EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT is entered into this 16th day of August 2001 by and between
GLOBAL MARINE INC., a Delaware corporation (the "Company"), and ________________
(the "Executive").
WHEREAS, the Company's Board of Directors (the "Board") has determined that
it is in the best interests of the Company and its stockholders to ensure that
the Company and its affiliates will have the continued dedication of the
Executive, notwithstanding the possibility, threat or occurrence of a
termination of the Executive's employment in certain circumstances, including
following a Change in Control as defined herein; 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 termination of the Executive's employment in
such circumstances and to provide the Executive with compensation and benefits
arrangements upon such a termination which ensure that the compensation and
benefits expectations of the Executive will be satisfied and which are
competitive with those of other corporations;
NOW, THEREFORE, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement with the Executive, and it is
hereby agreed as follows:
1. Definitions. For purposes of this Agreement, the following terms will have
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the following meanings unless otherwise expressly provided in this Agreement:
(a) Beneficiary. "Beneficiary" means any individual, trust or other entity
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named by the Executive to receive the severance payments and benefits
payable hereunder in the event of the death of the Executive during
the Salary Continuation Period or CIC Salary Continuation Period (both
as defined hereunder). Executive may designate a Beneficiary to
receive such payments and benefits by completing a form provided by
the Company and delivering it to the Company's Corporate Secretary.
The Executive may change his or her designated Beneficiary at any time
(without the consent of any prior Beneficiary) by completing and
delivering to the Company a new beneficiary designation form. If a
Beneficiary has not been designated by the Executive, or if no
designated Beneficiary survives the Executive, then the payment and
benefits provided under this Agreement, if any, will be paid to the
Executive's estate.
(b) Cause. "Cause" means an act or acts of misconduct harmful to the
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Company or any of its affiliates, including without limitation any
violation of any policy regarding the use and possession of alcohol,
illegal drugs, firearms or dangerous weapons that is applicable to the
employees of the Company and its affiliates generally, and will not
mean inadequate performance or incompetence.
(c) Change in Control. A "Change in Control" means the occurrence of any
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of the following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d) or 14(d) of the U.S. Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of 35% or more of either (A) the then outstanding
shares of common stock of the Company or of any affiliate of the
Company by which the Executive is employed or which directly or
indirectly owns or controls any affiliate by which the Executive
is employed (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then outstanding voting securities
of the Company or of any affiliate of the Company by which the
Executive is employed or which directly or indirectly owns or
controls any affiliate by which the Executive is employed
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that
the following acquisitions will not constitute a Change in
Control: (I) any acquisition by the Company or by any affiliate
of the Company that remains under the Company's control, (II) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or by any affiliate
controlled by the Company, (III) the sale, exchange, transfer or
other disposition of substantially all of the assets of the
Company or of any affiliate of the Company by which the Executive
is employed or which directly or indirectly owns or controls any
affiliate by which the Executive is employed to the Chief
Executive Officer of the Company or of any affiliate of the
Company by which the Executive is employed or which directly or
indirectly owns or controls any affiliate by which the Executive
is employed (the "CEO"), alone or with other officers, or a
merger, consolidation or other reorganization involving the
Company or any affiliate of the Company by which the Executive is
employed or which directly or indirectly owns or controls any
affiliate by which the Executive is employed and the CEO, alone
or with other officers, or any entity in which the CEO (alone or
with other officers) has, directly or indirectly, a substantial
equity or ownership interest, (IV) a transaction otherwise
commonly referred to as a "management leveraged buyout," or (V)
any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization,
merger or consolidation, the conditions described in clauses (I),
(II), (III), or (IV) are satisfied; or
(ii) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board will be considered as though such
individual were a member of the Incumbent Board, but excluding
for this purpose any such individual whose initial assumption of
office occurs as a result of either an actual or threatened
election contest
(meaning a solicitation of the type that would be subject to
Rule 14a-ll of Regulation 14A under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board; or
(iii) Approval by the stockholders of the Company of a reorganization,
merger or consolidation, in each case unless, following such
reorganization, merger or consolidation, (A) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation in substantially the
same proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (B) no Person (excluding the Company, any
affiliate of the Company that remains under the Company's
control, any employee benefit plan (or related trust) sponsored
or maintained by the Company or by any affiliate controlled by
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, 35% or more of
the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 35% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation or the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election
of directors, and (C) at least a majority of the members of the
board of directors of the corporation resulting from such
reorganization, merger or consolidation were members of the
Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation; or
(iv) Approval by the stockholders of the Company of any plan or
proposal which would result directly or indirectly in (A) a
complete liquidation or dissolution of the Company or of any
affiliate of the Company by which the Executive is employed, or
(B) the liquidation, transfer, sale or other disposition of all
or substantially all of the assets of the Company or of any
affiliate of the Company by which the Executive is employed or
which directly or indirectly owns or controls any affiliate by
which the Executive is employed, other than to a corporation
with respect to which following such sale or other disposition
(I) more than 50% of, respectively, the then outstanding shares
of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
sale or other disposition in substantially the same proportions
as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (II)
no Person (excluding the Company, any affiliate of the Company
that remains under the Company's control, any employee benefit
plan (or related trust) sponsored or maintained by the Company or
by any affiliate controlled by the Company or such corporation,
and any Person beneficially owning, immediately prior to such
sale or other disposition, directly or indirectly, 35% or more of
the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 35% or more of, respectively, the then
outstanding shares of common stock of such corporation or the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors, and (III) at least a majority of the members of the
board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other
disposition of assets.
(d) Disability. "Disability" means the Executive's total disability as
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defined under the terms of the Company's long-term disability plan in
effect on the Date of Termination.
(e) Effective Period. The "Effective Period" means the 36-month period
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following any Change in Control.
(f) Good Reason. "Good Reason" means, unless the Executive has consented
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in writing thereto, the occurrence of any of the following:
(i) The assignment to the Executive of any duties inconsistent with
the Executive's position, including any change in status, title,
authority, duties or responsibilities or any other action which
results in a diminution in such status, title, authority, duties
or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company or the Executive's employer
promptly after receipt of notice thereof given by the Executive;
(ii) A reduction by the Company or the Executive's employer in the
Executive's base salary;
(iii) The relocation of the Executive's office to a location more than
40 miles outside Houston, Texas;
(iv) Following a Change in Control, unless a plan providing a
substantially similar compensation or benefit is substituted,
(A) the failure by the
Company or any of its affiliates to continue in effect any
material fringe benefit or compensation plan, retirement plan,
life insurance plan, health and accident plan or disability plan
in which the Executive is participating prior to the Change in
Control, or (B) the taking of any action by the Company or any of
its affiliates which would adversely affect the Executive's
participation in or materially reduce his benefits under any of
such plans or deprive him of any material fringe benefit; or
(v) Following a Change in Control, the failure of the Company or the
affiliate of the Company by which the Executive is employed, or
any affiliate which directly or indirectly owns or controls any
affiliate by which the Executive is employed, to obtain the
assumption in writing of the Company's obligation to perform this
Agreement by any successor to all or substantially all of the
assets of the Company or such affiliate within 15 days after a
reorganization, merger, consolidation, sale or other disposition
of assets of the Company or such affiliate.
For purposes of this Agreement, any good faith determination of "Good
Reason" made by the Executive will be conclusive.
2. Term. The term ("Term") of this Agreement will commence on the date first
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above written (the "Commencement Date") and will end when the Executive is no
longer an employee of GMI and its affiliates and has received all severance
payments and benefits to which he or she is entitled under this Agreement.
3. Notice of Termination. Any termination of the Executive's employment by
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the Company, or by any affiliate of the Company by which the Executive is
employed, for Cause, or by the Executive for Good Reason will be communicated by
Notice of Termination to the other party hereto given in accordance with
Paragraph 12 of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (a) indicates the specific termination
provision in this Agreement relied upon, (b) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated, and (c) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the employment termination date.
The failure to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause will not waive any right
of the party giving the Notice of Termination hereunder or preclude such party
from asserting such fact or circumstance in enforcing its rights hereunder.
4. Date of Termination. "Date of Termination" means the date of receipt of
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the Notice of Termination or any later date specified therein, or the
Executive's last date as an active employee of the Company and its affiliates
before a termination of employment due to death or disability, or a termination
other than for Cause, as the case may be.
5. Obligations of the Company Upon Termination of Executive's Employment.
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(a) Termination of Employment for Good Reason or Other Than for Cause.
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The Company will pay the following severance payments and benefits to
the Executive upon the termination of the Executive's employment with
the Company and its
affiliates, by the Company or by any affiliate of the Company by which
the Executive is employed, other than for Cause, or by the Executive
for Good Reason within six months following the occurrence of any
event constituting Good Reason:
(i) Cash in the amount of the Executive's annual base salary
through the Date of Termination to the extent not theretofore
paid;
(ii) Any and all compensation deferred under a deferred compensation
plan or program of the Company or any of its affiliates in a
lump sum cash payment;
(iii) Cash in an amount equal to the product of two times the
Executive's annual base salary at the rate in effect at the
time Notice of Termination is given, payable in equal monthly
installments over a period of two years following the Date of
Termination (the "Salary Continuation Period");
(iv) If recommended specifically in the Executive's case by the
Company's Chief Executive Officer and approved specifically in
the Executive's case by the Board's Compensation Committee, in
their sole and absolute discretion, a lump sum cash amount
equal to the sum of actual bonuses paid or payable, including
any amount deferred (whether mandatory or elective), to the
Executive in the two years immediately prior to the Date of
Termination, payable within 30 days after the Date of
Termination;
(v) The continuation of the provision of health insurance, dental
insurance and life insurance benefits for the Salary
Continuation Period to the Executive and the Executive's family
at least equal to those which would have been provided to them
in accordance with the plans, programs, practices and policies
of the Company as in effect and applicable generally to other
peer executives and their families during the 90-day period
immediately preceding the Date of Termination; provided,
however, that if the Executive becomes re-employed with another
employer and is eligible to receive medical or other welfare
benefits under another employer provided plan, the medical and
other welfare benefits described herein will be secondary to
those provided under such other plan during such applicable
period of eligibility;
(vi) The continued accrual of years of service under any and all
defined benefit retirement plans sponsored or maintained by the
Company or by any affiliate controlled by the Company in effect
on and in which the Executive was a participant on the Date of
Termination, in each case for the Salary Continuation Period,
but in no event beyond the date the Executive or Executive's
spouse begins to receive a benefit under any such plan; and
(vii) The immediate vesting of benefits under the Company's Executive
Supplemental Retirement Plan of 1990, as amended and in effect
at the Date of Termination, as if the Executive had attained at
least age 55 and at
least 5 years of service, thereby entitling the Executive to
Normal Retirement Benefits commencing at any time on or after the
Executive's Normal Retirement Date or Early Retirement Benefits
commencing at any time on or after the Executive attains or would
have attained age 55, in each case as such term is defined in
said plan; and, to the extent permitted by applicable
governmental laws and regulations, immediate eligibility for any
and all non-pension post-retirement benefits under any and all
plans and policies of the Company or any affiliate of the
Company, as amended and in effect at the Date of Termination, as
if the Executive had attained at least age 55 and regardless of
whether or not the Executive actually retires under any pension
or retirement plan, provided, however, that the Executive must
also meet any and all other requirements under such plans and
policies in order to participate in such benefits.
(b) Termination of Employment Following a Change in Control. If, during
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the Effective Period, the Company or any affiliate of the Company by
which the Executive is employed terminates the Executive's employment,
other than for Cause, or any event constituting Good Reason occurs and
the Executive terminates employment with the Company for Good Reason
within six months after such occurrence, the Company will pay the
following to the Executive:
(i) Cash in the amount of the Executive's annual base salary
through the Date of Termination to the extent not theretofore
paid;
(ii) Any and all compensation deferred under a deferred compensation
plan or program of the Company or any of its affiliates in a
lump sum cash payment;
(iii) Cash in an amount equal to the product of three times the
Executive's annual base salary at the greater of (A) the rate
in effect at the time Notice of Termination is given or (B) the
rate in effect immediately preceding the Change in Control,
payable in equal monthly installments over a period of three
years following the Date of Termination (the "CIC Salary
Continuation Period");
(iv) A lump sum cash amount equal to the product of three times the
highest total bonus paid or payable in any one year, including
any amounts deferred (whether mandatory or elective), to the
Executive in the three years immediately prior to the Date of
Termination;
(v) The continuation of the provision of health insurance, dental
insurance and life insurance benefits for the CIC Salary
Continuation Period to the Executive and the Executive's family
at least equal to those which would have been provided to them
in accordance with the plans, programs, practices and policies
of the Company as in effect and applicable generally to other
peer executives and their families during the 90-day period
immediately preceding the Effective Period or on the Date of
Termination, at the election of the Executive; provided,
however, that if the Executive
becomes re-employed with another employer and is eligible to
receive medical or other welfare benefits under another
employer provided plan, the medical and other welfare benefits
described herein will be secondary to those provided under such
other plan during such applicable period of eligibility;
(vi) The continued accrual of years of service under any and all
defined benefit retirement plans sponsored or maintained by the
Company or by any affiliate controlled by the Company in effect
on and in which the Executive was a Participant on the Date of
Termination, in each case for the CIC Salary Continuation
Period, but in no event beyond the date the Executive or
Executive's spouse begins to receive a benefit under any such
plan; and
(vii) The immediate vesting of benefits under the Company's Executive
Supplemental Retirement Plan of 1990, as amended and in effect
at either the Date of Termination or immediately preceding the
Change in Control, at the election of the Executive, as if the
Executive had attained at least age 55 and at least 5 years of
service, thereby entitling the Executive to Normal Retirement
Benefits commencing at any time on or after the Executive's
Normal Retirement Date or Early Retirement Benefits commencing
at any time on or after the Executive attains or would have
attained age 55, in each case as such term is defined in said
plan; and, to the extent permitted by applicable governmental
laws and regulations, immediate eligibility for any and all
non-pension post-retirement benefits under any and all plans
and policies of the Company or any affiliate of the Company, as
amended and in effect at either the Date of Termination or
immediately preceding the Change in Control, at the election of
the Executive, as if the Executive had attained at least age 55
and regardless of whether or not the Executive actually retires
under any pension or retirement plan, provided, however, that
the Executive must also meet any and all other requirements
under such plans and policies in order to participate in such
benefits.
(c) Termination of Employment Upon Executive's Disability. In the event
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of the termination of the Executive's employment with the Company and
its affiliates due to the Executive's Disability, the Company will pay
to the Executive the severance payments and benefits listed in
paragraph 5(a) of this Agreement; provided, however, that the amounts
that the Executive would otherwise be entitled to receive under this
Agreement in the amount of or otherwise in respect of the Executive's
annual base salary will be reduced by the amount of any disability
payments received by the Executive that have been funded or insured
wholly or in part at the expense of the Company or any affiliate of
the Company.
(d) Effect of Death. In the event of the Executive's death during the
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Salary Continuation Period or the CIC Salary Continuation Period, the
severance payments and benefits listed in paragraphs 5(a) or 5(b) of
this Agreement, as applicable, will be paid to the Executive's
Beneficiary for remainder of the Salary Continuation Period or the CIC
Salary Continuation Period, as the case may be.
(e) "Basic Earnings" Under Retirement Plans. Any and all amounts paid
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under this Agreement in the amount of or otherwise in respect of the
Executive's annual base salary and bonuses, whether or not deferred
under a deferred compensation plan or program, are intended to be and
will be "Basic Earnings" for purposes of determining Basic Earnings
under any and all retirement plans sponsored or maintained by the
Company or by any affiliate controlled by the Company.
6. Acceleration of Restricted Stock Awards Upon a Change in Control. Upon a
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Change in Control, all conditions, contingencies and other restrictions will be
removed from the full number of shares of stock subject to any and all
performance stock and other restricted stock grants, if any, that have been
awarded to the Executive under any and all stock plans of the Company, and said
full number of shares will immediately vest and be issued and delivered to the
Executive free of any and all conditions, contingencies and other restrictions.
7. Effect of Retirement or Attainment of Age 65. In the event the Executive
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or the Executive's spouse begins to receive a benefit under one or more
retirement plans sponsored or maintained by the Company or by any affiliate of
the Company before the Executive becomes or would have become eligible for
Normal Retirement under any such plan at age 65, the amounts that the Executive
or the Executive's spouse would otherwise be entitled to receive under this
Agreement in the amount of or otherwise in respect of the Executive's annual
base salary will be reduced by the amount of any payments received by the
Executive or the Executive's spouse under such plan or plans. Furthermore, in
no event will the severance payments or benefits provided for under this
Agreement be paid or otherwise provided to the Executive, the Executive's
spouse, or the Beneficiary beyond the date the Executive becomes or would have
become eligible for normal retirement at age 65 under one or more of the
retirement plans sponsored or maintained by the Company or any affiliate of the
Company.
8. Mitigation of Damages. The Executive will not be required to mitigate
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damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise. Except as otherwise specifically
provided in this Agreement, the amount of any payment provided for under this
Agreement will not be reduced by any compensation earned by the Executive as the
result of self-employment or employment by another employer or otherwise.
9. Tax Effect.
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(a) If the Company's independent accounting firm determines that any
payment or distribution by the Company or its affiliates to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise,
and whether paid or payable or distributed or distributable in cash,
stock or any other form) (a "Payment") constitutes a "parachute
payment" as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Code") (or any successor provision thereto)
("Parachute Payment") which would be subject to the excise tax imposed
by Section 4999 of the Code, or any interest or penalties are incurred
by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Basic Excise Tax"), then the
Executive will be entitled to receive an additional payment (a "Gross-
Up Payment") in an amount which is sufficient to cover any and all
federal, state and local income
taxes and Medicare tax applicable to the Gross-Up Payment, including,
without limitation, any further excise tax imposed by Section 4999 of
the Code on or with respect to the Gross-Up Payment, plus payment of
the Basic Excise Tax.
(b) Subject to the provisions of paragraph 9(d) below, all determinations
required to be made under this paragraph 9, including whether and when
a Gross-Up Payment is required, the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determinations,
will be made by the Company's independent accounting firm, which will
provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is
requested by the Company. All fees and disbursements of the Company's
independent accounting firm will be paid by the Company.
(c) Any Gross-Up Payment will be paid by the Company to the Executive
within five days of the Company's receipt of the determination of the
Company's independent accounting firm. If such firm determines that
no Basic Excise Tax is payable by the Executive, it will furnish the
Executive with a written opinion that the Executive has substantial
authority not to report any Basic Excise Tax on the Executive's
Federal income tax return. If the Executive is subsequently required
to make a payment of any Basic Excise Tax, then the Company's
independent accounting firm will determine the amount of the
corresponding Gross-Up Payment, and any such Gross-Up Payment will be
promptly paid by the Company to or for the benefit of the Executive.
The fees and disbursements of the Company's independent accounting
firm will be paid by the Company.
(d) The Executive will notify the Company in writing within 15 days of any
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of a Gross-Up Payment. If the
Company notifies the Executive in writing that it desires to contest
such claim and that it will bear the costs and provide the
indemnification as required by this paragraph, the Executive will:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company reasonably requests in writing from time to time,
including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected
by the Company,
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company will bear
and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and will indemnify and hold the Executive harmless, on
an after-tax basis, for any Basic Excise Tax or income tax,
including interest and penalties with respect thereto, imposed
as a result of
such representation and payment of costs and expenses. The
Company will control all proceedings taken in connection with
such contest; provided, however, that if the Company directs
the Executive to pay such claim and xxx for a refund, the
Company will advance the amount of such payment to the
Executive, on an interest-free basis, and will indemnify and
hold the Executive harmless, on an after-tax basis, from any
Basic Excise Tax or income tax, including interest or penalties
with respect thereto, imposed with respect to such advance or
with respect to any imputed income with respect to such
advance.
(e) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to paragraph 9(d)(iv), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive will,
within 10 days of receipt thereof, pay to the Company the amount of
such refund, together with any interest paid or credited thereon after
taxes applicable thereto. If, after the receipt by the Executive of
an amount advanced by the Company pursuant to paragraph 9(d)(iv), a
determination is made that the Executive will not be entitled to any
refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such
advance will be forgiven and will not be required to be repaid and the
amount of such advance will offset, to the extent thereof, the amount
of Gross-Up Payment required to be paid.
10. Confidential Information; Non-solicitation. During all periods while the
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Executive is an employee of the Company or any of its affiliates and during any
Salary Continuation Period or CIC Salary Continuation Period, the Executive
covenants and agrees as follows:
(a) to hold in a fiduciary capacity for the benefit of the Company and its
affiliates all secret, proprietary or confidential material,
knowledge, data or any other information relating to the Company or
any of its affiliated companies and their respective businesses
("Confidential Information"), which has been obtained by the Executive
during the Executive's employment by the Company or any of its
affiliated companies and that has not been, is not now and hereafter
does not become public knowledge (other than by acts by the Executive
or representatives of the Executive in violation of this Agreement),
and will not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than
the Company and those designated by it; the Executive further agrees
to return to the Company any and all records and documents (and all
copies thereof) and all other property belonging to the Company or
relating to the Company, its affiliates or their businesses, upon
termination of Executive's employment with the Company and its
affiliates; and,
(b) not to solicit or entice any other employee of the Company or its
affiliates to leave the Company or its affiliates to go to work for
any other business or organization which is in direct or indirect
competition with the Company or any of its affiliates, nor request or
advise a customer or client of the Company or its affiliates to
curtail or cancel such customer's business relationship with the
Company or its affiliates.
11. Rights and Remedies Upon Breach. If the Executive breaches, or threatens
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to commit a breach of, any of the provisions contained in paragraph 10 of this
Agreement (the "Restrictive Covenants"), the Company will have the following
rights and remedies, each of which rights and remedies will be independent of
the others and severally enforceable, and each of which is in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity:
(a) Specific Performance. The right and remedy to have the Restrictive
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Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of
the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to
the Company.
(b) Accounting. The right and remedy to require the Executive to account
----------
for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by the
Executive as the result of any action constituting a breach of the
Restrictive Covenants.
(c) Cessation of Severance Benefits. The right and remedy to cease any
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further severance, benefit or other compensation payments under this
Agreement to the Executive or the Beneficiary from and after the
commencement of such breach by the Executive.
The Executive hereby acknowledges and agrees that the Restrictive Covenants are
reasonable and valid in duration and in all other respects. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants will not
thereby be affected and will be given full effect without regard to the invalid
portions.
12. Notices. Any notice provided for in this Agreement will be given in
-------
writing and will be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice will be deemed given when so delivered personally,
telegraphed, telexed or sent by facsimile transmission, or, if mailed, on the
date of actual receipt thereof. Notices will be properly addressed to the
parties at their respective addresses set forth below or to such other address
as either party may later specify by notice to the other in accordance with the
provisions of this paragraph:
If to the Company:
Global Marine Inc.
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
If to the Executive:
____________________________
____________________________
____________________________
13. Entire Agreement. This Agreement contains the entire agreement between the
----------------
parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto, including, without
limitation, any and all prior employment or severance agreements and related
amendments entered into between the Company and the Executive. Furthermore, the
severance payments and benefits provided for under this Agreement are separate
and apart from and, to the extent they are actually paid, will be in lieu of any
payment under any plan or policy of the Company or any of its affiliates
regarding severance payments generally.
14. Waivers and Amendments. This Agreement may be amended, superseded,
----------------------
canceled, renewed or extended, and the terms and conditions hereof may be
waived, only by a written instrument signed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any waiver on the part of any party of any such right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
15. Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the laws of the state of Texas (without giving effect to the
choice of law provisions thereof), where the employment of the Executive will be
deemed, in part, to be performed, and enforcement of this Agreement or any
action taken or held with respect to this Agreement will be taken in the courts
of appropriate jurisdiction in Houston, Texas.
16. Assignment. This Agreement, and any rights and obligations hereunder, may
----------
not be assigned by the Executive and may be assigned by the Company only to any
successor in interest, whether by merger, consolidation, acquisition or the
like, or to purchasers of substantially all of the assets of the Company.
17. Binding Agreement. This Agreement will inure to the benefit of and be
-----------------
binding upon the Company and its respective successors and assigns and the
Executive and his legal representatives.
18. Counterparts. This Agreement may be executed in separate counterparts,
------------
each of which when so executed and delivered will be deemed an original, but all
of which together will constitute one and the same instrument.
19. Headings. The headings in this Agreement are for reference purposes only
--------
and will not in any way affect the meaning or interpretation of this Agreement.
20. Authorization. The Company represents and warrants that the Board of
-------------
Directors of the Company has authorized the execution of this Agreement.
21. Validity. The invalidity or unenforceability of any provisions of this
--------
Agreement will not affect the validity or enforceability of any other provisions
of this Agreement, which will remain in full force and effect.
22. Tax Withholding. The Company will have the right to deduct from all
---------------
benefits and/or payments made under this Agreement to the Executive any and all
taxes required by law to be paid or withheld with respect to such benefits or
payments.
23. No Contract of Employment. Nothing contained in this Agreement will be
-------------------------
construed as a contract of employment between the Company or any of its
affiliates and the Executive, as a right of the Executive to be continued in the
employment of the Company or any of its affiliates, or as a limitation of the
right of the Company or any of its affiliates to discharge the Executive with or
without cause.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
The Company The Executive
GLOBAL MARINE INC.
________________________
By: ________________________ [Name]
Xxxxxx X. Xxxx
Chairman, President
and Chief Executive Officer
