EXHIBIT 10.3
Amended and Restated
Employment Agreement
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of August 16, 2001,
is by and among GLOBAL MARINE INC., a Delaware corporation ("GMI"), GLOBAL
MARINE CORPORATE SERVICES INC., a California corporation (the "Company") and
XXXXXX X. XXXX (the "Executive").
WHEREAS, GMI, the Company and the Executive entered into an employment
agreement dated as of May 5, 1998, which was subsequently replaced and
superceded by an amended and restated employment agreement dated as of December
16, 1999; and
WHEREAS, GMI, the Company and the Executive desire to enter into a new
amended and restated employment agreement (the "Agreement"), which Agreement
will replace and thereby supersede any and all prior employment agreements and
amendments thereto and restatements thereof previously executed among GMI, the
Company and the Executive;
NOW THEREFORE, in consideration of the mutual promises, agreements and
covenants and subject to the terms and conditions contained in this Agreement,
GMI, the Company and the Executive hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms will have
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the following meanings unless otherwise expressly provided in this Agreement:
1.1 Board. "Board" means the Board of Directors of GMI.
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1.2 Cause. "Cause" means an act or acts of misconduct harmful to GMI or
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any of its affiliates, including without limitation any violation of
any policy regarding the use and possession of alcohol, illegal drugs,
firearms or dangerous weapons that is applicable to employees of GMI
and its affiliates generally, and will not mean inadequate performance
or incompetence.
1.3 Change in Control. A "Change in Control" means the occurrence of any
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of the following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d) or 14(d) of the U.S. Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of 35% or more of either (A) the then outstanding
shares of common stock of GMI or of any affiliate of GMI by which
the Executive is employed or which directly or indirectly owns or
controls any affiliate by which the Executive is employed (the
"Outstanding Company Common Stock") or (B) the
combined voting power of the then outstanding voting securities
of GMI or of any affiliate of GMI by which the Executive is
employed or which directly or indirectly owns or controls any
affiliate by which the Executive is employed entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that the following
acquisitions will not constitute a Change in Control: (I) any
acquisition by GMI or any affiliate of GMI that remains under
GMI's control, (II) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by GMI or any
affiliate controlled by GMI, (III) the sale, exchange, transfer
or other disposition of substantially all of the assets of GMI or
of any affiliate of GMI by which the Executive is employed or
which directly or indirectly owns or controls any affiliate by
which the Executive is employed to the Chief Executive Officer of
GMI (the "CEO"), alone or with other officers, or a merger,
consolidation or other reorganization involving GMI or any
affiliate of GMI by which the Executive is employed or which
directly or indirectly owns or controls any affiliate by which
the Executive is employed and the CEO, alone or with other
officers, or any entity in which the CEO (alone or with other
officers) has, directly or indirectly, a substantial equity or
ownership interest, (IV) a transaction otherwise commonly
referred to as a Amanagement leveraged buyout," or (V) any
acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization,
merger or consolidation, the conditions described in clauses (I),
(II), (III), or (IV) are satisfied; or
(ii) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election,
or nomination for election by GMI's stockholders, was approved by
a vote of at least a majority of the directors then comprising
the Incumbent Board will be considered as though such individual
were a member of the Incumbent Board, but excluding for this
purpose any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election
contest (meaning a solicitation of the type that would be subject
to Rule 14a-11 of Regulation 14A under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(iii) Approval by the stockholders of GMI of a reorganization, merger
or consolidation, in each case unless, following such
reorganization, merger or consolidation, (A) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote
generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (B) no Person (excluding GMI, any affiliate
of GMI that remains under GMI's control, any employee benefit
plan (or related trust) sponsored or maintained by GMI or by any
affiliate controlled by GMI or such corporation resulting from
such reorganization, merger or consolidation, and any Person
beneficially owning, immediately prior to such reorganization,
merger or consolidation, directly or indirectly, 35% or more of
the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 35% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation or the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors, and (C) at least a majority of the members of the
board of directors of the corporation resulting from such
reorganization, merger or consolidation were members of the
Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation; or
(iv) Approval by the stockholders of GMI of any plan or proposal which
would result directly or indirectly in (A) a complete liquidation
or dissolution of GMI or of any affiliate of GMI by which the
Executive is employed, or (B) the liquidation, transfer, sale or
other disposition of all or substantially all of the assets of
GMI or of any affiliate of GMI by which the Executive is employed
or which directly or indirectly owns or controls any affiliate by
which the Executive is employed, other than to a corporation with
respect to which following such sale or other disposition (I)
more than 50% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such sale or other disposition in
substantially the same proportions as their ownership,
immediately prior to such sale or other disposition, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (II) no Person (excluding GMI,
any affiliate of GMI that
remains under GMI's control, any employee benefit plan (or
related trust) sponsored or maintained by GMI or any affiliate
controlled by GMI or such corporation, and any Person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, 35% or more of the
Outstanding Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or
indirectly, 35% or more of, respectively, the then outstanding
shares of common stock of such corporation or the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors, and (III) at least a majority of the members of the
board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or
other disposition of assets.
1.4 Effective Period. The "Effective Period" means the 36-month period
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following any Change in Control (even if such 36-month period will
extend beyond the Term (as defined in Section 3 hereof) of this
Agreement or any extension thereof).
1.5 Good Reason. "Good Reason" means, unless the Executive has consented
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in writing thereto, the occurrence of any of the following:
(i) A reduction of the Executive's title, duties, authority,
responsibilities or status, or any other action which results in
a diminution in such title, duties, authority, responsibilities
or status, excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith and which is
remedied by GMI or the Executive's employer promptly after
receipt of notice thereof given by the Executive, or the Board's
failure to elect or reelect or to appoint or reappoint the
Executive to the offices of Chairman of the Board, President and
Chief Executive Officer of GMI;
(ii) A reduction by GMI or the Executive's employer in the
Executive's Annual Salary (as defined in Section 4.1 hereof);
(iii) The relocation of the Executive's office to a location more than
40 miles outside Houston, Texas;
(iv) Following a Change in Control, unless a plan providing a
substantially similar compensation or benefit is substituted,
(A) the failure by GMI or any of its affiliates to continue in
effect any material fringe benefit or compensation plan,
retirement plan, life insurance plan, health and accident plan
or disability plan in which the Executive is participating prior
to the Change in Control, or (B) the taking of any action by GMI
or any of its affiliates which would adversely affect the
Executive's participation in or materially reduce his benefits
under any of such plans or deprive him of any material fringe
benefit;
(v) Following a Change in Control, the failure of GMI or the
affiliate of GMI by which the Executive is employed, or any
affiliate which directly or indirectly owns or controls any
affiliate by which the Executive is employed, to obtain the
assumption in writing of the obligations of GMI and the Company
to perform this Agreement by any successor to all or
substantially all of the assets of GMI or such affiliate within
15 days after a reorganization, merger, consolidation, sale or
other disposition of assets of GMI or such affiliate; or
(vi) The failure to perform or breach of this Agreement by GMI or the
Company.
2. Employment by the Company; Duties. The Company hereby employs the
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Executive and the Executive hereby accepts employment by the Company, in
accordance with and subject to the terms and conditions of this Agreement.
Executive will serve in the capacity of Chairman of the Board, President and
Chief Executive Officer of GMI and will also serve in those offices and
directorships of GMI and its affiliates to which he may from time to time be
appointed or elected. The Executive will devote all reasonable efforts and all
of his business time and services to GMI and its affiliates, subject to the
direction of the Board and the Boards of Directors of such affiliates. The
Executive will not engage in any other business activities except for passive
investments and his farm and ranching interests and service on the Board of
Directors of Superior Energy Services, Inc. or any successor, which activities
will not materially interfere with the Executive's obligations hereunder.
3. Term. The term of this Agreement (the "Term") will commence on the date
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first above written (the "Commencement Date") and will continue until the close
of the business day on October 23, 2003 (the "Expiration Date"), unless sooner
terminated as herein provided.
4. Compensation and other Benefits.
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4.1 Annual Salary. The Company will pay to the Executive an annual
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salary at a rate of six hundred twenty-five thousand dollars
($625,000) per year (the "Annual Salary"), subject to increase at the
sole discretion of the Board. The Annual Salary will be payable in
accordance with the payroll policies of the Company as from time to
time in effect, but in no event less frequently than once each month,
less deductions required to be withheld by applicable law and
regulations.
4.2 Bonus. If determined by the Board, the Company may declare and pay an
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incentive bonus to the Executive with respect to the fiscal years
ending during the Term (the "Incentive Bonus"). The amount of the
Incentive Bonus payable during the Term will be determined by the
Board, in its sole discretion.
4.3 Executive Supplemental Retirement Plan and Other Post-Retirement
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Benefits. The Executive is a participant in the Global Marine
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Executive Supplemental
Retirement Plan (the "SERP") effective as of May 5, 1998, and is, or
in the future may be, a participant in other plans and programs that
provide post-retirement benefits. For purposes of determining the
amount of the Normal Retirement Benefit and the Executive's
eligibility for an Early Retirement Benefit under the SERP (as such
terms are defined therein), and for purposes of determining the
Executive's eligibility for and amount of any and all non-pension
post-retirement benefits, the Executive has been and will continue to
be credited with three years of employment with the Company for each
actual year of employment with GMI or any of its affiliates from and
after May 5, 1998. In all circumstances the Executive's SERP and non-
pension post-retirement benefits will be based on an amount ("Base
Earnings") equal to the sum of his Annual Salary and the greater of
his actual Incentive Bonus or two-thirds of his Annual Salary for each
12-month period in the 36 consecutive months of highest Base Earnings.
4.4 Participation in Employee Benefit Plans. The Company and GMI agree to
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permit the Executive during the Term, if and to the extent eligible,
to participate in any 401(k) plan, retirement plan, group life,
hospitalization or disability insurance plan, health program, pension
plan, similar benefit plan or other so-called "fringe benefits" of the
Company or GMI (collectively, "Benefits") which may be available to
other senior executives of the Company or GMI on terms no less
favorable to the Executive than the terms offered to such other
executives.
4.5 Other Perquisites. The Executive will be entitled to expense
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reimbursement, office appointments, secretarial support and other
perquisites as are provided in accordance with company policy or
practice for senior executives of GMI. In addition, the Company will
provide the Executive with the use of the automobile which was made
available to the Executive by Cardinal Services, Inc. or with the use
of a similar automobile.
5. Confidentiality and Non-Solicitation. The Executive acknowledges that (a)
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his work for GMI and its affiliates will give him access to trade secrets of and
confidential information concerning the business of GMI and its affiliates (the
"Company Business"); and (b) the agreements and covenants contained in this
Agreement are essential to protect the business and goodwill of GMI and its
affiliates. Accordingly, during the Term of this Agreement and during any
Salary Continuation Period or CIC Salary Continuation Period (both as
hereinafter defined), the Executive covenants and agrees as follows:
5.1 To hold in a fiduciary capacity for the benefit of GMI and its
affiliates all secret, proprietary or confidential material,
knowledge, data or any other information relating to GMI or any of its
affiliated companies, and the Company Business ("Confidential
Information"), which has been obtained by the Executive during the
Executive's employment by GMI or any of its affiliated companies and
that has not been, is not now and hereafter does not become public
knowledge (other than by acts by the Executive or representatives of
the Executive in violation of this Agreement), and will not, without
the prior written consent of the Company
or as may otherwise be required by law or legal process, communicate
or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. The Executive further
agrees to return to the Company any and all records and documents (and
all copies thereof) and all other property belonging to the Company or
relating to GMI, its affiliates or their businesses, upon termination
of Executive's employment with GMI and its affiliates.
5.2 Not to solicit or entice any other employee of GMI or its affiliates
to leave GMI or its affiliates to go to work for any other business or
organization which is in direct or indirect competition with GMI or
any of its affiliates, nor request or advise a customer or client of
GMI or its affiliates to curtail or cancel such customer's business
relationship with GMI or its affiliates.
6. Rights and Remedies Upon Breach. If the Executive breaches, or threatens
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to commit a breach of, any of the provisions contained in Section 5 of this
Agreement (the "Restrictive Covenants"), GMI and the Company will have the
following rights and remedies, each of which rights and remedies will be
independent of the others and severally enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to GMI
or the Company under law or in equity:
6.1 Specific Performance. The right and remedy to have the Restrictive
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Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of
the Restrictive Covenants would cause irreparable injury to GMI and
the Company and that money damages would not provide an adequate
remedy.
6.2 Accounting. The right and remedy to require the Executive to for
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account and pay over to GMI or the Company all compensation, profits,
monies, accruals, increments or other benefits derived or received by
the Executive as the result of any action constituting a breach of the
Restrictive Covenants.
6.3 Cessation of Severance, Benefits and Other Payments. The right and
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remedy to cease any further severance, benefit or other compensation
payments under this Agreement from and after the commencement of such
breach by the Executive.
The Executive hereby acknowledges and agrees that the Restrictive Covenants are
reasonable and valid in duration and in all other respects. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants will not
thereby be affected and will be given full effect without regard to the invalid
portions.
7. Notice of Termination. Any termination of the Executive's employment by
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reason of disability pursuant to Section 9.2 hereof, by the Company for Cause,
or by the Executive for Good Reason will be communicated by Notice of
Termination to the other party hereto given in accordance with Section 17 of
this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (a) indicates the specific termination
provision in this Agreement relied upon, (b) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated, and (c) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the employment termination date.
The failure to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause will not waive any right
of the party giving the Notice of Termination hereunder or preclude such party
from asserting such fact or circumstance in enforcing its rights hereunder.
8. Date of Termination. Subject to Section 9.4 regarding Termination for
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Cause, "Date of Termination" means the date of receipt of the Notice of
Termination or any later date specified therein, or the Executive's last day as
an active employee of the Company and its affiliates before a termination of
employment due to death or disability or a termination without Cause, as the
case may be.
9. Termination.
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9.1 Termination Upon Death. If the Executive dies during the Term, this
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Employment Agreement will terminate; provided, however, that in any
such event, the Company will pay to the Executive, or to his estate, a
lump sum amount in cash equal to the product of three (3) times the
Executive's Annual Salary then in effect (or, if the Executive's
Annual Salary has been reduced in breach of this Agreement, the
Executive's Annual Salary before such reduction), and any Benefits
that have vested in the Executive at the time of such termination as a
result of his participation in any benefits plans of the Company or
any of its affiliates will be paid to the Executive, or to his estate
or designated beneficiary, in accordance with the provisions of such
plan.
9.2 Termination Upon Disability. If during the Term the Executive becomes
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physically or mentally disabled, whether totally or partially, as
evidenced by the written statement of a competent physician licensed
to practice medicine in the United States who is mutually acceptable
to the Company and the Executive, or his closest relative if he is not
then able to make such a choice, so that the Executive is unable, with
reasonable accommodation, substantially to perform his services
hereunder (i) for a period of four consecutive months, or (ii) for
shorter periods aggregating six months during any twelve-month period,
the Company may at any time after the last day of the four consecutive
months of disability or the day on which the shorter periods of
disability equal an aggregate of six months, by Notice of Termination,
terminate the Executive's employment hereunder. In the event of such
termination, the Term will terminate on the date of such termination
and the Company will (a) pay to the Executive, or to his estate, a
lump sum amount in cash equal to the product of three times
Executive's Annual Salary then in effect (or, if the Executive's
Annual Salary has been reduced in breach of this Agreement, the
Executive's Annual Salary before such reduction), and (b) any Benefits
that have vested in the Executive at the time of
such termination as a result of his participation in any benefit plans
of the Company or any of its affiliates will be paid to the Executive,
or to his estate or designated beneficiary, subject to the provisions
of such plans.
9.3 Termination by the Executive. Any termination of this Agreement by
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the Executive during the Term, except such termination for Good
Reason, will be deemed to be a breach of the terms of this Agreement
and will entitle GMI and its affiliates to discontinue payment of all
Annual Salary, Incentive Bonuses and Benefits accruing from and after
the Date of Termination. Any Benefits that have vested in the
Executive at the time of such termination as a result of his
participation in any of the Company's benefit plans will be paid to
the Executive, or to his estate or designated beneficiary, subject to
the provisions of such plans.
9.4 Termination for Cause. The Company has the right, at any time during
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the Term, subject to all of the provisions hereof, exercisable by
serving a Notice of Termination, to terminate the Executive's
employment under this Agreement and discharge the Executive for Cause.
If such right is exercised, the obligations of GMI and the Company to
the Executive will be limited solely to payment by the Company of
unpaid Annual Salary accrued, and subject to the provisions of the
applicable benefit plans, any Benefits vested up to the effective date
specified in the Company's Notice of Termination. Prior to the
effectiveness of any termination or discharge of the Executive for
Cause under this Agreement, the Executive will be given thirty days
from the date he receives the Notice of Termination and an opportunity
to be heard by the Board in the event the Executive disputes the
allegations, facts, or circumstances claimed to provide the basis for
such termination or discharge.
9.5 Termination By the Company Without Cause or by the Execut ive for Good
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Reason. The Company has the right, at any time during the Term,
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subject to all of the provisions hereof, to terminate the Executive's
employment under this Agreement and discharge the Executive without
Cause. Furthermore, notwithstanding any other provision of this
Agreement, the Executive's employment under this Agreement may be
terminated at any time during the Term by the Executive for Good
Reason. For purposes of this Agreement, any good faith determination
of "Good Reason" made by the Executive will be conclusive. In the
event of termination of employment either by the Company without Cause
or by the Executive for Good Reason, the Company will pay the
following severance payments and benefits to the Executive:
(i) Cash in the amount of the Executive's Annual Salary through the
Date of Termination to the extent not theretofore paid;
(ii) Any and all compensation deferred under a deferred compensation
plan or program of GMI or any of its affiliates in a lump sum
cash payment;
(iii) The greater of (a) the Executive's Annual Salary for the number
of full months remaining in the Term of this Agreement had the
Executive's employment not been so terminated or (b) the product
of two (2) times the Executive's Annual Salary, in each case
based on the Annual Salary of the Executive in effect on the Date
of Termination (or, if the Executive's Annual Salary has been
reduced in breach of this Agreement, the Executive's Annual
Salary before such reduction) and payable in equal monthly
installments over the greater of the remaining Term of this
Agreement or two (2) years following the Date of Termination
(the "Salary Continuation Period");
(iv) A lump sum cash amount equal to the greater of (a) the sum of
actual Incentive Bonuses paid or payable to the Executive,
including any amount deferred (whether mandatory or elective) or
(b) the sum of target Incentive Bonuses established for the
Executive, in either case for the two years immediately prior to
the Date of Termination, payable within 30 days after the Date of
Termination.
(v) The continuation of the provision of health insurance, dental
insurance and life insurance benefits for the Salary Continuation
Period to the Executive and the Executive's family at least equal
to those which would have been provided to them in accordance
with the plans, programs, practices and policies of the Company
as in effect and applicable generally to other peer executives
and their families during the 90-day period immediately preceding
the Date of Termination; provided, however, that if the Executive
becomes re-employed with another employer and is eligible to
receive medical or other welfare benefits under another employer
provided plan, the medical and other welfare benefits described
herein will be secondary to those provided under such other plan
during such applicable period of eligibility; and
(vi) The continued accrual of years of service under any and all
defined benefit retirement plans sponsored or maintained by GMI
or any affiliate controlled by GMI in effect on and in which the
Executive was a participant on the Date of Termination, in each
case for the Salary Continuation Period, but in no event beyond
the date the Executive or the Executive's spouse begins to
receive a benefit under any such plan.
9.6 Termination of Employment Following a Change in Control. If, during
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the Effective Period, the Company terminates the Executive's
employment other than for Cause or the Executive terminates his
employment with the Company for Good Reason, the Company will pay the
following to the Executive:
(i) Cash in the amount of The Executive's Annual Salary through the
Date of Termination to the extent not theretofore paid;
(ii) Any and all compensation deferred under a deferred compensation plan
or program of GMI or any of its affiliates in a lump sum cash
payment;
(iii) The greater of (a) the Executive's Annual Salary for the number of
full months remaining in the Term of this Agreement had the
Executive's employment not been so terminated or (b) the product of
three (3) times the Executive's Annual Salary, in each case based on
the Annual Salary of the Executive in effect on the Date of
Termination (or, if the Executive's Annual Salary has been reduced
in breach of this Agreement, the Executive's Annual Salary before
such reduction) and payable in equal monthly installments over the
greater of the remaining Term of this Agreement or three (3) years
following the Date of Termination (the "CIC Salary Continuation
Period");
(iv) A lump sum cash amount equal to three times the greater of (a) the
highest Incentive Bonus paid or payable to the Executive, including
any amount deferred (whether mandatory or elective) in any one year
in the three years prior to the Date of Termination, or (b) the
highest target Incentive Bonus established for the Executive in the
three years immediately prior to the Date of Termination, in either
case, payable within 30 days after the Date of Termination.
(v) The continuation of the provision of health insurance, dental
insurance and life insurance benefits for the CIC Salary
Continuation Period to the Executive and the Executive's family at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies of the
Company as in effect and applicable generally to other peer
executives and their families during the 90-day period immediately
preceding the Effective Period or on the Date of Termination, at the
election of the Executive; provided, however, that if the Executive
becomes re-employed with another employer and is eligible to receive
medical or other welfare benefits under another employer provided
plan, the medical and other welfare benefits described herein will
be secondary to those provided under such other plan during such
applicable period of eligibility; and
(vi) The continued accrual of years of service under any and all defined
benefit retirement plans sponsored or maintained by GMI or any
affiliate controlled by GMI in effect on and in which the Executive
was a participant on the Date of Termination, in each case for the
CIC Salary Continuation Period; but in no event beyond the date the
Executive or the Executive's spouse begins to receive a benefit
under any such plan.
9.7 "Basic Earnings" Under Retirement Plans. Any and all amounts paid under
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this
Agreement in the amount of or otherwise in respect of the
Executive's Annual Salary and Incentive Bonuses, whether or not
deferred under a deferred compensation plan or program, are intended
to be and will be "Basic Earnings" for purposes of determining Basic
Earnings under any and all retirement plans sponsored or maintained
by GMI or any affiliate controlled by GMI.
10. Acceleration of Restricted Stock Upon a Change in Control. Upon a Change
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in Control, all conditions, contingencies and other restrictions will be removed
from the full number of shares of stock subject to any and all performance stock
and other restricted stock grants, if any, that have been awarded to the
Executive under any and all stock plans of GMI or the Company, and said full
number of shares will immediately vest and be issued and delivered to the
Executive free of any and all conditions, contingencies and other restrictions.
11. Effect of Retirement or Disability Payments. In the event the Executive
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or the Executive's spouse begins to receive a benefit under one or more
retirement plans sponsored or maintained by GMI or by any affiliate of GMI or
begins to receive any disability payment that has been funded or insured wholly
or in part at the expense of GMI or any affiliate of GMI, the amounts that the
Executive or the Executive's spouse would otherwise be entitled to receive under
this Agreement in the amount of or otherwise in respect of the Executive's
Annual Salary will be reduced by the amount of any such retirement benefit or
disability payments, as the case may be.
12. Mitigation of Damages. The Executive will not be required to mitigate
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damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise. Except as otherwise specifically
provided in this Agreement, the amount of any payment provided for under this
Agreement will not be reduced by any compensation earned by the Executive as the
result of self-employment or employment by another employer or otherwise.
13. Tax Effect.
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13.1 If GMI's independent accounting firm determines that any payment or
distribution by GMI or any of its affiliates to or for the benefit of
the Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, and whether paid
or payable or distributed or distributable in cash, stock or any other
form) (a "Payment") constitutes a "parachute payment" as defined in
Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") (or any successor provision thereto) ("Parachute Payment")
which would be subject to the excise tax imposed by Section 4999 of
the Code, or any interest or penalties are incurred by the Executive
with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to
as the "Basic Excise Tax"), then the Executive will be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount
which is sufficient to cover any and all federal, state and local
income taxes and Medicare tax applicable to the Gross-Up Payment,
including, without limitation, any further excise tax imposed by
Section 4999 of the Code on or with respect to
the Gross-Up Payment, plus payment of the Basic Excise Tax.
13.2 Subject to the provisions of Section 13.4 below, all determinations
required to be made under this Section 13, including whether and when
a Gross-Up Payment is required, the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determinations,
will be made by GMI's independent accounting firm, which will provide
detailed supporting calculations both to the Company and the Executive
within 15 business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by
the Company. All fees and disbursements of GMI's independent
accounting firm will be paid by the Company.
13.3 Any Gross-Up Payment will be paid by the Company to the Executive
within five days of the Company's receipt of the determination of
GMI's independent accounting firm. If such firm determines that no
Basic Excise Tax is payable by the Executive, it will furnish the
Executive with a written opinion that the Executive has substantial
authority not to report any Basic Excise Tax on the Executive's
Federal income tax return. If the Executive is subsequently required
to make a payment of any Basic Excise Tax, then GMI's independent
accounting firm will determine the amount of the corresponding Gross-
Up Payment, and any such Gross-Up Payment will be promptly paid by the
Company to or for the benefit of the Executive. The fees and
disbursements of GMI's independent accounting firm will be paid by the
Company.
13.4 The Executive will notify the Company in writing within 15 days of any
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of a Gross-Up Payment. If the
Company notifies the Executive in writing that it desires to contest
such claim and that it will bear the costs and provide the
indemnification as required by this paragraph, the Executive will:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company reasonably requests in writing from time to time,
including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected
by the Company,
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company will bear
and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and will indemnify and hold the Executive
harmless, on an after-tax basis, for any Basic Excise Tax or
income tax, including interest and penalties with respect
thereto, imposed as a result of such representation and
payment of costs and expenses. The Company will control all
proceedings taken in connection with such contest; provided,
however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company will advance
the amount of such payment to the Executive, on an interest-
free basis, and will indemnify and hold the Executive
harmless, on an after-tax basis, from any Basic Excise Tax
or income tax, including interest or penalties with respect
thereto, imposed with respect to such advance or with
respect to any imputed income with respect to such advance.
13.5 If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 13.4(iv), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive will,
within 10 days of receipt thereof, pay to the Company the amount of
such refund, together with any interest paid or credited thereon
after taxes applicable thereto. If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section
13.4(iv), a determination is made that the Executive will not be
entitled to any refund with respect to such claim and the Company
does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance will be forgiven and will not be
required to be repaid and the amount of such advance will offset, to
the extent thereof, the amount of Gross-Up Payment required to be
paid.
14. Legal Fees. In the event of a dispute or disagreement regarding the right
----------
of the Executive to receive any compensation or other benefit under this
Agreement or the amount of such compensation or other benefit, the Executive
will be reimbursed by the Company for any and all attorney's fees and other
costs and expenses as and when expended by the Executive in connection with such
dispute or disagreement, regardless of the outcome thereof. Further, in the
event the Executive becomes entitled to any monies or benefits hereunder, the
Company agrees to pay such monies and provide such benefits without regard to
any and all claims, offsets or causes of action which the Company or any of its
affiliates may have against the Executive until such time, if ever, as the
Company will have obtained a final judgment in its favor in a court of competent
jurisdiction regarding such claim, offset or cause of action.
15. Indemnification. The Executive will be entitled to indemnification of
---------------
claims arising by reason of the fact that the Executive is or was a director or
officer of GMI or its affiliates in accordance with the standard terms of
indemnification attached hereto as Attachment A.
16. Executive's Representations and Warranties. The Executive represents
------------------------------------------
and warrants that the execution and performance of this Agreement is not in
violation of any existing agreement to which he is a party.
17. Notices. Any notice provided for in this Agreement will be given in
-------
writing and be
delivered personally, telegraphed, telexed, sent by facsimile transmission or
sent by certified, registered or express mail, postage prepaid. Any such notice
will be deemed given when so delivered personally, telegraphed, telexed or sent
by facsimile transmission, or, if mailed, on the date of actual receipt thereof.
Notices will be properly addressed to the parties at their respective addresses
set forth below or to such other address as either party may later specify by
notice to the other in accordance with the provisions of this paragraph:
If to the Company and GMI:
Global Marine Inc.
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
If to the Executive:
Xxxxxx X. Xxxx
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
18. Entire Agreement. This Agreement contains the entire agreement between the
----------------
parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto, including, without
limitation, any and all prior employment or severance agreements and related
amendments entered into between GMI, the Company and the Executive. Furthermore,
the payments and benefits provided for under this Agreement are separate and
apart from and, to the extent paid, will be in lieu of any payment under any
plan or policy of GMI or its affiliates regarding the payment of severance
benefits generally.
19. Waivers and Amendments. This Agreement may be amended, superseded,
----------------------
canceled, renewed or extended, and the terms and conditions hereof may be
waived, only by a written instrument signed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any waiver on the part of any party of any such right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
20. Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the laws of the state of Texas (without giving effect to the
choice of law provisions thereof), where the employment of the Executive will be
deemed, in part, to be performed, and enforcement of this Agreement or any
action taken or held with respect to this Agreement will be taken in the courts
of appropriate jurisdiction in Houston, Texas.
21. Assignment. This Agreement, and any rights and obligations hereunder, may
----------
not be
assigned by the Executive and may be assigned by GMI or the Company only to any
successor in interest, whether by merger, consolidation, acquisition or the
like, or to purchasers of substantially all of the assets of GMI or the Company,
as the case may be.
22. Binding Agreement. This Agreement will inure to the benefit of and be
-----------------
binding upon GMI, the Company and their respective successors and assigns and
the Executive and his legal representatives.
23. Counterparts. This Agreement may be executed in separate counterparts,
------------
each of which when so executed and delivered will be deemed an original, but all
of which together will constitute one and the same instrument.
24. Headings. The headings in this Agreement are for reference purposes only
--------
and will not in any way affect the meaning or interpretation of this Agreement.
25. Authorization. The Company and GMI each represents and warrants that the
-------------
Board and the Board of Directors of the Company have authorized the execution of
this Agreement.
26. Validity. The invalidity or unenforceability of any provisions of this
--------
Agreement will not affect the validity or enforceability of any other provisions
of this Agreement, which will remain in full force and effect.
27. Validity Contest. The Company will promptly pay any and all legal fees and
----------------
expenses incurred by the Executive from time to time as a direct result of GMI
or the Company contesting the due execution, authorization, validity or
enforceability of this Agreement.
28. No Presumption Against Interest. This Agreement has been negotiated,
-------------------------------
drafted, edited and reviewed by the respective parties, and, therefore, no
provision arising directly or indirectly here from will be construed against any
party as being drafted by said party.
29. Tax Withholding. GMI and the Company will have the right to deduct from
---------------
all benefits and/or payments made under this Agreement to the Executive any and
all taxes required by law to be paid or withheld with respect to such benefits
or payments.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
The Company The Executive
GLOBAL MARINE
CORPORATE SERVICES INC.
/s/ Xxxxxx X. Xxxx
-----------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx
Vice President
GMI
GLOBAL MARINE INC.
/s/ W. Xxxx Xxxxx
-----------------------
W. Xxxx Xxxxx
Senior Vice President,
Chief Financial Officer and Treasurer
ATTACHMENT A
[DATE]
[NAME AND ADDRESS]
Dear :
This letter will confirm the agreement and understanding between Global
Marine Inc. (the "Company") and you regarding indemnification in connection with
your service as a director, officer, employee or agent of the Company.
It is and has been the policy of the Company to indemnify its officers and
directors and certain employees and agents against any costs, expenses and other
liabilities to which they may become subject by reason of their service to the
Company, and to insure them against such liabilities, as and to the extent
available at a commercially reasonable rate, permitted by applicable law and in
accordance with the principles of good corporate governance. In this regard, the
Company's By-laws (Section III-11) require that the Company indemnify and
advance costs and expenses to (collectively "indemnify") its directors and
officers, in each case including indemnity in respect of service at the request
of the Company as a director or officer of an affiliate, and provide that the
Company may indemnify its employees and agents, as permitted by Delaware law. A
copy of the relevant provisions of the Company's By-laws, as currently in
effect, are attached hereto.
In consideration of your service to the Company, the Company shall
indemnify you, and hereby confirms its agreement to indemnify you, to the full
extent provided by applicable law and the By-laws of the Company as currently in
effect. In particular, as provided by the By-laws, the Company shall make any
necessary determination as to your entitlement to indemnification in
respect of any liability within 60 days of receiving a written request from you
for indemnification against such liability. You have agreed to provide the
Company with such information or documentation as the Company may reasonably
request to evidence the liabilities against which indemnification is sought or
as may be necessary to permit the Company to submit a claim in respect thereof
under any applicable directors and officers liability insurance or other
liability insurance policy. You have further agreed to cooperate with the
Company in the making of any determination regarding your entitlement to
indemnification. If the Company does not make a determination within the
required 60-day period, a favorable determination will be deemed to be made, and
you shall be entitled to payment, subject only to your written agreement to
refund such payment if a contrary determination is later made. In the event the
Company shall determine that you are not entitled to indemnification, the
Company shall give you written notice thereof specifying the reason therefor,
including any determinations of fact or conclusions of law relied upon in
reaching such determination. Notwithstanding any determination made by the
Company that you are not entitled to indemnification, you shall be entitled to
seek a de novo judicial determination of your right to indemnification under the
-- ----
By-laws, this Agreement or otherwise by commencing an appropriate action
therefor within 180 days after the Company shall notify you of its
determination. The Company shall not oppose any such action by reason of any
prior determination made by it as to your right to indemnification or, except in
good faith, raise any objection not specifically relating to the merits of your
indemnification claim or not considered by the Company in making its own
determination. In any such proceeding, the Company shall bear the burden of
proof in showing that your conduct did not meet the applicable standard of
conduct required by the By-laws or applicable law for indemnification. It is
understood that, as provided in Section III-11 of the By-laws, any expenses
incurred by you in any investigation or proceeding by the Company or before any
court commenced for the purpose of making any such determination shall be
reimbursed by the Company. No future amendment of the By-laws shall diminish
your rights under this Agreement, unless you shall have consented to such
amendment.
Your right to indemnification as aforesaid shall be in addition to any
right to remuneration to which you may from time to time be entitled as a
director, officer, employee or agent of the Company.
It is understood and agreed that your right to indemnification shall not
entitle you to continue in your present position with the Company or any future
position to which you may be appointed or elected and that you shall be entitled
to indemnification under the By-laws only in respect to liabilities arising out
of acts or omissions or alleged acts or omissions by you as a director, officer,
employee or agent or as otherwise provided by the By-laws, but you shall be
entitled to such indemnification with respect to any such liability, whether
incurred or arising during or after your service as a director, officer,
employee or agent and whether before or after the date of this letter, in
respect of any claim, cause, action, proceeding or investigation, whether
commenced, accruing or arising during or after your service as a director,
officer, employee or agent and whether before or after the date of this letter.
This Agreement shall terminate upon the later of (i) the tenth anniversary
of the date on which you shall cease to be a director, officer, employee or
agent of the Company or (ii) the final termination or resolution of all actions,
suits, proceedings or investigations commenced within
such ten-year period and relating to the Company or any of its affiliates or
your services thereto to which you may be or become a party and of all claims
for indemnifications by you under this Agreement asserted within such ten-year
period.
It is understood and agreed that this Agreement is binding upon the Company
and its successors and shall inure to your benefit and that of your heirs,
distributees and legal representatives. If any provisions of this Agreement
shall be deemed by a court of competent jurisdiction to be invalid, illegal or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances. This Agreement, and
the interpretation and enforcement thereof, shall be governed by the laws of the
state of Delaware. In confirmation of the provisions of the Company's By-laws,
the Company hereby agrees to pay, and you shall be held harmless from and
indemnified against, any costs and expenses (including attorneys' fees) which
you may reasonably incur in connection with any challenge to the validity of, or
the performance and enforcement of, this Agreement, in the same manner as
provided by the Company's By-laws.
If the foregoing is in accordance with your understanding of our agreement,
kindly countersign the enclosed copy of this letter, whereupon this letter shall
become a binding agreement in accordance with the laws of the state of Delaware.
GLOBAL MARINE INC.
By: ___________________________________
[OFFICER]
______________________________________
[NAME]
GLOBAL MARINE INC.
BY-LAW REGARDING INDEMNIFICATION
--------------------------------
Section III-11 Indemnification of Directors, Officers, Employees and
---------------------------------------------------------------------
Agents: (a)(i) The corporation, to the full extent permitted, and in the
------
manner required by the laws of the state of Delaware, as in effect at the time
of the adoption of this revised Section III-11 or as such laws may be amended
from time to time, shall indemnify any person who was or is made a party to or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (including any appeal thereof), whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that such person is or was a director or
officer of the corporation, or, if at a time when he was a director or officer
of the corporation, is or was serving at the request of the corporation as a
director, officer, partner, trustee, fiduciary, employee or agent (a "Subsidiary
Officer") of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise (an "Affiliated Entity"),
against expenses (including attorneys' fees), costs, judgments, fines, penalties
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful; provided, however, that the corporation shall not be obligated to
indemnify against any amount paid in settlement unless the corporation has
consented to such settlement, which consent shall not be unreasonably withheld.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
---- ----------
not, of itself, create a presumption that the person did not act in good faith
and in a manner which such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, that such person had reasonable cause to believe that his conduct
was unlawful. Notwithstanding anything to the contrary in the foregoing
provisions of this subparagraph (i) and except for any action, suit or
proceeding brought on behalf of a person to enforce the right to indemnification
hereunder or otherwise, a person shall not be entitled, as a matter of right, to
indemnification pursuant to this subparagraph (i) against costs or expenses
incurred in connection with any action, suit or proceeding commenced by such
person against any person who is or was a director, officer, fiduciary, employee
or agent of the corporation or a Subsidiary Officer of an Affiliated Entity, but
such indemnification may be provided by the corporation in any specific case as
permitted by paragraph (f) of this Section III-11.
(ii) The corporation may indemnify any employee or agent of the
corporation in the manner and to the extent that it shall indemnify any director
or officer under this paragraph (a), including indemnity in respect of service
at the request of the corporation as a Subsidiary Officer of an Affiliated
Entity.
(b)(i) The corporation, to the full extent permitted, and in the manner
required by the laws of the state of Delaware, as in effect at the time of the
adoption of this Section III-11 or as such laws may be amended from time to
time, shall indemnify any person who was or is made a party to or is threatened
to be made a party to any threatened, pending or completed action or suit
(including any appeal thereof) brought in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was
a director or officer of the corporation, or, if at a time when he was a
director or officer of the corporation, is or was serving at the request of the
corporation as a Subsidiary Officer of an Affiliated Entity, against expenses
(including attorneys' fees) and costs actually and reasonably incurred by such
person in connection with such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless, and except to the extent that,
the Court of Chancery of the state of Delaware or the court in which such
judgment was rendered shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses and
costs as the Court of Chancery of the state of Delaware or such other court
shall deem proper. Notwithstanding anything to the contrary in the foregoing
provisions of this subparagraph (b)(i), a person shall not be entitled, as a
matter of right, to indemnification pursuant to this subparagraph (b)(i) against
costs and expenses incurred in connection with any action or suit in the right
of the corporation commenced by such person, but such indemnification may be
provided by the corporation in any specific case as permitted by paragraph (f)
of this
Section III-11.
(ii) The corporation may indemnify any employee or agent of the corporation
in the manner and to the extent that it shall indemnify any director or officer
under this paragraph (b), including indemnity in respect of service at the
request of the corporation as a Subsidiary Officer of an Affiliated Entity.
(c) Any indemnification under paragraph (a) or (b) of this Section III-11
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper under the circumstances because such person
has met the applicable standard of conduct set forth in paragraph (a) or (b) of
this Section III-11. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding in respect of which indemnification is
sought or by majority vote of the members of a committee of the Board of
Directors composed of at least three members each of whom is not a party to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable and/or
such a committee is not established or obtainable, or, even if obtainable, if a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. In the event a request for
indemnification is made by any person referred to in subparagraph (i) of
paragraph (a) or subparagraph (i) of paragraph (b), the corporation shall cause
such determination to be made not later than 60 days after such request is made.
(d)(i) Notwithstanding the other provisions of this Section III-11, to the
extent that a director, officer, employee or agent of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (a) or (b) of this Section III-11, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) and costs actually and reasonably
incurred by such person in connection therewith.
(ii) To the extent any person who is or was a director or officer of the
corporation has served or prepared to serve as a witness in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, or in any
investigation by the corporation or the Board of Directors thereof or a
committee thereof or by any securities exchange on which securities of the
corporation are or were listed or any national securities association, by reason
of his services as a director or officer of the corporation or, if at a time
when he was a director or officer of the corporation, is or was serving at the
request of the corporation as a Subsidiary Officer of an Affiliated Entity, the
corporation shall indemnify such person against expenses (including attorney's
fees) and costs actually and reasonably incurred by such person in connection
therewith within 30 days after the receipt by the corporation from such person
of a statement requesting such indemnification, averring such service and
reasonably evidencing such expenses and costs. The corporation may indemnify
any employee or agent of the corporation to the same extent it is required to
indemnify any director or officer of the corporation pursuant to the foregoing
sentence of this paragraph.
(e)(i) Expenses and costs incurred by any person referred to in
subparagraph (i) of paragraph (a) or subparagraph (i) of paragraph (b) of this
Section III-11 in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be
determined that such person is not entitled to be indemnified by the corporation
as authorized by this Section III-11.
(ii) Expenses and costs incurred by any person referred to in subparagraph
(ii) of paragraph (a) or subparagraph (ii) of paragraph (b) of this Section III-
11 in defending a civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors, a
committee thereof or an officer of the corporation or a committee thereof
authorized to so act by the Board of Directors upon receipt of an undertaking by
or on behalf of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation
as authorized by this Section III-11.
(f) The provision of indemnification to or the advancement of expenses and
costs to any person under this Section III-11, or the entitlement of any person
to indemnification or advancement of expenses and costs under this Section III-
11, shall not limit or restrict in any way the power of the corporation to
indemnify or advance expenses and costs to such person in any other way
permitted by law or be deemed exclusive of any right to which any person seeking
indemnification or advancement of expenses and costs may be entitled under any
law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in such person's capacity as an officer, director, employee or
agent of the corporation and as to action in any other capacity while holding
any such position.
(g) The indemnification provided or permitted under this Section III-11
shall apply in respect of any expense, costs, judgment, fine, penalty or amount
paid in settlement, whether or not the claim or cause of action in respect
thereof accrued or arose before or after the effective date of this revised
Section III-11. The right of any person who is or was a director, officer,
employee or agent of the corporation to indemnification and advance payment of
expenses and costs under this Section III-11 shall continue after he shall have
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, distributees, executors, administrators and other legal
representatives of such person.
(h) This Section III-11 shall be deemed to create a binding obligation on
the part of the corporation to its current and former officers and directors and
their heirs, distributees, executors, administrators and other legal
representatives, and each director or officer in acting in such capacity shall
be entitled to rely on the provisions of this Section III-11, without giving
notice thereof to the corporation.
(i) The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a Subsidiary Officer
of any Affiliated Entity, against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the corporation would have the power to indemnify
such person against such liability under the provisions of this Section III-11
or applicable law.
(j)(i) For purposes of this Section III-11, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its corporate existence had continued, would
have been permitted under applicable law to indemnify its directors, officers,
employees or agents, so that any person who is or was a director, officer,
employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a Subsidiary Officer of any Affiliated Entity, shall
stand in the same position under the provisions of this Section III-11 with
respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
(ii) For purposes of this Section III-11, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interest of the corporation" as referred to in this Section
III-11.
FIRST AMENDMENT
TO
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
WHEREAS, Global Marine Inc. (the "Company"), Global Marine Corporate
Services Inc. and Xxxxxx X. Xxxx (the "Executive") entered into an Amended and
Restated Employment Agreement dated as of August 16, 2001 (the "Employment
Agreement"); and
WHEREAS, on August 31, 2001, the Board of Directors of Global Marine
Inc. (the "Board") approved the execution of an Agreement and Plan of Merger by
and among Santa Fe International Corporation, Global Marine Inc. and certain
other parties (the "Merger Agreement"); and
WHEREAS, in connection with the transaction contemplated under the
Merger Agreement (the "Merger"), the Executive agrees to relinquish his position
as Chairman of the Board, President and Chief Executive Officer of Global Marine
Inc. and accept the executive position of Chairman of the Board of Santa Fe
International Corporation; and
WHEREAS, the obligations of Global Marine Inc. under the Employment
Agreement shall be assumed by Santa Fe International Corporation upon the Merger
pursuant to the terms of the Merger Agreement, which terms are intended to
satisfy the written assumption requirement described in Section 1.5(v) of the
Employment Agreement; and
WHEREAS, this First Amendment to the Employment Agreement (the
"Amendment") is intended to reflect the terms of the Merger Agreement and to
operate as consent on the part of the Executive for purposes of Section 1.5 of
the Employment Agreement; and
WHEREAS, the Amendment will take effect upon the consummation of the
Merger (the "Effective Time"); and
WHEREAS, the Executive will receive, in consideration of his execution
of this Amendment and contingent upon the occurrence of the Effective Time, a
grant of 250,000 shares of restricted stock as approved by the Compensation
Committee of the Board on August 16, 2001;
NOW, THEREFORE, effective as of the Effective Time, the parties to
this Amendment agree as follows:
1. Effective as of the Effective Time, all references in the Employment
Agreement to Global Marine Inc. and to Global Marine Corporate Services Inc.
shall be amended to refer to Santa Fe International Corporation.
2. Effective as of the Effective Time, Section 2 of the Employment Agreement
shall be amended in its entirety to read as follows:
2. Employment by the Company; Duties. Santa Fe International
Corporation hereby employs the Executive and the Executive hereby
accepts employment by Santa Fe International Corporation in accordance
with and subject to the terms and conditions of this Agreement.
Executive will serve as an officer of Santa Fe
International Corporation in the capacity of Chairman of the Board of
Santa Fe International Corporation and will also serve in those
offices and directorships of Santa Fe International Corporation and
its affiliates to which he may from time to time be appointed or
elected. In connection with his position as Chairman of the Board of
Santa Fe International Corporation, the Executive agrees to perform
the duties and responsibilities set forth in Exhibit A. The Executive
will devote all reasonable efforts and all of his business time and
services to Santa Fe International Corporation and its affiliates,
subject to the direction of the Board of Directors of Santa Fe
International Corporation and the Boards of Directors of such
affiliates. The Executive will not engage in any other business
activities except for passive investments and his farm and ranching
interests, service on the Board of Directors of Superior Energy
Services, Inc. or any successor, and service on the Board of Directors
of Grey Wolf Drilling Company or any successor, which activities will
not materially interfere with the Executive's obligations hereunder.
3. The Executive agrees that the award of restricted stock approved by the
Compensation Committee of the Board of Directors of Global Marine Inc. on August
16, 2001, to be granted upon the Effective Time is awarded as consideration for
and contingent upon his execution of this Amendment.
4. This Amendment is conditioned upon the occurrence of the Effective Time,
and, if the Effective Time does not transpire by March 31, 2002, or if the
Merger Agreement is sooner terminated in accordance with its terms, all
provisions will be void.
GLOBAL MARINE INC. The Executive
/s/ W. Xxxx Xxxxx /s/ Xxxxxx X. Xxxx
------------------------------------ ------------------------------
W. Xxxx Xxxxx Xxxxxx X. Xxxx
Senior Vice President,
Chief Financial Officer and Treasurer
EXHIBIT A
---------
Duties of the Chairman of the Board
-----------------------------------
. Presides at all meetings of the Board of Directors;
. Makes himself available to the Chief Executive Officer to provide advice
and counsel in developing management's recommendations on the Company's
positions on strategic issues (e.g., major business and corporate
initiatives, and the selection, retention, compensation and termination of
directors and senior officers), and leads the Board in establishing the
Board's position on such issues;
. In consultation with the Chief Executive Officer and with the assistance of
the Corporate Secretary, establishes agendas and makes arrangements for
meetings of the Board of Directors and meetings of stockholders;
. Together with the Chief Executive Officer, has general responsibility for
information flow to the Board and to committees of the Board;
. Assists the Chief Executive Officer in the integration of both companies
following the merger;
. In coordination with the Chief Executive Officer, acts as senior company
liaison with industry, community and political contacts regarding issues of
concern to the Company; and
. Exercises and performs such other powers and duties as may from time to
time be assigned to him by the Board of Directors or be prescribed by the
Company's governing documents.
