EXHIBIT 10.15
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive Employment Agreement
(“Agreement”), dated effective the 5
th
day of January, 2004
(the “Effective Date”), is entered into by and between
Dresser, Inc., a Delaware corporation (the “Employer”)
and James Nattier (“Employee”).
W I T N E S S E T
H:
WHEREAS , Employer desires to employ Employee pursuant
to the terms and conditions set forth herein and Employee desires
to accept such employment pursuant to the terms and conditions set
forth herein, and to amend and restate any prior employment
agreements between the Principal DEG Entities and
Employee;
WHEREAS , 85% of the outstanding voting securities (on a
fully diluted basis) of Dresser, Ltd., a Bermuda corporation, are
owned by DEG Acquisitions, L.L.C. (“DEG”);
WHEREAS , Dresser Holding, Ltd. (“DHL”) is a
wholly owned subsidiary of Dresser, Ltd.;
WHEREAS , Dresser Holding, Inc. (“DHI”) is a
wholly owned subsidiary of DHL;
WHEREAS , Employer is a wholly owned subsidiary of
DHI;
WHEREAS , Dresser, Ltd. and Employer are referred to
collectively as the “Principal DEG
Entities”;
NOW, THEREFORE
, for and in consideration of the
mutual promises, covenants and obligations contained herein,
Employer and Employee agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ
Employee, and Employee agrees to be employed by Employer, beginning
as of the Agreement Date and continuing until the second
anniversary of the Agreement Date (the “Initial Term”),
subject to the terms and conditions of this Agreement. Commencing
on the first anniversary of the Agreement Date, the Initial Term
will be automatically extended each day by one day, until two years
following the date on which either party delivers to the other
written notice of termination in accordance with the provisions of
Section 7.3 below. Employer acknowledges and agrees that Employee
is accepting employment hereunder in reliance upon the facts set
forth in the Whereas clauses set forth above, which Employer
represents and warrants to be true and correct in all
respects.
1.2 Beginning as of the Agreement
Date, Employee shall be employed as the Executive Vice President
and Chief Financial Officer of Employer. As Executive Vice
President and Chief Financial Officer, President, Employee will
report directly to the President and Chief Executive Officer of
Employer (“CEO”) and the Board of Directors of Employer
(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 President, CEO or 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
President, CEO or 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, 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 not more than
two (2) corporate, civic, or charitable boards of directors,
provided that 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 to another Dresser Entity or Entities (“Subsequent
Employer”) as of, or at any time after, the Agreement Date
and no such transfer shall be deemed to be a termination of
employment for purposes of Article 3 hereof; provided, however,
that
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(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
Executive Vice President and Chief Financial Officer 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”), (3) Employer shall
remain jointly and several liable and bound by this Agreement, and
(4) nothing in this Section 1.6 shall alter the definition of, or
Employee’s rights associated with, Employee Cause (as defined
in Section 3.4(i) below), or a Change of Control (as defined in
Section 7.2 below). Except as otherwise provided above, all of the
terms and conditions of this Agreement, including without
limitation, Employee’s rights and obligations, shall remain
in full force and effect following such transfer of employment. An
example of such an assignment may be the division of 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.
ARTICLE 2: COMPENSATION AND
BENEFITS:
2.1 From the Agreement Date to the
date of termination of Employee’s employment pursuant to the
provisions of Article 3 (the “Termination Date”),
Employee’s base salary shall be not less than $300,000 per
annum, which shall be paid by Employer in accordance with its
standard payroll practice for its executives. Employee’s base
salary may be increased from time to time. Such increased base
salary shall become the minimum base salary under this Agreement
and may not be decreased thereafter without the written consent of
Employee.
2.2 From the Agreement Date to the
Termination Date, Employee will be eligible for an Annual Bonus to
be awarded, if at all, based on achievement of performance goals
established annually by the Board, in consultation with Employee,
within the first ninety days of Employer’s fiscal year. The
Board will reasonably determine whether these performance goals
have been met and the amount of any Annual Bonus in its sole
discretion, subject to the following guidelines: (1) the Target
Annual Bonus will be equal to 50% of Employee’s base salary
and the Maximum Annual Bonus will be equal to 100% of
Employee’s base salary; (2) the Board may increase the Target
Annual Bonus or the Maximum Annual Bonus at any time, but may not
decrease them without Employee’s express written consent; and
(3) the Annual Bonus to be paid under the severance provisions of
Sections 3.3 or 3.5, should they become applicable, will be the
Target Annual Bonus.
2.3 From the Agreement Date to the
Termination Date, Employee will receive a perquisite allowance as
the Board may establish from time to time for senior executive
employees. In addition, Employer shall pay or reimburse Employee
for all actual, reasonable and customary expenses incurred by
Employee in the course of his employment; provided that such
expenses are incurred and accounted for in accordance with
Employer’s applicable policies and procedures.
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2.4 From the Agreement Date to the
Termination Date, Employee shall be allowed to participate, on the
same basis as other senior executive employees of Employer, in all
general employee benefit plans and programs, including improvements
or modifications of the same, which on the Agreement Date or
thereafter are made available by Employer to Employer’s
similarly situated executive employees, excluding, however, those
plans established by predecessors of Employer which as of the
Effective Date are not generally open to new participants. Such
benefits, plans, and programs may include, without limitation,
medical, health, and dental care, life insurance, disability
protection, and qualified and non-qualified retirement plans.
Except as specifically provided herein, nothing in this Agreement
is to be construed or interpreted to increase or alter in any way
the rights, participation, coverage, or benefits under such benefit
plans or programs than provided to similarly situated executive
employees pursuant to the terms and conditions of such benefit
plans and programs.
2.5 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.
ARTICLE 3: TERMINATION OF EMPLOYMENT AND EFFECTS
OF SUCH TERMINATION:
3.1 Employee’s employment with
Employer shall be terminated (i) upon the death of Employee, (ii)
upon Employee’s Retirement (as defined below), (iii) upon
Employee’s Permanent Disability (as defined below), (iv) at
any time by Employer upon notice to Employee, or (v) by Employee
upon thirty (30) days’ notice to Employer, for any or no
reason.
3.2 If Employee’s employment
is terminated by reason of any of the following circumstances (i),
(ii), or (iii), Employee shall be entitled to receive the benefits
set forth only in Section 3.3 below:
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(i)
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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.
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(ii)
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Employer
Termination for Cause .
Termination of Employee’s employment by Employer for Employer
Cause shall mean a termination of employment at the election of
Employer when there is “Employer Cause”.
“Employer Cause” shall mean any of the following: (a)
Employee’s gross negligence or willful
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misconduct in the performance of the
duties and services required of Employee pursuant to this Agreement
that results in or with the passage of time poses a reasonable risk
of material financial detriment to Employer, (b) Employee’s
final conviction of or plea of guilty or nolo contendere to
a felony or Employee engaging in fraudulent or criminal activity
relating to the scope of Employee’s employment (whether or
not prosecuted), (c) a material violation of the Code of Business
Conduct, provided that it has been provided to Employee in writing
prior to such alleged violation; (d) Employee’s material
breach of any material provision of this Agreement, provided that
Employee has received written notice from Employer and been
afforded a reasonable opportunity (not to exceed 30 days) to cure
such breach, or (e) any continuing or repeated failure to perform
the duties as requested in writing by the Board 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 not less than 75% of the members of the Board at a meeting in
which Employee shall have the right (a) to have received not less
than 10 days prior to the meeting written notice of the date, time
and place of the meeting and the charges (in reasonable detail) to
be considered, (b) to appear at the meeting with counsel, and (c)
to answer any charges made concerning the existence of Employer
Cause. Any determination by the Board of Employer Cause at such
meeting shall not be entitled to any deferential or evidentiary
weight or presumption of correctness, and at the election of
Employee, shall be determined pursuant to Section 7.7 in a de
novo review, with Employer having the obligation to prove
Employer Cause by clear and convincing evidence. During the
foregoing process, Employer may, without Employer creating any
default under this Agreement or incurring any additional liability
of any kind and at Employer’s sole discretion, place Employee
on paid administrative leave and relieve Employee of all or any
part of his responsibilities. Notwithstanding the foregoing, and
regardless of whether the process results in a finding that
Employer Cause existed for the termination, the year in which such
termination shall be deemed to have occurred, for purposes of
determining Employee’s entitlement to payments of unpaid
Annual Bonus shall be the year in which Employer first informs
Employee that he is terminated for Employer Cause. “Employer
Cause” shall not mean any of the following: (a)
Employee’s bad judgment; (b) Employee’s negligence; (c)
any act or omission that Employee believed in good faith was in or
was not opposed to the interests of Employer; or (d) any act or
omission of which any non-employee member of the Board who is not a
party to such act or omission had actual knowledge for at least six
(6) months.
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(iii)
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Resignation,
Other Than For Cause .
Termination of Employee’s employment by resignation other
than for Employee Cause as described in Section 3.4(i).
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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:
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(i)
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Employee shall
be entitled to a pro rata base salary (pro rated through the date
of termination as if it accrued throughout the year on a daily
basis) through the date of such termination and shall be entitled
to any earned but unpaid Annual Bonus payable for years prior to
the year of Employee’s termination of employment, but shall
not be entitled to any Annual Bonus for the year in which he
terminates employment or any other payments or benefits by or on
behalf of Employer except for those which may be payable pursuant
to the terms of Employer’s employee benefit plans (as defined
in Section 3.7), stock options or other equity interests or the
applicable agreements underlying such plans, or, Section 3.3(ii) of
this Agreement in the event that Employer makes the applicable
election thereunder.
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(ii)
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If
Employee’s employment is terminated for reasons under Section
3.2 (i), (ii) or (iii), then Employer, at its sole option, shall be
entitled to enforce the covenant not to compete and other
conditions set forth in Article 5 herein for a period not to exceed
two (2) years. In the event that Employer elects to trigger such
option, Employer agrees to pay an amount equal to Employee’s
base salary and the Target Annual Bonus (both based upon
Employee’s last base salary amount prior to termination) for
a period of two (2) years. Payments to Employee for the base salary
amount shall be in equal installments in accordance with
Employer’s customary payroll practices over the two year
period. Payments of the Target Annual Bonus shall be made at the
time such a payment is made to similarly situated employees. In the
event that Employee willfully and materially breaches any of the
terms of Article 5 during the aforementioned two (2) year period,
then Employer shall be entitled to immediately cease making further
payments to Employee, retroactively treat Employee’s
termination as being an “Employer Termination For
Cause” and recover from Employee any consideration that has
previously been paid to Employee which is inconsistent with an
“Employer Termination For Cause,” and, in addition,
shall be entitled to seek damages and such other relief (including
an injunction against Employee) to which it is entitled under the
law. Employee agrees that any payment under this Article
constitutes full and adequate consideration to Employee’s
obligations under Article 5.
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3.4 If Employee’s employment
is terminated by reason of (i), (ii), (iii), or (iv) below,
Employee shall be entitled to receive the benefits set forth in
Section 3.5 or Section 3.6, as applicable.
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(i)
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Employee
Termination For Cause .
“Employee Termination For Cause” shall mean a
termination of employment at the election of Employee when there is
“Employee Cause”. “Employee Cause” shall
mean a termination of employment by Employee for any reason or no
reason within the ninety (90) calendar day period commencing twelve
(12) calendar months after a Change of Control as defined in
Section 7.2 of Employer; or a termination of employment by Employee
because and within six months of: (a) a material breach by Employer
of any material provision of this Agreement which remains
uncorrected for thirty (30)
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days following written notice of
such breach by Employee to Employer; (b) a material reduction in
Employee’s status, position, responsibilities, or
compensation which remains unrestored for thirty (30) days
following written notice of such occurrence by Employee to
Employer; (c) any failure to employ, appoint, or maintain Employee
as Executive Vice President and Chief Financial Officer; (d) an act
causing or requiring Employee to report to anyone other than the
CEO, the President, the Board or a Committee or member of the
Board; (e) an assignment of duties materially inconsistent with
Employee’s position and responsibilities described in this
Agreement which is not promptly changed within ten (10) days of
written notice by Employee to the Board of such material
inconsistency; (f) the failure of an Employer to assign this
Agreement, as permitted pursuant to Section 1.6, to any one or more
Employer Successor; or (g) material interference by any officer,
employee, director, board of directors, member, partner, manager or
other agent of any Dresser Entity (other than Employer) in
Employee’s performance of his duties hereunder or exercise of
his authority as Executive Vice President and Chief Financial
Officer of Employer which, to the extent it is capable of
correction, remains uncorrected for thirty (30) days following
written notice of such breach by Employee to Employer.
Determination as to whether or not Employee Cause exists for
termination of Employee’s employment will be made by the
Board at a meeting in which Employee shall have the right to
present his case for the existence of Employee Cause with, at his
election, the assistance of counsel. Any determination by the Board
of Employee Cause at such meeting shall not be entitled to any
deferential or evidentiary weight or presumption of correctness and
at the election of Employee shall be determined pursuant to Section
7.7 in a de novo review, with the Employee having the
obligation to prove Employee Cause by clear and convincing
evidence. During the foregoing process, Employer may, without
Employer creating any default under this Agreement or incurring any
additional liability of any kind and at Employer’s sole
discretion, place Employee on paid administrative leave and relieve
Employee of all or any part of his responsibilities.
Notwithstanding the foregoing, and regardless of whether the
process results in a finding that Employee Cause existed for the
termination, the year in which such termination shall be deemed to
have occurred, for purposes of determining Employee’s
entitlement to payments of unpaid Annual Bonus shall be the year in
which Employee first informs Employer that he is terminating his
employment for Employee Cause.
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(ii)
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Employer
Termination Without Employer Cause . Termination of Employee’s employment by
Employer without Employer Cause shall mean a termination of
employment of Employee by Employer for no reason or any reason
other than one set forth in Section 3.2(ii).
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(iv)
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Permanent
Disability .
“Permanent Disability” shall mean Employee’s
physical or mental incapacity to perform his usual duties with or
without reasonable accommodations for a period of not less than 90
days within a given twelve month period with such condition likely
to remain continuously and permanently as determined by
Employer.
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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:
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(i)
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Employee’s (1) earned but unpaid base
salary; (2) earned but unpaid Annual Bonus payable for years prior
to the year of Employee’s termination of employment; and (3)
unpaid Target Annual Bonus for the year of termination, pro rated
through the date of termination as if it accrued throughout the
year on a daily basis. Such amounts shall be paid to Employee in a
single lump sum cash payment no later than thirty (30) days
following Employee’s termination of employment.
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(ii)
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Subject to the
provisions of Section 3.7, Employer shall pay to Employee a
severance benefit consisting of continued periodic payments of
Employee’s base salary as in effect at the date of
Employee’s termination of employment and his Target Annual
Bonus (based upon Employee’s last base salary amount prior to
termination) for each year during the Severance Term (as defined
below) in accordance with Employer’s customary payroll
practices during the period (the “Severance Term”)
commencing on the effectiveness of such termination and ending on
the earlier of (A) the second anniversary of the date of such
termination, or (B) the date Employee willfully and materially
violates any of the covenants set forth in Article 4 or Article 5
hereof. Notwithstanding the foregoing, if Employer terminates
Employee in anticipation of or within one year following a Change
of Control (and excluding a termination for Employer Cause),
Employer shall pay to Employee a severance benefit consisting of
two times Employee’s base salary as in effect at the date of
Employee’s termination of employment and two times his Target
Annual Bonus (based upon Employee’s last base salary amount
prior to termination) in a single lump sum cash payment no later
than thirty (30) days following Employee’s termination of
employment.
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(iii)
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For as long as
Employee continues to receive a severance benefit pursuant to
Section 3.5(ii) (or for a period of two years following
Employee’s termination because of a Change of Control),
Employee shall be allowed to participate, on the same basis
generally as other senior executive employees of Employer, in all
applicable employee benefit plans and programs, including
improvements or modifications of the same, which are made available
by Employer to Employer’s similarly situated actively
employed executive employees, excluding, however, those plans
established by predecessors of Employer which as of the Effective
Date are not generally open to new participants. Such benefits,
plans, and programs may include, without limitation, medical,
health, and dental care, life
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insurance, disability protection,
and qualified and non-qualified retirement plans. Except as
specifically provided herein, nothing in this Agreement is to be
construed or interpreted to increase or alter in any way the
rights, participation, coverage, or benefits under such benefit
plans or programs than provided to similarly situated executive
employees pursuant to the terms and conditions of such benefit
plans and programs; provided, however, at the option of Employer,
Employer may upon sixty (60) days advance written notice effective
at any time more than eighteen months after such termination elect
to provide Employee with the cash value of providing such benefits
from a third party (which cash value shall not exceed 125% of
Employer’s historic out-of-pocket cost of providing such
benefits).
3.6 If Employee’s employment
is terminated by reason of Section 3.4 (iii) or (iv),
Employee’s estate, in the cas