EXHIBIT 10.22
PRIDE INTERNATIONAL, INC.
EMPLOYMENT/NON-COMPETITION/
CONFIDENTIALITY AGREEMENT
XXXXXX X. XXXXXX
EFFECTIVE OCTOBER 1, 1997
INDEX
PAGE NO.
I. PRIOR AGREEMENTS/EMPLOYMENT CONTRACTS . . . . . . . . . . . . . . 2
1.01 Effect of Prior Agreements . . . . . . . . . . . . . . . . . . . . . 2
II. DEFINITION OF TERMS . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.01 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.02 Executive/Officer/Employee . . . . . . . . . . . . . . . . . . . . . 3
2.03 Office/Position/Title. . . . . . . . . . . . . . . . . . . . . . 3
2.04 Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.05 Change in Control. . . . . . . . . . . . . . . . . . . . . . . . 3
2.06 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.07 Customer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.01 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.02 Best Efforts and other Employment of Executive. . . . . . . . . . 7
3.03 Term of Employment. . . . . . . . . . . . . . . . . . . . . . . . . 7
3.04 Compensation and Benefits. . . . . . . . . . . . . . . . . . . . . . 7
3.05 Termination Without Change in Control. . . . . . . . . . . . . . . . 8
IV. CHANGE IN CONTROL. . . . . . . . . . . . . . . . . . . . . . . . . 11
4.01 Extension of Employment Period. . . . . . . . . . . . . . . . . . . 11
4.02 Change in Control Termination Payments & Benefits. . . . . . . . . . 11
4.03 Voluntary Resignation Upon Change in Control. . . . . . . . . . . . . 12
V. NON-COMPETITION AND CONFIDENTIALITY. . . . . . . . . . . . . . . . . . 12
5.01 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.02 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.03 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.04 Geographical Area . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.05 Company Remedies For Violation of Non-Competition or
Confidentiality Agreement . . . . . . . . . . . . . . . . . . . 14
5.06 Termination of Benefits For Violation of Non-Competition and
Confidentiality Agreement. . . . . . . . . . . . . . . . . . . 15
VI. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.01 Enforcement Costs . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.02 Income, Excise and Other Tax Liability. . . . . . . . . . . . . . . 16
6.03 Payment of Benefits Upon Termination for Cause. . . . . . . . . . . . . 16
6.04 Non-Exclusive Agreement. . . . . . . . . . . . . . . . . . . . . . . . 17
6.05 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.06 Non-Alienation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.07 Entire Agreement: Amendment. . . . . . . . . . . . . . . . . . . . . 17
6.08 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . 17
6.09 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.10 Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.12 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.13 Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EMPLOYMENT/NON-COMPETITION/CONFIDENTIALITY
AGREEMENT
DATE: October 1, 1997
COMPANY/EMPLOYER: Pride International, Inc.,
A Louisiana corporation
San Xxxxxx Plaza, Suite 3300
0000 Xxx Xxxxxx
Xxxxxxx, Xxxxx 00000
EXECUTIVE/EMPLOYEE Xxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxx Xxxx
Xxxx, Xxxxx 00000
This Agreement is made as of the date first above written and to become
effective as herein provided.
PREAMBLE
WHEREAS, the Company wishes to attract and retain well-qualified
Executive and key personnel and to assure itself of the continuity of its
management;
WHEREAS, Executive is an officer of the Company with significant
management responsibilities in the conduct of its business;
WHEREAS, the Company recognizes that Executive is a valuable resource of
the Company and the Company desires to be assured of the continued services of
Executive;
WHEREAS, the Company desires to obtain assurances that Executive will
devote his best efforts to his employment with the Company and will not enter
into competition with the Company in its business as now conducted and to be
conducted, or solicit customers or other employees of the Company to terminate
their relationships with the Company;
WHEREAS, Executive is a key employee of the Company and he acknowledges
that his talents and services to the Company are of a special, unique, unusual
and extraordinary character and are of particular and peculiar benefit and
importance to the Company;
WHEREAS, the Company is concerned that in the event of a possible or
threatened change in control of the Company, uncertainties necessarily arise;
Executive may have concerns about the continuation of his employment status and
responsibilities and may be approached by others offering competing employment
opportunities; the Company, therefore, desires to provide Executive assurances
as to the continuation of his employment status and responsibilities in such
event;
WHEREAS, the Company further desires to assure Executive that, if a
possible or threatened change in control should arise and Executive should be
involved in deliberations or negotiations in
connection therewith, Executive would be in a secure position to consider and
participate in such transaction as objectively as possible in the best interests
of the Company and to this end desires to protect Executive from any direct or
implied threat to his financial well-being;
WHEREAS, Executive is willing to continue to serve as such but desires
assurances that in the event of such a change in control he will continue to
have the employment status and responsibilities he could reasonably expect
absent such event and, that in the event this turns out not to be the case, he
will have fair and reasonable severance protection on the basis of his service
to the Company to that time;
WHEREAS, different factors affect the Company and Executive under
circumstances of regular employment between the Company and the Executive when
there is no threat of change in control and/or none has occurred, as opposed to
circumstances under which a change in control is rumored, threatened, occurring
or has occurred. For this reason this Employment Agreement is primarily in two
parts. One part deals with the regular employment of Executive under
circumstances whereby no change in control is threatened, occurring or occurred;
herein called "Regular Employment". The second part deals with circumstances
whereby a change in control is threatened, occurring or has occurred. Other
parts of the Agreement deal with matters affecting both Regular Employment and
employment following change in control, including non-competition and
confidentiality; and
WHEREAS, Executive is willing to enter into and carry out the
Non-Competition and Confidentiality Agreement set forth herein in consideration
of the Employment Agreement set forth herein.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
I. PRIOR AGREEMENTS/EMPLOYMENT CONTRACTS.
1.01 EFFECT OF PRIOR AGREEMENTS. On and as of 12:00 o'clock noon of the
Effective Date all prior employment and non-competition contracts
between Company and any of its subsidiaries and Executive are hereby
amended, modified and superseded by this Agreement insofar as future
employment, compensation, non-competition, confidentiality, accrual or
payments of any form of compensation or benefits from the Company are
concerned. This Agreement does not release or relieve Company from its
liability or obligation with respect to any compensation, payments, or
benefits already accrued to Executive, nor to any vesting of benefits or
other rights which are attributable to length of employment, seniority
or other such matters. This Agreement does not relieve Executive of any
prior non-competition or confidentiality obligations and agreements and
the same are hereby modified and amended as to future matters and future
confidentiality even as to matters accruing prior to the Effective Date
hereof.
II. DEFINITION OF TERMS.
2.01 COMPANY. Company means Pride International, Inc., a Louisiana
corporation, as the same presently exists, as well as any and all
successors, regardless of the nature of the entity or the State or
Nation of organization, whether by reorganization, merger,
consolidation, absorption or dissolution. For the purpose of the
Non-Competition and Confidentiality Agreement, Company includes any
subsidiary or affiliate of the Company to the extent it is carrying on
any portion of the business of the Company or a business similar to that
being conducted by the Company.
2.02 EXECUTIVE/OFFICER/EMPLOYEE. Executive/Officer/Employee means Xxxxxx X.
Xxxxxx.
2.03 OFFICE/POSITION/TITLE. The Office, Position and Title for which the
Executive is employed is that of Vice President-U.S. Operations,
Offshore of the Company and carries with it the duties,
responsibilities, rights, benefits and privileges presently held by the
Executive, or as may reasonably be assigned to the Executive as are
customary and usual for such position.
2.04 EFFECTIVE DATE. This Agreement becomes effective and binding as of
October 1, 1997.
2.05 CHANGE IN CONTROL. The term "Change in Control" of the Company shall
mean, and shall be deemed to have occurred on the date of the first to
occur of any of the following:
a. there occurs a Change in Control of the Company of the nature
that would be required to be reported in response to item 6(e)
of Schedule 14A of Regulation 14A or Item 1 of Form 8(k)
promulgated under the Securities Exchange Act of 1934 as in
effect on the date of this Agreement, or if neither item
remains in effect, any regulations issued by the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934 which serve similar purposes;
b. any "person" {as such term is used in Sections 12(d) and 14(d)(2)
of the Securities Exchange Act of 1934} is or becomes a
beneficial owner, directly or indirectly, of securities of the
Company representing twenty percent (20%) or more of the combined
voting power of the Company's then outstanding securities;
c. the individuals who were members of the Board of Directors of the
Company immediately prior to a meeting of the shareholders of the
Company involving a contest for the election of Directors shall
not constitute a majority of the Board of Directors following
such election;
d. the Company shall have merged into or consolidated with another
corporation, or merged another corporation into the Company, on a
basis whereby less than fifty percent (50%) of the total voting
power of the surviving corporation is represented by shares held
by former shareholders of the Company prior to such merger or
consolidation;
e. the Company shall have sold, transferred or exchanged all, or
substantially all, of its assets to another corporation or other
entity or person.
2.06 TERMINATION. The term "termination" shall mean termination, prior to the
expiration of the Employment Period, of the employment of the Executive
with the Company {including death and disability (as described below)}
for any reason other than cause (as described below) or voluntary
resignation (as described below). Termination includes "Constructive
Termination" as described below. Termination includes non-renewal or
failure to extend this Agreement at the end of any employment term,
except for cause.
a. The term "disability" means physical or mental incapacity
qualifying the Executive for a long-term disability under the
Company's long-term disability plan. If no such plan exists on
the Effective Date of this Agreement, the term "disability"
means physical or mental incapacity as determined by a doctor
jointly selected by the Executive and the Board of Directors of
the Company qualifying the Executive for long-term disability
under reasonable employment standards.
b. The term "cause" means: (i) the willful and continued failure
of the Executive substantially to perform his duties with the
Company (other than any failure due to physical or mental
incapacity) after a demand for substantial performance is
delivered to him by the Board of Directors which specifically
identifies the manner in which the Board believes he has not
substantially performed his duties, (ii) willful misconduct
materially and demonstrably injurious to the Company, or (iii)
material violation of the covenant not to compete (except after
termination under the Change in Control provisions and
confidentiality provisions hereof). No act or failure to act by
the Executive shall be considered "willful" unless done or
omitted to be done by him not in good faith and without
reasonable belief that his action or omission was in the best
interest of the Company. The unwillingness of the Executive to
accept any or all of a change in the nature or scope of his
position, authorities or duties, a reduction in his total
compensation or benefits, or other action by or request of the
Company in respect of his position, authority, or
responsibility that is contrary to this Agreement, may not be
considered by the Board of Directors to be a failure to perform
or misconduct by the Executive. Notwithstanding the foregoing,
the Executive shall not be deemed to
have been terminated for cause for purposes of this Agreement
unless and until there shall have been delivered to him a copy of
a resolution, duly adopted by a vote of three-fourths (3/4ths) of
the entire Board of Directors of the Company at a meeting of the
Board of Directors called and held (after reasonable notice to
the Executive and an opportunity for the Executive and his
counsel to be heard before the Board) for the purpose of
considering whether the Executive has been guilty of such a
willful failure to perform or such willful misconduct as
justifies termination for cause hereunder, finding that in the
good faith opinion of the Board of Directors the Executive has
been guilty thereof and specifying the particulars thereof.
c. The term "Constructive Termination" means any circumstance by
which the actions of the Company either reduce or change
Executive's title, position, duties, responsibilities or
authority to such an extent or in such a manner as to relegate
Executive to a position not substantially similar to that
which he presently holds; would degrade, embarrass or otherwise
make it unreasonable for Executive to remain in the employment
of the Company; and includes violation of the employment
provisions and conditions of this Agreement.
d. The resignation of the Executive shall be deemed "voluntary" if
it is for any reason other than one or more of the following:
(i) the Executive's resignation or retirement is
requested by the Company other than for cause;
(ii) any significant adverse change in the nature or scope of
the Executive's position, authorities or duties from those
described in this Agreement;
(iii) any reduction in the Executive's total compensation or
benefits from that provided in the Compensation and
Benefits Section hereof;
(iv) the material breach by the Company of any other provision
of this Agreement;
(v) any action by the Company which would constitute
Constructive Termination; and
(vi) non-renewal or failure to extend any employment term,
contrary to the wishes of the Executive.
Termination that entitles the Executive to the payments and benefits
provided in the "Termination Payments and Benefits" Section hereof shall not be
deemed or treated by the Company
as the termination of the Executive's employment or the forfeiture of his
participation, award, or eligibility, for the purpose of any plan, practice or
agreement of the Company referred to in the Compensation and Benefits Section
hereof.
2.07 CUSTOMER. The term "Customer" includes all persons, firms or entities
that are purchasers or end-users of services or products offered,
provided, developed, designed, sold or leased by the Company during the
relevant time periods, and all persons, firms or entities which control,
or which are controlled by, the same person, firm or entity which
controls such purchase.
III. EMPLOYMENT.
3.01 EMPLOYMENT. Except as otherwise provided in this Agreement, the Company
hereby agrees to continue the Executive in its employ, and the Executive
hereby agrees to remain in the employ of the Company, for the Term of
Employment ("Employment Period") herein specified. During the Employment
Period, Executive shall exercise such position and authority and perform
such responsibilities as are commensurate with the position and
authority being exercised and duties being performed by the Executive
immediately prior to the Effective Date of this Agreement, which
services shall be performed at the location where the Executive was
employed immediately prior to the Effective Date of this Agreement or at
such other location as the Company may reasonably require.
3.02 BEST EFFORTS AND OTHER EMPLOYMENT OF EXECUTIVE.
a. Executive agrees that he will at all times faithfully,
industriously and to the best of his ability, experience and
talents, perform all of the duties that may be required of and
from him pursuant to the express and implicit terms hereof, to
the reasonable satisfaction of the Company. Such duties shall
be rendered at Houston, Texas, and such other place or places
within or outside the State of Texas as the Company shall in
good faith require or as the interest, needs, business, or
opportunities of the Company shall require.
b. Executive shall devote his normal and regular business time,
attention and skill to the business and interests of the
Company, and the Company shall be entitled to all of the
benefits, profits or other issue arising from or incident to
all work, services and advice of Executive performed for the
Company. Such employment shall be considered "full time"
employment. Executive shall have the right to make investments
in businesses which engage in activities other than those
engaged by the Company. Executive shall also have the right to
devote such incidental and immaterial amounts of his time which
are not required for the full and faithful performance of his
duties hereunder to any outside activities and businesses which
are not being engaged in by the Company and which shall not
otherwise interfere with the performance of his duties
hereunder. Executive shall have the right to make investments
in the manner and to the extent authorized and set forth in the
Non-Competition Section of this Agreement.
3.03 TERM OF EMPLOYMENT. ("Employment Period"). Executive's regular
employment (no Change in Control being presently contemplated) will
commence on the Effective Date of this Agreement and will be for a term
of two (2) years ending at 12:00 o'clock midnight September 30, 1999;
thereafter, the Term of Employment of Executive will be automatically
extended for successive terms of one (1) year each commencing October 1,
1999, and on October 1st of each year thereafter, unless Company or
Executive gives written notice to the other that employment will not be
renewed or continued after the next scheduled expiration date which is
not less than one (1) year after the date that the notice of non-renewal
was given. All extended employment terms will be considered to be within
the Employment Period while Executive is employed with the Company.
3.04 COMPENSATION AND BENEFITS. During the Employment Period the Executive
shall receive the following compensation and benefits:
a. He shall receive an annual base salary which is not less than his
annual base salary, with the opportunity for increases, from time
to time thereafter, which are in accordance with the Company's
regular executive compensation practices ("annual base salary").
Executive's salary will be reviewed at least annually by the
Compensation Committee of the Board of Directors. Executive's
current annual base salary is $105,000.
b. To the extent that such plans exist immediately prior to the
Effective Date of this Agreement, he shall be eligible to
participate on a reasonable basis, and to continue his existing
participation, in annual bonus, stock option and other
incentive compensation plans which provide opportunities to
receive compensation in addition to his annual base salary
which are the greater of: (i) the opportunities provided by the
Company for Executives with comparable duties, or (ii) the
opportunities under any such plans in which he was
participating immediately prior to the Effective Date of this
Agreement.
c. To the extent such plans exist immediately prior to the
Effective Date of this Agreement, he will be entitled to
receive and participate in exempt employee benefits (including,
but not limited to, medical, life, health, accident and
disability insurance and disability benefits) and prerequisites
which are the greater of: (i) the employee benefits and
prerequisites provided by the Company to Executives with
comparable duties, or (ii) the employee benefits and
prerequisites to which he was entitled or in which he
participated immediately prior to the Effective Date of this
Agreement.
d. To the extent such plans exist immediately prior to the
Effective Date of this Agreement, he will be entitled to
continue to accrue credited service for retirement benefits and
to be entitled to receive retirement benefits under and
pursuant to the terms of the Company's qualified retirement
plan for exempt employees, the Company's supplemental executive
retirement plan, and any successor or other retirement plan or
agreement in effect on the Effective Date of this Agreement in
respect of his retirement, whether or not a qualified
plan or agreement, so that his aggregate monthly retirement
benefit from all such plans and agreements (regardless when he
begins to receive such benefit) will be not less than it would be
had all such plans and agreements in effect immediately prior to
the Effective Date of this Agreement continued to be in effect
without change until and after he begins to receive such
benefits.
e. Paid vacations each year to the same extent as he is presently
receiving or the benefits provided to Executives with comparable
duties whichever is greater.
f. Participation in all other executive incentive stock and benefit
plans approved by the Committee.
3.05 TERMINATION WITHOUT CHANGE IN CONTROL. The Company shall have the right
to terminate Executive at any time during the Employment Period
(including any extended term). Should the Company choose not to renew or
extend the Employment Period of this Employment Agreement or choose to
terminate the Executive, during or at the end of, the Employment Period,
or in the event of death or disability of the Executive, if the
termination is not after a Change in Control and is not for cause, the
Company shall, within thirty (30) days following such termination, pay
and provide to the Executive (or his Executor, Administrator or Estate
in the event of death, as soon as reasonably practical):
a. An amount equal to one (1) full year of his base salary
(including the amount allocated to the covenant not to
compete), which base salary is here defined as twelve (12)
times the then current monthly salary in effect for the
Executive and all other benefits due him based upon the salary
in effect on the Date of Termination (but not less than the
highest annual base salary paid to the Executive during any of
the three (3) years immediately preceding his Date of
Termination). There shall be deducted only such amounts as may
be required by law to be withheld for taxes and other
applicable deductions.
b. The Company shall provide to Executive and his immediate family
(at no cost to the Executive) for a period of one (1) full year
following the Date of Termination, life, health, accident and
disability insurance which are not less than the highest benefits
furnished to the Executive and his immediate family during the
term of this Agreement.
c. An amount equal to the target award for the Executive under the
Company's annual bonus plan for the fiscal year in which
termination occurs, provided that if the Executive has deferred
his award for such year under a Company plan, the payment due the
Executive under this subparagraph shall be paid in accordance
with the terms of the deferral or as specified by the Executive.
d. The Company shall pay, distribute and otherwise provide to the
Executive the amount and value of his entire plan account and
interest under any retirement plan, employee benefit plan,
investment plan or stock ownership plan, if any
exists on the Date of Termination, and all employer contributions
made or payable to any such plan for his account prior to the end
of the month in which Termination occurs shall be deemed vested
and payable to him. Such payment or distribution shall be in
accordance with the elections made by the Executive in respect of
distributions in accordance with the plan as if the Executive's
employment in the Company terminated at the end of the month in
which Termination occurs.
e. All stock options and awards to which the Executive is entitled
will immediately vest and the time for exercising any option will
be as specified in the plan as if the Executive were still
employed by the Company; provided however if the immediate
vesting of all benefits under the plan is not permitted by the
plan, then the benefits will be vested only to the extent
authorized or permitted by the plan.
f. If Executive elects to treat the termination as retirement, on
the Date of Termination the Executive shall be deemed to have
retired from the Company and he shall be entitled at that time,
or at such later time as he may elect consistent with the terms
of any applicable plan or benefit to all benefits of such
retirement plan or benefit. Executive may treat the termination
as termination other than "retirement" if Executive so elects
and may defer "retirement" to a later date if permitted by any
applicable plan.
g. The "Compensation and Benefits" Section hereof shall be
applicable in determining the payments and benefits due the
Executive under this Section and if Termination occurs after a
reduction in all or part of the Executive's total compensation
or benefits, the lump sum severance allowance and other
compensation and benefits payable to him pursuant to this
Section shall be based upon his compensation and benefits
before the reduction.
h. If any provision of this Section cannot, in whole or in part,
be implemented and carried out under the terms of the
applicable compensation, benefit or other plan or arrangement
of the Company because the Executive has ceased to be an actual
employee of the Company, because he has insufficient or reduced
credited service based upon his actual employment by the
Company, because the plan or arrangement has been terminated or
amended after the Effective Date of this Agreement, or for any
other reason, the Company itself shall pay or otherwise provide
the equivalent of such rights, benefits and credits for such
benefits to the Executive, his dependents, beneficiaries and
estate as if Executive's employment had not been terminated.
i. All life, health, hospitalization, medical and accident benefits
available to Executive's spouse and dependents shall continue for
the same term as the Executive's benefits. If the Executive dies,
all benefits will be provided for a term of one (1) year (or two
(2) years after a Change in Control) after the date of death of
the Executive.
j. The Company's obligation under this Section to continue to pay
or provide health care, life, accident and disability insurance
to the Executive, the Executive's spouse and Executive's
dependents, during the remainder of the Employment Period shall
be reduced when and to the extent any of such benefits are paid
or provided to the Executive by another employer, provided that
the Executive shall have all rights afforded to retirees to
convert group insurance coverage to the individual insurance
coverage as, to the extent of, and whenever his group insurance
coverage under this Section is reduced or expires. Apart from
this subparagraph, the Executive shall have and be subject to
no obligation to mitigate.
k. The Company shall deduct applicable withholding taxes in
performing its obligations under this Section.
Nothing in this Section is intended, nor shall be deemed or interpreted,
to be an amendment to any compensation, benefit or other plan to the Company. To
the extent the Company's performance under this Section includes the performance
of the Company's obligations to the Executive under any other plan or under
another agreement between the Company and the Executive, the rights of the
Executive under such other plan or other agreements, which are discharged under
this Agreement, are discharged, surrendered, or released PRO TANTO.
IV. CHANGE IN CONTROL.
4.01 EXTENSION OF EMPLOYMENT PERIOD. Upon any Change in Control the
Employment Period shall be immediately and without further action
extended for a term of two (2) years following the Effective Date of the
Change in Control and will expire at 12:00 o'clock midnight on the last
day of the month following two (2) years after the Change in Control.
Thereafter, the employment period will be extended for successive terms
of one (1) year each, unless terminated, all in the manner specified in
the Term of Employment Section pertaining to regular employment.
4.02 CHANGE IN CONTROL TERMINATION PAYMENTS AND BENEFITS. In the event the
Executive is terminated within two (2) years following a Change in
Control, the Executive will receive the payments and benefits specified
in the "Termination without Change in Control" Section in the same time
and manner therein specified except as amended and modified hereby:
a. The salary and benefits specified in Section 3.05a. will be paid
based upon a multiple of two (2) years ( instead of one (1)
year).
b. Life, health, accident and disability insurance specified in
Section 3.05b. will be provided until (i) Executive becomes
reemployed and receives similar benefits from a new employer or
(ii) two (2) years after the Date of Termination, whichever is
earlier.
c. An amount equal to two (2) times the maximum award that the
Executive
could receive under the Company's Annual Bonus Plan for the
fiscal year in which the termination occurs, instead of the
benefits provided in Section 3.05c.
d. All other rights and benefits specified in Section 3.05.
4.03 VOLUNTARY RESIGNATION UPON CHANGE IN CONTROL. If the Executive
voluntarily resigns his employment within six (6) months after a Change
in Control (whether or not Company may be alleging the right to
terminate employment for cause), he will receive the same payments,
compensation and benefits as if he had been terminated on the date of
resignation after Change in Control.
V. NON-COMPETITION AND CONFIDENTIALITY.
5.01 CONSIDERATION.The base salary awarded to the Executive and to be paid to
the Executive in the future includes consideration for the
Non-Competition and Confidentiality Agreement set forth herein and the
amount to be paid to Executive in the event of the termination of
employment of Executive, voluntarily, involuntarily, or under a Change
of Control, under Section 3.05a and 4.02a hereof constitute payment, in
part, for the Non-Competition and Confidentiality of the Executive. It
is contracted, stipulated and agree that fifteen percent (15%) of such
amount paid and to be paid to the Executive shall constitute the
consideration for the Non-Competition and Confidentiality Agreement set
forth herein.
5.02 NON-COMPETITION. Executive acknowledges that his employment with the
Company has in the past and will, of necessity, provide him with
specialized knowledge which, if used in competition with the Company
could cause serious harm to the Company. Accordingly, the Executive
agrees that during his employment with the Company and for a period of
one (1) year after he is no longer employed by the Company (unless his
employment is terminated after a Change in Control, in which event there
will be no covenant not to compete and the provisions of the covenant
not to compete herein contained will terminate on the date of
termination of Executive) Executive will not, directly or indirectly,
either as an individual, proprietor, stockholder {other than as a holder
of up to one percent (1%) of the outstanding shares of a corporation
whose shares are listed on a stock exchange or traded in accordance with
the automated quotation system of the National Association of Securities
Dealers}, partner, officer, employee or otherwise:
a. work for, become an employee of, invest in, provide consulting
services or in any way engage in any business which provides,
produces, leases or sells products or services of the same or
similar type provided, produced, leased or sold by the Company
and with regard to which Executive was engaged, or over which
Executive had direct or indirect supervision or control, within
one (1) year preceding the Executive's termination of
employment, in any area where the Company provided, produced,
leased or sold such products or services at any time during the
one (1) year preceding such termination of employment; or
b. provide, sell, offer to sell, lease, offer to lease, or solicit
any orders for any products or services which the Company
provided and with regard to which the Executive had direct or
indirect supervision or control, within one (1) year preceding
Executive's termination of employment, to or from any person,
firm or entity which was a customer for such products or
services of the Company during the one (1) year preceding such
termination from whom the Company had solicited business during
such one (1) year; or
c. solicit, aid, counsel or encourage any officer, director,
employee or other individual to (i) leave his or her employment
or position with the Company or (ii) compete with the business of
the Company, or (iii) violate the terms of any employment,
non-competition or similar agreement with the Company; or
d. employ, directly or indirectly; permit the employment of;
contract for services or work to be performed by; or otherwise,
use, utilize or benefit from the services of any officer,
director, employee or any other individual holding a position
with the Company within two (2) years after the Date of
Termination of employment of Executive with the Company or
within two (2) years after such officer, director, employee or
individual terminated employment with the Company, whichever
occurs earlier.
5.03 CONFIDENTIALITY. Executive acknowledges that his employment with the
Company has in the past and will, of necessity, provide him with
specialized knowledge which, if used in competition with the Company, or
divulged to others, could cause serious harm to the Company.
Accordingly, Executive will not at any time during or after his
employment by the Company, directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation in any manner whatsoever
any information concerning any matter affecting or relating to the
Company or the business of the Company . While engaged as an employee of
the Company, Executive may only use information concerning any matters
affecting or relating to the Company or the business of the Company for
a purpose which is necessary to the carrying out of the Executive's
duties as an employee of the Company, and Executive may not make use of
any information of the Company after he is no longer an employee of the
Company. Executive agrees to the foregoing without regard to whether all
of the foregoing matters will be deemed confidential, material or
important, it being stipulated by the parties that all information,
whether written or otherwise, regarding the Company's business,
including, but not limited to, information regarding customers, customer
lists, costs, prices, earnings, products, services, formulae,
compositions, machines, equipment, apparatus, systems, manufacturing
procedures, operations, potential acquisitions, new location plans,
prospective and executed contracts and other business arrangements, and
sources of supply, is PRIMA FACIE presumed to be important, material and
confidential information of the Company for the purposes of this
Agreement, except to the extent that such information may be otherwise
lawfully and readily available to the general public. Executive further
agrees that he will, upon termination of his employment with the
Company, return to the Company all books, records, lists and other
written, typed or printed materials, whether furnished by the Company or
prepared by Executive, which contain any
information relating to the Company's business, and Executive agrees
that he will neither make nor retain any copies of such materials after
termination of employment. Notwithstanding any of the foregoing,
Executive will not be liable for any breach of these confidentiality
provisions unless the same constitutes a material detriment to the
Company, or due to the nature of the information divulged and the manner
in which it was divulged and the person to whom it was divulged would
likely cause damage to the Company or constitute a material detriment to
the Company.
5.04 GEOGRAPHICAL AREA. The geographical area within which the
non-competition covenants of this Agreement shall apply is that
territory within two hundred (200) miles of: (i) any of the Company's
present offices, (ii) any of the Company's present rig yards, and (iii)
any additional location where the Company, as of the date of any action
taken in violation of the non-competition covenants of this Agreement,
has an office, a rig yard, or definitive plans to locate an office or a
rig yard. Notwithstanding the foregoing, if the two hundred (200) mile
radius extends into another county and the Company is not then doing
business in that other county, there will be no territorial limitations
extending into such other county.
5.05 COMPANY REMEDIES FOR VIOLATION OF NON-COMPETITION OR CONFIDENTIALITY
AGREEMENT. Without limiting the right of the Company to pursue all other
legal and equitable rights available to it for violation of any of the
covenants made by Executive herein, it is agreed that:
a. the skills, experience and contacts of Executive are of a
special, unique, unusual and extraordinary character which give
them a peculiar value;
b. because of the business of the Company, the restrictions agreed
to by Executive as to time and area contained in this Agreement
are reasonable; and
c. the injury suffered by the Company by a violation of any covenant
in this Agreement resulting from loss of profits created by the
competitive use of such skills, experience and contacts and
otherwise will be difficult to calculate in damages in an action
at law and cannot fully compensate the Company for any violation
of any covenant in this Agreement, accordingly:
(i) the Company shall be entitled to injunctive relief to
prevent violations of such covenants or continuing
violations thereof and to prevent Executive from rendering
any services to any person, firm or entity in breach of
such covenant and to prevent Executive from divulging any
confidential information; and
(ii) compliance with this Agreement is a condition precedent to
the Company's obligation to make payments of any nature to
Executive.
5.06 TERMINATION OF BENEFITS FOR VIOLATION OF NON-COMPETITION AND
CONFIDENTIALITY. If Executive's termination was not after a Change in
Control and if Executive shall be materially violating the
Confidentiality and/or Non-Competition Agreement or any agreement he may
have signed as an employee of the Company, Executive agrees that after
receipt of written notice he shall continue such action and that there
shall be no obligation on the part of the Company to provide any
payments or benefits (other than payments or benefits already earned or
accrued) described in the Termination of Rights and Benefits Section
hereof, subject to the provisions of Section 6.01 hereof. There will be
no withholding of benefits or payments if the termination occurred after
a Change in Control and Executive will not be bound by the
non-competition provisions if terminated while the Change in Control
provisions hereof are applicable.
VI. GENERAL.
6.01 ENFORCEMENT COSTS. The Company is aware that upon the occurrence of a
Change in Control, or under other circumstances even when a Change in
Control has not occurred, the Board of Directors or an shareholder of
the Company may then cause or attempt to cause the Company to refuse to
comply with its obligations under this Agreement, or may cause or
attempt to cause the Company to institute, or may institute, litigation
seeking to have this Agreement declared unenforceable, or may take, or
attempt to take, other action to deny Executive the benefits intended
under this Agreement; or actions may be taken to enforce the
non-competition or confidentiality provisions of this Agreement. In
these circumstances, the purpose of this Agreement could be frustrated.
It is the intent of the parties that the Executive not be required to
incur the legal fees and expenses associated with the protection or
enforcement of his rights under this Agreement by litigation or other
legal action because such costs would substantially detract from the
benefits intended to be extended to Executive hereunder, nor be bound to
negotiate any settlement of his rights hereunder under threat of
incurring such costs. Accordingly, if at any time after the Effective
Date of this Agreement, it should appear to Executive that the Company
is or has acted contrary to or is failing or has failed to comply with
any of its obligations under this Agreement for the reason that it
regards this Agreement to be void or unenforceable, that Executive has
violated the terms of this Agreement, or for any other reason, or that
the Company has purported to terminate his employment for cause or is in
the course of doing so, or is withholding payments or benefits, or is
threatening to withhold payments or benefits, contrary to this
Agreement, or in the event that the Company or any other person takes
any action to declare this Agreement void or unenforceable, or
institutes any litigation or other legal action designed to deny,
diminish or to recover from Executive the benefits provided or intended
to be provided to him hereunder, and Executive has acted in good faith
to perform his obligations under this Agreement, the Company irrevocably
authorizes Executive from time to time to retain counsel of his choice
at the expense of the Company to represent him in connection with the
protection and enforcement of his rights hereunder, including, without
limitation, representation in connection with termination of his
employment or withholding of benefits or payments contrary to this
Agreement or with the initiation or defense of any litigation or any
other legal action, whether by or against Executive or the Company or
any Director, Officer, Shareholder or other person affiliated with the
Company, in any jurisdiction. Company is not authorized to withhold the
periodic payments of attorneys' fees and
expenses hereunder based upon any belief or assertion by the Company
that Executive has not acted in good faith or has violated this
Agreement. If Company subsequently establishes that Executive was not
acting in good faith and has violated this Agreement, Executive will be
liable to the Company for reimbursement of amounts paid due to
Executive's actions not based on good faith and in violation of this
Agreement. The reasonable fees and expenses of counsel selected from
time to time by Executive as hereinabove provided shall be paid or
reimbursed to Executive by the Company, on a regular, periodic basis
within thirty (30) days after presentation by Executive of a statement
or statements prepared by such counsel in accordance with its customary
practices, up to a maximum aggregate amount of One Hundred Fifty
Thousand Dollars ($150,000).
6.02 INCOME, EXCISE OR OTHER TAX LIABILITY. Executive will be liable for and
will pay all income tax liability by virtue of any payments made to
Executive under this Agreement, as if the same were earned and paid in
the normal course of business and not the result of a Change in Control
and not otherwise triggered by the "golden parachute" or excess payment
provisions of the Internal Revenue Code of the United States, which
would cause additional tax liability to be imposed. If any additional
income tax, excise or other taxes are imposed on any amount or payment
in the nature of compensation paid or provided to or on behalf of
executive, the Company shall "gross up" Executive for such tax liability
by paying to Executive an amount sufficient so that after payment of all
such taxes so imposed Executive's position on an after-tax basis is what
it would have been had no such additional taxes been imposed. Executive
will cooperate with the Company to minimize the tax consequences to the
Executive and to the Company so long as the actions proposed to be taken
by the Company do not cause any additional tax consequences to Executive
and do not prolong or delay the time that payments are to be made, or
the amount of payments to be made, unless the Executive consents, in
writing, to any delay or deferment of payment.
6.03 PAYMENT OF BENEFITS UPON TERMINATION FOR CAUSE. If the termination of
Executive is for cause and not after a Change in Control, the Company
will have the right to withhold all payments (except those specified in
Section 6.01); provided however that if a final judgment is entered
finding that cause did not exist for termination, the Company will pay
all benefits to Executive to which he would have been entitled had the
termination not been for cause, plus interest on all amounts withheld
from Executive at the rate specified for judgments under Article
5069-1.05 V.A.T.S., but not less than ten percent (10%) per annum. If
the termination for cause occurs after a Change in Control, the Company
shall have not right to suspend or withhold payments to Executive under
any provision of this Agreement until or unless a final judgment is
entered upholding the Company's determination that the termination was
for cause, in which event Executive will be liable to the Company for
all amounts paid, plus interest at the rate allowed for judgments under
Article 5069-1.05 V.A.T.S.
6.04 NON-EXCLUSIVE AGREEMENT. The specific arrangements referred to herein
are not intended to exclude or limit Executive's participation in other
benefits available to executive personnel generally, or to preclude or
limit other compensation or benefits as may be authorized by the Board
of Directors of the Company at any time, or to limit or reduce any
compensation or benefits to which Executive would be entitled but for
this Agreement.
6.05 NOTICES. Notices, requests, demands and other communications provided
for by this Agreement shall be in writing and shall either be personally
delivered by hand or sent by: (i) Registered or Certified Mail, Return
Receipt Requested, postage prepaid, properly packaged, addressed and
deposited in the United States Postal System; (ii) via facsimile
transmission if the receiver acknowledges receipt; or (iii) via Federal
Express or other expedited delivery service provided that acknowledgment
of receipt is received and retained by the deliverer and furnished to
the sender, if to Executive, at the last address he has filed, in
writing, with the Company, or if to the Company, to its Corporate
Secretary at its principal executive offices.
6.06 NON-ALIENATION. Executive shall not have any right to pledge,
hypothecate, anticipate, or in any way create a lien upon any amounts
provided under this Agreement, and no payments or benefits due hereunder
shall be assignable in anticipation of payment either by voluntary or
involuntary acts or by operation of law. So long as Executive lives, no
person, other than the parties hereto, shall have any rights under or
interest in this Agreement or the subject matter hereof. Upon the death
of Executive, his Executors, Administrators, Devisees and Heirs, in that
order, shall have the right to enforce the provisions hereof.
6.07 ENTIRE AGREEMENT: AMENDMENT.This Agreement constitutes the entire
agreement of the parties with respect of the subject matter hereof. No
provision of this Agreement may be amended, waived, or discharged except
by the mutual written agreement of the parties. The consent of any other
person(s) to any such amendment, waiver or discharge shall not be
required.
6.08 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Company, its successors and assigns, by operation
of law or otherwise, including, without limitation, any corporation or
other entity or persons which shall succeed (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company, and the Company will
require any successor, by agreement in form and substance satisfactory
to Executive, expressly to assume and agree to perform this Agreement.
Except as otherwise provided herein, this Agreement shall be binding
upon and inure to the benefit of Executive and his legal
representatives, heirs and assigns, provided however, that in the event
of Executive's death prior to payment or distribution of all amounts,
distributions and benefits due him hereunder, each such unpaid amount
and distribution shall be paid in accordance with this Agreement to the
person or persons designated by Executive to the Company to receive such
payment or distribution and in the event Executive has made no
applicable designation, to his Estate. If the Company should split,
divide or otherwise become more than one entity, all liability and
obligations of the Company shall be the joint and several liability and
obligation of all of the parts.
6.09 GOVERNING LAW. Except to the extent required to be governed by the laws
of the State of Louisiana because the Company is incorporated under the
laws of said State, the validity, interpretation and enforcement of this
Agreement shall be governed by the laws of the State of Texas.
6.10 VENUE. To the extent permitted by applicable State and Federal law,
venue for all proceedings hereunder will be in Xxxxxx County, Texas.
6.11 HEADINGS. The headings in this Agreement are inserted for convenience of
reference only and shall not affect the meaning or interpretation of
this Agreement.
6.12 SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
6.13 PARTIAL INVALIDITY. In the event that any part, portion or Section of
this Agreement is found to be invalid or unenforceable for any reason,
the remaining provisions of this Agreement shall be binding upon the
parties hereto and the Agreement will be construed to give meaning to
the remaining provisions of this Agreement in accordance with the intent
of this Agreement.
6.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be original, but all of
which together constitute one and the same instrument.
IN WITNESS WHEREOF, Executive has hereunto set his hand and, pursuant to
the authorization from its Board of Directors and the Compensation Committee,
the Company has caused these presents to be executed in its name and on its
behalf, and its corporate seal to be hereunto affixed and attested by its
Secretary or Assistant Secretary, all as of the day and year first above
written.
EXECUTED in multiple originals and/or counterparts as of the Effective
Date.
/s/ XXXXXX X. XXXXXX
XXXXXX X. XXXXXX
PRIDE INTERNATIONAL, INC.
CORPORATE SEAL
BY:/s/ XXX X. XXXXXX
XXX X. XXXXXX
CEO and Chairman of the Board
