payment of Taxes with respect to
such claim is due). If Employer notifies Employee in writing prior to the
expiration of such period that Employer desires to contest such claim (or if
Employee pays the related Taxes within such shorter period and Employer
requests, within such thirty (30)-day period, that Employee claim a refund of
some or all of such Taxes), then Employee shall:
(i) give Employer any information reasonably requested by Employer
relating to such claim;
(ii) take such action in connection with contesting such claim or claiming
such refund as Employer shall reasonably request in writing from time
to time, including accepting legal representation with respect to
such claim by an attorney reasonably selected by Employer;
14
(iii) cooperate with Employer in good faith in order effectively to contest
such claim or pursue such refund, and
(iv) permit Employer to participate in any proceedings relating to such
claim;
provided, however, that Employer shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest or refund claim (including, but only to the extent reasonably
incurred, costs and expenses incurred by Employee), and shall indemnify and hold
Employee harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties) imposed as a result of such representation
and payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 6.3, Employer shall control all proceedings taken in
connection with such contest, and, at its sole discretion, may pursue or forgo
any and all administrative appeals, proceedings, hearings and conferences with
the applicable taxing authority in respect of such claim and may, at its sole
discretion, either direct Employee to pay the tax claimed and xxx for a refund
or contest the claim in any permissible manner, and Employee agrees to prosecute
such contest to a determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts, as Employer shall
determine; provided, however, that, if Employer directs Employee to pay such
claim and xxx for a refund, Employer shall advance the amount of such payment to
Employee, on an interest-free basis, and shall indemnify and hold Employee
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties) imposed with respect to such advance or with respect to
any imputed income in connection with such advance; and provided, further, that
any extension of the statute of limitations relating to payment of Taxes for the
taxable year of Employee with respect to which such contested amount is claimed
to be due (other than any such extension arising by operation of law) is limited
solely to such contested amount. Furthermore, Employer's control of the contest
shall be limited to issues with respect to which the Gross-Up Payment would be
payable hereunder, and Employee shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
6.4 If, after the receipt by Employee of a Gross-Up Payment or an amount
advanced by Employer pursuant to Section 6.3, Employee becomes entitled to
receive any refund with respect to the Excise Tax to which such Gross-Up Payment
relates or with respect to such claim, Employee shall (subject to Employer
complying in all material respects with the requirements of Section 6.3, if
applicable) promptly pay to Employer the amount of such refund (together with
any interest paid or credited thereon after Taxes applicable thereto), less any
Taxes required to be paid by Employee with respect to the receipt thereof. If,
after the receipt by Employee of an amount advanced by Employer pursuant to
Section 6.3, a determination is made that Employee shall not be entitled to any
refund with respect to such claim and Employer does not notify Employee in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) calendar days after such determination, then such advance shall
be forgiven and shall not be required to be repaid and the amount of such
advance shall be offset, to the extent thereof, against the amount of Gross-Up
Payment required to be paid. Employer may request that Employee pursue a refund
of any Gross-Up Payment
15
paid under this Article 6, and in such case the provisions of Section 6.3 and
this Section 6.4 shall govern the pursuit of such refund.
6.5 Notwithstanding any other provision of this Article 6, Employer may,
in its sole discretion, withhold and pay over to the Internal Revenue Service or
any other applicable taxing authority, for the benefit of Employee, all or any
portion of any Gross-Up Payment, and Employee hereby consents to such
withholding.
6.6 For purposes of this Article 6, the following definitions will apply:
(i) "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
(ii) "Excise Tax" means the excise tax imposed by Section 4999 of the
Code, together with any interest or penalties imposed with respect to
such excise tax.
(iii) "Parachute Value" of a Payment shall mean the portion of such
Payment, if any, that constitutes a "parachute payment" under Section
280G(b)(2) of the Code, to the extent taken into account (including
any discount to the present value as of the date of the change of
control for purposes of Section 280G of the Code) in determining
whether and to what extent the Excise Tax will apply to such Payment,
as determined by the Accounting Firm.
(iv) "Payment" shall mean any payment or distribution by or on behalf of
Employer or its affiliates in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Code) to or for the benefit of
Employee, whether paid or payable pursuant to this Agreement or
otherwise, other than the Gross-Up Payment.
(v) "Safe Harbor Amount" means 2.99 times Employee's "base amount,"
within the meaning of Section 280G(b)(3) of the Code.
(vi) "Taxes" means the incremental United States federal, state and local
income, excise and other taxes payable by Employee with respect to
any applicable item of income. The amount of any tax, interest or
penalty shall (a) be reduced to take into account the deductibility
of such item for purposes of any other tax, and (b) include any
interest and penalties with respect to such tax other than interest
or penalties arising from Employee's failure to pay such tax on a
timely basis following payment thereof by Employer to Employee in
accordance with this Agreement, or from Employee's failure to comply
with the terms of this Agreement.
(vii) "Value" of a Payment shall mean the economic present value of a
Payment as of the date of the change of control for purposes of
Section 280G of the Code, as determined by the Accounting Firm using
the discount rate required by Section 280G(d)(4) of the Code.
16
ARTICLE 7: MISCELLANEOUS:
7.1 For purposes of this Agreement, the terms "affiliate" or "affiliated"
mean an entity or entities in which a Principal DEG Entity 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 a Principal DEG Entity.
7.2 For purposes of this Agreement, the term "Change of Control" means
any one or more of the following events: (i) any person (as such term is used in
Rule 13d-5 under the Securities Exchange Act of 1934 (the "Exchange Act")) or
group (as such term is defined in Sections 3(a)(9) and 13(d)(3) of the Exchange
Act), other than DEG or its affiliates, or a subsidiary or employee benefit plan
(or any related trust) of Employer, becomes, directly or indirectly, the
beneficial owner of (A) 50% or more of the common stock of a Principal DEG
Entity or (B) securities of a Principal DEG Entity entitled to vote generally in
the election of directors of such Principal DEG Entity ("Voting Securities")
representing 50% or more of the combined voting power of all Voting Securities
of such Principal DEG Entity; (ii) if the persons who were shareholders of
Dresser, Ltd. as of the Effective Date ("Existing Shareholders") directly or
indirectly own less than 33% of the Voting Securities of a Principal DEG Entity
and there is another beneficial owner of a greater percentage of the Voting
Securities of such Principal DEG Entity than the Existing Shareholders as a
group; (iii) if Dresser, Ltd. (or any successor to all or substantially all of
its assets) owns, directly or indirectly, less than 66-2/3% of the Voting
Securities of Employer (or any successor to all or substantially all of its
assets) and each other current or future company then in the chain of ownership
between Dresser, Ltd. and Employer (including, without limitation, DHL and DHI
from the Agreement Date until they cease to be in such chain of ownership),
other than as a result of a merger or consolidation of Employer, DHL, or DHI (or
their successors) with and into Dresser, Ltd., DHL, or DHI (or their successors)
or the downstream merger or liquidation of Dresser, Ltd. as a result of tax
restructuring as a result of which (in the case of each of a merger,
consolidation, downstream merger or liquidation) the holding company structure
is eliminated, and in each case which do not otherwise constitute a Change of
Control; (iv) individuals who, as of the Agreement Date, constitute the Board of
a Principal DEG Entity (the "Incumbent Directors") cease for any reason to
constitute at least 75% of the members of the Board; provided that any
individual who becomes a director after the Agreement Date whose election or
nomination for election by Employer's shareholders was approved by at least 75%
of the members of the Incumbent Directors or who was elected by the shareholders
at a time when the First Reserve Funds and Odyssey Investment Partners directly
or indirectly own more than 75% of the Voting Securities of a Principal DEG
Entity (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened "election
contest" relating to the election of the directors of a Principal DEG Entity (as
such terms are used in Rule 14a-11 under the Exchange Act), "tender offer" (as
such term is used in Section 14(d) of the Exchange Act) or a proposed Merger (as
defined below)) shall be deemed to be a member of the Incumbent Board; (v)
approval by the stockholders of a Principal DEG Entity of either of the
following: (A) a merger, reorganization, consolidation or similar transaction
(any of the foregoing, a "Merger") as a result of which the individuals and
entities who were the respective beneficial owners of the outstanding common
stock and
17
Voting Securities of a Principal DEG Entity immediately before such Merger are
not expected to beneficially own, immediately after such Merger, directly or
indirectly, more than 60% of, respectively, the common stock and the combined
voting power of the Voting Securities of the corporation resulting from such
Merger in substantially the same proportions as immediately before such Merger,
or (B) a plan of liquidation of a Principal DEG Entity or a plan or agreement
for the sale or other disposition of all or substantially all of the assets of
Employer other than any such sale or other disposition to a Subsequent Employer;
or (vi) any other transaction, event, or circumstance, regardless of form
(collectively "Transaction"), which results in control over the strategic and
operational decisions of a Principal DEG Entity by a board of directors,
committee, or group other than the Board or some subcomponent thereof
(collectively, the "New Board"); provided however, that such Transaction
referenced in (vi) and not also referenced in (i), (ii), (iii), (iv) or (v)
shall not be deemed to result in a Change of Control if Employee remains
President of the DFS Division. Notwithstanding the foregoing, Employer may
request and Employee may in his sole discretion accept that any transaction or
series of transaction not be considered to be a Change of Control hereunder.
7.3 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 or 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, Ltd. 00000 Xxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, (or Dresser's current headquarters
address) to the attention of the Vice-President &
General Counsel.
With a copy to: Xxxxxxx Xxxxxxxx, care of First Reserve Corporation at
its most recent business address.
If to Employee: To his last known personal residence
With a copy to:
---------------
---------------
---------------
---------------
7.4 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 either Employer's Dispute
Resolution Plan, or the rules of the American Arbitration Association, as
elected by Employee, shall govern in all respects with regard to the resolution
of disputes hereunder as provided in Section 7.7.
7.5 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.
18
7.6 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.
7.7 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 either through Employer's Dispute Resolution Plan or pursuant to
binding arbitration to be held in Dallas, Texas, under the National Rules for
the Resolution of Employment Disputes of the American Arbitration Association,
as elected by Employee; provided, however, that Employer, on its own behalf and
on behalf of any of the other Dresser 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 Employer posting any bond. The parties
agree that the resolution of any dispute concerning this Agreement through any
of the means set forth in this Section 7.7 shall be final and binding.
7.8 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.
7.9 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 option plan participation is handled in separate
agreements and 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.
19
7.10 Employer will maintain directors' and officers' liability insurance
for Employee while employed, and for a five (5) year period following
termination of employment at a level equivalent to the most favorable and
protective coverage for any active officer or director of Employer.
7.11 Employer agrees to indemnify Employee for any job-related liability
to the fullest extent permitted under Employer's by-laws and other applicable
indemnification agreements.
[intentionally blank - signatures follow]
20
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
in multiple originals to be effective on the Agreement Date.
DRESSER, INC.
By:
-------------------------------------
Name:
Title:
EMPLOYEE
----------------------------------------
Xxxxxx Xxxxxx
21
