Executive Employment Agreement - Dresser Industries Inc., Halliburton Co. and John W. Kennedy
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement"), is entered into by
and between Dresser Industries, Inc. ("Employer"), Halliburton Company, a
Delaware corporation ("Halliburton"), and John W. Kennedy, ("Employee"), to be
effective as of September 29, 1998 (the "Effective Date").
W I T N E S S E T H:
WHEREAS, Employee is currently employed by Employer; and
WHEREAS, Employer is desirous of continuing the employment of Employee
after the Effective Date pursuant to the terms and conditions and for the
consideration set forth in this Agreement, and Employee is desirous of
continuing in the employ of Employer pursuant to such terms and conditions and
for such consideration.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, Employer, Halliburton 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 Effective Date and continuing until
the date of termination of Employee's employment pursuant to the provisions of
Article 3 (the "Term"), subject to the terms and conditions of this Agreement.
1.2. Beginning as of the Effective Date, Employee shall be employed as
Chief Operating Officer - Brown & Root Energy Services. Employee agrees to serve
in the assigned position or in such other executive capacities as may be
requested from time to time by Employer and to perform diligently and to the
best of Employee's abilities the duties and services appertaining to such
positions as reasonably determined by Employer, as well as such additional or
different duties and services appropriate to such positions which Employee from
time to time may be reasonably directed to perform by Employer.
1.3. Employee shall at all times comply with and be subject to such
policies and procedures as Halliburton or Employer may establish from time to
time, including, without limitation, the Halliburton Company Code of Business
Conduct (the "Code of Business Conduct").
1.4. Employee shall, during the period of Employee's employment by
Employer, devote Employee's full business time, energy, and best efforts to the
business and affairs of Employer. Employee may not engage, directly or
indirectly, in any other business, investment, or activity that interferes with
Employee's performance of Employee's duties hereunder, is contrary to the
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interest of Halliburton or any of its affiliated subsidiaries and divisions,
including Employer (collectively, the "Halliburton Entities" or, individually, a
"Halliburton Entity"), 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
Halliburton Entities or interfere with Employee's performance of his or her
duties hereunder. Employee may not serve on the board of directors of any entity
other than a Halliburton Entity during the Term without the approval thereof in
accordance with Halliburton's policies and procedures regarding such service.
Employee shall be permitted to retain any compensation received for approved
service on any unaffiliated corporation's board of directors.
1.5. Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of the Employer and the other Halliburton 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
Halliburton 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 the
Halliburton Entities, or upon discovery thereof, allow such a conflict to
continue. Moreover, Employee shall not engage in any activity which might
involve a possible conflict of interest without first obtaining approval in
accordance with Halliburton's policies and procedures.
1.6. Nothing contained herein shall be construed to preclude the
transfer of Employee's employment to another Halliburton Entity ("Subsequent
Employer") as of, or at any time after, the Effective Date and no such transfer
shall be deemed to be a termination of employment for purposes of Article 3
hereof; provided, however, that, effective with such transfer, all of Employer's
obligations hereunder shall be assumed by and be binding upon, and all of
Employer's rights hereunder shall be assigned to, such Subsequent Employer and
the defined term "Employer" as used herein shall thereafter be deemed amended to
mean such Subsequent Employer. Except as otherwise provided above, all of the
terms and conditions of this Agreement, including without limitation, Employee's
rights and obligations, shall remain in full force and effect following such
transfer of employment.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1. Employee's base salary during the Term shall be not less than
$300,000 per annum which shall be paid in accordance with the Employer's
standard payroll practice for its executives. Employee's base salary may be
increased from time to time with the approval of the Compensation Committee of
Halliburton's Board of Directors (the "Compensation Committee") or its delegate,
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as applicable. 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. Employee shall be entitled to receive the bonus earned under the
Dresser Industries, Inc. ("Dresser") 1998 Executive Incentive Compensation Plan
(the "Dresser EVA Plan") for its fiscal year ended October 31, 1998, based upon
the actual level of attainment of Dresser's established performance targets for
the period ended October 31, 1998 or, if the actual level of performance cannot
be determined, a reasonable estimate thereof, provided he or she remains
employed by the Employer during the entirety of such period. Such bonus shall be
payable by Dresser in a single lump sum payment as soon as practicable following
October 31, 1998. For the period November 1, 1998 through December 31, 1998,
Employee shall be entitled to a bonus in an amount determined as follows: (i)
Employee's base salary shall be multiplied by the same percentage of base salary
as used in the calculation of Employee's bonus earned under the Dresser EVA Plan
for the period ended October 31, 1998 and (ii) the product thereof shall be
multiplied by two-twelfths (2/12). Beginning January 1, 1999 and for the
remainder of the Term, Employee shall participate in the Halliburton Annual
Performance Pay Plan, or any successor annual incentive plan approved by the
Compensation Committee; provided, however, that all determinations relating to
Employee's participation, including, without limitation, those relating to the
performance goals applicable to Employee and Employee's level of participation
and payout opportunity, shall be made in the sole discretion of the person or
committee to whom such authority has been granted pursuant to such plan's terms.
2.3. Halliburton shall grant to Employee under the Halliburton Company
1993 Stock and Long-Term Incentive Plan (the "1993 Plan") 15,000 shares of
Halliburton's common stock subject to restrictions.
2.4. During the Term, Employer shall pay or reimburse Employee for all
actual, reasonable and customary expenses incurred by Employee in the course of
his or her employment; including, but not limited to, travel, entertainment,
subscriptions and dues associated with Employee's membership in professional,
business and civic organizations; provided that such expenses are incurred and
accounted for in accordance with Employer's applicable policies and procedures.
2.5. While employed by Employer, Employee shall be allowed to
participate, on the same basis generally as other executive employees of
Employer, in all general employee benefit plans and programs, including
improvements or modifications of the same, which on the Effective Date or
thereafter are made available by Employer to all or substantially all of
Employer's similarly situated executive employees. Such benefits, plans, and
programs may include, without limitation, medical, health, and dental care, life
insurance, disability protection, and qualified and non-qualified retirement
plans. Except as specifically provided herein, nothing in this Agreement is to
be construed or interpreted to increase or alter in any way the rights,
participation, coverage, or benefits under such benefit plans or programs than
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provided to similarly situated executive employees pursuant to the terms and
conditions of such benefit plans and programs. While employed by Employer,
Employee shall be eligible to receive awards under the 1993 Plan or any
successor stock-related plan adopted by Halliburton's Board of Directors;
provided, however, that the foregoing shall not be construed as a guarantee with
respect to the type, amount or frequency of such awards, if any, such decisions
being solely within the discretion of the Compensation Committee or its
delegate, as applicable.
2.6. Except as otherwise provided in Section 2.2 and 2.8 hereof,
neither Halliburton nor Employer shall by reason of this Article 2 be obligated
to institute, maintain, or refrain from changing, amending or discontinuing, any
incentive compensation, employee benefit or stock or stock option program or
plan, so long as such actions are similarly applicable to covered employees
generally.
2.7. Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
2.8. Halliburton has assumed certain obligations with respect to
certain plans and programs of Dresser pursuant to Section 7.09 of the Merger
Agreement. Halliburton hereby acknowledges its obligations to assume and/or
maintain such plans and programs with respect to Employee in accordance with the
applicable provisions of Section 7.09 of the Merger Agreement. In connection
with the foregoing, the parties hereto specifically agree that, for purposes of
Employee's continuing participation in Dresser's Supplemental Executive
Retirement Program during the Term, Employee, by virtue of his duties and title
is and shall be deemed to be an "executive."
ARTICLE 3: TERMINATION OF EMPLOYMENT AND EFFECTS OF SUCH TERMINATION:
3.1. Employee's employment with Employer shall be terminated (i) upon
the death of Employee, (ii) upon Employee's Retirement (as defined below), (iii)
upon Employee's Permanent Disability (as defined below), or (iv) at any time by
Employer upon notice to Employee, or 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, Employee shall not be entitled to receive the benefits
set forth in Section 3.3 hereof:
(i) Death.
(ii) Retirement. "Retirement" shall mean either (a) Employee's
retirement at or after normal retirement age (either
voluntarily or pursuant to Halliburton's retirement policy) or
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(b) the voluntary termination of Employee's employment by
Employee in accordance with Employer's early retirement policy
for other than Good Reason (as defined below).
(iii) Permanent Disability. "Permanent Disability" shall mean
Employee's physical or mental incapacity to perform his or her
usual duties with such condition likely to remain continuously
and permanently as determined by the Compensation Committee.
(iv) Voluntary Termination. "Voluntary Termination" shall mean a
termination of employment in the sole discretion and at the
election of Employee for other than Good Reason. "Good Reason"
shall mean (a) a termination of employment by Employee because
of a material breach by Employer of any material provision of
this Agreement which remains uncorrected for thirty (30) days
following notice of such breach by Employee to Employer,
provided such termination occurs within sixty (60) days after
the expiration of the notice period or (b) a termination of
employment by Employee within six (6) months after a material
reduction in Employee's rank or responsibility with Employer.
(v) Termination for Cause. Termination of Employee's employment by
Employer for Cause. "Cause" shall mean any of the following:
(a) Employee's gross negligence or willful misconduct in the
performance of the duties and services required of Employee
pursuant to this Agreement, (b) Employee's final conviction of
a felony, (c) a material violation of the Code of Business
Conduct or (d) Employee's material breach of any material
provision of this Agreement which remains uncorrected for
thirty (30) days following notice of such breach to Employee
by Employer. Determination as to whether or not Cause exists
for termination of Employee's employment will be made by the
Compensation Committee.
In the event Employee's employment is terminated under any of the
foregoing circumstances, all future compensation to which Employee is otherwise
entitled and all future benefits for which Employee is eligible shall cease and
terminate as of the date of termination, except as specifically provided in this
Section 3.2. Employee, or his or her estate in the case of Employee's death,
shall be entitled to pro rata base salary through the date of such termination
and shall be entitled to any individual bonuses or individual incentive
compensation not yet paid but payable under Employer's or Halliburton's plans
for years prior to the year of Employee's termination of employment, but shall
not be entitled to any bonus or incentive compensation for the year in which he
or she terminates employment or any other payments or benefits by or on behalf
of Employer except for those which may be payable pursuant to the terms of
Employer's, Dresser's or Halliburton's employee benefit plans (as defined in
Section 3.4), stock, stock option or incentive plans, or the applicable
agreements underlying such plans.
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3.3. If Employee's employment is terminated by Employer for any
reason other than as set forth in Section 3.2 above Employee shall be entitled
to each of the following:
(i) To the extent not otherwise specifically provided in any
underlying restricted stock agreements, all shares of
Halliburton common stock previously granted to Employee under
the 1993 Plan, and any similar plan adopted by Halliburton
in the future, which at the date of termination of employment
are subject to restrictions (the "Restricted Shares") will be
treated in a manner consistent with Halliburton's past
practices for treatment of Restricted Shares held by
executives whose employment was involuntarily terminated by a
Halliburton Entity for reasons other than Cause, which, in
most instances, have been to forfeit the Restricted Shares
and pay to such executive a lump sum cash payment equal to the
value of the Restricted Shares (based on the closing price of
Halliburton common stock on the New York Stock Exchange on the
date of termination of employment); although in some cases,
Halliburton has, in lieu of, or in combination with, the
foregoing and in its discretion, caused the forfeiture
restrictions with respect to all or a portion of the
Restricted Shares to lapse and provided for the retention of
such shares by such executive.
(ii) Subject to the provisions of Section 3.4, Employer shall pay
to Employee a severance benefit consisting of a single lump
sum cash payment equal to two years' of Employee's base salary
as in effect at the date of Employee's termination of
employment. Such severance benefit shall be paid no later than
sixty (60) days following Employee's termination of
employment.
(iii) Employee shall be entitled to any individual bonuses or
individual incentive compensation not yet paid but payable
under Employer's or Halliburton's plans for years prior to the
year of Employee's termination of employment. Such amounts
shall be paid to Employee in a single lump sum cash payment no
later than sixty (60) days following Employee's termination of
employment.
(iv) Employee shall be entitled to any individual bonuses or
individual incentive compensation under Employer's or
Halliburton's plans for the year of Employee's termination of
employment determined as if Employee had remained employed by
the Employer for the entire year. Such amounts shall be paid
to Employee at the time that such amounts are paid to
similarly situated employees except that no portion of such
amounts shall be deferred to future years.
3.4. The severance benefit paid to Employee pursuant to Section 3.3
shall be in consideration of Employee's continuing obligations hereunder after
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such termination, including, without limitation, Employee's obligations under
Article 4. Further, as a condition to the receipt of such severance benefit,
Employer, in its sole discretion, may require Employee to first execute a
release, in the form established by Employer, releasing Employer and all other
Halliburton Entities, and their officers, directors, employees, and agents, from
any and all claims and from any and all causes of action of any kind or
character, including, but not limited to, all claims and causes of action
arising out of Employee's employment with Employer and any other Halliburton
Entities or the termination of such employment. The performance of Employer's
obligations under Section 3.3 and the receipt of the severance benefit provided
thereunder by Employee shall constitute full settlement of all such claims and
causes of action. Employee shall not be under any duty or obligation to seek or
accept other employment following a termination of employment pursuant to which
a severance benefit payment under Section 3.3 is owing and the amounts due
Employee pursuant to Section 3.3 shall not be reduced or suspended if Employee
accepts subsequent employment or earns any amounts as a self-employed
individual. Employee's rights under Section 3.3 are Employee's sole and
exclusive rights against the Employer or its affiliates and the Employer's sole
and exclusive liability to Employee under this Agreement, in contract, tort or
otherwise, for the termination of his or her employment relationship with
Employer. Employee agrees that all disputes relating to Employee's termination
of employment, including, without limitation, any dispute as to "Cause" or
"Voluntary Termination" and any claims or demands against Employer or
Halliburton based upon Employee's employment for any monies other than those
specified in Section 3.3, shall be resolved through the Halliburton Dispute
Resolution Plan as provided in Section 5.6 hereof; provided, however, that
decisions as to whether "Cause" exists for termination of the employment
relationship with Employee and whether and as of what date Employee has become
permanently disabled are delegated to the Compensation Committee for
determination and any dispute of Employee with any such decision shall be
limited to whether the Compensation Committee reached such decision in good
faith. Nothing contained in this Article 3 shall be construed to be a waiver by
Employee of any benefits accrued for or due Employee under any employee benefit
plan (as such term is defined in the Employees' Retirement Income Security Act
of 1974, as amended) maintained by Employer or Halliburton or any of the
benefits, plans or programs provided for in Section 2.8 hereof maintained by
Dresser, except that Employee shall not be entitled to any severance benefits
pursuant to any severance plan or program of the Employer or Halliburton.
3.5. Termination of the employment relationship does not terminate
those obligations imposed by this Agreement which are continuing obligations,
including, without limitation, Employee's obligations under Article 4.
ARTICLE 4: OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY AND
CONFIDENTIAL INFORMATION:
4.1. All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
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Employee's employment by Employer or any of its affiliates (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 its affiliates
(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 its affiliates, as the case may be.
4.2. Employee acknowledges that the businesses of Employer and its
affiliates are highly competitive and that their strategies, methods, books,
records, and documents, their technical information concerning their products,
equipment, services, and processes, procurement procedures and pricing
techniques, the names of and other information (such as credit and financial
data) concerning their customers and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer or its affiliates 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 its affiliates in maintaining their competitive position. Employee
hereby agrees that Employee will not, at any time during or after his or her
employment by Employer, make any unauthorized disclosure of any confidential
business information or trade secrets of Employer or its affiliates, or make any
use thereof, except in the carrying out of his or her employment
responsibilities hereunder. Confidential business information shall not include
information in the public domain (but only if the same becomes part of the
public domain through a means other than a disclosure prohibited hereunder). The
above notwithstanding, a disclosure shall not be unauthorized if (i) it is
required by law or by a court of competent jurisdiction or (ii) it is in
connection with any judicial, arbitration, dispute resolution or other legal
proceeding in which Employee's legal rights and obligations as an employee or
under this Agreement are at issue; provided, however, that Employee shall, to
the extent practicable and lawful in any such events, give prior notice to
Employer of his or her intent to disclose any such confidential business
information in such context so as to allow Employer or its affiliates an
opportunity (which Employee will not oppose) to obtain such protective orders or
similar relief with respect thereto as may be deemed appropriate.
4.3. All written materials, records, and other documents made by, or
coming into the possession of, Employee during the period of Employee's
employment by Employer which contain or disclose confidential business
information or trade secrets of Employer or its affiliates shall be and remain
the property of Employer, or its affiliates, as the case may be. Upon
termination of Employee's employment by Employer, for any reason, Employee
promptly shall deliver the same, and all copies thereof, to Employer.
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4.4. For purposes of this Article 4, "affiliates" shall mean entities
in which Employer or Halliburton has a 20% or more direct or indirect equity
interest.
ARTICLE 5: MISCELLANEOUS:
5.1. Except as otherwise provided in Section 4.4 hereof, for purposes
of this Agreement, the terms "affiliate" or "affiliated" means an entity who
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with Employer, Halliburton or, as used
in Section 5.8 hereof, Dresser or in which Employer, Halliburton or, as used in
Section 5.8 hereof, Dresser has a 50% or more equity interest.
5.2. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when received by or tendered to Employee, Halliburton or
Employer, as applicable, by pre-paid courier or by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Employer or Halliburton, to Halliburton Company at 3600 Lincoln
Plaza, 500 North Akard Street, Dallas, Texas 75201-3391, to the
attention of the General Counsel of Halliburton Company.
If to Employee, to his or her last known personal residence.
5.3. This Agreement shall be governed by and construed and enforced,
in all respects in accordance with the law of the State of Texas, without regard
to principles of conflicts of law, unless preempted by federal law, in which
case federal law shall govern; provided, however, that the Halliburton Dispute
Resolution Plan and the Federal Arbitration Act shall govern in all respects
with regard to the resolution of disputes hereunder.
5.4. No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require compliance with, any condition
or provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
5.5. It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision,
covenant, or remedy shall be construed in a manner so as to permit its
enforceability under the applicable law to the fullest extent permitted by law.
In any case, the remaining provisions of this Agreement or the application
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thereof to any person, association, or entity or circumstances other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
5.6. It is the mutual intention of the parties to have any dispute
concerning this Agreement resolved out of court. Accordingly, the parties agree
that any such dispute shall, as the sole and exclusive remedy, be submitted for
resolution through the Halliburton Dispute Resolution Plan; provided, however,
that the Employer, on its own behalf and on behalf of any of the Halliburton
Entities, shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any breach or the continuation of any
breach of the provisions of Article 4 and Employee hereby consents that such
restraining order or injunction may be granted without the necessity of the
Employer posting any bond. The parties agree that the resolution of any such
dispute through such Plan shall be final and binding.
5.7. This Agreement shall be binding upon and inure to the benefit of
Employer, to the extent herein provided, Halliburton and any other person,
association, or entity which may hereafter acquire or succeed to all or
substantially all of the business or assets of Employer or Halliburton by any
means whether direct or indirect, by purchase, merger, consolidation, or
otherwise. Employee's rights and obligations under this Agreement are personal
and such rights, benefits, and obligations of Employee shall not be voluntarily
or involuntarily assigned, alienated, or transferred, whether by operation of
law or otherwise, without the prior written consent of Employer, other than in
the case of death or incompetence of Employee.
5.8. This Agreement replaces and merges any previous agreements and
discussions pertaining to the subject matter covered herein. Further, this
Agreement specifically replaces and terminates that certain Employee Severance
Agreement between Employee and Dresser dated February 25, 1998 and any other
employment-related agreements which may be in effect between Employee and
Dresser or a Dresser affiliate. This Agreement constitutes the entire agreement
of the parties with regard to the terms of Employee's employment, termination of
employment and severance benefits, and contains all of the covenants, promises,
representations, warranties, and agreements between the parties with respect to
such matters. Each party to this Agreement acknowledges that no representation,
inducement, promise, or agreement, oral or written, has been made by either
party with respect to the foregoing matters which is not embodied herein, and
that no agreement, statement, or promise relating to the employment of Employee
by Employer that is not contained in this Agreement shall be valid or binding.
Any modification of this Agreement will be effective only if it is in writing
and signed by each party whose rights hereunder are affected thereby, provided
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that any such modification must be authorized or approved by the Compensation
Committee or its delegate, as appropriate.
IN WITNESS WHEREOF, Employer, Halliburton and Employee have duly
executed this Agreement in multiple originals to be effective on the Effective
Date.
DRESSER INDUSTRIES, INC.
By: /s/ David J. Lesar
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Name: David J. Lesar
Title: Executive Vice President
HALLIBURTON COMPANY
By: /s/ David J. Lesar
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Name: David J. Lesar
Title: President and Chief Operating Officer
EMPLOYEE
/s/ John W. Kennedy
----------------------------------------------
John W. Kennedy
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