Exhibit 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement"), dated this 29th day
of January, 2001, is entered into by and between Dresser Equipment Group, Inc.
and any of its subsidiaries and affiliates as may employ Employee from time to
time, (collectively, "Employer" or "DEG") and Xxxxxxx X. X'Xxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employee is currently employed by Employer; and
WHEREAS, Employer is a wholly-owned subsidiary of the ultimate parent,
Halliburton Company; and
WHEREAS, Halliburton Company is in the process of selling approximately
95% of its ownership interest in Employer to affiliates of First Reserve
Corporation and Odyssey Investment Partners, LLC (collectively, the "Investor
Group"); and
WHEREAS, Employer, contingent upon, and as of the date of the closing
of the sale of Employer by Halliburton Company to the Investor Group (the
"Effective Date"), desires to continue the employment of Employee pursuant to
the terms and conditions set forth herein and Employee desires to continue in
the employment of 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 Contingent upon the closing of the sale of approximately 95%
ownership interest of DEG by Halliburton Company to the Investor Group, Employer
agrees to employ Employee, and Employee agrees to be employed by Employer,
beginning as of 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 Waukesha Engine Division 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 "DEG Entity", or collectively, the "DEG 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 DEG 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 DEG 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 DEG 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
DEG 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 DEG 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 DEG 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.
2
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee's base salary during the Term shall be not less than
$225,000 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.
2.2 During the Term, Employee shall participate in an annual incentive
plan, as approved by DEG. 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.
3
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.
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 DEG 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 DEG.
(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:
4
(i) The cash value of Employee's stock, options, or other equity
interests in DEG for the following categories: (1) stock or
other equity interests which represent a direct investment in
DEG 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 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.
5
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.
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 DEG for the following categories: (1) stock or
other equity interests which represent a direct investment in
DEG by the Employee; (2) options, both vested and unvested,
which were previously granted to Employee and
6
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 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 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 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
7
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 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 DEG 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 DEG 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
8
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 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 DEG Entities (whether during
business hours or otherwise and
9
whether on Employer's premises or otherwise) which relate to the business,
products or services of Employer or the DEG 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 DEG 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 DEG
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 DEG 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 DEG 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 DEG
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 DEG 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 DEG Entities shall be and remain
the property of Employer, or the DEG 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.
10
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 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 DEG
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 DEG Entities, or employ any such person in a business or enterprise which
competes with any of the DEG 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 DEG 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 DEG 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
11
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.
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 Equipment Group, Inc., 0000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx 00000, (or DEG's current headquarters address) 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
12
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 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 DEG 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.
13
IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement in multiple originals to be effective on the Effective Date.
DRESSER EQUIPMENT GROUP, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
EMPLOYEE
/s/ XXXXXXX X. X'XXXXXX
-----------------------------------------------
Name: Xxxxxxx X. X'Xxxxxx
14
