Exhibit 10.1
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”), dated this 25 th day of May, 2005, but effective as
of December 20, 2004 (the “Effective Date”), is entered
into by and between Dresser, Inc., a Delaware corporation
(“Employer”) and Patrick M. Murray
(“Employee”).
WITNESSETH:
WHEREAS , pursuant to a resolution adopted at its
December 18, 2003 meeting, the Board of Directors of Employer
approved certain Compensation (as defined therein) arrangements for
Employee in his capacity as Chairman of the Board (the
“Compensation Resolution”);
WHEREAS , Employer and Employee now desire to enter into
this Agreement by which Employer shall hire Employee as
Employer’s Chief Executive Officer.
NOW, THEREFORE
, for and in consideration of the
mutual promises, covenants and obligations contained herein,
Employer and Employee agree as follows:
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ARTICLE 1:
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EMPLOYMENT
AND DUTIES:
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1.1 Employer agrees to employ
Employee, and Employee agrees to be employed by Employer, beginning
as of the Effective Date and continuing until such time as his
successor is elected and qualified or his earlier resignation or
removal, subject to any termination of such employment as set forth
in Article 3, and subject to other rights and obligations set forth
in the terms and conditions of this Agreement.
1.2 Beginning as of the Effective
Date, Employee shall be employed as the Chief Executive Officer of
Employer. Employer shall use its best efforts to cause Employee to
continue to be elected or appointed as a member of the Board of
Directors of Employer (the “Board”) for so long as this
Agreement is in effect. For so long as Employee is a member of the
Board, Employee will also be Chairman of the Board. As Chief
Executive Officer, Employee will report directly to the Board, and
Employee’s duties will include such functions and operations
consistent with Employee’s title and assigned him from time
to time by the Board. Employee agrees to perform such functions and
operations diligently and to the best of Employee’s abilities
as well as such additional or different duties and services
appropriate to such positions which Employee from time to time may
be reasonably directed to perform by the Board.
1.3 Employee shall at all times
comply with and be subject to such policies and procedures as
Employer may establish from time to time, including, without
limitation, Employer’s Code of Business Conduct (the
“Code of Business Conduct”), which at any time during
the period of his employment by Employer have been furnished in
writing to Employee.
1.4 Employee shall, during the
period of Employee’s employment by Employer, devote
Employee’s full business time, energy, and best efforts to
the business and affairs of Employer. Employee may not engage,
directly or indirectly, in any other business,
investment,
or activity that materially interferes with
Employee’s performance of Employee’s duties hereunder
or is contrary to the interest of Employer or any of Dresser,
Ltd.’s current or future affiliated subsidiaries (each a
“Dresser Entity” or, collectively, the “Dresser
Entities”) or requires any significant portion of
Employee’s business time. The foregoing notwithstanding, the
parties recognize and agree that Employee may engage in passive
personal investments and other business activities which do not
conflict with the business and affairs of the Dresser Entities or
materially interfere with Employee’s performance of his
duties hereunder. In addition, Employee may serve on any corporate,
civic, or charitable boards of directors, provided that such
service is not otherwise a violation of any other provision of this
Agreement and he first obtain approval to serve on any for-profit
corporate boards in accordance with Employer’s policies and
procedures regarding such service to the extent previously
furnished in writing to Employee. Employee shall be permitted to
retain any compensation received for approved service on any
unaffiliated corporation’s board of directors.
1.5 Employee acknowledges and agrees
that Employee owes a fiduciary duty of loyalty, fidelity, and
allegiance to act at all times in the best interests of Employer
and the other Dresser Entities and to do no act which would,
directly or indirectly, injure any such entity’s business,
interests, or reputation. It is agreed that any direct or indirect
interest in, connection with, or benefit from any outside
activities, particularly commercial activities, which interest
might in any way adversely affect Employer, or any other Dresser
Entity, involves a possible conflict of interest. In keeping with
Employee’s fiduciary duties to Employer, Employee agrees that
Employee shall not knowingly become involved in a conflict of
interest with Employer or any Dresser Entity, or upon discovery
thereof, allow such a conflict to continue. Moreover, Employee
shall not engage in any activity that is reasonably likely to
involve a possible conflict of interest without first obtaining
approval in accordance with Employer’s policies and
procedures.
1.6 Nothing contained herein shall
be construed to preclude the transfer of Employee’s
employment or this Agreement to another Dresser Entity or Entities
(“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 (1) effective with such transfer, all of
Employer’s obligations hereunder shall be assumed by and be
binding upon, and all of Employer’s rights hereunder shall be
assigned to, such Subsequent Employer, jointly and severally with
Employer in all respects, and the defined term
“Employer” as used herein shall thereafter be deemed
amended to include such Subsequent Employer, (2) Employee shall be
Chief Executive Officer and a member of the board of directors of
each of the one or more companies that in the aggregate hold and/or
are the successor or successors to all or substantially all of the
business of Employer (“Employer Successors”), and (3)
Employer shall remain jointly and severally liable and bound by
this Agreement. Except as otherwise provided above, all of the
terms and conditions of this Agreement, including without
limitation, Employee’s rights and obligations, shall remain
in full force and effect following such transfer of employment. An
example of such an assignment may be the division of Employer into
two separate corporate entities which each assume a portion of
Employer’s business and which each then shall become
Employers, or the assignment of Employee’s contract to a
Dresser Entity which purchases all or substantially all of the
assets of Employer, which purchaser will then become an
Employer.
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1.7 The Compensation Resolution is
hereby superseded in its entirety and shall hereafter be of no
further force or effect; provided, however, that if the Termination
Date occurs prior to December 31, 2006, the Compensation Resolution
shall thereupon become effective and of full force and effect once
again. In addition, the “Chairman Fee” previously
awarded to Employee in connection with his service as the
non-executive chairman of the Board, is hereafter
terminated.
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ARTICLE 2:
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COMPENSATION
AND BENEFITS:
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2.1 From January 1, 2005 to the
earlier of “Termination Date” (as defined in Article 3)
or December 31, 2006, Employee’s base salary shall be not
less than $200,000 per annum, which base salary shall be paid by
Employer in accordance with its standard payroll practice for its
executives. Employer and Employee shall renegotiate
Employee’s base salary for periods after the 2006 calendar
year.
2.2 From January 1, 2005 to the
Termination Date, Employee will be eligible for an Annual Bonus to
be awarded, if at all, based on achievement of performance goals
established annually by the Board, in consultation with Employee,
within the first ninety days of Employer’s fiscal year. The
Board will reasonably determine whether these performance goals
have been met and the amount of any Annual Bonus in its sole
discretion, subject to the following guidelines: (1) the Target
Annual Bonus will be equal to 50% of Employee’s base salary
and the Maximum Annual Bonus will be equal to 100% of
Employee’s base salary; (2) the Board may increase the Target
Annual Bonus or the Maximum Annual Bonus at any time, but may not
decrease them without Employee’s express written
consent.
2.3 From January 1, 2005 to the
Termination Date, Employee will receive a perquisite allowance as
the Board may establish from time to time. In addition, Employer
shall pay or reimburse Employee for all actual, reasonable and
customary expenses incurred by Employee in the course of his
employment; provided that such expenses are incurred and accounted
for in accordance with Employer’s applicable policies and
procedures.
2.4 From January 1, 2005 to the
Termination Date, Employee shall be allowed to participate, on the
same basis as other senior executive employees of Employer, in all
applicable medical, health, and dental care benefit plans and
programs, including improvements or modifications of the same,
which as of January 1, 2005 or thereafter are made available by
Employer to Employer’s senior executive employees and
Employer’s Supplemental Executive Retirement Plan as of
January 1, 2005 (the “SERP”) (the “Benefit
Plans”), excluding, however, those plans established by
predecessors of Employer which as of January 1, 2005 are not
generally open to new participants and in which Employee is not
already a participant. Employee shall not participate in any other
plans, including any life insurance, disability protection, or
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 its similarly situated executive
employees pursuant to the terms and conditions of such benefit
plans and programs. For purposes of calculating Employee’s
benefits under the SERP, Employee’s salary shall be
calculated to include Employee’s base salary plus an
amount
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equal to salary amounts that were pre-paid to
Employee by Employer as severance benefits in 2004.
2.5 Notwithstanding anything to the
contrary in this Agreement, with the exception of equity based
incentives and option plans pursuant to which Employee has
received, or is contractually entitled to receive, any awards, it
is specifically understood and agreed that Employer shall not be
obligated to institute, maintain, or refrain from changing,
amending, or discontinuing any incentive, compensation, or employee
benefit program or plan, so long as such actions are similarly
applicable to covered employees generally.
2.6 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.
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ARTICLE 3:
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TERMINATION
AND EFFECTS OF TERMINATION:
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3.1 Employee’s employment with
Employer may be terminated by either Employee or Employer for any
reason or for no reason. The first date that either party elects to
terminate this Agreement is referred to herein as the
“Termination Date.” Notwithstanding the any of the
terms contained herein, if the Termination Date occurs on or before
December 31, 2006, this Agreement shall be automatically terminated
and the Compensation Resolution shall govern the relationship of
Employer and Employee as set forth in Section 1.8
hereof.
3.2 Termination of the employment
relationship or status as a director 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.
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ARTICLE 4:
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OWNERSHIP
AND PROTECTION OF INTELLECTUAL PROPERTY AND CONFIDENTIAL
INFORMATION:
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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 (or prior employment or while serving
Employer as a consultant) by or directorship with Employer or any
of the other Dresser Entities (whether during business hours or
otherwise and whether on Employer’s premises or otherwise)
which relate to the business, products or services of Employer or
the other Dresser Entities (including, without limitation, all such
information relating to corporate opportunities, research,
financial and sales data, pricing and trading terms, evaluations,
opinions, interpretations, acquisition prospects, the identity of
customers or their requirements, the identity of key contacts
within the customer’s organizations or within the
organization of acquisition prospects, or marketing and
merchandising techniques, prospective names, and marks), and all
writings or materials of any type embodying any of such items,
shall be the sole and exclusive property of Employer or another
Dresser Entity, as the case may be, and shall be treated as
“work for hire”.
4.2 Employee acknowledges that the
businesses of Employer and the other Dresser Entities are highly
competitive and that their strategies, methods, books, records, and
documents, their technical information concerning their products,
equipment, services, and processes,
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procurement procedures and pricing techniques,
the names of and other information (such as credit and financial
data) concerning their customers and business affiliates, all
comprise confidential business information and trade secrets which
are valuable, special, and unique assets which Employer or the
other Dresser Entities use in their business to obtain a
competitive advantage over their competitors. Employee further
acknowledges that protection of such confidential business
information and trade secrets against unauthorized disclosure and
use is of critical importance to Employer and the other Dresser
Entities in maintaining their competitive position. Employee hereby
agrees that Employee will not, at any time during or after his
employment by Employer, make any unauthorized disclosure of any
confidential business information or trade secrets of Employer or
the other Dresser Entities, or make any use thereof, except in the
carrying out of his 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
E