SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the "Agreement") made and entered into
effective as of July 23, 2002 (the "Effective Date"), by and between Transocean
Offshore Deepwater Drilling Inc. (the "Company") and Xxx X. Xxxx (the
"Executive");
W I T N E S S E T H:
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WHEREAS, the Executive is an officer of the Company; and
WHEREAS, the parties mutually desire to arrange for a separation from
the Company and its affiliates and subsidiaries under certain terms; and
WHEREAS, in consideration of the mutual promises contained herein, the
parties hereto are willing to enter into this Agreement upon the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Resignation of Employment. Effective as of July 31, 2002 (the
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"Termination Date"), the Executive resigns his position as Executive Vice
President of the Company; and from any other position, directorship or office
relating to the affairs of the Company and its subsidiaries or affiliates,
including but not limited to Executive Vice President of Transocean Inc.
("Transocean").
2. Consideration for Services and Prior Agreement. The Company
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agrees to pay or provide, and the Executive agrees to accept, the benefits set
forth in this Section 2 in consideration for the Executive's service through the
Termination Date, and in full satisfaction of the existing obligations to the
Executive as described below.
A. Base Salary. The Executive shall continue to receive Base
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Salary through the Termination Date at the rate in effect on the
Effective Date.
B. Satisfaction of Agreement. The Company agrees to pay a
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lump sum cash payment of $2,241,653.17, on August 21, 2002 in full
satisfaction of the obligation of the Company under Section 4(a)(i) of
the Agreement entered into between the Company and the Executive as of
October 3, 2000 (the "2000 Agreement"). In addition, the Company shall
satisfy its obligations, as applicable, with respect to relocation,
welfare benefits, outplacement services and other employee benefits
pursuant to Sections 4(a)(ii), (iii), (iv) and (v) and additional
payments pursuant to Section 7 of the 2000 Agreement.
C. Vesting of 1993 Restricted Stock. Pursuant to the terms
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of the Waiver Agreement between the Company, Transocean and the
Executive dated
October 25, 1999, the restricted stock grant to the Executive dated
June 4, 1993 shall be fully vested as of the Termination Date.
D. Supplemental Retirement Plan Benefit. The Company agrees
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to pay a lump sum payment on August 21, 2002, in accordance with the
Company's obligation under the Transocean Offshore Inc. Supplemental
Benefit Plan ("Supplemental Plan"). Prior to making such payment, the
Company will provide Executive with documentation regarding the
calculation of this benefit. The Executive specifically agrees and
acknowledges that the payments set forth in Sections 2.B and 2.C, and
Section 3, of this Agreement are not includable in determining the
amount payable under the Supplemental Plan.
3. Consideration for Execution of Agreement and Waiver and
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Release. In consideration for the Executive's execution of and compliance with
this Agreement and the execution of the Waiver and Release attached hereto as
Attachment A, the Company shall provide the consideration set forth below in
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this Section 3. This consideration is provided subject to the binding
execution, without revocation, by the Executive of the attached Waiver and
Release agreement, which must be executed during the period beginning on the
Termination Date and ending on the 21st day after the Termination Date (the
"Waiver"). The Company's obligation to make any further payments otherwise due
under Section 3 shall cease in the event the Executive fails to comply with the
terms of this Agreement or his Waiver and Release, and no payment shall be made
until expiration of the revocation period following execution of the Waiver (the
"Effective Waiver Date").
A. Consideration. The Company agrees to pay a lump sum cash
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payment of $475,500.00 to the Executive payable on the second business
day following the Effective Waiver Date.
B. Options. The Company represents that Transocean has
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approved, subject to conditions that will be satisfied by the
execution and performance of this Agreement including, but not limited
to, the expiration of the revocation period following execution of the
Waiver, the acceleration as of the Termination Date of exercisability
of the Executive's outstanding stock options and the extension of
exercisability of such options for their then remaining term.
4. Restrictive Covenants. As a material inducement to Company to
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enter into this Agreement, the Executive agrees to the provisions of this
Section 4.
A. Confidentiality. The Executive recognizes and
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acknowledges that in the course of his employment with the Company and
as a result of the position of trust he has held with the Company he
has obtained private or confidential information and proprietary data
relating to the Company including, without limitation, financial
information, customer lists, patent information and other data which
are valuable assets and property rights of the Company. All of such
private or confidential information and proprietary data is referred
to herein as "Confidential Information"; provided, however, that
Confidential Information will not include any information known
generally to the public (other than as a
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result of unauthorized disclosure by the Executive). The Executive
agrees that he will not at any time, directly or indirectly, disclose
or use Confidential Information acquired during his employment with
the Company except with the prior written consent of the Chief
Executive Officer of the Company.
B. Non-Solicitation. Except with the written consent of the
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Chief Executive Officer of the Company, the Executive agrees that he
will not for two years after the Termination Date, in the Executive's
individual capacity or on behalf of another, hire, assist in hiring or
offer to hire any of the officers, employees, directors or agents of
the Company, or persuade or attempt to persuade in any manner any
officer, employees, directors or agent of the Company to discontinue
any relationship with the Company.
C. Nondisparagement. The Executive agrees that he will not
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for a period of five (5) years after the Termination Date (i) publicly
criticize or disparage the Company or any affiliate, or privately
criticize or disparage the Company or any affiliate in a manner
intended or reasonably calculated to result in public embarrassment
to, or injury to the reputation of, the Company or any affiliate in
any community in which the Company or any affiliate is engaged in
business; (ii) directly or indirectly, acting alone or acting in
concert with others, institute or prosecute, or assist any person in
any manner in instituting or prosecuting, any legal proceedings of any
nature against the Company or any affiliate; (iii) commit damage to
the property of the Company or any affiliate or otherwise engage in
any misconduct which is injurious to the business or reputation of the
Company or any affiliate; or (iv) take any other action, or assist any
person in taking any other action, that is adverse to the interests of
the Company or any affiliate or inconsistent with fostering the
goodwill of the Company or any affiliate; provided, however, that the
Executive will not be in breach of the covenant contained in (ii)
above solely by reason of his testimony which is compelled by process
of law. As used in Section 4.C. of this Agreement, the term
"affiliate" means the Company, any subsidiary, any officer, director
or executive of the Company or any subsidiary, and any former officer,
director or executive of the Company or any subsidiary.
D. Enforcement. The Executive hereby agrees that a violation
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of the provisions of Section 4 would cause substantial injury to the
Company and its affiliates, which would be difficult to quantify.
Accordingly, the Executive agrees that in the event of violation of
this Section 4 the Company would be entitled to obtain a refund of all
amounts previously paid to the Executive under Section 3.A. The
Company further specifically retains the right to seek injunctive
relief from a court having jurisdiction for any actual or threatened
breach of this Section 4. Any such injunctive relief shall be in
addition to any other remedies to which the Company may be entitled at
law or in equity or otherwise.
E. Interpretation. If any provision of Section 4 is found by
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a court of competent jurisdiction to be unreasonably broad, oppressive
or unenforceable, such court (i) shall narrow the scope of the
Agreement in order to ensure that the
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application thereof is not unreasonably broad, oppressive or
unenforceable and (ii) to the fullest extent permitted by law, shall
enforce such Agreement as though reformed.
F. Company. As used in this Section 4, the term "Company"
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includes the Company, Transocean and any direct or indirect subsidiary
of Transocean.
5. Assistance with Litigation. The Executive agrees that for a
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period of five years after the Termination Date, the Executive will furnish such
information and proper assistance as may be reasonably necessary in connection
with any litigation in which the Company or any affiliate or subsidiary is then
or may become involved.
6. Nonassignability. Neither this Agreement nor any right or
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interest hereunder shall be subject, in any manner, to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge, whether voluntary or
involuntary, by operation of law or otherwise, any attempt at such shall be
void; and further provided, that any such benefit shall not in any way be
subject to the debts, contract, liabilities, engagements or torts of the
Executive, nor shall it be subject to attachment or legal process for or against
the Executive.
7. Amendment of Agreement. This Agreement may not be modified or
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amended except by an instrument in writing signed by the parties hereto.
8. Waiver. No term or condition of this Agreement shall be deemed
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to have been waived, nor shall there be an estoppel against the enforcement of
any provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel.
9. Notices. All notices or communications hereunder shall be in
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writing, addressed as follows:
To the Company:
Transocean Offshore Deepwater Drilling Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Senior Vice President, General Counsel
To the Executive:
Xxx X. Xxxx
0000 Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
All such notices shall be conclusively deemed to be received and shall be
effective; (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission or (iii) if sent by registered or certified mail, on the fifth day
after the day on which such notice is mailed.
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10. Federal Income Tax Withholding. The Company may withhold from
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any benefits payable under this Agreement all federal, state, city or other
taxes that will be required pursuant to any law or governmental regulation or
ruling.
11. Severability. If any provision of this Agreement is held to
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be invalid, illegal or unenforceable, in whole or part, such invalidity will not
affect any otherwise valid provision, and all other valid provisions will remain
in full force and effect.
12. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which will be deemed an original, and all of which
together will constitute one document.
13. Titles. The titles and headings preceding the text of the
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paragraphs and subparagraphs of this Agreement have been inserted solely for
convenience of reference and do not constitute a part of this Agreement or
affect its meaning, interpretation or effect.
14. Governing Law. This Agreement will be construed and enforced
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in accordance with the laws of the State of Texas.
15. Venue. Any suit, action or other legal proceeding arising out
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of this Agreement shall be brought in the United States District Court for the
Southern District of Texas, Houston Division, or, if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in Xxxxxx County, Texas. Each of the Executive and the Company
consents to the jurisdiction of any such court in any such suit, action, or
proceeding and waives any objection that it may have to the laying of venue of
any such suit, action, or proceeding in any such court.
IN WITNESS WHEREOF, the parties have executed this Agreement in
multiple counterparts, all of which shall constitute one agreement, on July 23,
2002, but effective as of the date and year first above written.
TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC.
By:
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Xxxx X. Xxxxx
Vice President
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Xxx X. Xxxx
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Attachment A
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WAIVER AND RELEASE
In exchange for the consideration offered under the Separation
Agreement between me and Transocean Offshore Deepwater Drilling Inc. (the
"Company"), dated effective ______________, 2002 (the "Agreement"), I hereby
waive all of my claims and release the Company, Transocean Inc., their
affiliates, their subsidiaries and each of their directors and officers,
executives and agents, and executive benefit plans and the fiduciaries and
agents of said plans (collectively referred to as the "Corporate Group") from
any and all claims, demands, actions, liabilities and damages.
I UNDERSTAND THAT SIGNING THIS WAIVER AND RELEASE IS AN IMPORTANT
LEGAL ACT. I ACKNOWLEDGE THAT THE COMPANY HAS ADVISED ME IN WRITING TO CONSULT
AN ATTORNEY BEFORE SIGNING THIS WAIVER AND RELEASE. I UNDERSTAND THAT I HAVE
UNTIL 21 CALENDAR DAYS AFTER THE DATE SHOWN ABOVE TO CONSIDER WHETHER TO SIGN
AND RETURN THIS WAIVER AND RELEASE TO THE COMPANY BY FIRST-CLASS MAIL OR BY HAND
DELIVERY IN ORDER FOR IT TO BE EFFECTIVE.
In exchange for the consideration offered to me by the Agreement,
which I acknowledge provides consideration to which I would not otherwise be
entitled, I agree not to xxx or file any charges of discrimination, or any other
action or proceeding with any local, state and/or federal agency or court
regarding or relating in any way to the Company, and I knowingly and voluntarily
waive all claims and release the Corporate Group from any and all claims,
demands, actions, liabilities, and damages, whether known or unknown, arising
out of or relating in any way to the Corporate Group, except with respect to
rights under the Agreement, rights under employee benefit plans or programs
other than those specifically addressed in the Agreement, and such rights or
claims as may arise after the date this Waiver and Release is executed. This
Waiver and Release includes, but is not limited to, claims and causes of action
under: Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act of 1967, as amended; the Civil Rights Act of
1866, as amended; the Civil Rights Act of 1991; the Americans with Disabilities
Act of 1990; the Older Workers Benefit Protection Act of 1990; the Executive
Retirement Income Security Act of 1974, as amended; the Family and Medical Leave
Act of 1993; and/or contract, tort, defamation, slander, wrongful termination or
other claims or any other state or federal statutory or common law.
Should any of the provisions set forth in this Waiver and Release be
determined to be invalid by a court, agency or other tribunal of competent
jurisdiction, it is agreed that such determination shall not affect the
enforceability of other provisions of this Waiver and Release.
I acknowledge that this Waiver and Release and the Agreement set forth
the entire understanding and agreement between me and the Company or any other
member of the Corporate Group concerning the subject matter of this Waiver and
Release and supersede any prior or contemporaneous oral and/or written
agreements or representations, if any, between me and the Company or any other
member of the Corporate Group.
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I understand that for a period of seven (7) calendar days following my
signing this Waiver and Release (the "Waiver Revocation Period"), I may revoke
my acceptance of the offer by delivering a written statement to the Company by
hand or by registered mail, addressed to the address for the Company specified
in the Agreement, in which case the Waiver and Release will not become
effective. In the event I revoke my acceptance of this offer, the Company shall
have no obligation to provide me the consideration offered under the Agreement
to which I would not otherwise have been entitled. I understand that failure to
revoke my acceptance of the offer within the Waiver Revocation Period will
result in this Waiver and Release being permanent and irrevocable.
I acknowledge that I have read this Waiver and Release, have had an
opportunity to ask questions and have it explained to me and that I understand
that this Waiver and Release will have the effect of knowingly and voluntarily
waiving any action I might pursue, including breach of contract, personal
injury, retaliation, discrimination on the basis of race, age, sex, national
origin or disability and any other claims arising prior to the date of this
Waiver and Release.
By execution of this document, I do not waive or release or otherwise
relinquish any legal rights I may have which are attributable to or arise out of
acts, omissions or events of the Company or any other member of the Corporate
Group which occur after the date of execution of this Waiver and Release.
AGREED TO AND ACCEPTED this
___ day of _________, ____.
______________________________
XXX X. XXXX
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