EMPLOYMENT AGREEMENT by and between GULFMARK OFFSHORE, INC. and RICHARD M. SAFIER
THIS EMPLOYMENT AGREEMENT dated as of March 15, 2011 (this “Agreement”), by and between
Xxxxxxx X. Xxxxxx (the “Executive”) and GulfMark Offshore, Inc., a Delaware corporation (the
“Company”).
WHEREAS, the Company has hired the Executive as the Vice President, General Counsel and
Secretary of the Company;
WHEREAS, the Company desires to encourage the attention and dedication to the Company of the
Executive as a member of the Company’s management, in the best interests of the Company and the
entities controlled by, or under common control with the Company (the “Affiliates”);
WHEREAS, the Company and the Executive desire to enter into an employment agreement (the
“Employment Agreement”);
WHEREAS, the Executive is willing to commit himself to serve the Company, on the terms and
conditions herein provided; and
WHEREAS, contemporaneously with entering into this Agreement, the Company and the Executive
are entering into a change of control agreement (the “Change of Control Agreement”);
NOW, THEREFORE, in consideration of the premises and the respective covenants and agreements
of the parties herein contained, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Employment and Term. The Company hereby agrees to employ the Executive, and the
Executive hereby accepts such employment, on the terms and conditions hereinafter set forth. The
period of employment of the Executive by the Company hereunder (the “Employment Period”) shall
commence on March 15, 2011 (the “Effective Date”) and shall end on the Executive’s Date of
Termination (as defined in Section 7(b) hereof). The term of this Agreement (the “Term”) shall
commence on the Effective Date and shall end on the one-year anniversary thereof; provided, that,
on March 15, 2012 and each anniversary thereafter, the Term shall be extended for one additional
year unless, prior to November 15, 2011 with respect to the extension on March 15, 2012, and each
anniversary of March 15, 2012, thereafter with respect to each subsequent annual extension, the
Company or the Executive shall have given notice not to extend the Term or the Executive shall have
incurred a termination of employment with the Company.
2. Position and Duties.
(a) As of the Effective Date, the Executive shall serve as Vice President, General Counsel and
Secretary of the Company, in which capacity the Executive shall perform the usual and customary
duties of such offices, which shall be those normally inherent in such capacities in companies of
similar size and character as the Company and its Affiliates. The Executive agrees and acknowledges
that, in connection with his employment relationship with the Company, when
reasonably requested by the Chief Executive Officer, the Executive shall also be required to
perform the usual and customary duties of any executive with the title of Vice President, General
Counsel and Secretary with companies of similar size and character as the Company and its
Affiliates, whether or not such duties are within the scope of the Executive’s duties on the
Effective Date. Executive shall report to the Chief Executive Officer of the Company. The
Executive agrees and acknowledges that, in connection with his employment relationship with the
Company, the Executive owes fiduciary duties to the Company and will act accordingly.
(b) During the Employment Period, the Executive agrees to devote substantially his full time,
attention and energies to the Company’s business and agrees to faithfully and diligently endeavor
to the best of his ability to further the best interests of the Company. The Executive shall not
engage in any other business activity, whether or not such business activity is pursued for gain,
profit or other pecuniary advantage. Subject to the covenants of Section 9 herein, this shall not
be construed as preventing the Executive from investing his own assets in such form or manner as
will not require his services in the daily operations of the affairs of the companies in which such
investments are made. Further, subject to Section 9 herein, the Executive may serve as a director
of other companies, if such service is approved by the Compensation Committee of the Board of
Directors of the Company (the “Compensation Committee”), so long as such service is not detrimental
to the Company, does not interfere with the Executive’s service to the Company and does not present
the Executive with a conflict of interest.
(c) In keeping with the Executive’s fiduciary duties to the Company, the Executive agrees that
he shall not, directly or indirectly, become involved in any conflict of interest, or upon
discovery thereof, allow such a conflict to continue. Moreover, the Executive agrees that he shall
promptly disclose to the Chief Executive Officer of the Company any facts which might involve any
reasonable possibility of a conflict of interest, or be perceived as such.
(d) Circumstances in which a conflict of interest on the part of the Executive would or might
arise, and which should be reported immediately by the Executive to the Chief Executive Officer of
the Company, include, but are not limited to, the following: (i) ownership of a material interest
in, acting in any capacity for, or accepting directly or indirectly any payments, services or loans
from a supplier, contractor, subcontractor, customer or other entity with which the Company does
business; (ii) misuse of information or facilities to which the Executive has access in a manner
which will be detrimental to the Company’s interest; (iii) disclosure or other misuse of
Confidential Information (as defined in Section 9); (iv) acquiring or trading in, directly or
indirectly, other properties or interests connected with the design, manufacture or marketing of
products designed, manufactured or marketed by the Company; (v) the appropriation to the Executive
or the diversion to others, directly or indirectly, of any opportunity in which it is known or
could reasonably be anticipated that the Company would be interested; and (vi) the ownership,
directly or indirectly, of a material interest in an enterprise in competition with the Company or
its dealers and distributors or acting as a director, officer, partner, consultant, employee or
agent of any enterprise which is in competition with the Company or its dealers or distributors.
-2-
(e) Further, the Executive covenants, warrants and represents that he shall:
(i) devote his full and best efforts to the fulfillment of his employment obligations;
(ii) exercise the highest degree of fiduciary loyalty and care and the highest
standards and conduct in the performance of his duties; and
(iii) endeavor to prevent any harm, in any way, to the business or reputation of the
Company.
(f) For purposes of this Section 2, the determination of whether any matter or transaction
constitutes a conflict of interest hereunder shall be made solely by the Board of Directors of the
Company (the “Board”) in its reasonable discretion; provided, however, any matter or transaction
that is permitted by or otherwise in compliance with the terms and conditions of all applicable
ethics, conflict of interest or similar written policies of the Company in effect at the time of
such determination shall not be a conflict of interest hereunder. The determination of whether any
matter or transaction is permitted by or otherwise in compliance with the terms and conditions of
such policies shall be made solely by the Board in its reasonable discretion.
3. Place of Performance. In connection with the Executive’s employment by the
Company, the Executive’s principal business address shall be at the Company’s current principal
executive offices in Houston, Texas (the “Principal Place of Employment”) or in such other place as
the Executive and the Company may agree.
4. Compensation and Related Matters.
(a) Base Salary. During the Employment Period, the Company shall pay the Executive an annual
base salary (“Base Salary”) in an amount that shall be established from time to time by the
Company, payable in approximately equal installments in accordance with the Company’s customary
payroll practices. The Base Salary is currently $245,000 annually. The Company shall review the
Executive’s Base Salary at least annually during the Employment Period. The Executive’s Base
Salary may be increased but not decreased during the Employment Period.
(b) Bonuses. During the Employment Period, the Executive shall be eligible to participate in
the GulfMark Offshore, Inc. Incentive Compensation Plan (or any applicable successor plan) (the
“Incentive Plan”). The bonus opportunity afforded the Executive pursuant to this Section 4(b) may
vary from year to year and any bonus earned thereunder (the “Annual Bonus”) shall be paid at a time
and in a manner consistent with the Company’s customary practices. The target Annual Bonus for the
Executive for a year is equal to 100 percent (100%) of the amount of the Executive’s Base Salary
that is earned by the Executive during such year. The Executive’s bonus levels under the Incentive
Plan will be contingent upon the Company achieving predetermined performance goals and approval by
the Compensation Committee. The Company may also award the Executive a discretionary cash bonus or
other cash bonus outside of the Incentive Plan for services performed by the Executive during a
fiscal year.
-3-
(c) Equity-Based Compensation and Performance Awards. During the Employment Period, the
Executive shall be entitled to receive equity-based compensation awards and performance awards on
substantially similar terms and conditions no less favorable than awards made to the other senior
executive officers of the Company.
As the Executive’s initial award, during 2011 the Compensation Committee shall grant to the
Executive an award of 4,000 shares of restricted stock, under the GulfMark Offshore, Inc. 2010
Omnibus Equity Incentive Plan (the “LTI Plan”) which shall become 100 percent (100%) vested on the
three (3) year anniversary of the Effective Date subject to the Executive’s continued employment
with the Company. The terms of such grant, when made, shall be set forth in a written award
agreement.
In addition, during the Term, for 2012 and annually thereafter, at the time the Compensation
Committee makes annual grants of equity awards to executive officers, the Company shall xxxxx
xxxx-term incentive compensation award opportunities (such as restricted stock, restricted stock
units and/or stock options) under the LTI Plan or a successor plan approved by the stockholders of
the Company, having a grant date value equal to the sum of the Executive’s Base Salary and target
Annual Bonus opportunity. Such grants shall be subject to such performance and service conditions
as the Compensation Committee may determine in its sole discretion. For purposes hereof, the grant
date value shall be determined in the same manner as grant date values are determined by the
Compensation Committee with respect to long-term incentive awards made to executive officers of the
Company generally. If the Company is required to prepare an accounting restatement due to the
material noncompliance of the Company with any financial reporting requirement under applicable
securities laws, the Executive shall forfeit and must repay to the Company any compensation awarded
under the LTI Plan or a successor plan approved by the stockholders of the Company to the extent
specified in any of the Company’s recoupment policies established or amended (now or in the future)
in compliance with the rules and standards of the Securities and Exchange Commission Committee
under or in connection with Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act.
(d) Expenses. The Company shall promptly reimburse the Executive for all reasonable business
expenses incurred during the Employment Period by the Executive in performing services hereunder,
including all expenses of travel and living expenses while away from home on business or at the
request of and in the service of the Company; provided, in each case, that such expenses are
incurred and accounted for in accordance with the policies and procedures established by the
Company. Such payments under this Section 4(d) shall be made within ten (10) business days after
the delivery of the Executive’s written request for the payment accompanied by such evidence of
fees and expenses incurred as the Company may reasonably require. The parties intend and agree
that such ten (10) business day deadline is not to be extended as a result of the following
sentence which is included solely for the purpose of complying with Section 409A. The Company
shall pay the Executive the amount of such expenses by the last day of the Executive’s taxable year
following the taxable year in which the Executive incurred such expenses. The expenses that are
subject to reimbursement pursuant to this Section 4(d) shall not be limited as a result of when the
expenses are incurred. The amount of expenses eligible for reimbursement pursuant to this Section
4(d) during a given taxable year of the Executive shall not affect the amount of expenses eligible
for reimbursement in any other
-4-
taxable year of the Executive. The right to reimbursement pursuant to this Section 4(d) is
not subject to liquidation or exchange for another benefit.
(e) Other Benefits. During the Employment Period, the Executive shall be entitled to
participate in all of the employee benefit plans and arrangements made available by the Company to
its other senior executive officers, including without limitation the GulfMark Offshore, Inc.
Deferred Compensation Plan and the GulfMark Offshore, Inc. 401(k) Plan, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans and arrangements.
Except for any reimbursements under the applicable group health plan that are subject to a
limitation on reimbursements during a specified period, the amount of expenses eligible for
reimbursement under this Section 4(e), or in-kind benefits provided, during the Executive’s taxable
year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided,
in any other taxable year of the Executive. The Executive’s right to reimbursement or in-kind
benefits pursuant to this Section 4(e) shall not be subject to liquidation or exchange for another
benefit.
(f) Vacation. During the Employment Period, after 2011 the Executive shall be entitled to
vacation in accordance with the Company’s vacation policy in effect from time to time; provided
that during the 2011 calendar year the Executive shall be entitled to three (3) weeks of vacation.
5. Offices. Subject to Sections 2, 3 and 4 hereof, the Executive agrees to serve
without additional compensation, if elected or appointed thereto, as a director of any of the
Company’s subsidiaries and as a member of any committees of the board of directors of any such
corporations, and in one or more executive positions of any of the Company’s subsidiaries.
6. Termination. The Employment Period shall end in the event of a termination of the
Executive’s employment in accordance with any of the provisions of Section 6 or 7, and the Term
shall expire in the event of a termination of Executive’s employment by the Company for Cause or by
the Executive without Good Reason, in each case, on the Executive’s Date of Termination. Otherwise
the Term shall expire as set forth in Section 1.
(a) Death. The Executive’s employment hereunder shall terminate upon his death.
(b) Disability. If, as a result of the Executive’s “Disability,” as that term is defined in
29 C.F.R. sec. 1630.2(g) (or any subsequent amendment thereto), the Executive is unable to perform
the essential functions of his position, with or without reasonable accommodation, for ninety (90)
consecutive days, the Company may terminate the Executive’s employment, provided the Company allows
the Executive thirty (30) days following Notice of Termination (as defined in Section 7(a) hereof)
to return to the performance of the essential functions of his position, with or without
accommodation. Such Notice of Termination may be sent during the 90-day period.
(c) Cause. The Company may terminate the Executive’s employment hereunder for Cause. For
purposes of this Agreement, the Company shall have “Cause” shall mean (i) the willful and continued
failure by the Executive to substantially perform his duties as an employee
-5-
of the Company (other than any such failure resulting from incapacity due to physical or
mental illness), which failure is not cured to the Board’s satisfaction within a reasonable period
after written notice thereof to Executive, (ii) the Executive being convicted of or a plea of nolo
contendere to the charge of a felony (other than a felony involving a traffic violation or as a
result of vicarious liability), (iii) the commission by the Executive of a material act of
dishonesty or breach of trust resulting or intending to result in personal benefit or enrichment to
the Executive at the expense of the Company, or (iv) an unauthorized absence from employment that
is not cured to the Board’s satisfaction within five (5) days after written notice thereof to
Executive. For purposes of this paragraph, no act, or failure to act, on the Executive’s part shall
be considered “willful” unless done, or omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was not in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds (⅔) of the entire authorized membership of the Board
at a meeting of the Board (after reasonable notice and an opportunity for the Executive, together
with counsel, to be heard before the Board) finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth in clauses (i), (ii), (iii) or (iv) of the second
sentence of this paragraph and specifying the particulars thereof in detail.
(d) Good Reason. The Executive may terminate his employment hereunder for “Good Reason”.
“Good Reason” for the Executive’s termination of employment shall mean the occurrence, without the
Executive’s prior written consent, of any one or more of the following:
(i) the assignment to the Executive of any duties inconsistent with the Executive’s
position (including status, office, title and reporting requirements), authorities, duties
or other responsibilities as contemplated by Section 2 of this Agreement;
(ii) the relocation of the Principal Place of Employment to a location more than
seventy-five (75) miles from the Principal Place of Employment; or
(iii) a material breach by the Company of any provision of this Agreement;
provided, in any case, that the Company shall have thirty (30) business days from the date on which
the Company receives the Executive’s Notice of Termination for Good Reason to remedy any such
occurrence otherwise constituting Good Reason. Notwithstanding any provision of this Agreement to
the contrary, the Executive shall not be treated as having terminated his employment for a Good
Reason event if he incurs a Separation From Service more than one year following the initial
existence of the particular Good Reason condition or if he has not given the Company written notice
of the Good Reason condition within ninety (90) days after the initial existence of the Good Reason
condition.
(e) Termination of Agreement. Either party hereto may terminate this Agreement and the
employment of the Executive at any time by giving the Chief Executive Officer of the Company or the
Executive, as the case may be, no more than thirty (30) days’ prior written notice, in accordance
with Section 7 hereof, of such party’s intent to so terminate this Agreement and the employment of
the Executive.
-6-
7. Termination Procedure.
(a) Notice of Termination. Any termination of the Executive’s employment by the Company or by
the Executive (other than termination pursuant to Section 6(a) hereof) shall be communicated by
written Notice of Termination to the other party hereto in accordance with Section 12 hereof. For
purposes of this Agreement, a “Notice of Termination” shall mean a notice that shall indicate the
specific termination provision in this Agreement relied upon and shall set 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.
(b) Date of Termination. “Date of Termination” shall mean (i) if the Executive’s employment
is terminated pursuant to Section 6(a) above, the date of the Executive’s death, (ii) if the
Executive’s employment is terminated pursuant to Section 6(b) above, thirty (30) days after Notice
of Termination is given (provided that the Executive shall not have returned to the performance of
his duties on a full-time basis during such thirty (30) day period), (iii) if the Executive’s
employment is terminated pursuant to Section 6(c) above, the date specified in the Notice of
Termination, which date may be no earlier than the date the Executive is given notice in accordance
with Section 12 hereof, (iv) if the Executive’s employment is terminated pursuant to Section 6(d)
above, the date on which a Notice of Termination is given or any later date (within thirty (30)
days of the date of such Notice of Termination) set forth in such Notice of Termination and (v) if
the Executive’s employment is terminated for any other reason, the date specified in the Notice of
Termination, which date shall be not later than thirty (30) days following the date on which Notice
of Termination is given; provided, that, if within ten (10) days after any Notice of Termination is
given the party receiving such Notice of Termination notifies the other party that a dispute exists
concerning such 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 binding and final
arbitration award.
8. Compensation upon Termination or During Disability.
(a) Benefit Obligation and Accrued Obligation Defined. For purposes of this Agreement,
payment of the “Benefit Obligation” shall mean payment by the Company to the Executive (or his
designated beneficiary or legal representative, as applicable), when due, of all vested benefits to
which the Executive is entitled under the terms of the employee benefit plans and compensation
arrangements in which the Executive is a participant as of the Date of Termination. For the
avoidance of doubt, the Executive’s benefits under the GulfMark Offshore, Inc. 401(k) Plan shall
not be subject to a mandatory six-month delay in payment pursuant to Section 409A as such plan is
exempt from Section 409A. “Accrued Obligation” means the sum of (1) the Executive’s Base Salary
through the Date of Termination for periods through but not following his Separation From Service
(as defined in Section 8(b) below) and (2) any accrued vacation pay earned by the Executive, in
each case, to the extent not theretofore paid.
(b) Disability; Death. Following the termination of the Executive’s employment pursuant to
Section 6(a) or Section 6(b) hereof, the Company shall pay to the Executive (or his estate or legal
representative, if applicable):
(i) the Accrued Obligation; and
-7-
(ii) the Executive’s Base Salary through the Date of Termination for periods following
his Separation From Service, to the extent not theretofore paid.
In the event of the termination of the Executive’s employment pursuant to Section 6(a) or Section
6(b) the Company shall pay the Executive or his estate the Accrued Obligation within thirty (30)
days after the date of termination of the Executive’s employment.
In the event of the termination of the Executive’s employment pursuant to Section 6(a) the Company
shall pay the Executive’s estate the amounts required pursuant to Section 8(b)(ii) within sixty
(60) days after the Date of Termination. In the event of the termination of the Executive’s
employment pursuant to Section 6(b) in a circumstance where the Executive has incurred a Section
409A Disability, the Company shall pay the Executive the amounts required to be paid pursuant to
Section 8(b)(ii) within 60 days after the date the Executive incurs a Section 409A Disability. For
purposes of this Agreement, “Section 409A Disability” means the inability of the Executive to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months. The Executive shall also be treated as having a
“Section 409A Disability” if he is, by reason of a medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering employees of the Company. The Company
shall determine whether the Executive has incurred a Section 409A Disability. Such determination
shall be supported by the written medical opinion of a medical doctor who is mutually acceptable to
the Company and the Executive. In the event of the termination of the Executive’s employment
pursuant to Section 6(b) in a circumstance where the Executive has not incurred a Section 409A
Disability, the Company shall pay the Executive the amounts required to be paid pursuant to Section
8(b)(ii) within sixty (60) days following his Separation From Service if he is not a Specified
Employee or on the date that is six months following the date of the Executive’s Separation from
Service if he is a Specified Employee. For purposes of this Agreement, the term “Separation From
Service” shall have the meaning ascribed to such term in Section 409A. The term “Specified
Employee” means a person who is a “specified employee” within the meaning of Section 409A, taking
into account the elections made and procedures established in resolutions adopted by the
Compensation Committee.
Neither the Executive nor his estate shall be permitted to specify the taxable year in which a
payment described in this Section 8(b) shall be paid.
In the event of the termination of the Executive’s employment pursuant to Section 6(a) or Section
6(b) the Company shall pay the Executive the Benefit Obligation at the times specified in and in
accordance with the terms of the applicable employee benefit plans and compensation arrangements.
(c) By the Company for Cause. If during the Term the Executive’s employment is terminated by
the Company pursuant to Section 6(c) hereof, the Company shall pay to the Executive the Accrued
Obligation within thirty (30) days following the Date of Termination. The Company shall pay to the
Executive his Base Salary for periods following his Separation From Service, to the extent not
theretofore paid, within thirty (30) days following his Separation
-8-
From Service if he is not a Specified Employee or on the date that is six months following his
Separation From Service if he is a Specified Employee. Following such payments, the Company shall
have no further obligations to the Executive other than as may be required by law or the terms of
an employee benefit plan of the Company. The Company shall pay the Executive the Benefit
Obligation at the times specified in and in accordance with the terms of the applicable employee
benefit plans and compensation arrangements.
(d) By the Executive Without Good Reason. If during the Term the Executive terminates his
employment for any reason other than Good Reason, the Company shall pay to the Executive the
Accrued Obligation within thirty (30) days following the Date of Termination. The Company shall
pay to the Executive his Base Salary for periods following his Separation From Service, to the
extent not theretofore paid, within thirty (30) days following his Separation From Service if he is
not a Specified Employee or on the date that is six months following his Separation From Service if
he is a Specified Employee. Following such payments, the Company shall have no further obligations
to the Executive other than as may be required by law or the terms of an employee benefit plan of
the Company. The Company shall pay the Executive the Benefit Obligation at the times specified in
and in accordance with the terms of the applicable employee benefit plans and compensation
arrangements. The Executive shall not have breached this Agreement if he terminates his employment
for any reason.
(e) By the Company Without Cause or by the Executive for Good Reason. If during the Term the
Executive’s employment is terminated by the Company other than for Cause, death or Disability or if
the Executive terminates his employment for Good Reason, then, subject to Section 16:
(i) The Company shall pay to the Executive, at the times specified in Section 8(e)(vi)
below, the following amounts:
(A) the Accrued Obligation;
(B) the Executive’s Base Salary through the Date of Termination for periods
following his Separation From Service, to the extent not theretofore paid;
(C) a lump sum in cash equal to two times the Executive’s Base Salary (at the
rate in effect as of the Date of Termination);
(D) a lump sum in cash equal to the undiscounted value of the employer
contributions or credits the Company would have made to the GulfMark Offshore, Inc.
401(k) Plan and the GulfMark Offshore, Inc. Deferred Compensation Plan (including
but not limited to matching contributions, and not including elective deferrals by
the Executive) on behalf of the Executive had the Executive continued in the employ
of the Company for a period of two years after the Employment Termination Date,
assuming for this purpose that (i) the Executive’s earned compensation per year
during that two year period of time was the Executive’s Base Salary in effect on the
Date of Termination; (ii) the Executive had, during such two year period, made the
maximum elective deferrals permitted under the GulfMark Offshore, Inc. 401(k) Plan,
and the contribution,
-9-
deferral, credit and accrual percentages made under the GulfMark Offshore, Inc.
Deferred Compensation Plan, by and on behalf of the Executive during the two year
period, were the same percentages in effect on the Date of Termination; and (iii)
the amounts of any legal limitations on benefits (such as section 401(a)(17) of the
Code) are the same amounts as are in effect under the Code on the Date of
Termination.
(E) a lump sum in cash equal to the product of (x) the Executive’s Annual Bonus
paid for the immediately preceding calendar year and (y) a fraction, the numerator
of which is the number of days during the Company’s then current fiscal year through
the Date of Termination and the denominator of which is 365.
(ii) For a period of six (6) months after the date of the Executive’s Separation From
Service, the Company shall promptly reimburse the Executive for reasonable outplacement
services incurred by him.
(iii) Any and all then outstanding stock options and restricted stock awards previously
granted by the Company to the Executive shall become fully exercisable and vested;
(iv) Payments to the Executive of the amounts under clauses (i)(C), (i)(D) and (i)(E)
of this Section 8(e) (other than Accrued Obligations) are contingent upon the Executive’s
execution and delivery of a release substantially in the form of Exhibit A hereto by the
deadline established by the Company. The Executive will not be paid the remuneration
described in clauses (i)(C), (i)(D) and (i)(E) of this Section 8(e), and the Executive shall
forfeit any right to such remuneration, unless (I) the Executive has executed and delivered
the release, and (II) any statutory revocation period for revoking such release shall have
expired (in the case of both clause (I) and clause (II)) on or prior to the payment
commencement date for such remuneration specified in clause (vi) of this Section 8(e).
(v) The Executive shall not be permitted to specify the taxable year in which any
payment described in this Section 8(e) shall be made to him.
(vi) The Company shall pay the Executive the Benefit Obligation at the times specified
in and in accordance with the terms of the applicable employee benefit plans and
compensation arrangements. The Company shall pay the Executive the amounts specified in
Section 8(e)(i)(A) within thirty (30) days after the Date of Termination. The Company shall
pay or provide to the Executive the amounts or benefits specified in Sections 8(e)(i)(B),
8(e)(i)(C), 8(e)(i)(D) and 8(e)(i)(E) 30 days following the date of the Executive’s
Separation From Service if he is not a Specified Employee or on the date that is six months
following the date of his Separation From Service if he is a Specified Employee.
-10-
9. Confidential Information; Non-Competition; Non-Solicitation.
(a) Confidential Information. The Executive shall hold in a fiduciary capacity for the
benefit of the Company and its Affiliates all trade secrets, confidential information, and
knowledge or data relating to the Company and its Affiliates and their businesses, which shall have
been obtained by the Executive during the Executive’s employment by the Company and which shall not
have been or hereafter become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement) (hereinafter being collectively
referred to as “Confidential Information”). For the avoidance of doubt, Confidential Information
shall not include information that:
(i) is already in Executive’s possession; provided that the information is not known by
the Executive to be subject to another confidentiality agreement with, or other obligation
of secrecy to, the Company or any of its Affiliates,
(ii) becomes generally available to the public other than as a result of a disclosure
by the Executive, or
(iii) becomes available to the Executive on a non-confidential basis from a source
other than the Company or any of its Affiliates or any of their respective directors,
officers, employees, agents or advisors; provided, that such source is not known by the
Executive to be bound by a confidentiality agreement with or other obligation of secrecy to
the Company or any of its Affiliates.
The Executive shall 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 trade secrets, information,
knowledge or data to anyone other than the Company and those designated by the Company. Any
termination of the Executive’s employment or of this Agreement shall have no effect on the
continuing operation of this Section 9(a). The Executive agrees to return all Confidential
Information, including all photocopies, extracts and summaries thereof, and any such information
stored electronically on tapes, computer disks or in any other manner to the Company at any time
upon request by the Company and upon the termination of his employment hereunder for any reason.
(b) Non-Competition. During the Employment Period and for a period of two (2) years following
the Date of Termination (such period following the Employment Period, the “Restricted Period”), the
Executive shall not engage in Competition, as defined below, with the Company; provided, that it
shall not be a violation of this Section 9(b) for the Executive to become the registered or
beneficial owner of up to five percent (5%) of any class of the capital stock of a corporation
registered under the Securities Exchange Act of 1934, as amended, provided that the Executive does
not actively participate in the business of such corporation until such time as this covenant
expires.
For purposes of this Agreement, “Competition” by the Executive means the Executive’s engaging
in, or otherwise directly or indirectly being employed by or acting as a consultant or lender to,
or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,
or permitting his name to be used in connection with the activities of any other
-11-
business or organization which competes, directly or indirectly, with the business of the
Company as the same shall be constituted at any time during the Term.
(c) Non-Solicitation. During the Restricted Period, the Executive agrees that he will not,
directly or indirectly, for his benefit or for the benefit of any other person, firm or entity, do
any of the following:
(i) solicit from any customer doing business with the Company or any of its Affiliates
as of the Date of Termination that is known to Executive, business of the same or of a
similar nature to the business of the Company with such customer;
(ii) solicit from any potential customer of the Company or any of its Affiliates that
is known to the Executive business of the same or of a similar nature to that which has been
the subject of a known written or oral bid, offer or proposal by the Company or any of its
Affiliates, or of substantial preparation with a view to making such a bid, proposal or
offer, within six (6) months prior to such Date of Termination;
(iii) solicit the employment or services of any person who was known to be employed by
or was a known consultant to the Company or any of its Affiliates upon the Date of
Termination, or within six (6) months prior thereto; or
(iv) otherwise knowingly interfere with the business or accounts of the Company or any
of its Affiliates.
The Executive and the Company agree and acknowledge that the Company has a substantial and
legitimate interest in protecting the Company’s Confidential Information and goodwill. The
Executive and the Company further agree and acknowledge that the provisions of this Section 9 are
reasonably necessary to protect the Company’s legitimate business interests and are designed to
protect the Company’s Confidential Information and goodwill.
The Executive agrees that the scope of the restrictions as to time, geographic area, and scope
of activity in this Section 9 are reasonably necessary for the protection of the Company’s
legitimate business interests and are not oppressive or injurious to the public interest. The
Executive agrees that in the event of a breach or threatened breach of any of the provisions of
this Section 9 the Company shall be entitled to injunctive relief against the Executive’s
activities to the extent allowed by law, and the Executive waives any requirement for the posting
of any bond by the Company in connection with such action. The Executive further agrees that any
breach or threatened breach of any of the provisions of Section 9(a) would cause injury to the
Company for which monetary damages alone would not be a sufficient remedy.
(d) Publicity. The Executive agrees that the Company may use, and hereby grants the Company
the nonexclusive and worldwide right to use, the Executive’s name, picture, likeness, photograph,
signature or any other attribute of the Executive’s persona (all of such attributes are hereafter
collectively referred to as “Persona”) in any media for any advertising, publicity or other purpose
at any time, either during or subsequent to his employment by the Company. The Executive agrees
that such use of his Persona will not result in any invasion or violation of any privacy or
property rights the Executive may have; and the Executive agrees that he will receive no additional
compensation for the use of his Persona. The Executive further agrees that any
-12-
negatives, prints or other material for printing or reproduction purposes prepared in
connection with the use of his Persona by the Company shall be and are the sole property of the
Company.
10. Indemnification; Insurance. The Company shall indemnify the Executive to the
fullest extent permitted by the laws of the Company’s state of incorporation in effect at that
time, or certificate of incorporation and by-laws of the Company, whichever affords the greater
protection to the Executive. The Executive will be entitled to any insurance policies the Company
may elect to maintain generally for the benefit of its officers and directors against all costs,
charges and expenses incurred in connection with any action, suit or proceeding to which he may be
made a party by reason of being a director or officer of the Company. Notwithstanding any other
provision of this Agreement, to the extent that any payment under this Section 10 is not exempt
from Section 409A pursuant to the application of Department of Treasury Regulation §1.409A-1(b)(10)
or other applicable exemption (a “409A Payment”) the following provisions of this Section 2(g)
shall apply with respect to such 409A Payment. Employer shall make a 409A Payment due under this
Agreement at the time specified above in this Agreement. The parties intend and agree that such
payment deadline is not to be extended as a result of the following sentence which is included
solely for the purpose of complying with Section 409A. Employer shall make a 409A Payment by the
last day of the taxable year of Employee following the taxable year in which such legal fees and
expenses were incurred. The legal fees or expenses that are subject to reimbursement pursuant to
this Agreement shall not be limited as a result of when the fees or expenses are incurred. The
amounts of legal fees or expenses that are eligible for reimbursement pursuant to this Agreement
during a given taxable year of the Indemnitee shall not affect the amount of expenses eligible for
reimbursement in any other taxable year. The right to reimbursement pursuant to this Agreement is
not subject to liquidation or exchange for another benefit.
11. Successors; Binding Agreement.
(a) Company’s Successors. The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same terms as he would be
entitled to hereunder if he terminated his employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such succession becomes effective shall be deemed
the Date of Termination. As used in this Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section 11 or which otherwise becomes bound by all
the terms and provisions of this Agreement by operation of law.
(b) Executive’s Successors. This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive
should die while any amounts would still be payable to him hereunder if he had
-13-
continued to live, all such amounts unless otherwise provided herein shall be paid in
accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee
or, if there is no such designee, to the Executive’s estate.
12. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when delivered or (unless otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xx. Xxxxxxx X. Xxxxxx
00 Xxxxx Xxxxxx Xx.
Xxxxxxxxx, Xxxxx 00000
00 Xxxxx Xxxxxx Xx.
Xxxxxxxxx, Xxxxx 00000
If to the Company:
GulfMark Offshore, Inc.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Vice President Human Resources
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Vice President Human Resources
or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.
13. Amendment or Modification; Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and such officer of the Company as may be specifically designated
by the Board or its Compensation Committee. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in Agreement.
14. Dispute Resolution. Any dispute or controversy arising under or in connection
with this Agreement, the Executive’s employment by the Company or the Executive’s compensation or
benefits (a “Dispute”) shall be settled in accordance with the procedures described in this Section
14.
(a) First, the parties shall attempt in good faith to resolve any Dispute promptly by
negotiations between the Executive and executives or directors of the Company who have authority to
settle the Dispute. Either party may give the other disputing party written notice of any Dispute
not resolved in the normal course of business. Within five days after the effective date of that
notice, the Executive and such executives or directors of the Company shall agree upon a mutually
acceptable time and place to meet and shall meet at that time and place, and thereafter as often as
they reasonably deem necessary, to exchange relevant information and to
-14-
attempt to resolve the Dispute. The first of those meetings shall take place within 30 days
of the effective date of the disputing party’s notice. If the Dispute has not been resolved within
60 days of the disputing party’s notice, or if the parties fail to agree on a time and place for an
initial meeting within five days of that notice, either party may initiate mediation and
arbitration of the Dispute as provided hereinafter. If a negotiator intends to be accompanied at a
meeting by an attorney, the other negotiators shall be given at least three business days’ notice
of that intention and may also be accompanied by an attorney. All negotiations pursuant to this
Section 14 shall be treated as compromise and settlement negotiations for the purposes of
applicable rules of evidence and procedure.
(b) Second, if the Dispute is not resolved through negotiation as provided in Section 14(a),
either disputing party may require the other to submit to non-binding mediation with the assistance
of a neutral, unaffiliated mediator. If the parties encounter difficulty in agreeing upon a
neutral mediator, they shall seek the assistance of the American Arbitration Association in the
selection process.
(c) Any Dispute that has not been resolved by the non-binding procedures provided in Sections
14(a) and 14(b) within 90 days of the initiation of the first of the procedures shall be finally
settled by arbitration conducted expeditiously in accordance with the Commercial Arbitration Rules
of the American Arbitration Association or of such similar organization as the parties hereto may
mutually agree; provided, that if one party has requested the other to participate in a non-binding
procedure and the other has failed to participate within 30 days of the written request, the
requesting party may initiate arbitration before the expiration of the period. The arbitration
shall be conducted by three independent and impartial arbitrators. The Executive shall appoint one
arbitrator, the Company shall appoint a second arbitrator, and a third arbitrator not appointed by
the parties shall be appointed by the first two arbitrators selected. The arbitration shall be
held in Houston, Xxxxxx County, Texas. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction. The arbitrators shall award the prevailing party in the arbitration its
costs and expenses, including reasonable attorney’s fees, incurred in connection with the Dispute.
The arbitrators shall not award any amount to either the Executive or the Company in excess of the
compensation, employee benefits and indemnification amounts that the Company paid or should have
paid to the Executive pursuant to this Agreement.
(d) Notwithstanding the Dispute resolution provisions of this Section 14, either party may
bring an action in a court of competent jurisdiction in an effort to enforce the provisions of this
Section 14 and to seek injunctive relief to protect the party’s rights pending resolution of a
Dispute pursuant to this Section 14, including, without limitation, the Company’s rights pursuant
to Section 9 of this Agreement.
15. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Texas without regard to its conflicts of
law principles.
16. Miscellaneous. All references to sections of any statute shall be deemed also to
refer to any successor provisions to such sections. The obligations of the parties under Sections
8, 9, 10 and 14 hereof shall survive the expiration of the Term. The compensation and benefits
payable to the Executive or his beneficiary under Section 8 of this Agreement shall be in lieu of
-15-
any other severance benefits to which the Executive may otherwise be entitled upon his
termination of employment under any severance plan, program, policy or arrangement of the Company
other than the Change of Control Agreement and the Executive shall not be entitled to receive any
benefits under Section 8 hereof if he has become eligible to receive benefits under the Change of
Control Agreement.
17. Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect throughout the Term. Should any one or more
of the provisions of this Agreement be held to be excessive or unreasonable as to duration,
geographical scope or activity, then that provision shall be construed by limiting and reducing it
so as to be reasonable and enforceable to the extent compatible with the applicable law.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
instrument.
19. Release. In consideration of the benefits and compensation which may be awarded
to the Executive pursuant to Section 8 of this Agreement, the Executive hereby agrees to execute
and be bound by, as a condition precedent to receiving said benefits and compensation, the Release
attached hereto as Exhibit A, such Release being incorporated herein by reference.
20. Compliance With Section 409A. It is intended that this Agreement shall comply
with Section 409A. The provisions of this Agreement shall be interpreted and administered in a
manner that complies with Section 409A.
21. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and, as of the Effective Date, supersedes
all prior agreements, promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative of any party
hereto; provided, that the Change of Control Agreement shall not be superseded hereby.
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of March 15, 2011.
| GULFMARK OFFSHORE, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Date: | 3-15-11 | |||||
| XXXXXXX XXXXXX | ||||||
/s/
Xxxxxxx X. Xxxxxx |
||||||
| Date: | March 15, 2011 | |||||
-17-
EXHIBIT A
RELEASE
The Executive hereby irrevocably and unconditionally releases, acquits and forever discharges
the Company (as defined in the Executive’s Employment Agreement) and its affiliated companies and
their directors, officers, employees and representatives, (collectively “Releasees”), from any and
all claims, liabilities, obligations, damages, causes of action, demands, costs, losses and/or
expenses (including attorneys’ fees) of any nature whatsoever, whether known or unknown, including,
but not limited to, rights arising out of alleged violations of any contracts, express or implied,
any covenant of good faith and fair dealing, express or implied, or any tort, or any legal
restrictions on the Company’s right to terminate employees, or any federal, state or other
governmental statute, regulation, or ordinance, including, without limitation, Title VII of the
Civil Rights Act of 1964, as amended and the Age Discrimination in Employment Act of 1967, as
amended, which the Executive claims to have against any of the Releasees (in each case, except as
to indemnification provided by (a) the Executive’s Employment Agreement with the Company (as
amended or superseded from time to time) and/or (b) by the Company’s bylaws and any indemnification
agreement or arrangement permitted by Section 145 of the Delaware General Corporation Law and by
directors, officers and other liability insurance coverages to the extent you would have enjoyed
such coverages had you remained a director or officer of the Company). In addition, the Executive
waives all rights and benefits afforded by any state laws which provide in substance that a general
release does not extend to claims which a person does not know or suspect to exist in his favor at
the time of executing the release which, if known by him, must have materially affected the
Executive’s settlement with the other person. The only exception to the foregoing are claims and
rights that may arise after the date of execution of this Release, claims and rights arising under
any employee benefit plan (including, but not limited to the GulfMark Offshore, Inc. Deferred
Compensation Plan and the GulfMark Offshore, Inc. 401(k) Plan) and claims and rights arising under
Section 8 of the Executive’s Employment Agreement.
The Executive understands and agrees that:
| A. | He has a period of 21 days within which to consider whether he desires to execute this Agreement, that no one hurried him into executing this Agreement during that 21-day period, and that no one coerced him into executing this Agreement. | ||
| B. | He has carefully read and fully understands all of the provisions of this Agreement, and declares that the Agreement is written in a manner that he fully understands. | ||
| C. | He is, through this Agreement, releasing the Releasees from any and all claims he may have against the Releasees, and that this Agreement constitutes a release and discharge of claims arising under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634, including the Older Workers’ Benefit Protection Act, 29 U.S.C. § 626(f). |
| D. | He declares that his agreement to all of the terms set forth in this Release is knowing and is voluntary. | ||
| E. | He knowingly and voluntarily intends to be legally bound by the terms of this Release. | ||
| F. | He was advised and hereby is advised in writing to consult with an attorney of his choice concerning the legal effect of this Release prior to executing this Release. | ||
| G. | He understands that rights or claims that may arise after the date this Agreement is executed are not waived. | ||
| H. | He understands that, in connection with the release of any claim of age discrimination, he has a period of seven days to revoke his acceptance of this Release, and that he may deliver notification of revocation by letter or facsimile addressed to the Vice President Human Resources of the Company, at 00000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or (000) 000-0000. Executive understands that this Agreement will not become effective and binding with respect to a claim of age discrimination until after the expiration of the revocation period. The revocation period commences when Executive executes this Agreement and ends at 11:59 p.m. on the seventh calendar day after execution, not counting the date on which Executive executes this Agreement. Executive understands that if he does not deliver a notice of revocation before the end of the seven-day period described above, that this Agreement will become a final, binding and enforceable release of any claim of age discrimination. This right of revocation shall not affect the release of any claim other than a claim of age discrimination arising under federal law. | ||
| I. | He understands that nothing in this Agreement shall be construed to prohibit Executive from filing a charge or complaint, including a challenge to the validity of this Agreement, with the Equal Employment Opportunity Commission or participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission. |
AGREED AND ACCEPTED, on this _____ day of ________________, ______.
| XXXXXXX X. XXXXXX | ||||
-2-
