Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of November
1, 1997 (the "Effective Date"), by and between XXXXXX OFFSHORE LLC, a Delaware
limited liability company (the "Company"), and XXXXXXX X. XXXXXX (the
"Executive").
The Company desires to employ the Executive and the Executive desires to
accept employment with the Company, on the terms and conditions of this
Agreement.
Accordingly, the parties agree as follows:
1. Employment, Duties and Acceptance.
1.1 Employment by the Company and Duties. The Company hereby agrees
to employ the Executive for a term commencing on the Effective Date and expiring
at the end of the day on the third anniversary of the Effective Date (such date,
or later date to which this Agreement is extended in accordance with the terms
hereof, the "Termination Date"), unless earlier terminated as provided in
Section 4 or unless extended as provided herein (the "Term"). The Term shall be
automatically extended commencing on the Termination Date and on each
Termination Date thereafter (each such date being a "Renewal Date"), so as to
terminate one (1) year from such Renewal Date, unless and until (i) at least
ninety (90) days prior to a Renewal Date either party hereto gives written
notice to the other that the Term should not be further extended, in which event
the Termination Date shall be the Renewal Date following such notice, or (ii)
less than ninety (90) days prior to a Renewal Date but before the Renewal Date
either party hereto gives written notice to the other that the Term should not
be further extended, in which event the Termination Date shall be the date
ninety (90) days after such written notice is given. If no such written notice
is given by either party prior to the Renewal Date, the Term shall be
automatically extended for another year from such Renewal Date, as provided in
the foregoing sentence. During the Term, the Executive shall serve in the
capacity of President and Chief Executive Officer of the Company, and shall also
serve in those offices and directorships of subsidiaries of the Company. or
their subsidiaries, to which he may from time to time be appointed or elected.
During the Term, the Executive shall devote all reasonable efforts and
substantially all of his business time and services to the Company, subject to
the direction of the Management Committee of the Company (the "Committee"). The
Executive shall not engage in any other business activities except for passive
investments in corporations or partnerships not engaged in the Company Business
(as hereinafter defined) to the extent permitted by Section 3 1.1.
1.2 Acceptance of Employment by the Executive. The Executive hereby
accepts such employment and shall render the services and perform the duties
described above.
2. Compensation and Other Benefits.
2.1 Annual Salary. The Company shall pay to the Executive an annual
salary at a rate of not less than two hundred thousand dollars ($200,000) per
year (the "Annual Salary"), subject to review and adjustment by the Committee
annually in accordance with industry standards, taking into account the
Executive's performance, the Company's scope of operations, industry conditions
and the overall performance of the Company within the industry. In no event
shall the Executive's Annual Salary be reduced to less than $200,000 per year
without his prior written consent. The Executive hereby expressly acknowledges
that the preceding two sentences shall not be construed as requiring the Company
or the Committee to make any annual increases in the Annual Salary. The Annual
Salary shall be payable in accordance with the payroll policies of the Company
as from time to time in effect, but in no event less frequently than once each
month, less such deductions as shall be required to be withheld by applicable
law and regulations.
2.2 Bonuses. The Executive shall receive an incentive bonus, if
earned, with respect to fiscal years ending during the Term hereof (the
"Incentive Bonus"). The amount of the Incentive Bonus for the fiscal year ending
December 31, 1997 shall be determined by the Committee, in its sole discretion.
The criteria for determining the amount of the Incentive Bonus for each fiscal
year thereafter shall be set forth in a formalized plan which is prepared by the
Committee and approved by the Compensation Committee of the Committee, if any.
The Committee shall use reasonable guidelines for establishing such criteria
based upon the performance of the Executive, including, without limitation, the
extent to which the Company achieves its business plan.
2.3 Vacation Policy. The Executive shall be entitled to a paid
vacation of four weeks during each year of the Term.
2.4 Participation in Employee Benefit Plans. The Company agrees to
permit the Executive during the Term, if and to the extent eligible, to
participate in the group life, hospitalization and disability insurance plans,
health program, pension plan, any similar benefit plan or other so called
"fringe benefits" of the Company (collectively, "Benefits") which may be
available to other executives and employees of the Company on terms no less
favorable to the Executive than the terms offered to such other executives and
employees, to the extent such Benefits are offered by the Company. Provided the
Executive is insurable at standard rates (i) the Company agrees to use its best
efforts to obtain immediate coverage for the Executive upon
2
the commencement of the Term under its existing or newly adopted medical
expense and hospitalization plan (to the extent offered by the Company) for
employees without premium surcharge and without exclusions for disclosed
preexisting conditions, and (ii) the Company shall increase the coverage
under the Executive's existing ten year level term life insurance policy,
insuring the life of the Executive and with beneficiaries designated pursuant
to the Executive's instructions, to the amount of one million two hundred
thousand dollars (or the Company shall obtain an additional ten year level
term life insurance policy in the amount of two hundred thousand dollars,
such that the total of the existing and new life insurance policies shall be
one million two hundred thousand dollars), and shall pay all premiums under
such policy (or policies) during the Term. During the Term, the Company also
shall provide disability insurance for the Executive, which shall provide for
payments based on 60% of the Annual Salary paid to the Executive for the
prior fiscal year upon his disability; provided, however, that maximum amount
the Company shall pay for such disability insurance shall be five thousand
dollars per year. If such disability insurance premium exceeds five thousand
dollars per year, the Executive may elect to pay the amount in excess of five
thousand dollars per year in order to obtain such disability insurance. If
the Executive does not elect to pay any such excess, the Company's obligation
shall be limited to providing the maximum amount of disability insurance that
may be obtained for five thousand dollars per year in payments. The Executive
shall cooperate with the Company in applying for such coverage, including
submitting to a physical exam and providing all relevant health and personal
data.
2.5 General Business Expenses. The Company shall pay or reimburse
the Executive for all expenses reasonably and necessarily incurred by the
Executive during the Term in the performance of the Executive's services under
this Agreement. Such payment shall be made upon presentation of such
documentation as the Company customarily requires of its senior executive
employees prior to making such payments or reimbursements.
2.6 Club Dues. During the Term, the Company shall pay the Executive
an allowance of eight hundred dollars ($800.00) per month, which the Executive
shall apply to the cost associated with country club dues and expenses at the
Houston Country Club and the Houstonian, or any comparable clubs or
organizations, so long as the Executive is a member of such club or clubs.
3. Non-Competition Confidentiality and Company Property.
3.1 Covenant Against Competition. The Executive acknowledges that
(i) the Company is currently engaged in the business of constructing, owning,
managing and operating offshore drilling rigs and hiring and managing crews to
operate such rigs, which equipment and crews are contracted or hired by third
parties for the purpose of drilling oil and gas xxxxx
3
offshore (the "Company Business") and (ii) the agreements and covenants
contained in this Section 3 are essential to protect the business and
goodwill of the Company. The Executive further acknowledges that the
agreements and covenants contained in this Section 3 are being given to
induce SEACOR Offshore Rigs Inc. to invest $35,000,000 in the Company.
Accordingly, the Executive covenants and agrees as follows:
3.1.1 Non-Compete. As an independent covenant, and in order
to enforce the provision of Section 3.1.2 hereof and the other provisions of
this Agreement, the Executive agrees that he shall not during the Restricted
Period (as hereinafter defined), directly or indirectly (except in the
Executive's capacity as an officer of the Company or any of its subsidiaries),
(i) engage or participate in the Company Business; (ii) divert, take or solicit
any offshore drilling business of any customer of the Company or its
subsidiaries; (iii) enter the employ of, or render any other services to, any
person engaged in the Company Business except as permitted hereunder; or (iii)
become interested in any such person in any capacity, including, without
limitation, as an individual, partner, shareholder, lender, officer, member,
manager, director, principal, agent or trustee except as permitted hereunder;
provided. however, that the Executive may own, directly or indirectly, solely as
an investment, securities of any person traded on any national securities
exchange or listed on the National Association of Securities Dealers Automated
Quotation System if the Executive is not a controlling person of, or a member of
a group which controls, such person and the Executive does not, directly or
indirectly, own 5% or more of any class of equity securities, or securities
convertible into or exercisable or exchangeable for 5% or more of any class of
equity securities, of such person. As used in this Agreement, the "Restricted
Period" shall mean a period commencing on the date hereof and continuing until
the end of the Term and for such additional period thereafter, if any, during
which the Company is obligated to pay the Severance Payments (as hereinafter
defined), and is making such payments, to the Executive as provided in Section
4.3 hereof.
3.1.2 Property of the Company. All memoranda, notes, lists,
records, engineering drawings, technical specifications and related documents
and other documents or papers (and all copies thereof) relating to the Company
or its subsidiaries, including such items stored in computer memories, computer
disks, microfiche or by any other means, made or compiled by or on behalf of the
Executive during the Restricted Period, or made available to the Executive
during the Restricted Period relating to the Company, its affiliates or its
subsidiaries or any entity which may hereafter become an affiliate or subsidiary
thereof, shall be the property of the Company, and shall be delivered, along
with any copies thereof, to the Company promptly upon the termination of the
Executive's employment with the Company for any reason whatsoever or at any
other time upon request; provided, however, that the Executive's address books,
diaries, chronological correspondence files, rolodex files and
4
information regarding the Executive's ownership interest in the Company shall
be deemed to be property of the Executive.
3.1.3 Employees of the Company. During the Restricted Period,
the Executive shall not induce or attempt to influence any employee of the
Company or any of its affiliates or subsidiaries to terminate such employee's
employment.
3.1.4 Confidential Information. The Executive acknowledges
that the Company and its subsidiaries have a legitimate and continuing
proprietary interest in the protection of their confidential information. In
exchange for the Company and its subsidiaries providing the Executive access to
such confidential information, the Executive agrees not to make any unauthorized
use, publication, or disclosure, during or subsequent to his employment by the
Company, of any confidential information, generated or acquired by the Executive
during the course of his employment by the Company, except to the extent that
the disclosure of such confidential information is necessary to fulfill his
responsibilities as an employee of the Company. As used herein, "confidential
information" shall mean information that was not known by the Executive prior to
his employment by the Company and that is not generally known by or available to
persons engaged in the Company Business or to the public, which information
consists of financial information, financial figures, trade secrets, details of
client or consulting contracts, pricing policies, operational methods, marketing
plans or strategies, business acquisition plans, technical processes, designs
and design projects, inventions and research projects, ideas, discoveries,
inventions, improvements, trade secrets and other proprietary information of the
Company or its subsidiaries. This Section 3.1.4 shall survive indefinitely the
termination of this Agreement.
3.1.5 Company's Interest. The Executive agrees that these
covenants are made to protect the legitimate business interests of the Company,
including interests in the Company's property described in and pursuant to
Section 3.1.2, and not to restrict his mobility or to prevent him from utilizing
his general technical skills. The Executive understands as a part of these
covenants that the Company intends to exercise whatever legal recourse against
him for any breach of this Agreement and, in particular, for any breach of these
covenants.
3.2 Rights and Remedies Upon Breach. If the Executive breaches any
of the provisions contained in Section 3.1 of this Agreement (the "Restrictive
Covenants"), the Company shall have the following rights and remedies, each of
which rights and remedies shall 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:
5
3.2.1 Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any 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.
3.2.2 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.
3.3 Severability of Covenants. The Executive acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in duration and
geographical scope 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 shall not thereby be affected and
shall be given full effect without regard to the invalid portions.
3.4 Court Review. If any court determines that any of the Restrictive
Covenants, or any part thereof, is unenforceable because of the duration or
geographical scope of, or scope of activities restrained by, such provision,
such court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable.
3.5 Enforceability in Jurisdictions. The Company and the Executive
intend to and hereby confer jurisdiction to enforce the Restrictive Covenants
upon the courts of any jurisdiction within the geographical scope of such
Restrictive Covenants. If the courts of any one or more of such jurisdictions
hold the Restrictive Covenants unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the Company that such determination
not bar or in any way affect the right of the Company to the relief provided
above in the courts of any other jurisdiction within the geographical scope of
such Restrictive Covenants, as to breaches of such Restrictive Covenants in such
other respective jurisdictions, such Restrictive Covenants as they relate to
each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
4. Termination.
4.1 Termination Upon Death. If the Executive dies during the Term,
this Agreement shall terminate; provided, however, that in any such event, the
Company shall pay to the Executive's estate (i) any portion of the Annual Salary
and any accrued Incentive Bonuses that shall have been earned by the Executive
prior to the termination but not yet paid,
6
(ii) any Benefits that have vested in the Executive at the time of such
termination as a result of his participation in any of the Company's benefit
plans (which shall be paid in accordance with the provisions of such plan),
and (iii) reimbursement for any expenses with respect to which the Executive
is entitled to reimbursement pursuant to Section 2.5 of this Agreement,
within thirty (30) days after such termination. The Executive's right to
indemnification, payment or reimbursement pursuant to Section 6 of this
Agreement shall not be affected by such termination and shall continue in
full force and effect, both with respect to proceedings that are threatened,
pending or completed at the date of such termination and with respect to
proceedings that are threatened, pending or completed after that date.
4.2 Termination With Cause. The Company has the right, at any time
during the Term, subject to all of the provisions hereof, exercisable by serving
notice, effective on or after the date of service of such notice as specified
therein, to terminate the Executive's employment under this Agreement and
discharge the Executive with Cause. If such right is exercised, the Company's
obligation to the Executive shall be limited solely to the payment of unpaid
Annual Salary accrued, together with accrued but unpaid Incentive Bonuses, if
any, and Benefits vested up to the effective date specified in the Company's
notice of termination. As used in this Agreement, the term "Cause" shall mean
and include (i) chronic alcoholism or controlled substance abuse as determined
by a doctor of medicine selected by the Company that is authorized to practice
medicine by the State of Texas and whose practice is located in Houston, Texas,
(ii) an act of proven fraud or dishonesty on the part of the Executive, (iii)
knowing and material failure by the Executive to comply with material applicable
laws and regulations relating to the business of the Company or its
subsidiaries; (iv) the Executive's material and continuing failure to perform
(as opposed to unsatisfactory performance) his duties hereunder or a material
breach by the Executive of this Agreement except) in each case, where such
failure or breach is caused by the illness or other similar incapacity or
disability of the Executive; or (v) conviction of a crime involving moral
turpitude or a felony. Prior to the effectiveness of termination for Cause
under subclause (i), (ii), (iii) or (iv) above, the Executive shall be given 30
days' prior written notice from the Committee specifically identifying the
reasons which are alleged to constitute Cause for any termination hereunder and
an opportunity to be heard by the Committee in the event the Executive disputes
such allegations. This Agreement shall not be terminated for Cause under
subclause (i), (iii) or (iv) above if the reasons which are alleged to
constitute Cause under such subclauses shall no longer exist and shall not be
continuing within thirty (30) days of the receipt of such notice by the
Executive; provided, however, that the Executive shall not have such right to
cure pursuant to the foregoing sentence and prevent termination for Cause if (i)
substantially the same reasons constituting Cause previously occurred and were
the basis for a previous termination notice to the Executive from the Committee,
and (ii) this Agreement was not terminated based on such previous occurrence
because the reasons which were alleged to constitute Cause no
7
longer existed and were not continuing within thirty (30) days of the
Executive's receipt of such notice.
4.3 Termination Without Cause. The Company has the right, at any
time during the Term, subject to all of the provisions hereof, exercisable by
serving notice, effective on or after the date of service of such notice as
specified therein, to terminate the Executive's employment under this Agreement
and discharge the Executive without Cause. If the Executive is terminated during
the Term without Cause (including any termination which is deemed to be a
constructive termination without Cause under Section 4.6 hereof), the Company's
obligation to the Executive shall be limited solely to the payment, at the times
and upon the terms provided for herein, of (i) two times the Average
Compensation (as hereinafter defined) and (ii) any unpaid Incentive Bonuses and
Benefits awarded or accrued up to the date of termination. In the event of a
termination by the Company without Cause within nine months before or after a
Change of Control of the Company (as hereinafter defined), including a
constructive termination without Cause pursuant to Section 4.6, the amount due
to the Executive pursuant to clause (i) of the preceding sentence (the
"Severance Payments") shall be increased to three times the Average
Compensation. Any amounts due to the Executive pursuant to clause (ii) of the
second sentence of this Section 4.3 shall be due and payable within thirty (30)
days after the date of termination. The Severance Payments shall be due and
payable in twenty-four (24) equal monthly payments, or in thirty-six (36) equal
monthly payments in the event of a termination by the Company without Cause in
connection with a Change of Control of the Company pursuant to the preceding
sentence, beginning thirty (30) days after the date of termination.
Notwithstanding anything herein to the contrary, the Restricted Period, and the
Company's obligations to pay additional Severance Payments to the Executive,
shall be subject to early termination, and shall terminate immediately, at any
time after the Executive is terminated without Cause upon the earlier to occur
of (a) the Executive giving written notice to the Company that he is terminating
the Restricted Period effective upon receipt of such notice by the Company, or
effective at any designated time thereafter (not to exceed thirty (30) days
after the Company's receipt of such notice), (b) the Executive's violation of
any of the provisions of Section 3, or (c) the end of the twenty-four or
thirty-six month period, as applicable, for payment of the Severance Payments
pursuant to the terms hereof. Upon any termination pursuant to the preceding
clauses(a) or (b) (in either case an "Early Termination"), no further Severance
Payments shall be payable for periods after the effective date of such Early
Termination, except for amounts payable by the Company to the Executive for
periods prior to the effective date of such Early Termination. The Executive
and the Company agree that the foregoing right of the Company to terminate the
Severance Payments shall be enforceable by the Company notwithstanding any
ruling by any court or any arbitrator that one or more of the provisions of
Section 3 are unenforceable for any reason whatsoever. For purposes hereof,
"Average Compensation" shall mean (x) the average of the
8
Annual Salary earned by the Executive during the two years preceding the date
of termination, or (y) if this Agreement has been in effect for less than two
years on the date of such early termination, (A) the total Annual Salary
earned by the Executive during the period from the Effective Date to the date
of such termination, divided by (B) the total number of days in such period,
multiplied by (C) 365.
4.4 Termination by the Executive. Any termination of this Agreement
by the Executive during the Term, except such termination as is deemed to be a
constrictive termination without Cause by the Company under Section 4.6 of this
Agreement, shall entitle the Company to discontinue payment of all Annual
Salary, Incentive Bonuses and Benefits not earned and payable prior to the date
of such termination.
4.5 Termination Upon Disability. If during the Term the Executive
becomes physically or mentally disabled, whether totally or partially, as
evidenced by the written statement of a competent physician licensed to practice
medicine in the United States who is mutually acceptable to the Company and the
Executive or his closest relative if he is not then able to make such a choice,
so that the Executive is unable substantially to perform his services hereunder
for (i) a period of four consecutive months, or (ii) for shorter periods
aggregating 120 days during any twelve-month period, the Company may at any time
after the last day of the four consecutive months of disability or the day on
which the shorter periods of disability equal an aggregate of 120 days, by
written notice to the Executive, terminate the Executive's employment hereunder
and discontinue payments of the Annual Salary, Incentive Bonuses and Benefits
accruing from and after the date of such termination. The Executive shall be
entitled to the full compensation payable to him hereunder for periods of
disability shorter than the periods specified in clauses (i) and (ii) of the
previous sentence.
4.6 Constructive Termination Without Cause. Notwithstanding any other
provision of this Agreement, the Executive's employment under this Agreement may
be terminated during the Term by the Executive, which shall be deemed to be
constructive termination by the Company without Cause, if one of the following
events shall occur without the consent of the Executive: (i) a failure to elect
or reelect or to appoint or reappoint the Executive to the office of President
and Chief Executive Officer of the Company or other material change by the
Company of the Executive's functions, duties or responsibilities which change
would reduce the ranking or level, dignity, responsibility, importance or scope
of the Executive's position with the Company from the position and attributes
thereof described in Section 1 above; (ii) the assignment or reassignment by the
Company of the Executive to a location not within 20 miles of the Company's
current location; (iii) the liquidation, dissolution consolidation or merger of
the Company, or transfer of all or substantially all of its assets, other than
(a) a consolidation or merger in which the Company is the sole surviving entity
or
9
(b) a transaction in which a successor corporation with a net worth
substantially the same as or greater than that of the Company assumes this
Agreement and all obligations and undertakings of the Company hereunder; (iv) a
reduction in the Executive's fixed salary below $200,000 per year or change by
the Company without the consent of the Executive in the method of determining
the Executive's annual bonus that results in a reduction of such annual bonus;
(v) the failure of the Company to continue to provide the Executive with office
space, related facilities, staff and secretarial assistance that are
commensurate with the Executive's responsibilities to and position with the
Company; (vi) the notification by the Company of the Company's intention not to
observe or perform one or more of the material obligations of the Company under
this Agreement; (vii) the failure by the Company to indemnify, pay or reimburse
the Executive at the time and under the circumstances required by Section 6 of
this Agreement; (viii) failure of the Company to pay the Annual Salary, the
Incentive Bonus or any other compensation or amounts payable hereunder when due;
or (ix) the occurrence of any other material breach of this Agreement by the
Company or any of its subsidiaries. Any such termination shall be made by
written notice to the Committee, specifying the event relied upon for such
termination and given within 90 days after such event. Any constructive
termination shall be effective 30 days after the date the Committee has been
given such written notice setting forth the grounds for such termination with
specificity; provided, however, that the Executive shall not be entitled to
terminate this Agreement in respect of any of the grounds set forth above if
within 30 days after such notice the action constituting such ground for
termination has been cured and is no longer continuing.
4.7 Change of Control. For the purposes hereof, a "Change of Control
of the Company" shall be deemed to have occurred if any person or group of
persons that are directly or indirectly actively engaged, in whole or in part,
in the Drilling Business (as hereinafter defined) acquire, directly or
indirectly, (i) the power to direct or cause the direction of the management or
policies of the Company. whether through the ownership of voting securities or
other equity interests, by contract or otherwise, including without limitation,
the acquisition of membership interests or other securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding securities; (ii) all or substantially all of the assets of the
Company, including, without limitation, in the case of either of the preceding
subsections (i) and (ii), pursuant to a sale, transfer, assignment or other
conveyance of membership interests or other securities, merger, consolidation,
exchange of securities, sale, transfer, assignment or other conveyance of assets
or plan of liquidation or other reorganization, and whether by operation of law
or otherwise. As used herein, the term "Drilling Business" shall mean the
business of owning, leasing, managing or operating drilling rigs, which drilling
rigs and associated crews are contracted or hired by third parties for the
purpose of drilling oil and gas xxxxx. For purposes of determining if a Change
of Control of the Company has occurred, any person owning less than 10% of the
voting securities or other
10
equity interests in the Company shall be excluded from the analysis under the
preceding subclause (i) of this Section 4.7.
4.8 Limitation on Severe payments. Notwithstanding the provisions of
Section 4.3, if any portion of the amounts payable to the Executive pursuant to
Section 4.3 (the "Total Compensation") constitutes an excess parachute payment
subject to tax pursuant to Section 280G of the Internal Revenue Code of 1986, as
amended, or any successor statute, the Total Compensation shall be reduced to
the minimum extent necessary to insure that no portion of the Total Compensation
is a taxable excess parachute payment. Any such reduction shall be made by
reducing the last payment payable to the Executive as part of the Severance
Payments, and, if necessary, reducing such additional payments in the reverse
order that they are due until the reduction required by the preceding sentence
is accomplished.
5. Insurance. The Company may, from time to time, apply for and take
out, in its own name and at its own expense, naming itself or one or more of its
affiliates as the designated beneficiary (which it may change from time to
time), policies for life, health, accident, disability or other insurance upon
the Executive in any amount or amounts that it may deem necessary or appropriate
to protect its interest. The Executive agrees to aid the Company in procuring
such insurance by submitting to medical examinations and by filling out,
executing and delivering such applications and other instruments in writing as
may reasonably be required by an insurance company or companies to which any
application or applications for insurance may be made by or for the Company.
6. Indemnification.
6.1 The Company shall indemnify and hold harmless the Executive from
and against any and all losses, claims, demand, costs, damages, liabilities,
expenses of any nature (including, without limitation, reasonable attorneys'
fees and disbursements), judgments, fines, settlements and other amounts arising
from any and all claims, demands, actions, suits or proceedings, whether civil,
criminal, administrative or investigative, in which the Executive may be
involved, or threatened to be involved, as a party or otherwise, arising out of
or incidental to the business of the Company or its affiliates or subsidiaries,
including, without limitation, liabilities under the federal and state
securities laws, regardless of whether the Executive continues to be employed by
the Company or such affiliate or subsidiary at the time any such liability or
expense is paid or incurred, if (i) the Executive acted in good faith and in a
manner he reasonable believed to be in, or not opposed to, the interests of the
Company and, with respect to any criminal proceeding, had no reason to believe
his conduct was unlawful, and (ii) the Executive's conduct did not constitute
actual fraud, gross negligence or willful or wanton misconduct. The termination
of any action, suit or proceeding by judgment, order,
11
settlement, conviction, or upon a plea of nolo contendere, or its equivalent,
shall not, in and of itself, create a presumption or otherwise constitute
evidence that the Executive acted in a manner contrary to that specified in
(i) or (ii) above.
6.2 Expenses (including, without limitation, reasonable legal fees
and expenses) incurred in defending any proceeding subject to Section 6.1 shall
be paid by the Company in advance of the final disposition of such proceeding
upon receipt of a written affirmation by the Executive of his good fifth belief
that he has met the standard of conduct necessary for indemnification under this
Section 6 and a written undertaking (which need not be secured) by or on behalf
of the Executive to repay such amount if it shall be ultimately determined, by a
court of competent jurisdiction or otherwise, that the Executive is not entitled
to be indemnified by the Company as authorized hereunder.
6.3 The indemnification provided by this Section 6 shall be in
addition to any other rights to which the Executive may be entitled under any
agreement or vote of the Committee by the vote of Managers that are
disinterested and unaffiliated with the Executive, as a matter of law or
otherwise, both as to action in the Executive's capacity as an officer and
employee of the Company or as a person serving at the request of the Company and
shall continue after the Executive has ceased to serve in such capacity and
shall inure to the benefit of the heirs, administrators and personal
representatives of the Executive.
6.4 The Company may purchase and maintain directors and officers
insurance or similar coverage for its Managers and officers, including the
Executive, in such amounts and with such deductibles or self-insured retentions
as are customary for persons engaged in businesses similar in size and type to
those ended in by the Company.
6.5 The Executive shall not be denied indemnification in whole or in
part under this Section 6 because the Executive had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement and all material facts
relating to the executive's interest were adequately disclosed to the Committee
at the time the transaction was consummated.
6.6 The provisions of this Section 6 are for the benefit of the
Executive and his heirs, administrators and personal representatives and shall
not be deemed to create any rights for the benefit of any other persons. The
provisions of this Section 6 shall survive termination of this Agreement for any
reason or cause.
7. Other Provisions.
12
7.1 Certain Definitions. As used in this Agreement, the following
terms have the following meanings unless the context otherwise requires:
(i) "affiliate" with respect to the Company means any other
person controlled by or under common control with the Company but shall not
include any stockholder or director of the Company, as such.
(ii) "person" means any individual, corporation, limited
liability company, partnership, firm, joint Company, association, joint-stock
company, trust, unincorporated organization, governmental or regulatory body or
other entity.
(iii) "subsidiary" means any corporation or other entity 50%
or more of the voting securities of which are owned directly or indirectly by
the Company.
7.2 Notice. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or,
if mailed, on the date of actual receipt thereof, as follows:
(i) if to the Company, to:
Xxxxxx Offshore LLC
00000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
With a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxx
Fax No. (000) 000-0000
(ii) if to the Executive, to:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
13
With a copy to: Gardere Xxxxx Xxxxxx & Xxxxx, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xx. X. X. Xxxxxxx III
Fax No. (000) 000-0000
Any party may change its address for notice hereunder by notice to the other
party hereto.
7.3 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof ant supersedes all
prior agreements, written or oral, with respect thereto.
7.4 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 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 shall operate as a
waiver thereof nor shall 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.
7.5 Governing Law. This Agreement shall 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 shall be
deemed, in part, to be performed and, subject to Section 7.11 hereof,
enforcement of this Agreement or any action taken or held with respect to this
Agreement Shall be taken in the courts of appropriate jurisdiction in Houston,
Texas.
7.6 Assignment. This Agreement, and any rights and obligations
hereunder, may not be assigned by the Executive and may be assigned by the
Company (subject to Section 4.6 (iii) hereof) only to a successor by merger or
purchaser of substantially all of the assets of the Company.
7.7 Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7.8 Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
14
7.9 No Presumption Against Interest. This Agreement has been
negotiated, drafted, edited and reviewed by the respective parties, and
therefore, no provision arising directly or indirectly herefrom shall be
construed against any party as being drafted by said party.
7.10 Validity Contest. The Company shall promptly pay any and all
legal fees and expenses incurred by the Executive from time to time as a direct
result of the Company's contesting the due execution, authorization, validity or
enforceability of this Agreement.
7.11 Dispute Resolution. If any dispute arises out of or relates to
this Agreement, or the breach thereof, Executive and the Company agree to
promptly negotiate in good faith to resolve such dispute. If the dispute cannot
be settled by the parties through negotiation, Executive and the Company agree
to try in good faith to settle the dispute by mediation under the Commercial
Mediation Rules of the American Arbitration Association before resorting to
arbitration, litigation or any other dispute resolution procedure. If the
parties are unable to settle the dispute by mediation as provided in the
preceding sentence, any claim, controversy or dispute arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration before a panel of three arbitrators in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, The
arbitration shall be conducted in Houston, Xxxxxx County, Texas, or such other
location to which the parties mutually agree. The decision of the arbitrator(s)
shall be final and binding and judgment upon the award rendered may be entered
in any court having jurisdiction thereof. The costs of mediation and arbitration
may be awarded to either party by the mediator or the arbitrators and absent
such award shall be borne equally by the parties.
7.12 Binding Agreement. This Agreement shall inure to the benefit of
and be binding upon the Company and its respective successors and assigns and
the Executive and his legal representatives.
7.13 No Third Party Beneficiaries. Notwithstanding anything in this
Agreement to the contrary, express or implied, any right, benefit, or agreement
contained, expressed or implied in this Agreement shall be only for the benefit
of the parties hereto and their respective legal representatives, successors,
heirs, and assigns, and such rights, benefits and other agreements shall not
enure to the benefit of any other person or entitle any such person to any
claim, cause of action, remedy or other rights of any kind, it being the
intention of the parties hereto that no person shall be deemed a third party
beneficiary of this Agreement.
[The remainder of this page has been intentionally left blank.]
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
COMPANY
XXXXXX OFFSHORE LLC
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
16
