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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
BY AND BETWEEN
NOBLE DRILLING CORPORATION
AND
XXXXXX X. XXXXXXXX
January 1, 1999
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EMPLOYMENT AGREEMENT
TABLE OF CONTENTS
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1. Employment..................................................................................1
2. Employment Term.............................................................................1
(a) Term............................................................................1
(b) Relationship Prior to Effective Date............................................1
3. Positions and Duties........................................................................2
4. Compensation and Related Matters............................................................3
(a) Base Salary.....................................................................3
(b) Annual Bonus....................................................................3
(c) Employee Benefits...............................................................4
(i) Incentive, Savings, and Retirement Plans..........................4
(ii) Welfare Benefit Plans.............................................4
(d) Expenses........................................................................4
(e) Fringe Benefits.................................................................4
(f) Vacation........................................................................5
5. Termination of Employment...................................................................5
(a) Death...........................................................................5
(b) Disability......................................................................5
(c) Termination by Company..........................................................5
(d) Termination by Executive........................................................6
(e) Notice of Termination...........................................................7
(f) Date of Termination.............................................................7
6. Obligations of the Company Upon Termination.................................................8
(a) Good Reason or During the Window Period; Other Than for
Cause, Death, or Disability.....................................................8
(b) Death..........................................................................10
(c) Disability.....................................................................11
(d) Cause; Other Than for Good Reason or During the Window
Period.........................................................................11
7. Certain Additional Payments by the Company.................................................12
8. Representations and Warranties.............................................................14
9. Confidential Information...................................................................14
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Page
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10. Certain Definitions........................................................................15
(a) Effective Date.................................................................15
(b) Change of Control Period.......................................................15
(c) Change of Control..............................................................15
11. Full Settlement............................................................................17
12. No Effect on Other Contractual Rights......................................................18
13. Indemnification; Directors and Officers Insurance..........................................18
14. Injunctive Relief..........................................................................18
15. Governing Law..............................................................................18
16. Notices....................................................................................18
17. Binding Effect; Assignment; No Third Party Benefit.........................................19
18. Miscellaneous..............................................................................19
(a) Amendment......................................................................19
(b) Waiver.........................................................................20
(c) Withholding Taxes..............................................................20
(d) Nonalienation of Benefits......................................................20
(e) Severability...................................................................20
(f) Entire Agreement...............................................................20
(g) Captions.......................................................................20
(h) References.....................................................................20
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of January 1,
1999, by and between NOBLE DRILLING CORPORATION, a Delaware corporation (the
"Company"), and XXXXXX X. XXXXXXXX (the "Executive");
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
to assure that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat, or occurrence of a Change of Control
(as defined in Paragraph 10(c)) of the Company; and
WHEREAS, the Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal uncertainties
and risks created by a pending or threatened Change of Control and to encourage
the Executive's full attention and dedication to the Company currently and in
the event of any pending or threatened Change of Control, and to provide the
Executive with compensation and benefits upon a Change of Control which ensure
that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other corporations; and
WHEREAS, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and the Executive hereby agree as follows:
1. Employment. The Company agrees that the Company or an affiliated
company (as hereafter defined) will continue the Executive in its employ, and
the Executive agrees to remain in the employ of the Company or an affiliated
company, for the period set forth in Paragraph 2(a), in the positions and with
the duties and responsibilities set forth in Paragraph 3, and upon the other
terms and conditions herein provided. As used in this Agreement, the term
"affiliated company" shall include any company controlled by, controlling, or
under common control with the Company.
2. Employment Term.
(1) Term. The employment of the Executive by the Company as provided
in Paragraph 1 shall be for the period commencing on the Effective Date (as
defined in Paragraph 10 (a)) through and ending on the third anniversary of
such date (the "Employment Term").
(2) Relationship Prior to Effective Date. The Executive and the
Company acknowledge that, except as may otherwise be provided under any written
agreement between the Executive and the Company other than this Agreement, the
employment of the Executive by the Company is "at will" and, prior to the
Effective Date, may be terminated by either the Executive or
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the Company at any time. Moreover, if prior to the Effective Date, the
Executive's employment with the Company terminates, then the Executive shall
have no further rights under this Agreement. For purposes of this Paragraph
2(b) only, the term Company shall mean and include the company that employs
Executive, whether Noble Drilling Corporation or an affiliated company of Noble
Drilling Corporation.
3. Positions and Duties.
(1) During the Employment Term, the Executive's position (including
status, offices, titles, and reporting requirements), duties, functions,
responsibilities, and authority shall be at least commensurate in all material
respects with the most significant of those held or exercised by or assigned to
the Executive in respect of the Company and its affiliated companies at any
time during the 120-day period immediately preceding the Effective Date.
(2) During the Employment Term, the Executive shall devote the
Executive's full time, skill, and attention and the Executive's reasonable best
efforts during normal business hours to the business and affairs of the
Company, and in furtherance of the business and affairs of its affiliated
companies, to the extent necessary to discharge faithfully and efficiently the
duties and responsibilities delegated and assigned to the Executive herein or
pursuant hereto, except for usual, ordinary, and customary periods of vacation
and absence due to illness or other disability; provided, however, that the
Executive may (i) serve on industry-related, civic or charitable boards or
committees, (ii) with the approval of the Board, serve on corporate boards or
committees, (iii) deliver lectures, fulfill speaking engagements, or teach at
educational institutions, and (iv) manage the Executive's personal investments,
so long as such activities do not significantly interfere with the performance
and fulfillment of the Executive's duties and responsibilities as an employee
of the Company or an affiliated company in accordance with this Agreement and,
in the case of the activities described in clause (ii) of this proviso, will
not, in the good faith judgment of the Board, constitute an actual or potential
conflict of interest with the business of the Company or an affiliated company.
It is expressly understood and agreed that, to the extent that any such
activities have been conducted by the Executive during the term of the
Executive's employment by the Company or its affiliated companies prior to the
Effective Date consistent with the provisions of this Paragraph 3(b), the
continued conduct of such activities (or of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance and fulfillment of the Executive's duties and
responsibilities to the Company.
(3) In connection with the Executive's employment hereunder, the
Executive shall be based at the location where the Executive was regularly
employed immediately prior to the Effective Date or any office which is the
headquarters of the Company and is less than 50 miles from such location,
subject, however, to required travel on the business of the Company to an
extent substantially consistent with the Executive's business travel
obligations during the three-year period immediately preceding the Effective
Date.
(4) All services that the Executive may render to the Company or any
of its affiliated companies in any capacity during the Employment Term shall be
deemed to be services required by this Agreement and consideration for the
compensation provided for herein.
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4. Compensation and Related Matters.
(1) Base Salary. During the Employment Term, the Executive shall
receive an annual base salary ("Base Salary") at least equal to 12 times the
highest monthly base salary paid or payable, including any base salary that has
been earned but deferred, to the Executive by the Company and its affiliated
companies in respect of the 12-month period immediately preceding the month in
which the Effective Date occurs. The Base Salary shall be payable in
installments in accordance with the general payroll practices of the Company in
effect at the time such payment is made, but in no event less frequently than
monthly, or as otherwise mutually agreed upon. During the Employment Term, the
Executive's Base Salary shall be subject to such increases (but not decreases)
as may be determined from time to time by the Board in its sole discretion;
provided, however, that the Executive's Base Salary (i) shall be reviewed by
the Board no later than 12 months after the last salary increase awarded to the
Executive prior to the Effective Date and thereafter at least annually, with a
view to making such upward adjustment, if any, as the Board deems appropriate,
and (ii) shall be increased at any time and from time to time as shall be
substantially consistent with increases in base salary generally awarded in the
ordinary course of business to the Executive's peer executives of the Company
or any of its affiliated companies. Base Salary shall not be reduced after any
such increase. The term Base Salary as used in this Agreement shall refer to
the Base Salary as so increased. Payments of Base Salary to the Executive shall
not be deemed exclusive and shall not prevent the Executive from participating
in any employee benefit plans, programs, or arrangements of the Company and its
affiliated companies in which the Executive is entitled to participate.
Payments of Base Salary to the Executive shall not in any way limit or reduce
any other obligation of the Company hereunder, and no other compensation,
benefit, or payment to the Executive hereunder shall in any way limit or reduce
the obligation of the Company regarding the Executive's Base Salary hereunder.
(2) Annual Bonus. In addition to Base Salary, the Executive shall be
awarded, in respect of each fiscal year of the Company ending during the
Employment Term, an annual bonus (the "Annual Bonus") in cash in an amount at
least equal to the Executive's highest aggregate bonus under all Company bonus
plans, programs, arrangements, and awards (including the Company's Short-Term
Incentive Plan and any successor plan), in respect of any fiscal year in the
three full fiscal year period ended immediately prior to the Effective Date
(annualized for any fiscal year consisting of less than 12 full months or with
respect to which the Executive has been employed by the Company for less than
12 full months) (such highest amount is hereinafter referred to as the "Recent
Annual Bonus"). Each such Annual Bonus shall be paid no later than the end of
the third month of the fiscal year next following the fiscal year in respect of
which the Annual Bonus is awarded, unless the Executive shall elect to defer
the receipt of such Annual Bonus.
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(3) Employee Benefits.
(1) Incentive, Savings, and Retirement Plans. During the
Employment Term, the Executive shall be entitled to participate in
all incentive, savings, and retirement plans, programs, and
arrangements applicable generally to the Executive's peer executives
of the Company and its affiliated companies, but in no event shall
such plans, programs, and arrangements provide the Executive with
incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities, and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and its affiliated companies for the Executive under such plans,
programs, and arrangements as in effect at any time during the
120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, those provided generally at any time
after the Effective Date to the Executive's peer executives of the
Company and its affiliated companies.
(2) Welfare Benefit Plans. During the Employment Term, the
Executive and/or the Executive's family, as the case may be, shall be
eligible to participate in and shall receive all benefits under all
welfare benefit plans, programs, and arrangements provided by the
Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death, and travel accident
insurance plans, programs, and arrangements) to the extent applicable
generally to the Executive's peer executives of the Company and its
affiliated companies, but in no event shall such plans, programs, and
arrangements provide the Executive with welfare benefits that are
less favorable, in the aggregate, than the most favorable of such
plans, programs, and arrangements as in effect for the Executive at
any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided
generally at any time after the Effective Date to the Executive's
peer executives of the Company and its affiliated companies.
(4) Expenses. During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in performing the Executive's duties and responsibilities
hereunder, in accordance with the most favorable policies, practices, and
procedures of the Company and its affiliated companies as in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally
at any time thereafter with respect to the Executive's peer executives of the
Company and its affiliated companies.
(5) Fringe Benefits. During the Employment Term, the Executive shall
be entitled to fringe benefits, including, without limitation, tax and
financial planning services, payment of club dues, and, if applicable, use of
an automobile and payment of related expenses, in accordance with the most
favorable policies, practices, and procedures of the Company and its affiliated
companies as in effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time after the Effective Date with
respect to the Executive's peer executives of the Company and its affiliated
companies.
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(6) Vacation. During the Employment Term, the Executive shall be
entitled to paid vacation and such other paid absences, whether for holidays,
illness, personal time, or any similar purposes, in accordance with the most
favorable policies, practices, and procedures of the Company and its affiliated
companies as in effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time after the Effective Date with
respect to the Executive's peer executives of the Company and its affiliated
companies.
5. Termination of Employment.
(1) Death. The Executive's employment shall terminate automatically
upon the Executive's death during the Employment Term.
(2) Disability. If the Company determines in good faith that the
Disability (as defined below) of the Executive has occurred during the
Employment Term, the Company may give the Executive notice of its intention to
terminate the Executive's employment. In such event, the Executive's employment
hereunder shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that,
within the 30-day period after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For purposes of
this Agreement, "Disability" shall mean the absence of the Executive from the
Executive's duties hereunder on a full-time basis for an aggregate of 180 days
within any given period of 270 consecutive days (in addition to any statutorily
required leave of absence and any leave of absence approved by the Company), as
a result of incapacity of the Executive, despite any reasonable accommodation
required by law, due to bodily injury or disease or any other mental or
physical illness, which will, in the opinion of a physician selected by the
Company or its insurers and acceptable to the Executive or the Executive's
legal representative, be permanent and continuous during the remainder of the
Executive's life.
(3) Termination by Company. The Company may terminate the Executive's
employment hereunder for Cause (as defined below). For purposes of this
Agreement, "Cause" shall mean:
(1) the willful and continued failure of the Executive to
perform substantially the Executive's duties hereunder (other than
any such failure resulting from bodily injury or disease or any other
incapacity due to mental or physical illness), after a written demand
for substantial performance is delivered to the Executive by the
Board or the Chief Executive Officer of the Company which
specifically identifies the manner in which the Board or Chief
Executive Officer believes the Executive has not substantially
performed the Executive's duties; or
(2) the willful engaging by the Executive in illegal conduct or
gross misconduct that is materially and demonstrably detrimental to
the Company, monetarily or otherwise.
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For purposes of this provision, no act, or failure to act, on the part of the
Executive shall be considered "willful" unless done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the Executive's
action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
another senior officer of the Company or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or omitted to be done,
by the Executive in good faith and in the best interests of the Company. The
cessation of employment of the Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds of
the entire membership of the Board then in office at a meeting of the Board
called and held for such purpose (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together with counsel, to
be heard before the Board) finding that, in the good faith opinion of the
Board, the Executive is guilty of the conduct described in subparagraph (i) or
(ii) above, and specifying the particulars thereof in detail.
(4) Termination by Executive. The Executive may terminate the
Executive's employment hereunder (i) at any time during the Employment Term for
Good Reason (as defined below) or (ii) during the Window Period (as defined
below) without any reason.
For purposes of this Agreement, the "Window Period" shall mean the 30-day
period immediately following the first anniversary of the Effective Date, and
"Good Reason" shall mean any of the following (without the Executive's express
written consent):
(1) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status,
offices, titles, and reporting requirements), duties, functions,
responsibilities, or authority as contemplated by Paragraph 3(a) of
this Agreement, or any other action by the Company that results in a
diminution in such position, duties, functions, responsibilities, or
authority, excluding for this purpose an isolated, insubstantial, and
inadvertent action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
(2) any failure by the Company to comply with any of the
provisions of Paragraph 4 of this Agreement, other than an isolated,
insubstantial, and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(3) the Company's requiring the Executive to be based at any
office or location other than as provided in Paragraph 3(c) of this
Agreement or the Company's requiring the Executive to travel on
Company business to a substantially greater extent than during the
three-year period immediately preceding the Effective Date;
(4) any failure by the Company to comply with and satisfy
Paragraph 17(c) of this Agreement; or
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(5) any purported termination by the Company of the Executive's
employment hereunder otherwise than as expressly permitted by this
Agreement, and for purposes of this Agreement, no such purported
termination shall be effective.
For purposes of this Paragraph 5(d), any good faith determination of "Good
Reason" made by the Executive shall be conclusive.
(5) Notice of Termination. Any termination of the Executive's
employment hereunder by the Company or by the Executive (other than a
termination pursuant to Paragraph 5(a)) shall be communicated by a Notice of
Termination (as defined below) to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) in the
case of a termination for Disability, Cause, or Good Reason, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated, and
(iii) specifies the Date of Termination (as defined in Paragraph 5(f) below);
provided, however, that, notwithstanding any provision in this Agreement to the
contrary, a Notice of Termination given in connection with a termination for
Good Reason shall be given by the Executive within a reasonable period of time,
not to exceed 120 days, following the occurrence of the event giving rise to
such right of termination. The failure by the Company or the Executive to set
forth in the Notice of Termination any fact or circumstance which contributes
to a showing of Disability, Cause, or Good Reason shall not waive any right of
the Company or the Executive hereunder or preclude the Company or the Executive
from asserting such fact or circumstance in enforcing the Company's or the
Executive's rights hereunder.
(6) Date of Termination. For purposes of this Agreement, the "Date of
Termination" shall mean the effective date of termination of the Executive's
employment hereunder, which date shall be (i) if the Executive's employment is
terminated by the Executive's death, the date of the Executive's death, (ii) if
the Executive's employment is terminated because of the Executive's Disability,
the Disability Effective Date, (iii) if the Executive's employment is
terminated by the Company for Cause or by the Executive for Good Reason, the
date on which the Notice of Termination is given, (iv) if the Executive's
employment is terminated pursuant to Paragraph 2(a), the date on which the
Employment Term ends pursuant to Paragraph 2(a) due to a party's delivery of a
Notice of Termination thereunder, and (v) if the Executive's employment is
terminated for any other reason, the date specified in the Notice of
Termination, which date shall in no event be earlier than the date such notice
is given; provided, however, that if within 30 days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties or by a final judgment,
order, or decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected).
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6. Obligations of the Company Upon Termination.
(1) Good Reason or During the Window Period; Other Than for Cause,
Death, or Disability. If, during the Employment Term, the Company shall
terminate the Executive's employment hereunder other than for Cause or
Disability or the Executive shall terminate the Executive's employment either
for Good Reason or without any reason during the Window Period:
(1) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
(1) the sum of (1) the Executive's Base Salary through the Date
of Termination to the extent not theretofore paid, (2) the product of
(x) the greater of (I) the Recent Annual Bonus and (II) the Annual
Bonus paid or payable, including by reason of any deferral, to the
Executive (and annualized for any fiscal year consisting of less than
12 full months or for which the Executive has been employed by the
Company for less than 12 full months) in respect of the most recently
completed fiscal year of the Company during the Employment Term, if
any (such greater amount hereinafter referred to as the "Highest
Annual Bonus"), and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365, and (3) any
compensation previously deferred by the Executive (together with any
accrued interest or earnings thereon) and any accrued vacation pay,
in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) are hereinafter
referred to as the "Accrued Obligations"); and
(2) an amount (such amount is hereinafter referred to as the
"Severance Amount") equal to the product of (1) three and (2) the sum
of (x) the Executive's Base Salary and (y) the Highest Annual Bonus;
and
(3) a separate lump-sum supplemental retirement benefit (the
amount of such benefit hereinafter referred to as the "Supplemental
Retirement Amount") equal to the difference between (1) the actuarial
equivalent (utilizing for this purpose the actuarial assumptions
utilized with respect to the qualified defined benefit retirement
plan of the Company and its affiliated companies in which the
Executive is eligible to participate (or any successor plan thereto)
(the "Retirement Plan") during the 120-day period immediately
preceding the Effective Date) of the benefit payable under the
Retirement Plan and any supplemental and/or excess retirement plan of
the Company and its affiliated companies providing benefits for the
Executive (the "SERP") which the Executive would receive if the
Executive's employment continued at the compensation level provided
for in Paragraphs 4(a) and 4(b)(i) for the remainder of the
Employment Term, assuming for this purpose that all accrued benefits
are fully vested and that benefit accrual formulas are no less
advantageous to the Executive than those in effect during the 120-day
period immediately preceding the Effective Date, and
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(2) the actuarial equivalent (utilizing for this purpose the
actuarial assumptions utilized with respect to the Retirement Plan
during the 120-day period immediately preceding the Effective Date)
of the Executive's actual benefit (paid or payable), if any, under
the Retirement Plan and the SERP; and
(2) for three years after the Executives's Date of Termination,
or such longer period as any plan, program, or arrangement may
provide, the Company shall continue benefits to the Executive and/or
the Executive's family at least equal to those that would have been
provided to them in accordance with the plans, programs, and
arrangements described in Paragraph 4(c)(ii) if the Executive's
employment had not been terminated, in accordance with the most
favorable plans, programs, and arrangements of the Company as in
effect and applicable generally to the Executive's peer executives of
the Company and its affiliated companies and their families during
the 120-day period immediately preceding the Effective Date or, if
more favorable to the Executive, as in effect generally at any time
thereafter with respect to the Executive's peer executives of the
Company and its affiliated companies and their families; provided,
however, that if the Executive becomes reemployed with another
employer and is eligible to receive medical or other welfare benefits
under another employer provided plan, the medical and other welfare
benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility (such
continuation of such benefits for the applicable period herein set
forth is hereinafter referred to as "Welfare Benefit Continuation")
(for purpose of determining eligibility of the Executive for retiree
benefits pursuant to such plans, programs, and arrangements, the
Executive shall be considered to have remained employed until three
years after the Date of Termination and to have retired on the last
day of such period); and
(3) the Company shall, at its sole expense as incurred, provide
the Executive with outplacement services the scope and provider of
which shall be selected by the Executive in the Executive's sole
discretion; and
(4) with respect to all options to purchase Common Stock held by
the Executive pursuant to a Company stock option plan on or prior to
the Date of Termination, irrespective of whether such options are
then exercisable, the Executive shall have the right, during the
60-day period after the Date of Termination, to elect to surrender
all or part of such options in exchange for a cash payment by the
Company to the Executive in an amount equal to the number of shares
of Common Stock subject to the Executive's option multiplied by the
excess of (x) over (y), where (x) equals the highest reported sale
price of a share of Common Stock in any transaction reported on the
New York Stock Exchange during the 60-day period prior to and
including the Executive's Date of Termination and (y) equals the
purchase price per share covered by the option. Such cash payments
shall be made within 30 days after the date of the Executive's
election; provided, however, that if the Executive's Date of
Termination is within six months after the date of grant of a
particular option held by the Executive and the Executive is subject
to Section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), any cash payments related thereto shall be made
on the date which is six months and one day after the date of grant
of such option to the extent necessary to prevent the imposition of
the disgorgement provisions under Section 16(b).
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Notwithstanding the foregoing, if any right granted pursuant to the
foregoing would make any change of control transaction ineligible for
pooling of interests accounting treatment under XXX Xx. 00 that but
for this Section 6(a)(iv) would otherwise be eligible for such
accounting treatment, the Executive shall receive shares of Common
Stock with a fair market value equal to the cash that would otherwise
be payable hereunder in substitution for the cash, provided that any
such shares of Common Stock so delivered to the Executive shall be
registered under the Securities Act of 1933, as amended; any options
outstanding as of the Date of Termination and not then exercisable
shall become fully exercisable as of the Executive's Date of
Termination, and to the extent the Executive does not elect to
surrender same for a cash payment (or the equivalent number of shares
of Common Stock) as provided above, such options shall remain
exercisable after the Executive's Date of Termination in accordance
with the terms thereof; and restrictions applicable to any shares of
Common Stock awarded to the Executive by the Company shall lapse, as
of the date of the Executive's Date of Termination; and
(5) all club memberships and other memberships that the Company
was providing for the Executive's use at the time Notice of
Termination is given shall, to the extent possible, be transferred
and assigned to the Executive at no cost to the Executive (other than
income taxes owed), the cost of transfer, if any, to be borne by the
Company; and
(6) all benefits under the Noble Drilling Corporation 1991 Stock
Option and Restricted Stock Plan and any other similar plans,
including any stock options or restricted stock held by the
Executive, not already vested shall be 100% vested, to the extent
such vesting is permitted under the Code; and
(7) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy, practice, or
arrangement or contract or agreement of the Company and its
affiliated companies (such other amounts and benefits hereinafter
referred to as the "Other Benefits").
(2) Death. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Term, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for (i) payment of Accrued Obligations (which
shall be paid to the Executive's estate or beneficiary, as applicable, in a
lump sum in cash within 30 days of the Date of Termination) and the timely
payment or provision of the Welfare Benefit Continuation and the Other Benefits
and (ii) payment to the Executive's estate or beneficiaries, as applicable, in
a lump sum in cash within 30 days of the Date of Termination of an amount equal
to the sum of the Severance Amount and the Supplemental Retirement Amount. With
respect to the provision of Other Benefits, the term Other Benefits as used in
this Section 6(b) shall include, without limitation, and the Executive's estate
and/or beneficiaries shall be entitled to receive, benefits at least equal to
the most favorable benefits provided by the Company and affiliated companies to
the estates and beneficiaries of peer executives of the Company and such
affiliated companies under such plans, programs, practices, and policies
relating to death benefits, if any, as in effect with respect to other peer
executives and their beneficiaries at any time during the 120-day
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period immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect on the
date of the Executive's death with respect to other peer executives of the
Company and its affiliated companies and their beneficiaries.
(3) Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Term, this Agreement shall
terminate without further obligations to the Executive, other than for (i)
payment of Accrued Obligations (which shall be paid to the Executive in a lump
sum in cash within 30 days of the Date of Termination) and the timely payment
or provision of the Welfare Benefit Continuation and the Other Benefits and
(ii) payment to the Executive in a lump sum in cash within 30 days of the Date
of Termination of an amount equal to the sum of the Severance Amount and the
Supplemental Retirement Amount. With respect to the provision of Other
Benefits, the term Other Benefits as used in this Section 6(c) shall include,
without limitation, and the Executive shall be entitled after the Disability
Effective Date to receive, disability and other benefits at least equal to the
most favorable of those generally provided by the Company and affiliated
companies to disabled executives and/or their families in accordance with such
plans, programs, practices, and policies relating to disability, if any, as in
effect generally with respect to other peer executives and their families at
any time during the 120-day period immediately preceding the Effective Date or,
if more favorable to the Executive and/or the Executive's family, as in effect
at any time thereafter generally with respect to other peer executives of the
Company and its affiliated companies and their families.
(4) Cause; Other Than for Good Reason or During the Window Period. If
the Executive's employment is terminated for Cause during the Employment Term,
this Agreement shall terminate without further obligations to the Executive
other than the obligation to pay to the Executive Base Salary through the Date
of Termination plus the amount of any compensation previously deferred by the
Executive, in each case to the extent theretofore unpaid. If the Executive
voluntarily terminates the Executive's employment during the Employment Term,
excluding a termination either for Good Reason or without any reason during the
Window Period, this Agreement shall terminate without further obligations to
the Executive, other than for Accrued Obligations and the timely payment or
provision of the Other Benefits. In such case, all Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of the Date of
Termination subject to applicable laws and regulations.
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7. Certain Additional Payments by the Company.
(1) Notwithstanding any provision in this Agreement to the contrary
and except as set forth below, if it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional
payments required pursuant to this Paragraph 7) (a "Payment") would be subject
to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest
or penalties imposed with respect to such taxes), including any income taxes
(and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Paragraph 7(a), if it shall be
determined that the Executive is entitled to a Gross-Up Payment, but that the
Executive, after taking into account the Payments and the Gross-Up Payment,
would not receive a net after-tax benefit of at least $50,000 (taking into
account both income taxes and any Excise Tax) as compared to the net after-tax
proceeds to the Executive resulting from an elimination of the Gross-Up Payment
and a reduction of the Payments, in the aggregate, to an amount (the "Reduced
Amount") such that the receipt of payments would not give rise to any Excise
Tax, then no Gross-Up Payment shall be made to the Executive and the Payments,
in the aggregate, shall be reduced to the Reduced Amount.
(2) Subject to the provisions of Paragraph 7(c), all determinations
required to be made under this Paragraph 7, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
PricewaterhouseCoopers (the "Accounting Firm") or, as provided below, such
other certified public accounting firm as may be designated by the Executive,
which shall provide detailed supporting calculations both to the Company and
the Executive within 15 business days after the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is requested
by the Company. If the Accounting Firm is serving as accountant or auditor for
the individual, entity, or group effecting the Change of Control, the Executive
shall have the option, in the Executive's sole discretion, to appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Paragraph 7, shall be paid by the Company to the Executive within five days of
the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments that will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. If the Company exhausts its
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remedies pursuant to Paragraph 7(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(3) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment (or an additional amount of Gross-Up
Payment) in the event the Internal Revenue Service seeks higher payment. Such
notification shall be given as soon as practicable but no later than 10
business days after the Executive is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid. The Executive shall not pay such claim
prior to the expiration of the 30-day period following the date on which it
gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of such period that
it desires to contest such claim, the Executive shall:
(1) give the Company any information reasonably requested by the
Company relating to such claim;
(2) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including the acceptance of legal representation with respect to such
claim by an attorney reasonably selected by the Company;
(3) cooperate with the Company in good faith in order
effectively to contest such claim; and
(4) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions
of this Paragraph 7(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings, and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction, and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such
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advance or with respect to any imputed income with respect to such advance; and
provided further that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Paragraph 7(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Paragraph 7(c)) promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Paragraph 7(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
8. Representations and Warranties.
(1) The Company represents and warrants to the Executive that the
execution, delivery, and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action of the Company and do not and
will not conflict with or result in a violation of any provision of, or
constitute a default under, any contract, agreement, instrument, or obligation
to which the Company is a party or by which it is bound.
(2) The Executive represents and warrants to the Company that the
execution, delivery, and performance by the Executive of this Agreement do not
and will not conflict with or result in a violation of any provision of, or
constitute a default under, any contract, agreement, instrument, or obligation
to which the Executive is a party or by which the Executive is bound.
9. Confidential Information. The Executive recognizes and
acknowledges that the Company's trade secrets and other confidential or
proprietary information, as they may exist from time to time, are valuable,
special, and unique assets of the Company's business, access to and knowledge
of which are essential to the performance of the Executive's duties hereunder.
The Executive confirms that all such trade secrets and other information
constitute the exclusive property of the Company. During the Employment Term
and thereafter without limitation of time, the Executive shall hold in strict
confidence and shall not, directly or indirectly, disclose or reveal to any
person, or use for the Executive's own personal benefit or for the benefit of
anyone else, any trade secrets, confidential dealings, or other confidential or
proprietary information of any kind, nature, or description (whether or not
acquired, learned, obtained, or developed by the Executive alone or in
conjunction with others) belonging to or concerning the Company or any of its
affiliated companies, except (i) with the prior written consent of the Company
duly authorized by its Board, (ii) in the course of the proper performance of
the Executive's duties hereunder, (iii) for information
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(x) that becomes generally available to the public other than as a result of
unauthorized disclosure by the Executive or the Executive's affiliates or (y)
that becomes available to the Executive on a nonconfidential basis from a
source other than the Company or its affiliated companies who is not bound by a
duty of confidentiality, or other contractual, legal, or fiduciary obligation,
to the Company, or (iv) as required by applicable law or legal process. The
provisions of this Paragraph 9 shall continue in effect notwithstanding
termination of the Executive's employment hereunder for any reason.
10. Certain Definitions.
(1) Effective Date. The "Effective Date" shall mean the first date
during the Change of Control Period (as defined in Paragraph 10(b)) on which a
Change of Control occurs. Notwithstanding anything in this Agreement to the
contrary, if a Change of Control occurs and if the Executive's employment with
the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or (ii) otherwise
arose in connection with or anticipation of a Change of Control, then for all
purposes of this Agreement the "Effective Date" shall mean the date immediately
prior to the date of such termination of employment.
(2) Change of Control Period. The "Change of Control Period" shall
mean the period commencing on the date of this Agreement and ending on the
third anniversary of such date; provided, however, that commencing on the date
one year after the date hereof, and on each annual anniversary of such date
(such date and each annual anniversary thereof herein referred to as the
"Renewal Date"), the Change of Control Period shall be automatically extended
so as to terminate three years after such Renewal Date, unless at least 60 days
prior to the Renewal Date the Company shall give notice to the Executive that
the Change of Control Period shall not be so extended.
(3) Change of Control. For purposes of this Agreement, a "Change of
Control" shall mean:
(1) the acquisition by any individual, entity, or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 15% or more of either (A) the
then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power
of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for purposes of this
subparagraph (c)(i) the following acquisitions shall not constitute a
Change of Control: (w) any acquisition directly from the Company
(excluding an acquisition by virtue of the exercise of a conversion
privilege), (x) any acquisition by the Company, (y) any acquisition
by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company, or (z) any acquisition by any corporation pursuant to a
reorganization, merger, or consolidation, if, following such
reorganization,
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merger, or consolidation, the conditions described in clauses (A),
(B), and (C) of subparagraph (iii) of this Paragraph 10 (c) are
satisfied; or
(2) individuals who, as of the date of this Agreement,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest
or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
(3) consummation of a reorganization, merger, or consolidation
of the Company, with or without approval by the stockholders of the
Company, in each case, unless, following such reorganization, merger,
or consolidation, (A) more than 50% of, respectively, the then
outstanding shares of common stock of the corporation resulting from
such reorganization, merger, or consolidation and the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization,
merger, or consolidation in substantially the same proportions as
their ownership, immediately prior to such reorganization, merger, or
consolidation, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no
Person (excluding the Company, any employee benefit plan (or related
trust) of the Company or such corporation resulting from such
reorganization, merger, or consolidation, and any Person beneficially
owning, immediately prior to such reorganization, merger, or
consolidation, directly or indirectly, 15% or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities, as the
case may be) beneficially owns, directly or indirectly, 15% or more
of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger, or
consolidation or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors, and (C) a majority of the members of the
board of directors of the corporation resulting from such
reorganization, merger, or consolidation were members of the
Incumbent Board at the time of the execution of the initial agreement
providing for such reorganization, merger, or consolidation; or
(4) consummation of a sale or other disposition of all or
substantially all the assets of the Company, with or without approval
by the stockholders of the Company, other than to a corporation, with
respect to which following such sale or other disposition, (A) more
than 50% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all the individuals
and entities who were the
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beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such sale or other disposition in substantially the same proportion
as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (B) no Person
(excluding the Company, any employee benefit plan (or related trust)
of the Company or such corporation, and any Person beneficially
owning, immediately prior to such sale or other disposition, directly
or indirectly, 15% or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be)
beneficially owns, directly or indirectly, 15% or more of,
respectively, the then outstanding shares of common stock of such
corporation or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors, and (C) a majority of the members of the
board of directors of such corporation were members of the Incumbent
Board at the time of the execution of the initial agreement or action
of the Board providing for such sale or other disposition of assets
of the Company; or
(5) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
11. Full Settlement.
(1) There shall be no right of set off or counterclaim against, or
delay in, any payments to the Executive, or to the Executive's heirs or legal
representatives, provided for in this Agreement, in respect of any claim
against or debt or other obligation of the Executive or others, whether arising
hereunder or otherwise.
(2) In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, and such
amounts shall not be reduced whether or not the Executive obtains other
employment.
(3) The Company agrees to pay as incurred, to the full extent
permitted by law, all costs and expenses (including attorneys' fees) that the
Executive, or the Executive's heirs or legal representatives, may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Company, the Executive, or others of the validity or enforceability of, or
liability under, any provision of this Agreement, or any guarantee of
performance thereof (including as a result of any contest by the Executive, or
the Executive's heirs or legal representatives, about the amount of any payment
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
12. No Effect on Other Contractual Rights. The provisions of this
Agreement, and any payment provided for hereunder, shall not reduce any amounts
otherwise payable to the Executive, or in any way diminish the Executive's
rights as an employee of the Company, whether existing on the date of this
Agreement or hereafter, under any employee benefit plan, program, or
arrangement or other contract or agreement of the Company providing benefits to
the Executive.
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13. Indemnification; Directors and Officers Insurance. The Company
shall (a) during the Employment Term and thereafter without limitation of time,
indemnify and advance expenses to the Executive to the fullest extent permitted
by the laws of the State of Delaware from time to time in effect and (b) during
the Employment Term, acquire and maintain directors and officers liability
insurance covering the Executive (and to the extent the Company desires, other
directors and officers of the Company and its affiliated companies) to the
extent it is available at commercially reasonable rates as determined by the
Board; provided, however, that in no event shall the Executive be entitled to
indemnification or advancement of expenses under this Paragraph 13 with respect
to any proceeding, or matter therein, brought or made by the Executive against
the Company other than one initiated by the Executive to enforce the
Executive's rights under this Paragraph 13. The rights of indemnification and
to receive advancement of expenses as provided in this Paragraph 13 shall not
be deemed exclusive of any other rights to which the Executive may at any time
be entitled under applicable law, the certificate of incorporation or bylaws of
the Company, any agreement, a vote of stockholders, a resolution of the Board,
or otherwise. The provisions of this Paragraph 13 shall continue in effect
notwithstanding termination of the Executive's employment hereunder for any
reason.
14. Injunctive Relief. In recognition of the fact that a breach by
the Executive of any of the provisions of Paragraph 9 will cause irreparable
damage to the Company for which monetary damages alone will not constitute an
adequate remedy, the Company shall be entitled as a matter of right (without
being required to prove damages or furnish any bond or other security) to
obtain a restraining order, an injunction, an order of specific performance, or
other equitable or extraordinary relief from any court of competent
jurisdiction restraining any further violation of such provisions by the
Executive or requiring the Executive to perform the Executive's obligations
hereunder. Such right to equitable or extraordinary relief shall not be
exclusive but shall be in addition to all other rights and remedies to which
the Company may be entitled at law or in equity, including without limitation
the right to recover monetary damages for the breach by the Executive of any of
the provisions of this Agreement.
15. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas, without regard
to the principles of conflicts of laws thereof.
16. Notices. All notices, requests, demands, and other communications
required or permitted to be given or made hereunder by either party hereto
shall be in writing and shall be deemed to have been duly given or made (i)
when delivered personally, (ii) when sent by telefacsimile transmission, or
(iii) five days after being deposited in the United States mail, first class
registered or certified mail, postage prepaid, return receipt requested, to the
party for which intended at the following addresses (or at such other addresses
as shall be specified by the parties by like notice, except that notices of
change of address shall be effective only upon receipt):
If to the Company, at: Noble Drilling Corporation
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
Attention: Chief Executive Officer
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If to the Executive, at: Xxxxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
17. Binding Effect; Assignment; No Third Party Benefit.
(1) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and shall be enforceable by the Executive's legal
representatives.
(2) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(3) The Company shall require any successor or assign (whether direct
or indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all the business and/or assets of the Company, by agreement in
writing in form and substance reasonably satisfactory to the Executive,
expressly, absolutely, and unconditionally to 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 or assignment had taken place. As
used in this Agreement, the "Company" shall mean the Company as hereinbefore
defined and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Paragraph 17(c)
or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(4) Nothing in this Agreement, express or implied, is intended to or
shall confer upon any person other than the parties hereto, and their
respective heirs, legal representatives, successors, and permitted assigns, any
rights, benefits, or remedies of any nature whatsoever under or by reason of
this Agreement.
18. Miscellaneous.
(1) Amendment. This Agreement may not be modified or amended in any
respect except by an instrument in writing signed by the party against whom
such modification or amendment is sought to be enforced. No person, other than
pursuant to a resolution of the Board or a committee thereof, shall have
authority on behalf of the Company to agree to modify, amend, or waive any
provision of this Agreement or anything in reference thereto.
(2) Waiver. Any term or condition of this Agreement may be waived at
any time by the party hereto which is entitled to have the benefit thereof, but
such waiver shall only be effective if evidenced by a writing signed by such
party, and a waiver on one occasion shall not be deemed to be a waiver of the
same or any other type of breach on a future occasion. No failure or delay by a
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party hereto in exercising any right or power hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right or power.
(3) Withholding Taxes. The Company may withhold from any amounts
payable under this Agreement such federal, state, local, or foreign taxes as
shall be required to be withheld pursuant to any applicable law or regulation.
(4) Nonalienation of Benefits. The Executive shall not have any right
to pledge, hypothecate, anticipate, or in any way create a lien upon any
payments or other benefits provided under this Agreement; and no benefits
payable hereunder shall be assignable in anticipation of payment either by
voluntary or involuntary acts, or by operation of law, except by will or
pursuant to the laws of descent and distribution.
(5) Severability. If any provision of this Agreement is held to be
invalid or unenforceable, (a) this Agreement shall be considered divisible, (b)
such provision shall be deemed inoperative to the extent it is deemed invalid
or unenforceable, and (c) in all other respects this Agreement shall remain in
full force and effect; provided, however, that if any such provision may be
made valid or enforceable by limitation thereof, then such provision shall be
deemed to be so limited and shall be valid and/or enforceable to the maximum
extent permitted by applicable law.
(6) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto concerning the subject matter hereof, and from and
after the date of this Agreement, this Agreement shall supersede any other
prior agreement or understanding, both written and oral, between the parties
with respect to such subject matter.
(7) Captions. The captions herein are inserted for convenience of
reference only, do not constitute a part of this Agreement, and shall not
affect in any manner the meaning or interpretation of this Agreement.
(8) References. All references in this Agreement to Paragraphs,
subparagraphs, and other subdivisions refer to the Paragraphs, subparagraphs,
and other subdivisions of this Agreement unless expressly provided otherwise.
The words "this Agreement", "herein", "hereof", "hereby", "hereunder", and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. Whenever the words
"include", "includes", and "including" are used in this Agreement, such words
shall be deemed to be followed by the words "without limitation". Words in the
singular form shall be construed to include the plural and vice versa, unless
the context otherwise requires.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer, and the Executive has
executed this Agreement, as of the date first above set forth.
NOBLE DRILLING CORPORATION
By: /s/ XXXXX X. DAY
-----------------------------------------------
Name: Xxxxx X. Day
Title: Chairman and Chief Executive Officer
"COMPANY"
/s/ XXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxxxx
"EXECUTIVE"
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