AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement is entered into as of this 11th day
of
June, 2008 (the “Agreement”), by and among Xxxxxxx X. Xxxxx Xx., a resident of
Xxxxxx county, Texas (“Executive”), and Dresser-Rand Group Inc., a Delaware
corporation (the “Company”).
WHEREAS,
Executive is currently employed with the Company pursuant to that certain
Employment Agreement among Executive, the Company and Dresser-Rand Holdings,
LLC
(“Holdings”), entered into as of October 27, 2004 (the “Current Employment
Agreement”); and
WHEREAS,
the Company and Executive wish to amend and restate the Current Employment
Agreement in the form of this Agreement and to continue the employment of
Executive with the Company pursuant to the terms set forth herein;
and
WHEREAS,
Holdings acknowledges that this Agreement supersedes the Current Employment
Agreement, agrees to waive any rights it would have had under the Current
Employment Agreement and has executed this Agreement for the sole purpose of
evidencing its consent to the amendment and restatement of the Current
Employment Agreement in the form of this Agreement.
NOW,
THEREFORE, in consideration of the mutual representations, warranties, covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. EMPLOYMENT.
The
Company hereby agrees to employ Executive, and Executive hereby agrees to serve,
subject to the provisions of this Agreement, as President and Chief Executive
Officer of the Company.
Executive shall manage,
supervise, and control all of the business of the Company, subject only to
the
oversight of
the
Board of Directors of the Company (the “Board”). Executive shall devote
substantially all of his business time, attention, and energies to the
performance of the duties assigned to him hereunder, and to perform such duties
faithfully, diligently and to the best of his abilities, and adhere in all
material respects to the Company's policies and procedures. Executive
agrees
to refrain from engaging in any business activity that does, will or could
reasonably be deemed to conflict with the best interests of
the
Company. This Section 1 shall not be construed as preventing Executive from
investing his own assets in such form or manner as will not require his services
in the daily operations of the affairs of the companies in which such
investments are made; provided, however, that Executive complies with the
provisions of Section 8. Further, Executive may serve as a director of other
companies, if such service is approved by the Nominating and Governance
Committee of the Board.
2. TERM.
This
Agreement shall commence on the Effective Date (as such term is described in
Section 24 hereof) and continue for a term of three (3) years (the original
three-year term, and any automatic extension thereof, hereby referred to as
the
“Term”). On each anniversary of the Effective Date, the Term shall be
automatically extended for one (1) additional year unless the Company provides,
at least ninety (90) days in advance of the anniversary of the Effective Date,
written notice to Executive that the Term will not be so extended.
Notwithstanding the above, the Term will expire upon Executive’s attainment of
age 65 or upon Executive’s termination in accordance with Sections 4 or 5
hereof.
3. COMPENSATION.
(a) Salary.
Executive's base salary shall be at an annual rate not less than the rate as
in
effect immediately prior to the Effective Date (“Base Salary”), payable in
accordance with the Company's regular payroll practices. All applicable
withholding taxes and appropriate deductions for insurance contributions shall
be deducted from such payments.
The
Board will review the total compensation of Executive at least once every twelve
months.
(b) Annual
Non-Equity Incentive Opportunity.
Annual
non-equity incentive compensation (“Bonus”) to be paid to Executive shall be
determined by the Board, pursuant to the terms and conditions of the Company’s
Annual Incentive Plan (the “Annual Incentive Plan”). The target Bonus
opportunity for Executive shall be determined by the Board, or an authorized
committee of the Board, based upon a sliding scale of financial and operating
targets and qualitative targets. At the election of Executive, which shall
be
made in writing to the Company at least ten (10) business days prior to the
anticipated date of payment of any such Bonus, the Bonus shall be paid in either
(i) cash, (ii) shares of common stock of the Company (“Shares”),
valued at their fair market value as determined by the Board or pursuant to
a
method approved by the Board, or (iii) a combination thereof.
(c) Benefits.
Benefits shall be provided to Executive in
accordance with the terms and conditions of such
benefit
plans and programs as
are maintained
by the
Company for
individuals in positions comparable to those of Executive,
as such
plans are amended from time to time.
(d) Vacation.
Executive shall be entitled to five (5) weeks of paid vacation during each
full year of Executive's employment hereunder, to be taken at a time which
does
not conflict with Executive's duties hereunder.
(e) Expense
Reimbursement.
Executive shall be reimbursed for the expenses incurred in connection with
the
performance of Executive's duties hereunder in accordance with the Company's
expense reimbursement policies. The Board shall designate an individual to
whom
Executive shall submit expense reimbursement requests and the approval by such
individual of any such request shall be deemed to be conclusive. Executive
shall
also be reimbursed for reasonable out-of-pocket documented legal fees and
expenses incurred through November 1, 2007, in connection with the implementation,
review
and negotiation
of this Agreement.
Any
reimbursement provided hereunder during one calendar year shall not affect
the
amount or availability of reimbursements in another calendar year. Any
reimbursement provided hereunder shall be paid no later than the earlier of
(i)
the time prescribed under the Company's applicable policies and procedures,
or
(ii) the last day of the calendar year following the calendar year in which
Executive incurred the reimbursable expense.
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(f) Equity
and Long-Term Incentive Program.
Executive shall be entitled to participate in the equity and long term incentive
programs of the Company, including without limitation, the Company’s Long-term
Incentive Program, on a basis consistent with that of other senior-level
executives.
4. TERMINATION
WITHOUT CHANGE IN CONTROL.
(a) Time
of Termination.
Notwithstanding any provision of this Agreement to the contrary, the employment
of Executive hereunder shall terminate on the first to occur of the following
dates:
(i) the
date
of Executive's death or Disability (as defined below);
(ii) the
date
on which the Company shall give Executive written notice of termination for
Cause (as defined below);
(iii) the
date
on which Executive gives the Company written notice of Voluntary Termination
without Good Reason (as defined below);
(iv) the
date
on which Executive gives the Company written notice of Voluntary Termination
with Good Reason (as defined below);
(v) the
date
on which the Company shall give Executive notice of termination for any reason
other than the reasons set forth in (i) through (iv) above.
(b) Payments
After Certain Terminations.
In the
event Executive's employment hereunder shall terminate for any reason set forth
in Section 4(a)(i), (iv) or (v) and, in the case of Section 4(a)(iv) or
(v), such termination is not within two (2) years following a Change in Control
(as defined in Section 6 below), subject to Executive's compliance with
Section 4(e), Executive (or the
Trustee named in Executive's Last Will and Testament,
if
applicable) shall be entitled to receive, as Executive's sole and exclusive
remedy, (i) a payment equal to two (2) times Executive's Base Salary (determined
as of the Date of Termination), payable in a lump sum payment and subject to
withholding of all applicable taxes with respect thereto and deductions for
insurance contributions), (ii) any earned but unpaid salary and payment for
accrued but unused vacation days, subject to and in accordance with Company
policies, through the Date of Termination, (iii) any Bonus previously earned
in
full but not yet paid for fiscal years of the Company prior to the fiscal year
in which the Date of Termination occurs, (iv) a payment equal to two (2) times
the target Bonus opportunity for Executive for the year in which the
Date
of Termination occurs or if such target Bonus opportunity has not yet been
established as of the Date of Termination, the target Bonus percentage
opportunity for the prior year with respect to Base Salary for the year in
which
the Date of Termination occurs, and (v) continued medical, dental, disability
and life insurance coverage at the active employee rate as provided to Executive
and his eligible dependents immediately prior to such termination for two (2)
years following such termination. For purposes of this Section 4, calculation
of
Executive’s Base Salary shall be determined without regard to any reduction in
compensation constituting Good Reason under Section 6(d)(iii)
hereof.
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(c) Termination
for Cause or Voluntary Termination Without Good Reason.
The
Company shall be entitled at any time, upon written notice to Executive, to
terminate Executive's employment hereunder for Cause. In the event that
Executive's employment hereunder shall be terminated for Cause, or due to a
Voluntary Termination by Executive without Good Reason, Executive shall be
entitled to receive, as his sole and exclusive remedy, (i) any earned but
unpaid salary and payment for accrued but unused vacation days, subject to
and
in accordance with Company policies, through the Date of Termination and
(ii) any Bonus previously earned in full but not yet paid for fiscal years
of the Company prior to the fiscal year in which the Date of Termination
occurs.
(d) Limited
Compensation for the Non-Competition Covenant.
In the
event that Executive's employment hereunder shall be terminated due to Cause
or
due to a Voluntary Termination by Executive without Good Reason, then the
Company, at its sole election, shall be entitled to enforce the covenant not
to
compete set forth in Section 8(c) for a period of up to three years
following such termination. In the event that the Company so elects, and as
a
condition to such enforcement, the Company shall, within five days after
Executive’s termination, confirm that it elects to enforce the covenant not to
compete by delivery of an election notice to Executive and shall pay and provide
Executive, in addition to any amounts paid pursuant to Section 4(c), (i)
salary continuation payments at an annual rate equal to Executive’s Base Salary
in effect as of the Date of Termination, payable monthly, (ii) a monthly amount
equal to one-twelfth the Executive’s target Bonus opportunity for the year in
which the Date of Termination occurs or if such target Bonus opportunity has
not
yet been established as of the Date of Termination, the target Bonus percentage
opportunity for the prior year with respect to Base Salary for the year in
which
the Date of Termination occurs, and (iii) continued medical, dental, disability
and life insurance coverage in the same manner as provided to Executive and
his
eligible dependents immediately prior to such termination (collectively, the
“Additional Benefits”). If the Company provides Executive with the election
notice pursuant to this Section 4(d), the Non-Competition Period as defined
in
clause (ii) of that definition set forth in Section 8(c) shall remain in
effect, and the Company shall be obligated to provide the Additional Benefits
to
Executive, during the period commencing on the Date of Termination and ending
on
the earlier of (i) the date that is three (3) years after the Date of
Termination or (ii) the date designated by the Company by ten days advance
written notice to Executive upon which the Company waives its right to further
enforce the provisions of Section 8(c). If the Company provides Executive with
the election notice pursuant to this Section 4(d) and Executive fails to deliver
the release required by Section 4(e), notwithstanding any provision hereof
to
the contrary, Executive shall be bound by the covenant not to compete for two
years after the Date of Termination and the Company shall not be obligated
to
provide any of the Additional Benefits following the date that is 45 days after
the Date of Termination. In the event of any termination of Executive’s
employment with the Company other than for Cause or other than for Voluntary
Termination without Good Reason, the Company shall not be obligated to provide
any additional consideration for the non-competition covenant in Section 8(c).
The monthly payments described in this Section are hereby designated as
“separate payments” for purposes of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”). For purposes of clarification, any payments or
benefits provided under this Section 4(d) are subject to the payment provisions
of Section 13 hereof.
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(e) Release
Requirement for Post-Termination Payments.
As
condition to the receipt of any payment made pursuant to Section 4(b),
Section 4(d) or Section 5, Executive shall execute, and not revoke, a
release within 45 days of the Date of Termination, in the form attached
hereto as Schedule A,
with
such changes as may be necessary or reasonably required to reflect changes
in
applicable state or federal law, releasing the Company, and its subsidiaries
and
Affiliates, and its 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
Executive’s employment with the Company or the termination of such employment;
provided that Executive shall not be expected to waive any rights accruing
under
this Agreement;
and
provided further that if Executive refuses to sign such release Executive will
still be bound by the provisions of Article 8 as if Executive signed such
release and received payments pursuant to Section 4(b),
Section 4(d) or Section 5.
(f) Equity
Awards.
Any
restricted stock, restricted stock units, or other stock based awards
outstanding as of (i) the date of a Voluntary Termination with Good Reason,
(ii)
the date of Executive’s termination by reason of death or disability or (iii)
the date that the Company terminates Executive for any reason other than Cause,
shall become fully vested and any stock options outstanding as of such date
and
not then exercisable shall become fully exercisable as of such date and any
restrictions imposed by the Company that are applicable to any shares of Common
Stock granted to Executive by the Company shall lapse as of such date. Stock
options that become vested in accordance with the previous sentence shall remain
exercisable until the first to occur of (x) one year after the Date of
Termination or (y) the original expiration of the option.
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5. CHANGE
IN CONTROL.
(a) Termination
Following Change in Control.
In the
event Executive's employment hereunder shall terminate for any reason set forth
in Section 4(a)(iv) or (v) within two (2) years following the occurrence of
a Change in Control, subject to Executive's compliance with Section 4(e),
Executive (or the
Trustee named in Executive's Last Will and Testament,
if
applicable) shall be entitled to receive all of the payments and benefits
described in Section 4(b) hereof, enhanced as follows:
(i) The
payment specified in clause (i) of Section 4(b) shall be based on three (3)
times Executive’s Base Salary as opposed to two (2) times;
(ii) The
payment specified in clause (iv) of Section 4(b) shall be three (3) times the
higher of (A) the target Bonus opportunity for Executive for the fiscal year
of
the Company in which the Date of Termination occurs or (B) the highest Bonus
paid (or earned in full but not yet paid) to Executive in the three (3) year
period preceding the Date of Termination; provided, however, that the payment
under this Section 5(a)(ii) shall not exceed the Executive’s maximum Bonus
opportunity for the year in which the Date of Termination occurs;
and
(iii) The
benefit coverage provided in clause (v) of Section 4(b) shall be provided for
a
term of three (3) years as opposed to two (2) years.
(b) Acceleration
of Equity Awards.
Any
restricted stock, restricted stock units, or other stock based awards
outstanding as of the Change in Control shall become fully vested and any stock
options outstanding as of the Change in Control and not then exercisable shall
become fully exercisable as of the date of the Change in Control and any
restrictions imposed by the Company that are applicable to any shares of Common
Stock granted to Executive by the Company shall lapse, as of the date of the
Change in Control. Stock options shall remain exercisable until the first to
occur of (i) one year after the Date of Termination or (ii) the original
expiration of the option.
6. DEFINITIONS.
(a) Affiliate.
For
purposes of this Agreement, “Affiliate” shall mean any
corporation, limited liability company or similar entity which is under the
control of the Company or under common control with the Company.
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(b) Cause.
For
purposes of this Agreement, “Cause” shall mean the occurrence of any of the
following:
(i) the
material failure or refusal by Executive to perform his duties hereunder
(including, without limitation, Executive's inability to perform such duties
as
a result of alcohol or drug abuse, chronic alcoholism or drug addiction) or
to
devote substantially all of his business time, attention and energies to the
performance of his duties hereunder;
(ii) any
willful, intentional or grossly negligent act by Executive having the effect
of
materially injuring the interest, business or prospects of the Company, or
any
of its subsidiaries or Affiliates, or any divisions Executive may
manage;
(iii) the
material violation or material failure by Executive to comply with the Company's
material published rules, regulations or policies, as in effect from time to
time;
(iv) Executive's
conviction of a felony offense or conviction of a misdemeanor offense involving
moral turpitude, fraud, theft or dishonesty;
(v) any
willful or intentional, misappropriation or embezzlement of the property of
the
Company or any of its subsidiaries or Affiliates (whether or not a misdemeanor
or felony); or
(vi) a
material breach of any one or more of the covenants of this Agreement by
Executive;
provided,
however,
that in
the event that the Company determines to terminate Executive's employment
pursuant to clauses (i), (iii) or (vi) of this definition of Cause,
such termination shall only become effective if the Company shall first give
Executive written notice of such Cause, which notice shall identify in
reasonable detail the manner in which the Company believes Cause to exist and
indicates the steps required to cure such Cause, if curable, and Executive
shall
fail within thirty (30) days of such notice to substantially remedy or
correct the same.
(c) Disability.
For
purposes of this Agreement, “Disability” shall mean, for a period of not less
than 90 days within a given twelve month period, Executive’s physical or
mental incapacity to perform his essential
functions,
with or
without reasonable accommodations therefore, which condition a mutually
agreeable physician determines is likely to be continuous and
permanent.
(d) Voluntary
Termination without Good Reason.
For
purposes of this Agreement, “Voluntary Termination without Good Reason” shall
mean any termination by Executive of Executive's employment with the Company
other than a Voluntary Termination with Good Reason.
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(e) Voluntary
Termination with Good Reason.
For
purposes of the Agreement, “Voluntary Termination with Good Reason” shall mean
the termination by Executive of Executive's employment with the Company within
forty-five (45) days following the occurrence of any of the following
events without his consent which is not cured by the Company, if curable, within
30 days as described below:
(i) a
material and adverse change to Executive's title, duties or responsibilities,
including Executive’s not being reelected to his position as a member of the
Board, provided, however, that resignation of
Executive from the Board shall not be deemed such a change;
(ii) notice
is
given to Executive by the Company within two (2) years following a Change in
Control that the Term of the Agreement will not be extended;
(iii) the
Company materially reduces the compensation or benefits to which Executive
is
entitled under this Agreement;
(iv) any
relocation of Executive's principal place of employment except to a location
that is within fifty miles of either (A) Houston, Texas or (B) any
location that Executive has recommended to the Board as a location for the
Company’s headquarters;
(v) the
succession or assignment of this Agreement in violation of Section 25
hereof;
(vi) a
material breach of any one or more of the covenants of this Agreement by the
Company; or
(vii) in
the
event of a Change in Control in which the Company’s securities cease to be
publicly traded, the assignment to Executive of any position (including status,
offices, title and reporting requirements), authority, duties or
responsibilities that are not (A) at or with the ultimate parent company of
the entity surviving or resulting from such merger, consolidation or other
business combination and (B) substantially similar to Executive’s position
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities during the ninety (90) day period prior to the
Change in Control;
provided,
however,
that
Executive must provide the Company with written notice within fifteen (15)
days following the first date on which Executive knows of the occurrence of
an
event or action constituting Good Reason and the Company shall have
thirty (30) days following receipt of such notice to cure such event or
action.
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(f) Change
in Control.
For
purposes of this Agreement, a “Change in Control” shall mean the first to occur
of any of the following events:
(i) individuals
who, as of the date hereof, constitute the members of the Board (the “Incumbent
Directors”) cease for any reason other than due to death or disability to
constitute at least a majority of the members of the Board, provided that any
director whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the members
of
the Board who are at the time Incumbent Directors shall be considered an
Incumbent Director, other than any such individual whose initial assumption
of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than
the
Board;
(ii) the
acquisition or ownership by any individual, entity or "group" (within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)), other than the Company or any of its Affiliates or
Subsidiaries, or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Affiliates or Subsidiaries, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of the combined voting power of the Company's
then
outstanding voting securities entitled to vote generally in the election of
directors;
(iii) the
merger, consolidation or other similar transaction of the Company, as a result
of which the stockholders of the Company immediately prior to such merger,
consolidation or other transaction, do not, immediately thereafter, beneficially
own, directly or indirectly, more than 50% of the combined voting power of
the
voting securities entitled to vote generally in the election of directors of
the
merged, consolidated or other surviving company; or
(iv) the
sale,
transfer or other disposition of all or substantially all of the assets of
the
Company to one or more persons or entities that are not, immediately prior
to
such sale, transfer or other disposition, Affiliates of the
Company.
A
“Change
in Control” shall not be deemed to occur if the Company undergoes a bankruptcy,
liquidation or reorganization under the United States Bankruptcy
Code.
(g) Date
of Termination.
For
purposes of this Agreement, “Date of Termination” shall mean the date on which
Executive’s termination of employment with the Company and its Affiliates
occurs.
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7. COMPENSATION
IN EVENT OF TERMINATION; SURVIVAL.
Upon
termination of Executive's employment for any reason, this Agreement shall
terminate and the Company shall have no further obligation to Executive
except
as
provided in Sections 4, 5, 12 and 13 and insurance coverage in accordance
with applicable law; provided,
however,
that
the provisions set forth in Sections 8, 9, 10 and 11 hereof shall remain in
full force and effect after the termination of Executive's employment,
notwithstanding the termination or expiration of this Agreement.
8. CONFIDENTIALITY,
NONCOMPETITION, ETC.
(a) Confidentiality.
Executive acknowledges that: (i) the business of the Company is intensely
competitive and that Executive's employment by the Company has required and
will
require that Executive have access to and knowledge of confidential information
of the Company, which the Company has provided to Executive in the past and
will
continue to provide to Executive as necessary to perform his duties hereunder,
which Company confidential information includes, but is not limited to,
formulae, manufacturing processes, distribution systems, research and
development methods and techniques, the identity of the Company's customers,
the
identity of the representatives of customers with whom the Company has dealt,
the kinds of services provided by the Company to customers and offered to be
performed for potential customers, the manner in which such services are
performed or offered to be performed, the service needs of actual or prospective
customers, pricing information, information concerning the creation, acquisition
or disposition of products and services, customer maintenance listings, computer
software applications and other programs, personnel information and other trade
secrets (the “Confidential Information”); (ii) the direct or indirect
disclosure of any such Confidential Information would place the Company at
a
competitive disadvantage and would do damage, monetary or otherwise, to the
Company's business; (iii) the engaging by Executive in any of the
activities prohibited by this Section 8 may constitute improper appropriation
and/or use of such information and trade secrets and (iv) the Company
engages in its business throughout the world. Confidential Information shall
not
include information which (w) was publicly available prior to the date hereof,
(x) was known by Executive from a source other than through Executive's
employment with, or service as a director of, the Company, (y) is acquired
by
Executive from a third party who was not subject to any restrictions as to
its
disclosure, or (z) becomes publicly available subsequent to the date hereof,
other than as a result of an action by Executive. Executive expressly
acknowledges the trade secret status of the Confidential Information and that
the Confidential Information constitutes a protectible business interest of
the
Company. Accordingly, the Company and Executive agree as follows:
(i) For
purposes of this Section 8, the business of the Company shall mean the
businesses conducted by the Company, its Affiliates during the period of
Executive's employment by the Company under this Agreement.
(ii) During
Executive's employment by the Company and at
all
times following
the termination of Executive's employment for any reason, Executive shall not,
directly or indirectly, whether individually, as a director, stockholder, owner,
partner, employee, principal or agent of any business, or in any other capacity,
make known, disclose, furnish, make available or utilize any of the Confidential
Information, other than in the proper performance of the duties contemplated
herein, or as required or requested by a court of competent jurisdiction or
other administrative or legislative body;
provided,
however,
that,
in such event, Executive
shall
promptly notify the Company so that the Company may seek a protective order
or
other appropriate remedy. If
reasonably practicable, Executive
shall notify the Company prior
to
disclosing any of the Confidential Information to a court or other
administrative or legislative body. Executive
agrees to return all Confidential Information, including all photocopies,
extracts and summaries thereof, and any such information stored electronically
on tapes, computer disks or in any other manner to the Company at any time
upon
request by the Company and upon the termination of his employment for any
reason.
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(b) Acknowledgements
Regarding Covenants.
Executive acknowledges that (i) the market for the Company's business
extends throughout the United States and the rest of the world, and that
Executive, individually and through his status as a director and officer of
the
Company, is among a limited number of people engaged in the Company's business
on a nationwide and global basis and (ii) the restrictive covenants and the
other agreements contained herein are an essential part of this Agreement.
Executive further represents and warrants and acknowledges and agrees that
Executive has been, or has had the opportunity to be, fully advised by counsel
in connection with the negotiation, preparation, execution and delivery of
this
Agreement.
(c) Non-Competition.
During
the Non-Competition Period (as defined below), Executive shall not in any city,
town, county, parish or other municipality in any state of the United States
or
anywhere else in the world that the Company or any of its subsidiaries,
Affiliates,
successors or assigns
engages
in its business, directly or with actual knowledge indirectly engage in
Competition (as defined below); provided,
however,
that it
shall not be a violation of this sub-paragraph for Executive to become the
registered or beneficial owner of up to five percent (5%) of any class of
the capital stock of a competing corporation registered under the Securities
Exchange Act of 1934, as amended, provided that Executive does not
actively participate in the business of such corporation until such time as
this
covenant expires. The “Non-Competition Period” is the period during Executive's
employment with the Company and continuing through (i) the date that is two
(2)
years after Executive’s Date of Termination for any reason other than Cause or
other than Voluntary Termination without Good Reason or (ii) if the Company
delivers an election notice pursuant to Section 4(d) following a termination
due
to Cause or due to Voluntary Termination without Good Reason, the date through
which the Company elects to enforce this Section 8(c), but not longer than
the
date that is three (3) years after Executive’s Date of Termination; provided,
however, that if Executive’s employment terminates due to Cause or due to a
Voluntary Termination without Good Reason and the Company does not deliver
an
election notice pursuant to Section 4(d), the Non-Competition Period shall
expire upon the Date of Termination.
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(d) Definition
of Competition.
For
purposes of this Agreement, “Competition” means, for Executive's benefit or for
the benefit of any other Person, firm or entity, any of the
following:
(i) engaging
in, or otherwise being employed by or acting as a consultant or lender to,
or
being a director, officer, employee, principal, licensor, trustee, broker,
agent, stockholder, member, owner, joint venturer or partner of, any other
business or organization anywhere in the world which directly competes with
the
business of the Company as the same shall be constituted at any time during,
or
as to which the Company had specific plans
known to
Executive
to
engage in during or following, the term of his employment;
(ii) soliciting
from any customer doing business with the Company as of Executive's termination,
business directly competitive with the business of the Company with such
customer or such party;
(iii) soliciting
from any potential
customer of the Company known
to
Executive business
directly competitive with the business of the Company which has been the subject
of a written
or oral bid, offer or proposal by the Company
known to
Executive,
or of
substantial preparation known
to
Executive with
a
view to making such a bid, proposal or offer, within six (6) months prior
to Executive's termination; or
(iv) soliciting
the employment or services of, or hiring, any Person who was known to
Executive
to be
employed by or was known
to
Executive to be a
consultant to the Company upon the Date of Termination, or within
six (6)
months
prior thereto unless such Person is not an employee of, or a consultant to,
the
Company at the time of such solicitation by Executive and has not been an
employee of, or consultant to the Company for six
(6)
months prior thereto.
(e) Non-Disparagement.
The
Company and Executive agree that both during and after termination of this
Agreement they shall not make any statement, written or verbal, in any forum
or
media, or take any action, that is intended to injure or damage the goodwill,
reputation or business prospects of each other; provided, however, that the
foregoing shall not apply to or restrict in any way the communication of
information by the Company or Executive to any state or federal law enforcement
or administrative agency or in a court, arbitration or administrative
proceeding, and the Company and Executive will not be in breach of the covenant
contained above solely by reason of such communication or testimony.
(f) Reformation
Due to Law Developments.
Executive acknowledges that the Company’s tax consequences as a result of
Executive’s compensation under this Agreement are of significant interest to the
Company and that developments involving relevant tax laws, rules and regulations
could unfavorably impact the Company’s tax consequences. Executive agrees that
he is obligated to consider in good faith any proposal by the Company to revise
or reform his compensation structure hereunder if the Company advises Executive
that such compensation structure has or will result in unfavorable tax
consequences to the Company, and, in such case, the Company shall pay or
reimburse Executive for his reasonable legal fees and expenses associated with
the same.
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12
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(g) Remedies.
In the
event Executive breaches any of the provisions of this Section 8, the Company
and its subsidiaries, Affiliates, successors or assigns shall have the following
rights and remedies, each of which shall be independent of the others and
severally enforceable, and each of which shall be in addition to, and not in
lieu of, any other rights or remedies available to the Company or any of its
subsidiaries, Affiliates, successors or assigns at law or in equity under this
Agreement or otherwise:
(i) The
right
and remedy to have each and every one of the covenants in this Section 8
specifically enforced and the right and remedy to obtain injunctive relief,
it
being agreed that any breach or threatened breach of any of the non-competition
or other restrictive covenants and agreements contained herein would cause
irreparable injury to the Company and its subsidiaries, Affiliates, successors
or assigns and that money damages would not provide an adequate remedy at law
to
the Company and its subsidiaries, Affiliates, successors or
assigns.
(ii) Executive
acknowledges and agrees that the restrictive covenants and agreements contained
herein are reasonable and valid in geographic, temporal and subject matter
scope
and in all other respects. If, however, any arbitrator or court subsequently
determines that any of such covenants or agreements, or any part thereof, is
invalid or unenforceable, the remainder of such covenants and agreements shall
not thereby be affected and shall be given full effect without regard to the
invalid portions.
(iii) If
any
arbitrator or court determines that any of the restrictive covenants and
agreements, or any part thereof, is unenforceable because of the duration or
scope of such provision, such arbitrator or court shall have the power to reduce
the duration or scope of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable to the maximum extent permitted
by applicable law.
9. RETURN
OF COMPANY PROPERTY.
Executive agrees that following the termination of employment for any reason,
Executive shall return all property of the Company and any of its subsidiaries,
Affiliates and any divisions thereof Executive may have managed which is then
in
or thereafter comes into Executive's possession, including, but not limited
to,
documents, contracts, agreements, plans, photographs, books, notes,
electronically stored data and all copies of the foregoing as well as any
automobile or other materials or equipment supplied by the Company to
Executive.
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13
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10. OWNERSHIP
OF INVENTIONS.
Executive shall disclose promptly, to such person(s) as may be designated by
the
Company for this purpose from time-to-time, any and all information relating
to
all Inventions (as hereinafter defined) which Executive makes or conceives
or
first reduces to practice during his employment hereunder. The term “Inventions”
for purposes of this Agreement shall mean all inventions, improvements, works
of
authorship, formulas, processes, methods, computer programs, databases, and
trade secrets (whether patentable or not) made or conceived or first reduced
to
practice by Executive solely, or jointly with others, (i) in the
performance of his duties, (ii) with the use of time, material or
facilities of the Company, (iii) which relate to the Company's business,
including any actual or anticipated product, method, apparatus, substance or
article of manufacture within the Company's field of activity or its research
and development efforts, or (iv) which results from or is suggested by work
performed for the Company. Executive acknowledges that all Inventions shall
be
the exclusive property of the Company and, to the extent that the ownership
of
such Invention does not vest in the Company as a matter of law, he hereby
assigns and shall continue to assign to the Company, without further
compensation, his entire right, title and interest in and to all such Inventions
and shall execute all documents which the Company may deem necessary with
respect thereto. Executive shall make, at the sole discretion and expense of
the
Company, such applications for United States and foreign patents covering any
Inventions as the Company may request. Executive shall execute, acknowledge
and
deliver all papers, including applications, renewals, assignments, and
applications for re-issue, and do all other rightful acts which the Company
may
consider necessary, to secure the Company's full rights to the Inventions to
secure patents or other registrations thereon, and to enforce the Company's
rights therein. The foregoing obligations shall survive the termination of
employment with the Company; provided,
however,
that
the Company will compensate Executive at a reasonable rate after such
termination for time or expenses actually spent at the Company's request on
such
matters.
Executive
represents, warrants and covenants that: (i) he does not have applications
for patents pending, either domestic or foreign, (ii) there is no invention
now in his possession which he will claim to be excluded herefrom,
(iii) his performance of the foregoing disclosure and assignment
provisions, and his performance of his duties as an employee of the Company
will
not breach any invention assignment or proprietary information agreement with
any former employer or other party, and (iv) he will not bring to the
Company or use in the performance of his duties with the Company any documents
or materials of a former employer or third party that are not generally
available to the public or have not been legally transferred to the
Company.
11. INDEMNIFICATION.
The
Company will indemnify Executive in accordance with the Indemnification
Agreements dated as of the Effective Date providing for indemnification in
connection with Executive’s services as a director and officer,
respectively.
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14
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12. EXCISE
TAX.
(a) Reduction.
Except
as provided in Section 12(b), in the event it shall be determined that any
payment or distribution in the nature of compensation (within the meaning of
Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether
paid
or payable or distributed or distributable pursuant to the terms of this
Agreement (including, without limitation, the accelerated vesting of incentive
or equity awards held by Executive) or otherwise would be subject to the excise
tax imposed by Section 4999 of the Code (“Excise Tax”), then the amount of
“parachute payments” (as defined in Section 280G of the Code) payable or
required to be provided to Executive shall be automatically reduced (a
“Reduction”) to the minimum extent necessary to avoid imposition of such Excise
Tax.
(b) Gross-Up.
Notwithstanding any provision herein to the contrary, if a Reduction under
Section 12(a) would result in the amount of parachute payments being reduced
by
10% or more of the aggregate parachute payments, then no Reduction shall apply
and Executive shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that, after payment (whether through withholding at
the source or otherwise) by Executive of all taxes (including any interest
or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto),
employment taxes and Excise Tax imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the parachute payment. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, Executive shall repay to the Company, within
five (5) business days following the time that the amount of such reduction
in
the Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction. In the event that the Excise Tax is determined
to exceed the amount taken into account hereunder in calculating the Gross-Up
Payment (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess within five (5)
business days following the time that the amount of such excess is finally
determined. Executive and the Company shall each reasonably cooperate with
the
other in connection with any administrative or judicial proceedings concerning
the existence or amount of liability for Excise Tax with respect to the
parachute payments.
(c) Other
Terms.
All
determinations required to be made under this Section 12 shall be made by the
Company’s accounting firm (the “Accounting Firm”). The Accounting Firm shall
provide detailed supporting calculations both to the Company and Executive.
All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Absent manifest error, any determination by the Accounting Firm shall be binding
upon the Company and Executive. The Gross-Up Payment to Executive, if any,
shall
be made no earlier than the date of the “parachute payment” to which such
Gross-Up Payment relates and no later than December 31st of the year following
the year during which Executive remits the related Excise Tax.
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15
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13. Time
of Payment; Section 409A.
(a) Time
of Payment.
Unless
otherwise provided, all of the payments due to Executive under Sections 4(b),
5
and 12 above shall be made within sixty (60) days following the Date of
Termination.
(b) Section
409A of the Code.
Notwithstanding any provision in this Agreement to the contrary, if the payment
of any compensation or benefit hereunder (including, without limitation, any
severance benefit) would be subject to additional taxes and interest under
Section 409A of the Code because the timing of such payment is not delayed
as
provided in Section 409A(a)(2)(B) of the Code, then any such payment or benefit
that Executive would otherwise be entitled to during the first six (6) months
following the Date of Termination shall be accumulated and paid or provided,
as
applicable, on the date that is six (6) months and one (1) day after the Date
of
Termination (or if such date does not fall on a business day of the Company,
the
next following business day of the Company), or such earlier date upon which
such amount can be paid or provided under Section 409A of the Code without
being
subject to such additional taxes and interest.
(c) Section
409A Gross-Up.
Notwithstanding anything to the contrary in this Agreement, if any payment,
distribution or provision of a benefit by the Company to or for the benefit
of
Executive, whether paid or payable, distributed or distributable or provided
or
to be provided pursuant to the terms of this Agreement or otherwise (a
“Payment”) would be subject to an additional tax pursuant to Section 409A of the
Code as a result of the Company’s failure to comply with the requirements of
Section 409A(a)(2)(B)(i) of the Code (such additional tax, together with any
interest or penalties with respect to such additional tax, are hereinafter
collectively referred to as the “Additional Taxes”), the Company shall pay to
Executive an additional payment (a “409A Gross-Up Payment”) in an amount such
that after payment by Executive of all Additional Taxes, including any income
taxes and Additional Taxes imposed on any 409A Gross-Up Payment, Executive
retains an amount of the 409A Gross-Up Payment (taking into account any similar
gross-up payments to Executive under any stock incentive or other benefit plan
or program of the Company) equal to the Additional Taxes imposed upon the
Payments. The Company and Executive shall make an initial determination as
to
whether a 409A Gross-Up Payment is required and the amount of any such 409A
Gross-Up Payment. Executive shall notify the Company in writing of any claim
by
the Internal Revenue Service which, if successful, would require the Company
to
make a 409A Gross-Up Payment (or a 409A Gross-Up Payment in excess of that,
if
any, initially determined by the Company and Executive) within ten business
days
after the receipt of such claim. The Company shall notify Executive in writing
at least ten business days prior to the due date of any response required with
respect to such claim if it plans to contest the claim. If the Company decides
to contest such claim, Executive shall cooperate fully with the Company in
such
action; provided, however, the Company shall bear and pay directly or indirectly
all costs and expenses (including additional interest and penalties) incurred
in
connection with such action and shall indemnify and hold Executive harmless,
on
an after-tax basis, for any Additional Taxes or income tax, including interest
and penalties with respect thereto, imposed as a result of the Company’s action.
If, as a result of the Company’s action with respect to a claim, Executive
receives a refund of any amount paid by the Company with respect to such claim,
Executive shall promptly pay such refund to the Company. If the Company fails
to
timely notify Executive whether it will contest such claim or the Company
determines not to contest such claim, then the Company shall immediately pay
to
Executive the portion of such claim, if any, which it has not previously paid
to
Executive. In all events, any 409A Gross-Up Payment shall be made by December
31
of the year following the calendar year in which the related taxes are remitted
to the applicable taxing authority. Executive agrees to cooperate with the
Company and to take any action reasonably requested by the Company to minimize
the effect of Section 409A of the Code on a Payment.
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16
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14. ENTIRE
AGREEMENT.
This
Agreement sets forth the entire agreement between the parties with respect
to
its subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of every kind and nature between them, including,
but not limited to, the Current Employment Agreement, and neither party shall
be
bound by any term or condition other than as expressly set forth or provided
for
in such agreements. This Agreement may not be changed or modified except by
an
agreement in writing, signed by the parties hereto. As of the Effective Date,
the Executive agrees that Holdings is not bound by any obligations with respect
to the Current Employment Agreement or this Agreement and agrees that Holdings
is a third-party beneficiary hereof.
15. EACH
PARTY THE DRAFTER.
This
Agreement and the provisions contained herein shall not be construed or
interpreted for or against any party to this Agreement because that party
drafted or caused that party's legal representative to draft any of its
provisions.
16. WAIVER.
The
failure of either party to this Agreement to enforce any of its terms,
provisions, or covenants shall not be construed as a waiver of the same or
of
the right of such party to enforce the same. Waiver by either party hereto
of
any breach or default by the other party of any term or provision of this
Agreement shall not operate as a waiver of any other breach or
default.
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17
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17. SEVERABILITY.
In the
event that any one or more of the provisions of this Agreement shall be held
to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remainder of the Agreement shall not in any way be affected or impaired
thereby. Moreover, if any one or more of the provisions contained in this
Agreement shall be held to be excessively broad as to duration, activity or
subject, such provisions shall be construed by limiting and reducing them so
as
to be enforceable to the maximum extent allowed by applicable law.
18. NOTICES.
Any
notice given hereunder shall be in writing and shall be deemed to have been
given when delivered by messenger or courier service (against appropriate
receipt), or mailed by registered or certified mail (return receipt requested),
addressed as follows:
If
to the
Company:
Dresser-Rand
Group Inc.
0000
Xxxx
Xxx Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxx,
Xxxxx 00000
Attention:
General Counsel
with
a
copy
to: Xxxx
Xxxxxxx
Xxxxx
Xxxxx LLP
000
Xxxxxxxxx Xx.
Xxxxxxx,
Xxxxx 00000
If
to
Executive: Xxxxxxx
X. Xxxxx Xx.
at
his
home address in Houston, Texas
as
last notified to the Company
or
at
such other address as shall be indicated to either party in writing. Notice
of
change of address shall be effective only upon receipt.
19. ARBITRATION;
EXPENSES OF ENFORCEMENT.
Except
as otherwise specifically provided in this Agreement, the Company and Executive
agree to submit exclusively to final and binding arbitration any and all
disputes or disagreements relating to or concerning the interpretation,
performance or subject matter of this Agreement in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association (“AAA”) using a mutually acceptable single arbitrator. The
arbitration will take place in Houston, Texas. Executive and the Company agree
that the decision of the arbitrator will be final and binding on both parties.
Arbitration shall be commenced by either party filing a demand for arbitration
with the AAA within 60 days after such dispute has arisen. Each party in such
an
arbitration proceeding shall be responsible for the costs and expenses incurred
by such party in connection therewith (including attorneys’ fees) which shall
not be subject to recovery from the other party in the arbitration except that
any and all charges that may be made for the cost of the arbitration and the
fees of the arbitrators which shall in all circumstances be paid by the Company.
Any court having jurisdiction may enter a judgment upon the award rendered
by
the arbitrator. Notwithstanding the provisions of this Section 19, the Company
may, if it so chooses, bring an action in any court of competent jurisdiction
for injunctive relief to enforce Executive’s obligations under Sections 8, 9 or
10 hereof.
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18
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20. GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Texas, without regard to its conflict of law rules.
21. JURISDICTION;
FORUM.
By the
execution and delivery of this Agreement, the Company and Executive submit
to
the personal jurisdiction of any state or federal court in the State of Texas
in
any suit or proceeding arising out of or relating to this Agreement. To the
extent that either party hereto has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, the parties each
irrevocably waives such immunity in respect of its obligations with respect
to
this Agreement. This
Section 21 is subject to the provisions of Section 19 hereof. THE
PARTIES HERETO AGREE THAT THEY HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL
BY
JURY IN ANY ACTION TO ENFORCE, OR INTERPRET, THE PROVISIONS OF THIS
AGREEMENT.
22. INTERPRETATION.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the words “include” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.”
23. COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, which, together, shall
constitute one and the same agreement.
24. EFFECTIVE
DATE.
The
Effective Date of this Agreement shall be June 11, 2008.
25. REQUIRING
SUCCESSOR TO ASSUME.
The
Company will require any successor or assign to all or substantially all of
the
business and/or assets of the Company (whether direct or indirect, by purchase
of assets, merger, consolidation or otherwise) to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession or assignment had taken place,
and Executive agrees to such assignment.
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19
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26. CONFLICT.
In the
event of a conflict between the terms of this Agreement and the terms of any
present or future plan, policy or procedure of the Company or any agreement
between the Company and Executive, including but not limited to a stock option
agreement or a restricted share agreement, the terms of this Agreement shall
take precedence and govern.
[Remainder
of page intentionally left blank; signature page to
follow]
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20
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
day
and year first above written.
|
By:
|
/s/
Xxxx X. Xxx
|
|
Name:
Xxxx X. Xxx
|
|
|
Title:
Vice President, General Counsel & Secretary
|
|
|
EXECUTIVE
|
|
|
By:
|
/s/
Xxxxxxx X. Xxxxx Xx.
|
|
Xxxxxxx
X. Xxxxx Xx.
|
|
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21
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SCHEDULE
A
DO
NOT SIGN PRIOR TO
FINAL
DAY OF EMPLOYMENT
This
RELEASE AGREEMENT (“Release
Agreement”)
is
made between DRESSER-RAND GROUP INC., a Delaware corporation (the “Company”)
and
Xxxxxxx X. Xxxxx Xx. (“Executive”).
W
I T
N E S S E
T
H
WHEREAS,
Executive and the Company have entered into an Employment Agreement dated as
of
_______ ___, 2008 (the “Employment
Agreement”);
WHEREAS,
pursuant to Section 4(e) of the Employment Agreement, the Company has agreed
to
provide certain severance payments to Executive if Executive executes this
Release Agreement and does not revoke Executive's consent to this Release
Agreement; and
WHEREAS,
this Release Agreement and the Company's obligations under Sections 4
and
5 of
the Employment Agreement shall become effective only upon the “Effective Date”
of this Release Agreement (as defined below).
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt of which
is
mutually acknowledged, the Company and Executive agree as follows:
1. Release.
(a) Executive,
on behalf of himself, his heirs, executors, administrators, successors and
assigns, hereby irrevocably and unconditionally releases the Company and its
subsidiaries, divisions and Affiliates, together with their respective owners,
assigns, agents, directors, partners, officers, employees, attorneys and
representatives and any of their predecessors and successors and each of their
estates, heirs and assigns (collectively, the “Company
Releasees”)
from
any and all charges, complaints, claims, liabilities, obligations, promises,
agreements, causes of action, rights, costs, losses, debts and expenses of
any
nature whatsoever, known or unknown, which Executive or his heirs, executors,
administrators, successors or assigns ever had, now have or hereafter can,
will
or may have (either directly, indirectly, derivatively or in any other
representative capacity) by reason of any matter, fact or cause whatsoever
against the Company or any of the other Company Releasees from the beginning
of
time to the date of this Release Agreement, except those claims which can not
be
released as a matter of law. This release includes, without limitation, all
claims arising out of, or relating to, Executive's employment and/or end of
his
employment with the Company and all claims arising under any federal, state
and
local labor, employment and/or anti-discrimination laws including, without
limitation, the federal Age Discrimination in Employment Act, the Employee
Retirement Income Security Act, the Americans with Disabilities Act, Title
VII
of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Civil
Rights Act of 1991, the Texas
Commission on Human Rights Act, and the New York State and City Human Rights
Laws, each as amended. Notwithstanding the foregoing, this release shall not
include any ongoing obligations of the Company under the Employment Agreement
(including but not limited to the obligation to provide severance pay and
benefits to the Executive under Sections 4, 5, 12 and 13 thereof and the
indemnification agreements referenced under Section 11 thereof) and any rights
provided under the Company’s bylaws and the Company’s benefit plans and
agreements with Executive related thereto, including but not limited to stock
options, and restricted stock plans and agreements.
A-
1
(b) Executive
shall execute the Release Agreement on a date which is no sooner than the date
upon which Executive's employment is terminated.
(c) Executive
acknowledges and agrees that the Company has fully satisfied any and all
obligations owed to Executive arising out of Executive's employment with the
Company, exclusive
of any ongoing obligations of the Company under the Employment Agreement
(including but not limited to the obligation to provide severance pay and
benefits to the Executive under Sections 4, 5, 12 and 13 thereof, the
indemnification agreements referenced under Section 11 thereof) and any rights
provided under the Company’s bylaws
and the
Company’s benefit plans and agreements with Executive related thereto, including
but not limited to stock options, and restricted stock plans and
agreements.
Executive further acknowledges and agrees that the Company and the other Company
Releasees have fully complied with their COBRA continuation coverage
obligations.
(d) Executive
represents that he has no complaints, charges, or lawsuits pending against
the
Company or any of the other Company Releasees. Executive further covenants
and
agrees that neither he nor his heirs, executors, administrators, successors
or
assigns will be entitled to any Personal recovery in any proceeding of any
nature whatsoever against the Company or any of the other Company Releasees
arising out of any of the matters released in this Paragraph 1.
(e) Executive
has resigned from all positions, if any, with the board of directors of the
Company and any officer and/or director positions of any parent, subsidiary,
or
Affiliate of the Company.
X-
0
0. Return
of Company Property.
Executive represents and agrees that Executive has returned to the Company
all
property of the Company or any of the Company Releasees, including, but not
limited to, documents, contracts, agreements, plans, photographs, books, notes,
reports, files, memoranda, records and software, credit cards, cardkey passes,
door and file keys, computer access codes or disks and instructional manuals,
and other physical or electronic property that Executive received and/or
prepared or helped prepare in connection with Executive's employment with the
Company, and that Executive has not retained any copies, duplicates,
reproductions or excerpts thereof.
3. No
Admission of Wrongdoing.
Nothing
herein is to be deemed to constitute an admission of wrongdoing by the Company
or any of the other Company Releasees.
4. Consultation
with Attorney/Voluntary Agreement.
Executive acknowledges that (i) the Company has advised Executive of his right
to consult with an attorney prior to executing this Release Agreement, (ii)
Executive has carefully read and fully understands all of the provisions of
this
Release Agreement, and (iii) Executive is entering into this Release Agreement,
including the releases set forth in Paragraph 1 above, knowingly, freely and
voluntarily in exchange for good and valuable consideration.
5. Consideration
& Revocation Period.
(a) Executive
acknowledges that he has at least twenty-one (21) calendar days to consider
the
terms of this Release Agreement, although he may sign it sooner.
(b) Executive
will have seven (7) calendar days from the date on which he signs this Release
Agreement to revoke his consent to the terms of this Release Agreement. Such
revocation must be in writing and must be addressed as follows: General Counsel,
Dresser-Rand Group Inc., 0000 X. Xxx Xxxxxxx Xxxx. X., Xxxxxxx, Xxxxx 00000,
with a copy to Xxxx Xxxxxxx, Xxxxx Xxxxx LLP, 000 Xxxxxxxxx Xx., Xxxxxxx, Xxxxx
00000. Notice of such revocation must be received within the seven (7) calendar
days referenced above. In the event of such revocation by Executive, this
Release Agreement shall not become effective and Executive shall not have any
rights under Sections 4 and
5 of
the Employment Agreement.
(c) Provided
that Executive does not revoke this Release Agreement, this Release Agreement
shall become effective on the eighth (8th) calendar day after the date on which
Executive signs this Release Agreement (the “Effective
Date”).
X-
0
0. Assignment.
This
Release Agreement is Personal to Executive and may not be assigned by Executive.
This Agreement is binding on, and will inure to the benefit of, the Company
and
the other Company Releasees.
7. Waiver
and Amendments.
Any
waiver, alteration, amendment, or modification of any of the terms of this
Release Agreement shall be valid only if made in writing and signed by the
parties hereto; provided,
however,
that
any such waiver, alteration, amendment, or modification is consented to on
the
Company’s behalf by the Board. No waiver by either of the parties hereto of
their rights hereunder shall be deemed to constitute a waiver with respect
to
any subsequent occurrences or transactions hereunder unless such waiver
specifically states that it is to be construed as a continuing
waiver.
8. Severability
and Governing Law.
If any
covenants or such other provisions of this Release Agreement are found to be
invalid or unenforceable by a final determination of a court of competent
jurisdiction (a) the remaining terms and provisions hereof shall be unimpaired
and (b) the invalid or unenforceable term or provision hereof shall be deemed
replaced by a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision hereof. THIS RELEASE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT
OF LAW RULES.
9. Section
Headings.
The
headings contained in this Release Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this Release
Agreement. Whenever the words “include” or “including” are used in this Release
Agreement, they shall be deemed to be followed by the words “without
limitation.”
10. Entire
Agreement.
This
Release Agreement and the Employment Agreement constitute
the entire understanding and agreement of the parties hereto regarding the
employment of Executive. This Release Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings,
and
agreements between the parties relating to the subject matter of this Release
Agreement.
11. Jurisdiction;
Forum.
Executive acknowledges that any disputes under the Employment Agreement or
this
Release Agreement shall be subject to the arbitration provisions of Section
19
of the Employment Agreement. By the execution and delivery of this Release
Agreement, Executive submits to the personal jurisdiction of any state or
federal court in the State of Texas in any suit or proceeding arising out of
or
relating to this Release Agreement. To the extent that Executive may acquire
any
immunity from jurisdiction of any Texas court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid
of
execution, execution or otherwise) with respect to himself or his property,
Executive irrevocably waives such immunity in respect of his obligations with
respect to this Release Agreement. Executive agrees that an appropriate,
convenient and non-exclusive forum for any and all disputes between the parties
hereto arising out of this Release Agreement or the transactions contemplated
hereby shall be in any state or federal court in the State of
Texas.
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00. Counterparts.
This
Release Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute
one
and the same instrument. The execution of this Release Agreement may be by
actual or facsimile signature.
IN
WITNESS WHEREOF, the undersigned have executed this Release Agreement as of
the
dates indicated below.
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