EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") dated as of August 29, 1996 by and among
Landmark Graphics Corporation ("Landmark") and James A. Downing II ("Downing").
R E C I T A L S:
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Halliburton Company ("Halliburton") is acquiring all of the stock of
Landmark through merger (the "Merger") with one of its wholly-owned
subsidiaries; and
Downing is currently Vice President of Landmark; and
Downing and Landmark have entered into a Change in Control Agreement dated
October 19, 1995 (the "CIC Agreement") concerning his employment and
compensation; and
Landmark and Halliburton desire to retain the services and assistance of
Downing as a stand-by employee for a period of time after consummation of the
acquisition of Landmark by Halliburton; and
Downing is willing to provide such stand-by services and assistance to
Landmark for the consideration and upon the terms herein set forth; and
Landmark and Downing wish to enter an agreement concerning complete
settlement and satisfaction of amounts and benefits payable or due Downing
pursuant to the CIC Agreement.
To evidence their understanding and agreement, Landmark and Downing desire
to enter into this Agreement;
NOW, THEREFORE, in consideration of the recitals and for other good and
valuable consideration, receipt and sufficiency of which are acknowledged, it is
hereby covenanted and agreed by and among the parties as follows:
1. Continuation of Current Services; Subsequent Employment: Prior to the
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Effective Time (as hereafter defined), Downing shall continue to serve in the
capacity of Vice President of Landmark for the compensation and with Employee
Benefits (as defined in the CIC Agreement) at the same level as at the present
time. Thereafter, Landmark hereby retains and engages Downing as an employee to
provide services and advice during the Employment Period (as hereinafter
defined), subject to the further terms and conditions of this Agreement. Downing
hereby agrees to provide such services prior to and during the Employment
Period, subject to the further terms and conditions of the Agreement.
2. Employment Term: The employment period ("Employment Period") shall
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commence upon the next business day following the effective time of the Merger
("Effective Time") ("Employment Commencement Date") and shall end on the earlier
of (i) the period ended five days after publication by Halliburton of its
earnings release or financial statements which include
30 days of operations of the combined entity to end the period required for
a pooling of interest by Halliburton and Landmark or (ii) such earlier date,
if any, as may be selected by Downing, provided he gives five days' written
notice thereof to Landmark ("Employment Termination Date"). Effective as of the
Employment Commencement Date Downing shall cease to hold the position of Vice
President of Landmark.
3. Employment Duties and Services: During the Employment Period Downing
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shall make himself available, in person or by telephone, to provide advice and
services to assist with the integration of Landmark with Halliburton following
the consummation of the Merger, as may be reasonably requested from time to time
by the Chief Executive Officer of Landmark. The services to be provided shall be
commensurate with Downing's background and experience as the former vice
president of Landmark (such duties and services are hereinafter sometimes
referred to as "Employment Services"). In providing the Employment Services,
Downing shall not be called upon to travel excessively or remain apart from his
principal place of residence (which is presently in Austin, Texas and may be
changed by Downing at any time in his sole discretion) for unreasonably extended
periods. Employment Services may be performed at the location of Downing's
choice, which may include his residence or Landmark's offices located in Austin
or Houston, Texas. In no event, however, shall Downing be required to render
Employment Services hereunder, which, in the good faith opinion of Downing,
interfere with any employment duties Downing may have with a successor employer.
All Employment Services provided by Downing hereunder shall be in the capacity
of a common law employee of Landmark, and in connection therewith Downing shall
be subject to the direction of the Chief Executive Officer of Landmark with
respect to both the manner in which he performs his duties hereunder and the
results to be accomplished thereby.
4. Compensation and Benefits: In addition to the compensation and Employee
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Benefits provided for in paragraph 1 hereof, for and in consideration of the
agreement by Downing to provide the Employment Services and to be available to
perform such services Landmark hereby agrees to prove the following
compensation:
(a) During the Employment Period, Downing shall be paid $4166.67
on a semi-monthly basis, in arrears.
(b) During the Employment Period, Downing shall be provided the same
Employee Benefits (as defined in the CIC Agreement) that Downing will be
entitled to receive under the CIC Agreement if his employment terminated
thereunder at the Effective Time. Not in limitation of the forgoing, Downing's
employment during the Employment Period shall be credited for purposes of
vesting under Landmark's 401(k) plan.
(c) Employee Benefits only (as defined in the CIC Agreement) will be
provided to Downing until February 1, 1999.
5. Office and Secretary: During the Employment Period, Downing shall be
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provided with appropriate office space and secretarial assistance as may be
needed to perform the Employment Services.
6. Expenses: Downing shall be promptly reimbursed for (a) all reasonable
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business expenses incurred in performing the Employment Services, in
accordance with any policies of Landmark with respect to such reimbursement and
(b) fees and expenses incurred in connection with the CIC Agreement and this
Agreement.
7. Scope of Agreement: (a) This Agreement constitutes the entire
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understanding of the parties with respect to the Employment Services and
compensation and Employee Benefits to be paid to or in respect of Downing during
the Employment Term. This Agreement does not supersede, override, replace or
impact any Employee Benefit of Landmark as such may apply to Downing, except as
is specifically provided for herein. The terms and conditions (i) of any stock
options granted to Downing by Landmark, (ii) any restricted stock grant to
Downing by Landmark, and (iii) except as provided in subparagraph (b) hereof,
the CIC Agreement between Downing and Landmark are not modified, amended or
superseded by this Agreement.
(b) Notwithstanding the continuation of Downing's employment after the
consummation of the Merger as contemplated hereby, it is specifically agreed
that the title, job description and level of responsibility contemplated hereby
shall constitute a "good reason" as contemplated by the CIC Agreement and that
the termination of Downing's employment for any reason, including death, at any
time after the Merger and at or prior to the termination of the Employment
Period shall be deemed to constitute a termination by Downing pursuant to
Section 4(b)(ii) of the CIC Agreement and Downing (or his designated
beneficiary, as the case may be) shall be paid by Landmark, on such termination
$373,751 less any applicable withholding taxes. However, it is agreed and
acknowledged by Landmark that such payment is not an "excess parachute payment",
as defined in Section 280G of the Internal Revenue Code.
(c) Upon payment by Landmark to Downing of such $373,751, Landmark shall
have no further obligation under Section 5 of the CIC Agreement, or otherwise,
to provide Downing with any severance benefits, payments or other amounts by
reason of Downing's termination of employment by Landmark, except for Employee
Benefits (as defined in the CIC Agreement) that Downing will receive until
February 1, 1999.
8. Successors: (a) This Agreement is personal to Downing and without the
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prior written consent to Landmark shall not be assignable by Downing. This
Agreement shall inure to the benefit of and be enforceable by Downing's heirs,
executors and other legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
Landmark and may be assigned to a successor only as described in paragraph 8(c).
(c) Landmark will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Landmark to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that Landmark would be
required to perform it if no such succession had taken place.
9. Release: Except as expressly provided herein, Downing agrees to
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release, acquit and discharge and does hereby release, acquit and discharge
Landmark, its subsidiaries and affiliates and their predecessors including all
companies previously acquired by Landmark and their directors, officers,
employees and agents, past and present (collectively "Landmark Parties" or
individually "Landmark Party"), individually and collectively, from all claims
for salary, compensation, commissions, severance pay, benefits, expenses, actual
and compensatory damages, exemplary damages, interest, attorneys' fees, costs,
and any form of declaratory or injunctive relief. This release includes but is
not limited to all claims arising from, attributable to, Downing's employment
and the termination thereof with any Landmark Party, including, but not limited
to, any claims of age discrimination under the Age Discrimination in Employment
Act of 1967, as amended, and any other state or federal statute, regulation or
the common law (contract, tort or other), which relate to his employment or
termination of the employment by any Landmark Party. This release also applies
to any claims brought by any person or agency or any class action under which
Downing may have any right or benefit. Further, Downing promises never to file a
lawsuit asserting any claims that are released by Downing and further promises
not to accept any recoveries or benefits which may be obtained on Downing's
behalf by any other person or agency or any class action. Downing acknowledges
that he is aware of any rights he may have under the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Rehabilitation
Act of 1973, the Americans with Disabilities Act and the Texas Commission on
Human Rights Act, and understands and agrees that any and all claims based on
such rights under these various statutes are among those Downing is releasing
and waiving as part of this Agreement.
10. Miscellaneous: (a) This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas, without reference to principles
of conflict of laws that would require the application of the laws of any other
state or jurisdiction.
(b) The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
(c) This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors
and heirs, executors and other legal representatives.
(d) All notices and other communications hereunder shall be in writing
and shall be given by telecopy or facsimile transmission with receipt confirmed,
by hand delivery or by registered or certified mail, return receipt requested,
postage prepaid, addressed to the addresses and facsimile numbers set forth on
the signature page hereof or to such other address as either party shall
hereafter furnish to the other in writing. Notices to Landmark shall be to the
attention of the Chief Executive Officer. Notices and communications shall be
effective when actually received by the addressee.
(e) The invalidity or unenforceability of any provision of the
agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(f) Downing's or Landmark's failure to insist upon strict compliance
with any provision hereof or any other provision of this Agreement or the
failure to assert any right Downing or Landmark may have hereunder shall not be
deemed to be a waiver of such provisions or right or any other provision or
right of this Agreement.
(g) This Agreement shall become effective as of the date hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement, which
shall be effective as of the date first written above.
JAMES A. DOWNING II LANDMARK GRAPHICS CORPORATION
/S/ JAMES A. DOWNING II /S/ DANIEL L. CASACCIA
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By: James A. Downing II By: Daniel L. Casaccia
Title: Vice President - Human Resources