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EXHIBIT 10.9
SEVERANCE AGREEMENT
AGREEMENT between MARINE DRILLING COMPANIES, INC., a Texas corporation
(the "Company"), and XXXXXXX X. XXXXXX ("Executive"),
W I T N E S S E T H:
WHEREAS, the Company desires to attract and retain certain key employee
personnel and, accordingly, the Board of Directors of the Company (the "Board")
has approved the Company entering into a severance agreement with Executive in
order to encourage his continued service to the Company; and
WHEREAS, Executive is prepared to commit such services in return for
specific arrangements with respect to severance compensation and other benefits;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the Company and Executive agree as follows:
1. DEFINITIONS.
(a) "ANNUAL COMPENSATION" shall mean an amount equal to
the greater of:
(i) Executive's annual base salary at the annual
rate in effect at the date of his Involuntary Termination; or
(ii) Executive's annual base salary at the annual
rate in effect immediately prior to a Change-in-Control if Executive's
employment shall be subject to a Change-in-Control Involuntary
Termination.
(b) "CHANGE-IN-CONTROL" shall have the meaning ascribed to
such term in Section 9(b) of The Marine Drilling 1992 Long-Term Incentive Plan
(the "Incentive Plan").
(c) "CHANGE-IN-CONTROL INVOLUNTARY TERMINATION" shall mean any
termination of Executive's employment with the Company which:
(i) results from a resignation by Executive within 12
months after the date upon which a Change-in-Control occurs if such
resignation occurs within 30 days after Executive receives notice from
the Company that Executive will be subject to a Material Change in
Employment Terms; or
(ii) results from a termination by the Company within
12 months after the date upon which a Change-in-Control occurs;
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provided, however, the term "CHANGE-IN-CONTROL INVOLUNTARY TERMINATION" shall
not include a Termination for Cause or any termination as a result of death,
Disability, or Retirement.
(d) "COMPENSATION COMMITTEE" shall mean the Compensation
Committee of the Board.
(e) "DISABILITY" shall mean that, as a result of Executive's
incapacity due to physical or mental illness, he shall have been absent from the
full-time performance of his duties for at least 90 consecutive days or for a
period of 120 days during any 12-month period and he shall not have returned to
full-time performance of his duties within 30 days after written notice of
termination is given to Executive by the Company (provided, however, that such
notice may not be given prior to 30 days before the expiration of either such
period).
(f) "INVOLUNTARY TERMINATION" shall mean any
Non-Change-in-Control Termination or any Change-in-Control Involuntary
Termination.
(g) "MATERIAL CHANGE IN COMPENSATION" shall mean any one or
more of the following:
(i) a reduction in Executive's annual base salary
from that provided to him immediately prior to the effective date of
this Agreement; or
(ii) a significant diminution in Executive's
eligibility to participate in bonus, stock option, incentive award and
other compensation plans under which Executive is participating
immediately prior to the effective date of this Agreement.
(h) "MATERIAL CHANGE IN EMPLOYMENT TERMS" shall mean any one
or more of the following:
(i) a material diminution in the nature or scope of
Executive's authorities, powers, functions or duties from those
applicable to him immediately prior to the date on which a
Change-in-Control occurs;
(ii) a reduction in Executive's annual base salary
from that provided to him immediately prior to the date on which a
Change-in-Control occurs;
(iii) a significant diminution in Executive's
eligibility to participate in bonus, stock option, incentive award and
other compensation plans under which Executive is participating
immediately prior to the date on which a Change-in-Control occurs; or
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(iv) a change in the location of Executive's
principal place of employment by the Company by more than 50 miles from
the location where he was principally employed immediately prior to the
date on which a Change-in-Control occurs.
(i) "NON-CHANGE-IN-CONTROL INVOLUNTARY TERMINATION" shall mean
any termination of Executive's employment with the Company which:
(i) results from a resignation by Executive if but
only if such resignation occurs within 30 days after Executive receives
notice from the Company that (A) Executive's principal place of
employment will be moved by more than 50 miles from the location where
he was principally employed immediately prior to the date of such
notice or (B) Executive will be subject to a Material Change in
Compensation; or
(ii) results from a termination by the Company;
provided, however, the term "NON-CHANGE-IN-CONTROL INVOLUNTARY TERMINATION"
shall not include a Termination for Cause, a Change-in-Control Involuntary
Termination or any termination as a result of death, Disability, or Retirement.
(j) "RETIREMENT" shall mean termination of Executive's
employment for any reason on or after the date Executive reaches age sixty-five.
(k) "SEVERANCE AMOUNT" shall mean an amount equal to
Executive's Annual Compensation.
(l) "SEVERANCE PERIOD" shall mean the period commencing on the
date of an Involuntary Termination and continuing for 12 months.
(m) "TERMINATION FOR CAUSE" shall mean termination of
Executive's employment by the Company for any of the following reasons:
(i) Executive has engaged in gross negligence or
willful misconduct in the performance of the duties required of him;
(ii) Executive has been convicted of a felony or a
misdemeanor involving moral turpitude;
(iii) Executive has willfully refused without proper
legal reason to perform the duties and responsibilities required of
him;
(iv) Executive has materially breached any material
corporate policy or code of conduct established by the Company; or
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(v) Executive has willfully engaged in conduct that
he knows or should know is materially injurious to the Company or any
of its affiliates.
2. SERVICES. Executive agrees that he will render services to the
Company (as well as any subsidiary thereof or successor thereto) during the
period of his employment to the best of his ability and in a prudent and
businesslike manner and that he will devote substantially the same time, efforts
and dedication to his duties as heretofore devoted.
3. TERMINATION. Subject to the provisions of Paragraph 5(i) hereof, if
Executive's employment by the Company or any subsidiary thereof or successor
thereto shall be subject to an Involuntary Termination, then the Company will,
as additional compensation for services rendered to the Company (including its
subsidiaries), pay to Executive the following amounts (subject to any applicable
payroll or other taxes required to be withheld and any employee benefit
premiums) and take the following actions:
(a) Pay Executive a lump sum cash payment in an amount equal
to the Severance Amount on or before the tenth day after the last day of
Executive's employment with the Company; provided, however, if such Involuntary
Termination is a Change-in-Control Involuntary Termination, then such lump sum
cash payment shall be in an amount equal to twice the Severance Amount.
(b) Immediately cause Executive and those of his dependents
(including his spouse) who were covered under the Company's medical and dental
benefit plans on the day prior to Executive's Involuntary Termination to
continue to be covered under such plans throughout the Severance Period, without
any cost to Executive; provided, however, that (i) such coverage shall terminate
if and to the extent Executive becomes eligible to receive medical and dental
coverage from a subsequent employer (and any such eligibility shall be promptly
reported to the Company by Executive) and (ii) if Executive (and/or his spouse)
would have been entitled to retiree medical and/or dental coverage under the
Company's plans had he voluntarily retired on the date of such Involuntary
Termination, then such coverages shall be continued as provided under such
plans.
(c) Immediately cause any and all outstanding options to
purchase common stock of the Company held by Executive, which options were
granted prior to December 31, 1995, to become immediately exercisable in full
and to remain exercisable during the period of three months following such
termination (or such greater period as the Committee (as such term is defined in
the Incentive Plan) may determine), or by Executive's estate (or the person who
acquires such options by will or the laws of descent and distribution or
otherwise by reason of the death of Executive) during a period of one year
following Executive's death if Executive dies during such three-month period (or
such greater period as the Committee may determine), but in no event shall any
such
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option be exercisable after the tenth anniversary of the grant of such
option.
4. PARACHUTE PAYMENT LIMITATION. Notwithstanding anything to the
contrary in this Agreement, the amount of any benefits provided by this
Agreement shall be reduced or eliminated to the extent necessary so that no
payment made under this Agreement will subject Executive to an excise tax, as a
result of the Golden Parachute payment provisions contained in Sections 280G and
4999 of the Internal Revenue Code of 1986, as amended (ignoring, for purposes of
such excise tax calculation, payments under other agreements which will be made
after the payment to be made pursuant to this Agreement and which are subject to
a provision similar to this paragraph). Notwithstanding the foregoing, if
payments which are not made as a result of the preceding sentence ("Cutback
Payment"), when combined with payments under other agreements sponsored by the
Company which have not been paid as a result of a provision similar to this
paragraph ("Prior Cutback Payments"), would, if paid, result in Executive being
in a better net after-tax position (taking into account any applicable excise
tax under Section 4999 of the Internal Revenue Code of 1986, as amended, and any
income tax applicable to payments made under this Agreement or under such other
agreements) than he would have been had such reduction or elimination not been
made pursuant to the preceding sentence and provisions similar to this paragraph
in other agreements, then the Cutback Payment shall then be paid notwithstanding
the preceding sentence and all Prior Cutback Payments shall also then be paid
notwithstanding any provisions similar to this paragraph applicable to such
Prior Cutback Payments. Prior to the date any payment is to be made to Executive
pursuant to this Agreement (without regard to this paragraph), the Company shall
provide Executive with its calculations relevant to this paragraph and such
supporting materials as are reasonably necessary for Executive to evaluate the
Company's calculations. If Executive objects to the Company's calculations, the
Company shall pay Executive such portion of the Cutback Payment and Prior
Cutback Payments (in each case, up to 100% thereof) as Executive determines is
necessary to comply with the intent of this paragraph.
5. GENERAL.
(a) TERM. The effective date of this Agreement is April 8,
1998, and this Agreement shall have an initial term (the "Initial Term") of two
years beginning on such effective date. The term of this Agreement shall be
extended automatically for an additional successive one-year period as of the
last day of the Initial Term and as of the last day of each such successive
one-year period of time thereafter that this Agreement is in effect; provided,
however, that if, prior to 90 days before the last day of the Initial Term or
any such successive one-year term, the Compensation Committee (excluding any
member of the Compensation Committee who is covered by this Agreement or by a
similar agreement with the Company) shall give written notice to Executive that
no such automatic extension shall occur, then this Agreement shall terminate on
the last day of the Initial Term or such successive one-year term, as
applicable, during which such notice is given. Notwithstanding anything to the
contrary contained in this "sunset provision," it is agreed that if a
Change-in-Control occurs while this Agreement is in effect, then this
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Agreement shall not be subject to termination under this "sunset provision," and
shall remain in force for a period of 12 months after such Change-in-Control,
and if within said 12 months the contingency factors occur which would entitle
Executive to the benefits as provided herein, this Agreement shall remain in
effect in accordance with its terms. If, within such 12 months after a
Change-in-Control, the contingency factors that would entitle Executive to said
benefits do not occur, thereupon this "sunset provision" shall again be
applicable with the 90-day time period for Compensation Committee action to
thereafter commence 90 days prior to the first anniversary of such
Change-in-Control and 90 days prior to each one-year anniversary date
thereafter.
(b) INDEMNIFICATION. If Executive shall obtain any money
judgment or otherwise prevail with respect to any litigation brought by
Executive or the Company to enforce or interpret any provision contained herein,
the Company, to the fullest extent permitted by applicable law, hereby
indemnifies Executive for his reasonable attorneys' fees and disbursements
incurred in such litigation.
(c) PAYMENT OBLIGATIONS ABSOLUTE. The Company's obligation to
pay (or cause one of its subsidiaries to pay) Executive the amounts and to make
the arrangements provided herein shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Company
(including its subsidiaries) may have against him or anyone else. All amounts
payable by the Company (including its subsidiaries hereunder) shall be paid
without notice or demand. Executive shall not be obligated to seek other
employment in mitigation of the amounts payable or arrangements made under any
provision of this Agreement, and, except as provided in Paragraphs 3(b) hereof,
the obtaining of any such other employment shall in no event effect any
reduction of the Company's obligations to make (or cause to be made) the
payments and arrangements required to be made under this Agreement.
(d) SUCCESSORS. This Agreement shall be binding upon and inure
to the benefit of the Company and any successor of the Company, by merger or
otherwise. This Agreement shall also be binding upon and inure to the benefit of
Executive and his estate. If Executive shall die prior to full payment of
amounts due pursuant to this Agreement, such amounts shall be payable pursuant
to the terms of this Agreement to his estate.
(e) SEVERABILITY. Any provision in this Agreement which is
prohibited or unenforceable in any jurisdiction by reason of applicable law
shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating or affecting the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(f) NON-ALIENATION. Executive shall not have any right to
pledge, hypothecate, anticipate or assign this Agreement or the rights
hereunder, except by will or
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the laws of descent and distribution.
(g) NOTICES. Any notices or other communications provided for
in this Agreement shall be sufficient if in writing. In the case of Executive,
such notices or communications shall be effectively delivered if hand delivered
to Executive at his principal place of employment or if sent by registered or
certified mail to Executive at the last address he has filed with the Company.
In the case of the Company, such notices or communications shall be effectively
delivered if sent by registered or certified mail to the Company at its
principal executive offices.
(h) CONTROLLING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas.
(i) RELEASE. As a condition to the receipt of any benefit
under Paragraph 3 hereof, Executive shall first execute a release, in the form
established by the Company, releasing the Company, its shareholders, partners,
officers, directors, employees and agents from any and all claims and from any
and all causes of action of any kind or character, including but not limited to
all claims or causes of action arising out of Executive's employment with the
Company or the termination of such employment.
(j) FULL SETTLEMENT. If Executive is entitled to and receives
the benefits provided hereunder, performance of the obligations of the Company
hereunder will constitute full settlement of all claims that Executive might
otherwise assert against the Company on account of his termination of
employment. Executive hereby acknowledges that the Company has heretofore
rescinded and terminated the Company's Executive Severance Policy, as amended
from time to time, which policy was originally adopted on January 1, 1994, and
Executive hereby waives any and all rights Executive may have under such policy.
(k) UNFUNDED OBLIGATION. The obligation to pay amounts under
this Agreement is an unfunded obligation of the Company, and no such obligation
shall create a trust or be deemed to be secured by any pledge or encumbrance on
any property of the Company (including its subsidiaries).
(l) NOT A CONTRACT OF EMPLOYMENT. This Agreement shall not be
deemed to constitute a contract of employment, nor shall any provision hereof
affect (a) the right of the Company (or its subsidiaries) to discharge Executive
at will or (b) the terms and conditions of any other agreement between the
Company and Executive except as provided herein.
(m) NUMBER AND GENDER. Wherever appropriate herein, words used
in the singular shall include the plural and the plural shall include the
singular. The masculine gender where appearing herein shall be deemed to include
the feminine gender.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 8th day of April, 1998.
"EXECUTIVE"
/s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
"COMPANY"
MARINE DRILLING COMPANIES, INC.
BY: /s/ XXX XXXX
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XXX XXXX
CHIEF EXECUTIVE OFFICER
