AGREEMENT
Exhibit 10.2
This Agreement (this “Agreement”) is made and entered into by and between Global Industries,
Ltd., a Louisiana corporation (hereinafter referred to as the “Company”), and Xxxxxxx X. Xxxx, an
individual (hereinafter referred to as
“Xx. Xxxx”), effective as of September 18, 2006 (the
“Effective Date”).
W I T N E S S E T H:
WHEREAS, Xx. Xxxx is the founder of the Company and has been employed by the Company for over
30 years, currently as its Chief Executive Officer and Chairman of the Board of Directors; and
WHEREAS, Xx. Xxxx has expressed his intention to retire as Chief Executive Officer on the date
on which the new Chief Executive Officer (the “New CEO”) assumes office and to retire as executive
Chairman of the Board and terminate his employment on the earlier of the date of the Company’s 2007
Annual Stockholders Meeting and June 1, 2007 (the “Retirement Date”); and
WHEREAS, in consideration of the many years of valuable service provided to the Company by Xx.
Xxxx, his agreement to assist in facilitating a smooth transition of his duties to his successor
and to provide the Company with covenants against competition, solicitation of employees and
disclosure of confidential information, both parties desire to enter into an agreement that will
provide for the compensation and other benefits to which Xx. Xxxx will be entitled by reason of and
after his retirement;
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Xx. Xxxx agree as follows:
Section 1. Executive Period.
(a) Position. Through the Retirement Date (the “Executive Period”), Xx. Xxxx shall remain an
employee at will of the Company (i) as Chairman of the Board and Chief Executive Officer until the
effective time of his resignation as Chief Executive Officer as provided in Section 3 and (ii) as
executive Chairman of the Board until the Retirement Date. During the period commencing on the
effective time of his resignation as Chief Executive Officer as provided in Section 3 and ending on
the Retirement Date, Xx. Xxxx shall perform only those duties as are customary for a Chairman of
the Board and shall devote the necessary business time and attention to the business and affairs of
the Company and use his best efforts to promote the business and welfare of the Company and its
subsidiaries or affiliates, including assisting the Board of Directors of the Company (the “Board”)
in the transition of leadership from Xx. Xxxx to the New CEO as requested from time to time by the
Board or by the New CEO.
(b) Compensation. During the Executive Period and for so long as he remains an employee, Xx.
Xxxx shall (i) continue to receive his salary at the annual rate in effect on the Effective Date,
(ii) continue to be provided the perquisites being provided to Xx. Xxxx as of the Effective Date,
(iii) be entitled to the rights, payments and benefits under existing contracts,
awards, option agreements and restricted stock and performance awards issued to Xx. Xxxx prior
to the Effective Date, including payment of any annual cash bonus for the year ending December 31,
2006 earned under the Company’s Management Incentive Plan (without any adjustment or pro-ration due
to Xx. Xxxx’x ceasing to be Chief Executive Officer) and (iv) continue to participate in the
employee benefit plans and policies in which he participates as of the Effective Date; provided,
however, that after the Effective Date, Xx. Xxxx shall receive no further long-term or incentive
compensation awards, and in particular shall not be awarded any further grants under the Company’s
2005 Equity Incentive Plan or any other equity compensation plan. During the Executive Period, Xx.
Xxxx shall be an employee of the Company for all purposes. Effective as of the Retirement Date,
(i) the Company will pay or provide to Xx. Xxxx (A) Xx. Xxxx’x base salary through the
Retirement Date to the extent not previously paid; (B) any incentive compensation due Xx.
Xxxx if, under the terms of the relevant incentive compensation arrangement, such incentive
compensation was due and payable to Xx. Xxxx on or before the Retirement Date; (C) those
benefits that are provided by retirement and benefit plans and programs adopted and approved
by the Company for Xx. Xxxx that are earned and vested on or before the Retirement Date; (D)
any rights Xx. Xxxx or his survivors may have under any grants of options to purchase the
Company’s Common Stock or under any grants of restricted stock or performance units of the
Company; and (E) medical and similar employee welfare benefits the continuation of which is
required by applicable law or as provided by the applicable benefit plan (together, the
benefits and payments described in clause (A) through (E) are herein referred to as the
“Earned Benefits”); and
(ii) each option to acquire Common Stock of the Company held by Xx. Xxxx immediately
prior to the Retirement Date the vesting of which is dependent solely on the passage of time
and not the performance of Xx. Xxxx or the Company shall (A) if unvested as of such date,
vest and become fully and immediately vested and exercisable, and (B) remain exercisable
through the earlier of the end of the Consulting Period hereunder (or, if Xx. Xxxx dies
during the Consulting Period, the first anniversary of his death) and the tenth anniversary
of the original grant date of such option, and
(iii) all forfeiture restrictions on any restricted Common Stock of the Company granted
to Xx. Xxxx prior to the Retirement Date the lapse of the forfeiture restrictions on which
are dependent solely on the passage of time and not the performance of Xx. Xxxx or the
Company shall lapse as of the Retirement Date and such Common Stock shall be freely
transferable (subject to applicable securities laws); and
(iv) each of the Designated Performance Unit Awards (as defined below) that remains
outstanding immediately prior to the Retirement Date shall continue unchanged and vest (if
at all) in accordance with its terms (i.e., pro-rated based on the portion of the
performance period applicable to such awards that occurs prior to the Retirement Date) at
the end of the relevant performance period; and
(v) each of the Designated Restricted Stock Awards (as defined below) that remains
outstanding immediately prior to the Retirement Date shall continue unchanged and the
forfeiture restrictions on any restricted stock thereunder shall lapse (if at all) in
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accordance with its terms at the end of the relevant performance period except that the
number of shares on which the forfeiture restrictions shall lapse shall not be pro rated
based on the portion of the performance period applicable to such award that occurs prior to
the Retirement Date but instead will be treated as if Xx. Xxxx remained an employee during
the entire performance period.
For purposes of this Agreement, “Designated Performance Units” and Designated Restricted Stock
Awards” means the performance unit awards and performance vesting restricted stock awards,
respectively, set forth on Exhibit A hereto. Upon the payment or provision of Earned
Benefits, the Company shall have no further obligations to Xx. Xxxx for any salary, bonuses,
benefit programs, or other compensation of any type for services rendered by Xx. Xxxx to the
Company prior to the Retirement Date.
Section 2. Consulting Period.
(a) Transition to Contractor. As of the Retirement Date, the relationship presently existing
between the Company and Xx. Xxxx shall change from an at will employment relationship to a
contractor relationship. The Company and Xx. Xxxx agree that Xx. Xxxx’x ability to earn the
amounts provided for in this Section 2 and to receive the benefits described in this Section 2 are
in consideration of (a) the covenants and agreements being made by Xx. Xxxx as set forth in this
Agreement (including the covenants set forth in Section 5 and 6) and (b) the readiness and
performance of the Consulting Services (as defined herein) to be performed by Xx. Xxxx hereunder.
From and after the Retirement Date, the Company’s obligations to pay compensation to Xx. Xxxx for
services rendered shall be governed exclusively by this Agreement. During the Consulting Period,
Xx. Xxxx shall not be considered an employee of the Company for any purpose, and accordingly shall
not participate in the employee benefit plans of the Company except to the extent former or retired
employees are entitled to do so under the applicable terms of such plans.
(b) Extent of Consulting Services; Duties of Consultant. During the period from the
Retirement Date through April 30, 2010 (the “Consulting Period”), Xx. Xxxx agrees to serve as a
consultant of the Company in accordance with the provisions of this Agreement. During the
Consulting Period, Xx. Xxxx shall make himself available to the Company as requested by the
Company’s Board or Chief Executive Officer. When so requested, Xx. Xxxx will consult with officers
and employees of the Company, and others, from time to time at mutually agreeable times and places
pertaining to the business of the Company (“Consulting Services”). The particular amount of time
Xx. Xxxx may spend in fulfilling his Consulting Services obligations may vary from day to day or
week to week, but Xx. Xxxx shall use his reasonable efforts to be prepared and available at such
times as are reasonably requested by the Company, which shall include travel time to and from the
city where he resides and the location where the Consulting Services take place. When Xx. Xxxx is
requested by the Company to travel from the city of his permanent residence to provide Consulting
Services, Xx. Xxxx shall be reimbursed for reasonable and customary travel expenses in accordance
with the Company’s policies; provided, however, that (a) Xx. Xxxx shall be reimbursed for first
class air travel and for travel within the United States using private or charter aircraft (other
than the Company’s aircraft), the Company will reimburse him the amount of a first class ticket on
a commercial flight and (b) for international travel, if the Company determines it is beneficial to
its business
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purpose for Xx. Xxxx’x spouse to accompany him then Xx. Xxxx shall also be reimbursed for the
reasonable and customary travel expenses of his spouse. While retained as a consultant by the
Company, Xx. Xxxx shall have the right to devote his business day and working efforts to such other
business, professional, public service, or community pursuits as do not interfere with the
rendering of Consulting Services by Xx. Xxxx hereunder.
(c) Fees. During the Consulting Period, subject to and in consideration of Xx. Xxxx’x
compliance with the covenants set forth in Section 5 and 6, the Company shall pay or provide to Xx.
Xxxx the following: (i) a monthly consulting fee, payable in arrears, at an annual rate equal to
$400,000, the first monthly payment shall be due and payable on the first business day of the month
following the month in which the Retirement Date occurs (and such payment shall be for the period
from the Retirement Date through the last day of the month in which the Retirement Date occurs) and
subsequent monthly payments shall be made on the first business day of the succeeding 35 months,
(ii) an office fee, payable annually in advance, at an annual rate of $175,000 to cover office
space and related services for Xx. Xxxx (the first annual payment of $175,000 shall be due and
payable on the first business day following the date for his ceasing to maintain an office in the
Company’s offices mutually agreed between Xx. Xxxx and the Company, subsequent payments of $175,000
shall be made on the second and third anniversary of such date and a final payment (equal to
$175,000 multiplied by a fraction, the numerator of which shall be the number of months remaining
between the date payment is due and April 30, 2010 and the denominator of which is 12) shall be
paid on the fourth anniversary of such date), and (iii) provided that Xx. Xxxx has timely elected
under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) to continue
the medical benefits (the “Medical Benefits”) for Xx. Xxxx (and his spouse if she was covered as of
the Retirement Date through Xx. Xxxx (a “Covered Dependent”)) under the Company’s group health plan
as in effect on the Retirement Date, reimbursement monthly of (x) the amount of the COBRA premium
paid by Xx. Xxxx less (y) the cost or expense then payable by senior executives of the Company for
Medical Benefits and the Company further agrees to continue Xx. Xxxx’x and his Covered Dependent’s
(if applicable) eligibility for Medical Benefits under the Company’s group health plan as in effect
from time to time after the COBRA coverage expires and until the end of the Consulting Period
provided that Xx. Xxxx continues to pay to the Company monthly the amount specified in clause (y);
and provided further, that, if Xx. Xxxx becomes re-employed with another employer during the
Consulting Period and is eligible to receive such benefits under another employer provided plan,
the Medical Benefits shall be secondary to those provided under such other plan during such
applicable period of eligibility.
(d) Independent Contractor Relationship. Throughout the Consulting Period, Xx. Xxxx shall be
an independent contractor with the full power and authority to select the means, methods and manner
of performing the Consulting Services hereunder; provided, however, that Xx. Xxxx shall secure the
approval of the Company as to the means, methods, and manner in which the Company and its
affiliates are represented. Xx. Xxxx will in no way be considered to be an agent, employee, or
servant of the Company. Xx. Xxxx shall have no authority to bind the Company in any capacity for
any purpose. It is not the purpose or intention of this Agreement or the parties to create, and
the same shall not be construed as creating, any partnership, partnership relation, joint venture,
agency, or employment relationship after the Retirement Date.
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Section 3. Resignations.
Xx. Xxxx has signed and provided to the Company a resignation letter, effective as of the date
on which the New CEO commences his employment, resigning as Chief Executive Officer of the Company
(but not as an employee or director) and from all other positions Xx. Xxxx then holds as an
officer, director or otherwise with any of the Company’s subsidiaries or affiliates. Xx. Xxxx has
informed the Board of the Company that he will not stand for re-election as Chairman or member of
the Board at the Company’s 2007 Annual Stockholders Meeting and therefore the Company and Xx. Xxxx
agree that he will not be requested to (or stand for) re-election at the Company’s 2007 Annual
Stockholders Meeting. Xx. Xxxx agrees to sign any additional documentation to ratify and evidence
such resignation as may be reasonably requested from time to time by the Company. On the
Retirement Date, Xx. Xxxx shall cease to be an employee of the Company for all purposes.
Section 4. Termination of Consulting Relationship.
(a) If Xx. Xxxx dies after the Retirement Date but before April 30, 2010 (and has not prior to
such death materially breached any of his obligations under this Agreement which breach was not
cured prior to his death), (i) the Company shall (A) pay Xx. Xxxx’x estate any unpaid fees under
Section 2(c) through the date of death on the dates such fees would otherwise be due, (B) provide
the Medical Benefits to the Covered Dependents through April 30, 2010 (or, if earlier with respect
to any such Covered Dependent, the date of such Covered Dependent’s death) in accordance with
Section 2, and (C) have no further obligations under this Agreement, except to provide Xx. Xxxx’x
estate and family with any Earned Benefits to which they may be entitled, and (ii) all stock
options, restricted stock, Designated Performance Units and Designated Restricted Stock Awards
shall continue to be treated as set forth in Section 1(b).
(b) If prior to the Retirement Date, Xx. Xxxx’x employment is terminated by the Company for
Cause or Xx. Xxxx voluntarily terminates his employment with the Company without consent of the
Board, (i) the Company shall have no further obligations under this Agreement except to pay to Xx.
Xxxx any Earned Benefits through the date of such termination, (ii) all stock options shall be
governed by the applicable provisions of the applicable award agreements thereunder, and (iii) Xx.
Xxxx shall remain bound by the covenants set forth in Section 5 and 6 (treating the Non-Competition
Period as commencing on the date of such termination of employment). For purposes of this Section
4(b) “Cause” shall mean Xx. Xxxx (A) has engaged in gross negligence or willful misconduct, (B) has
willfully refused without proper legal reason to perform the duties and responsibilities assigned
to him by the Board (other than as a result of disability), (C) has materially breached any
provision of this Agreement or any corporate policy, including substance abuse policies, ethics
policies or any code of conduct maintained and established by the Company in writing that is
applicable to the Company’s executives and such breach, if correctable, remains uncorrected for 14
days following receipt by Xx. Xxxx of written notice of such breach, (D) has willfully engaged in
conduct that he knows or should have known is materially injurious to the Company or any of its
affiliates, including fraud or misappropriation, or (E) has been convicted of a misdemeanor
involving moral turpitude or a felony; provided, however, that Xx. Xxxx’x employment shall only be
deemed terminated for “Cause” pursuant to clauses (A) through (D) of this Section 4(b) if: (x) he
is given written notice of the alleged Cause and the facts supporting such allegation, and (y) an
opportunity to appear
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before the Board to refute such allegation, at which he may be accompanied by counsel; and (C)
following such opportunity the Board by of vote of two-thirds of its membership determines that
termination for Cause is warranted.
Section 5. Obligations; Confidentiality; Nondisparagement.
(a) Obligations. Xx. Xxxx shall not, during the existence of the consulting relationship, use
or appropriate, directly or indirectly, for his own benefit or for the benefit of another, any
business opportunities concerning the Company’s business and shall make full disclosure of all such
business opportunities to the Company. During the Consulting Period, Xx. Xxxx shall not engage,
directly or indirectly, in any business, investment, or activity that materially interferes with
Xx. Xxxx’x performance of his duties hereunder or is contrary in any material respect to the
interests of the Company or affiliates. Xx. Xxxx agrees that he shall not knowingly become
involved in such a conflict of interest with the Company or its affiliates, or upon discovery
thereof, allow such a conflict to continue. Moreover, Xx. Xxxx agrees that he shall disclose to or
discuss with the Board any facts or circumstances which might involve such a conflict of interest.
(b) Intellectual Property and Proprietary Information. All information, ideas, concepts,
improvements, discoveries, and inventions, whether patentable or not, which are conceived, made,
developed, or acquired by Xx. Xxxx, individually or in conjunction with others, during Xx. Xxxx’x
employment by the Company prior to the Retirement Date (whether during business hours or otherwise
and whether on the Company’s premises or otherwise) or in future during Xx. Xxxx’x consulting
relationship with the Company, which relate to the Company’s business, products, or services
(including all such information relating to corporate opportunities, research, financial and sales
data, pricing terms, evaluations, opinions, interpretations, acquisition prospects, the identity of
customers or their requirements, the identity of key contacts within the customer’s organizations,
or marketing and merchandising techniques) are and shall be the sole and exclusive property of the
Company and shall be disclosed to the Company. Moreover, all documents, drawings, memoranda,
notes, records, files, correspondence, manuals, models, specifications, computer programs, E-mail,
voice mail, electronic databases, maps, and all other writings or materials of any type
(“Documents”) embodying any of such information, ideas, concepts, improvements, discoveries, and
inventions are and shall be the sole and exclusive property of the Company. If Xx. Xxxx created
during his employment or creates during his consulting relationship with the Company any work of
authorship fixed in any tangible medium of expression which is the subject matter of copyright
(such as videotapes, written presentations, computer programs, E-mail, voice mail, electronic
databases, drawings, maps, architectural renditions, models, manuals, brochures, or the like)
relating to (but only to the extent such work so relates) the Company’s business, products, or
services, whether such work is created solely by Xx. Xxxx or jointly with others (whether during
business hours or otherwise and whether on the Company’s premises or otherwise), the Company shall
be deemed the author of such work if the work is prepared by Xx. Xxxx in the scope of Xx. Xxxx’x
employment or consulting relationship; or, if the work is not prepared by Xx. Xxxx within the scope
of Xx. Xxxx’x employment or consulting relationship but is specially ordered by the Company, then
the work shall be considered to be work made for hire and the Company shall be the author of the
work. If such work is neither prepared by Xx. Xxxx within the scope of Xx. Xxxx’x employment or
consulting relationship nor a work specially ordered that is deemed to
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be a work made for hire, then Xx. Xxxx hereby agrees to assign, and by these presents does
assign, to the Company all of Xx. Xxxx’x worldwide right, title, and interest in and to such work
and all rights of copyright therein. Both during the period of Xx. Xxxx’x employment by the
Company and thereafter (in the latter case, subject to reimbursement of all reasonable expenses
incurred in doing so), Xx. Xxxx shall assist the Company and its nominees, at any time, in the
protection of the Company’s worldwide right, title, and interest in and to information, ideas,
concepts, improvements, discoveries, and inventions, and its copyrighted works, including the
execution of all formal assignment documents requested by the Company or its nominees and the
execution of all lawful oaths and applications for patents and registration of copyright in the
United States and foreign countries. To the extent Xx. Xxxx’x assistance is required by the
Company under this Section 5(b) after the Consulting Period, the Company shall reimburse Xx. Xxxx
for his time required at a rate per diem mutually agreed, plus reimbursement of reasonable travel
and lodging expenses.
(c) Nondisclosure. Xx. Xxxx acknowledges that the Company’s business is highly competitive
and that the Company’s methods, strategies, books, records and documents, the Company’s technical
information concerning its products, prospects, equipment, services and processes, procurement
procedures and pricing techniques, and the names of and other information (such as credit and
financial data) concerning the Company’s customers and business affiliates, all comprise
confidential business information and trade secrets of the Company which are valuable, special, and
unique assets of the Company which the Company uses in its business to obtain a competitive
advantage over the Company’s competitors which do not know or use this information. Xx. Xxxx
further acknowledges that protection of the Company’s confidential business information and trade
secrets against unauthorized disclosure and use is of critical importance to the Company in
maintaining its competitive position. Accordingly, Xx. Xxxx agrees to protect and safeguard the
Company’s and its affiliates’ information, trade secrets, ideas, concepts, improvements,
discoveries, and inventions and any proprietary, confidential and other information relating to the
Company or its affiliates or its or their business (collectively, “Confidential Information”) and,
except as may be required by the Company, Xx. Xxxx will not, either during his employment by the
Company or thereafter, directly or indirectly, use for his own benefit or for the benefit of
another, or disclose to another, any Confidential Information, except (i) with the prior written
consent of the Company; (ii) in the course of the proper performance of Xx. Xxxx’x duties under
this Agreement; (iii) for information that becomes generally available to the public other than as
a result of the unauthorized disclosure by Xx. Xxxx; (iv) for information that becomes available to
Xx. Xxxx on a nonconfidential basis from a source other than the Company or its affiliates who is
not bound by a duty of confidentiality to the Company; or (v) as may be required by any applicable
law, rule, regulation or order. As a result of Xx. Xxxx’x employment by the Company as an employee
or engagement as a consultant, Xx. Xxxx may from time to time have access to, or knowledge of,
confidential business information or trade secrets of third parties, such as customers, suppliers,
partners and joint venturers of the Company and its affiliates. Xx. Xxxx agrees to preserve and
protect the confidentiality of such third party confidential information and trade secrets to the
same extent, and on the same basis, as the Company’s Confidential Information.
(d) Return of Intellectual Property and Company Information. Upon termination of his
employment with the Company for any reason, Xx. Xxxx will immediately deliver to the Company all
property of the Company or any of its affiliates including all
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Documents in Xx. Xxxx’x possession or under his control (including all copies thereof) which
embody any of the intellectual property and proprietary information described in Section 5(a) or
any Confidential Information. All payments and benefits due or to be paid to Xx. Xxxx shall be
contingent upon Xx. Xxxx complying with this Section 5(d) and providing a written certification to
the Company to that effect.
(e) Nondisparagement. Xx. Xxxx shall refrain, both during his employment and thereafter, from
making any disparaging oral or written statements about the Company, any of its affiliates or any
of such entities’ directors, executive officers or employees provided that this provision shall not
restrict Xx. Xxxx’x ability to review other employees’ performance while he is employed by the
Company, to provide information in connection with any internal investigation by the Board, the
Company or its internal auditors, or to respond to inquiries from governmental entities. The
Company shall refrain, and shall use its reasonable efforts to cause its directors and officers to
refrain, both during Xx. Xxxx’x employment and thereafter, from making publicly any disparaging
oral or written statements about Xx. Xxxx, provided that this sentence shall not restrict the
ability of the Board, the Company or its internal auditors to conduct reviews of Xx. Xxxx’x
performance as an employee or under this Agreement, to provide information in connection with any
internal investigation, to respond to inquiries for references or from governmental entities or to
the extent required to make such statements to comply with applicable law.
Section 6. Non-Competition; Non-Solicitation.
(a) Xx. Xxxx agrees that, effective as of the Effective Date and for the Non-Competition
Period (as defined below), Xx. Xxxx shall not, without the prior written consent of the Company,
directly or indirectly, for Xx. Xxxx or others in any geographic area (including any parish of the
State of Louisiana set forth on Exhibit B hereto) or market where the Company or any of its
affiliates are conducting any material business as of the Effective Date or the Retirement Date or
have during the twelve months previous to the Retirement Date conducted material business:
(i) engage in any business similar to or competitive with the business conducted by the
Company or its affiliates, including the offshore and shallow water pipeline and related
construction, diving, installation and salvage business and related operations, or
(ii) become an employee of or own any interest in (whether as an owner, shareholder,
joint venturer, partner or otherwise) any Competitor (as defined herein), or
(iii) render services to, consult with, or otherwise assist any Competitor.
provided, however, that nothing herein shall prohibit Xx. Xxxx from holding or making passive
investments in corporations, associations or other entities whose securities are traded in a
generally recognized market provided that Xx. Xxxx’x interest, together with those of his
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affiliates and family members does not exceed 1% of the outstanding shares or interests in such
corporation, association or entity.
(b) These non-competition obligations shall apply during the period that Xx. Xxxx is employed
by the Company and extend until the earlier of (i) 2 years after the last day that Xx. Xxxx
provides Consulting Services under this Agreement and (ii) April 30, 2010 (the “Non-Competition
Period”). The Non-Competition Period shall be extended by the duration of any violation of
provisions of this Section 6. For purposes of this Section 6, the term “Competitor” shall mean
Technip S.A., Xxxxxxx X.X., Acergy S.A. (formerly Xxxxx Offshore S.A.), Allseas Marine Contractors
S.A., J. Xxx XxXxxxxxx S.A., Saipem S.p.a., Helix Energy Solutions Group, Inc. (formerly Cal Dive
International, Inc.), Xxxxxxx X.X. , Horizon Offshore, Inc. and Offshore Specialties Fabricators,
Inc, and Wilbros Brothers Inc., and any successor to any material portion of their offshore
construction business, and any corporation, association or entity that materially engages, directly
or indirectly, in any business similar to or competitive with the business conducted by the Company
or its affiliates, including the offshore and shallow water pipeline and related construction,
diving, installation and salvage businesses and related operations.
(c) In addition to the restrictions set forth in Section 6(a), Xx. Xxxx agrees that, during
the Non-Competition Period, Xx. Xxxx will not, either directly or indirectly to the extent not
otherwise publicly known, (i) make known to any person, corporation, association or entity that is
in competition with the business of the Company or any of its affiliates the names and addresses
of, or any other information pertaining to, any of the suppliers or customers of the Company or any
of its affiliates, or any potential customers of the Company or any of its affiliates upon whom the
Company or any of its affiliates has called in the preceding 12 months, (ii) call on or solicit, or
assist others in calling on or soliciting, any of the suppliers or customers of the Company or any
of its affiliates, for the purpose of taking away or attempting to take away business from the
Company, whether for Xx. Xxxx or for any other person, corporation, association or entity or (iii)
on his own account or for any other person, corporation, association, or other entity solicit any
employee of the Company or any of its affiliates (other than Xxxxxxx Xxxxxxxx) to leave such
employment or assist any other person, corporation, association or other entity in such
solicitation by providing information with respect to any employee including the skills, knowledge,
experience or compensation of employees of the Company or any of its affiliates except that clause
(iii) shall not prohibit the hiring of any such employee (A) who responds to any public advertising
for employment without any other direct or indirect solicitation or (B) whose employment by the
Company or its affiliates has been terminated prior to the commencement of discussions with such
employee.
(d) Xx. Xxxx understands that the restrictions set forth in Section 5 and this Section 6 may
limit Xx. Xxxx’x ability to engage in certain businesses in certain geographic areas or markets
during the period provided for above, but acknowledges that Xx. Xxxx will receive sufficiently high
remuneration and other benefits under this Agreement to justify such restriction.
(e) Whenever possible, each provision of the covenant not to compete shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any provision of this
covenant not to compete shall be prohibited by or invalid under applicable law in any particular
jurisdiction whether it be a municipality, county, parish, state or country, such provision shall
be ineffective only to the extent of such prohibition or invalidity and only in such
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jurisdiction, without invalidating the remaining provisions of this covenant not to compete.
If any provision of this covenant not to compete shall, for any reason, be judged by any court of
competent jurisdiction to be invalid or unenforceable in any particular jurisdiction whether it be
a municipality, county, parish, state or country, such judgment shall not affect, impair or
invalidate the remainder of this covenant not to compete but shall be confined in its operation to
the particular jurisdiction as to provision of this covenant not to compete directly involved in
the controversy in which such judgment shall have been rendered. In the event that the provisions
of this covenant not to compete should ever be deemed to exceed the time or geographic limitations
permitted by applicable laws in any particular jurisdiction whether it be a municipality, county,
parish, state or country, then such provision shall be reformed for purposes of such particular
jurisdiction to the maximum time or geographic limitations permitted by applicable law.
Section 7. Arbitration; Expenses of Enforcement.
Except as otherwise specifically provided in this Agreement, the Company and Xx. Xxxx agree to
submit exclusively to final and binding arbitration any and all disputes or disagreements relating
to or concerning the interpretation, performance or subject matter of this Agreement in accordance
with the National Rules for the Resolution of Employment Disputes of the American Arbitration
Association (“AAA”) using a single arbitrator. The arbitration will take place in Houston, Texas.
Xx. Xxxx and the Company agree that the decision of the arbitrators will be final and binding on
both parties. Arbitration shall be commenced by either party filing a demand for arbitration with
the AAA within 60 days after such dispute has arisen. The prevailing party in such an arbitration
proceeding shall be entitled to recover from the non-prevailing party all reasonable out-of-pocket
costs and disbursements incurred by such party in connection therewith (including reasonable
attorneys’ fees), as well as any and all charges that may be made for the cost of the arbitration
and the fees of the arbitrator; provided, however, that after a Change in Control and upon demand
by Xx. Xxxx made to the Company, the Company shall reimburse Xx. Xxxx for the reasonable
out-of-pocket expenses (including attorneys’ fees) incurred by Xx. Xxxx after the Change in Control
in enforcing or seeking to enforce the payment of any amount or other benefit to which Xx. Xxxx
shall have become entitled under this Agreement as a result of the termination of Xx. Xxxx’x
employment after the Change in Control regardless of the outcome of such enforcement effort. Any
court having jurisdiction may enter a judgment upon the award rendered by the arbitrator. In the
event of litigation to enforce an arbitration award in connection with or concerning the subject
matter of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing
party all reasonable out-of-pocket costs and disbursements incurred by such party in connection
therewith (including reasonable attorneys’ fees). Notwithstanding the provisions of this Section
7, the Company may, if it so chooses, bring an action in any court of competent jurisdiction for
injunctive relief to enforce Xx. Xxxx’x obligations under Sections 3, 5 or 6 hereof.
Section 8. Representations and Warranties by Xx. Xxxx.
(a) Xx. Xxxx represents and warrants to the Company that the execution and delivery by Xx.
Xxxx of this Agreement do not, and the performance by Xx. Xxxx of Xx. Xxxx’x obligations hereunder
will not, with or without the giving of notice or the passage of time, or both (i) violate any
judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to
Xx. Xxxx; or (ii) conflict with, result in the breach of any provisions of, or
10
constitute a default under, any agreement to which Xx. Xxxx is a party or by which Xx. Xxxx is
or may be bound.
(b) Xx. Xxxx acknowledges and represents that (i) he has had sufficient time and opportunity
to have this Agreement reviewed by legal counsel of his choosing and to be advised by such counsel
as to his rights and obligations hereunder, (ii) he has read and fully understands the terms of
this Agreement and voluntarily accepts them, and (iii) he is not relying on any statements or
representations of the Company or any of its representatives regarding the tax effects or other
legal implications of his execution of this Agreement or his receipt of payments or other benefits
hereunder.
Section 9. Successors; Binding Agreement.
(a) This Agreement is personal to Xx. Xxxx and he may not assign or pledge any interest herein
or delegate or assign any obligation hereunder without the Company’s prior written consent. This
Agreement shall inure to the benefit of and be enforceable by Xx. Xxxx’x personal or legal
representatives, executors, administrators, heirs, and beneficiaries.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors.
(c) In the event of a Change of Control, any successor (whether direct or indirect, by
purchase, merger, amalgamation, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company shall expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, the “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement as provided for in this Section 9(c) or which otherwise becomes
bound by the terms and provisions of this Agreement by operation of law or otherwise.
Section 10. Miscellaneous.
(a) Notices. All notices and other communications required or permitted hereunder will be in
writing and will be deemed to have been given (i) when delivered by hand (with written confirmation
of receipt), (ii) when sent by facsimile (with written confirmation of receipt) or by email,
provided that a copy is mailed by registered mail, return receipt requested, or (iii) two business
days after being sent by a nationally recognized overnight delivery service (return receipt
requested), in each case to the appropriate addresses, facsimile numbers or email addresses set
forth below (or to such other addresses, facsimile numbers or email addresses as a party may
designate by notice to the other party):
11
If to the Company, to:
Board of Directors
Global Industries, Ltd.
11490 Westheimer – Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Fax No. 000-000-0000
Email: xxxxx@xxxxxxx.xxx
Global Industries, Ltd.
11490 Westheimer – Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Fax No. 000-000-0000
Email: xxxxx@xxxxxxx.xxx
If to Xx. Xxxx, to:
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
(b) Taxes and Payments. All salary, bonus and other payments made or benefits provided by the
Company to Xx. Xxxx as a result of his being an employee of the Company will be subject to (i) such
payroll and withholding deductions as may be required by applicable law and (ii) other deductions
applied generally for insurance and other employee benefit plans in which Xx. Xxxx participates.
Xx. Xxxx shall pay all social security, federal income taxes, unemployment insurance, worker’s
compensation insurance, pensions, annuities or other liabilities or taxes incurred by or on behalf
or for the benefit of Xx. Xxxx arising out of the performance of his obligations under this
Agreement.
(c) Entire Agreement; Modification. This Agreement (including the exhibit attached hereto and
the forms of award agreements referenced herein and the plans under which such awards were granted)
supersedes, replaces and merges all previous agreements, term sheets, and discussions relating to
the same or similar subject matters between Xx. Xxxx and the Company and constitutes the entire
agreement between Xx. Xxxx and the Company with respect to the subject matter of this Agreement.
For the avoidance of doubt, except as expressly provided herein this Agreement shall not affect the
rights or obligations of the Company or Xx. Xxxx under existing contracts, compensatory awards and
option agreements or that certain Registration Rights Agreement dated February 1993. This
Agreement may not be modified on behalf of the Company in any respect by any verbal statement,
representation or agreement made by any employee, officer, director or representative of the
Company or by any written agreement unless signed by a director or officer of the Company who is
expressly authorized by the Board to execute such document.
(d) Severability. If any provision of this Agreement or application thereof to anyone or
under any circumstances should be determined to be invalid or unenforceable, such invalidity or
unenforceability will not affect any other provisions or applications of this Agreement which can
be given effect without the invalid or unenforceable provision or application. In addition, if any
provision of this Agreement is held by an arbitration panel or a court of competent jurisdiction to
be invalid, unenforceable, unreasonable, unduly restrictive or overly broad, the parties intend
that such arbitration panel or court modify said provision to the
12
extent necessary so as to render it valid, enforceable, reasonable and not unduly restrictive
or overly broad.
(e) Waiver. Neither the failure nor any delay by either party in exercising any right, power,
or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other right, power, or
privilege.
(f) Reimbursement of Attorneys’ Fees. The Company shall pay up to $40,000.00 for fees and
expenses of legal counsel for Xx. Xxxx’x in connection with the review and execution of this
Agreement.
(g) Construction. The parties agree that no provision of this Agreement shall be interpreted
or construed against any party solely because that party or its legal counsel drafted such
provision. The headings in this Agreement are provided for convenience only and will not affect
its construction or interpretation. All references to “Section” or “Sections” refer to the
corresponding Section or Sections of this Agreement unless otherwise specified. Unless otherwise
expressly provided, the word “including” does not limit the preceding words or terms. All
references in this Agreement to dollars or “$” mean lawful money of the Unites States.
(h) Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original copy of this Agreement and all of which, when taken together, will
be deemed to constitute one and the same agreement.
(i) Governing Law; Jurisdiction. The internal laws of the State of Louisiana without
application of any conflicts of laws or principles will govern the interpretation, validity,
enforcement and effect of this Agreement without regard to the place of execution or the place for
performance thereof. THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY DISPUTE OR LITIGATION
WITH RESPECT TO THIS AGREEMENT. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF LOUISIANA AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN
THE STATE OF LOUISIANA IN CONNECTION WITH ANY DISPUTE THAT ARISES IN RESPECT OF THE INTERPRETATION
AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS
A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF THAT IT IS NOT
SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE
IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH
DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS. THE PARTIES HEREBY CONSENT TO AND GRANT ANY
SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE
AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR
PROCEEDING IN THE MANNER
13
PROVIDED IN SECTION 10(a) OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID
AND SUFFICIENT SERVICE THEREOF.
(j) Specific Performance; Remedies. Xx. Xxxx acknowledges that money damages would not be
sufficient remedy for any breach of the covenants and provisions of Sections 3, 5 and 6 by Xx.
Xxxx, and the Company shall be entitled to enforce the provisions of Sections 3, 5 and 6 by
terminating any payments then owing to Xx. Xxxx under this Agreement (provided, that the Company
shall not terminate any Medical Benefits to be provided under this Agreement unless and until there
is a final judgment or ruling that Xx. Xxxx has willfully failed to perform in any material
respects any of his obligations under this Agreement). Notwithstanding the provisions of Section
7, by seeking specific performance and injunctive relief in courts of applicable jurisdiction as
remedies for such breach or any threatened breach. Such remedies shall not be deemed the exclusive
remedies for a breach of Sections 3, 5 or 6, but shall be in addition to all remedies available at
law or in equity to the Company, including the recovery of damages from Xx. Xxxx and his agents
involved in such breach, and remedies otherwise available to the Company.
[SIGNATURES ON FOLLOWING PAGE]
14
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this
Agreement as to be effective as of the Effective Date.
| COMPANY: | ||||||||
| GLOBAL INDUSTRIES, LTD. | ||||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||||
| Xxxxx X. Xxxxxx | ||||||||
| Chairman Nominating and Governance Committee of the Board of Directors |
||||||||
| XX. XXXX: | ||||||||
| /s/ Xxxxxxx X. Xxxx | ||||||||
| Xxxxxxx X. Xxxx | ||||||||
15
EXHIBIT A
Designated Performance Units
Grant of 35,000 Units made on February 14, 2006
Designated Restricted Stock Awards
Grant of 250,000 Restricted Shares made on September 28, 2004
A-1
EXHIBIT B
Louisiana Parishes
Acadia Parish
Xxxxx Xxxxxx
Ascension Parish
Assumption Parish
Avoyelles Parish
Xxxxxxxxxx Parish
Bienville Parish
Bossier Parish
Caddo Parish
Calcasieu Parish
Xxxxxxxx Xxxxxx
Xxxxxxx Parish
Catahoula Parish
Claiborne Parish
Concordia Parish
De Soto Parish
East Baton Rouge Parish
East Xxxxxxx Xxxxxx
East Xxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Ascension Parish
Assumption Parish
Avoyelles Parish
Xxxxxxxxxx Parish
Bienville Parish
Bossier Parish
Caddo Parish
Calcasieu Parish
Xxxxxxxx Xxxxxx
Xxxxxxx Parish
Catahoula Parish
Claiborne Parish
Concordia Parish
De Soto Parish
East Baton Rouge Parish
East Xxxxxxx Xxxxxx
East Xxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Iberia Parish
Iberville Parish
Xxxxxxx Parish
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lafourche Parish
La Salle Parish
Lincoln Parish
Xxxxxxxxxx Parish
Madison Parish
Xxxxxxxxx Parish
Natchitoches Parish
Orleans Parish
Ouachita Parish
Plaquemines Parish
Pointe Coupee Parish
Rapides Parish
Red River Parish
Richland Parish
Xxxxxx Xxxxxx
St. Xxxxxxx Xxxxxx
Iberville Parish
Xxxxxxx Parish
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lafourche Parish
La Salle Parish
Lincoln Parish
Xxxxxxxxxx Parish
Madison Parish
Xxxxxxxxx Parish
Natchitoches Parish
Orleans Parish
Ouachita Parish
Plaquemines Parish
Pointe Coupee Parish
Rapides Parish
Red River Parish
Richland Parish
Xxxxxx Xxxxxx
St. Xxxxxxx Xxxxxx
St. Xxxxxxx Xxxxxx
St. Xxxxxx Xxxxxx
St. Xxxxx Xxxxxx
St. Xxxx the Baptist Parish
St. Landry Parish
St. Xxxxxx Xxxxxx
St. Xxxx Xxxxxx
St. Tammany Parish
Tangipahoa Parish
Tensas Parish
Terrebonne Parish
Union Parish
Vermilion Parish
Xxxxxx Xxxxxx
Washington Parish
Webster Parish
West Baton Rouge Parish
West Xxxxxxx Xxxxxx
West Xxxxxxxxx Xxxxxx
Xxxx Xxxxxx
St. Xxxxxx Xxxxxx
St. Xxxxx Xxxxxx
St. Xxxx the Baptist Parish
St. Landry Parish
St. Xxxxxx Xxxxxx
St. Xxxx Xxxxxx
St. Tammany Parish
Tangipahoa Parish
Tensas Parish
Terrebonne Parish
Union Parish
Vermilion Parish
Xxxxxx Xxxxxx
Washington Parish
Webster Parish
West Baton Rouge Parish
West Xxxxxxx Xxxxxx
West Xxxxxxxxx Xxxxxx
Xxxx Xxxxxx
B-1
