TRANSITION CONSULTING SERVICES AGREEMENT
Exhibit 10.1
This Transition Consulting Services Agreement (the “Agreement”) is entered into by Noble
Corporation, a Cayman Islands exempted company limited by shares (the “Company”); and Xxxxx
X. Day (the “Consultant”) as of April 26, 2007. The Consultant and the Company are
referred to as the “Parties”.
R E C I T A L S:
| A. | The Consultant served as Chief Executive Officer of the Company and its predecessor from 1984 to October 30, 2006; | |
| B. | The Consultant will retire from the Company and resign as a Director of the Company, effective April 30, 2007; | |
| C. | The Consultant has knowledge and expertise that are valuable to the Company; | |
| D. | The Parties desire to provide for the Consultant to be available to assist the Company and all of its subsidiaries, affiliates and related entities (the Company and all such subsidiaries, affiliates and related entities being referred to in this Agreement as the “Company Group”) after April 30, 2007; and | |
| E. | The Parties agree that the average level of bona fide services to be provided by the Consultant during the term of this Agreement shall be equal to 20% or less of the average of the bona fide services performed by the Consultant as an employee of the Company during the immediately preceding 36-month period. |
A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements set forth
in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
1. Consulting Arrangements.
(a) Term and Consulting Commitment. From May 1, 2007, through April 30, 2009,
(the “Completion Date”), the Consultant shall provide consulting services
commensurate with his status and experience with respect to Company Group matters as shall
be mutually agreed from time to time between the Consultant and the Company (through its
Chief Executive Officer, Chairman of the Board or Lead Independent Director), including
without limitation matters related to:
(i) transition of the Consultant’s prior duties and responsibilities as the
Company’s prior Chief Executive Officer to his successor;
(ii) strategic acquisitions, dispositions, capital raising activities and
major financings;
(iii) compensation matters;
(iv) business strategy planning; and
(v) other current and prospective business activities and operations of the
Company Group.
The Consultant shall honor any such request unless he has a conflicting commitment that
would preclude him from performing such services at the time and/or place requested by the
Company, and in such circumstances shall make reasonable efforts to arrange a mutually
satisfactory alternative. The Company will use reasonable efforts not to require the
performance of consulting services in any manner that unreasonably interferes with the
activities of the Consultant. The Consultant shall be reasonably available to the Company
Group or its Consultant shall be reasonably available to the Company Group or its
representatives to provide general advice or assistance as requested by the Company,
including without limitation by testifying (and preparing to testify) as a witness in any
proceeding or otherwise providing information or reasonable assistance to the Company Group
in connection with any investigation, claim or suit, and cooperating with the Company Group
regarding any litigation, claims or other disputed items involving the Company Group that
relate to matters within the knowledge or responsibility of the Consultant during his prior
employment with the Company. Without limiting the foregoing, the Consultant shall (i) meet
with the Company Group’s representatives, counsel or other designees at reasonable times and
places with respect to any items within the scope of this provision; (ii) provide truthful
testimony regarding these matters to any court, agency or other adjudicatory body; (iii)
provide the General Counsel of the Company with prompt written notice of contact or subpoena
by any non-governmental person or entity the interests of whom or which are reasonably
likely to be adverse to the Company Group or its interests, and (iv) not voluntarily assist
any such non-governmental adverse party or such non-governmental adverse party’s
representatives.
(b) Commitment. The Consultant shall perform his duties in a diligent,
trustworthy, and businesslike manner, with the purpose of advancing the business of the
Company Group. Notwithstanding anything to the contrary herein, the Parties agree that (1)
the Company shall use its reasonable efforts to require that the average level of bona fide
services to be provided by the Consultant during the term of this Agreement shall be equal
to 20% or less of the average of the bona fide services performed by the Consultant as an
employee of the Company during the immediately preceding 36-month period (the “Employee
Service Level”), and (2) the Company shall under no circumstances require that the
Consultant provide services under this Agreement or otherwise that exceed 50% of the
Employee Service Level.
(c) Other Activities. Except as set forth in Section 7, this Agreement shall
not limit or restrict the Consultant’s ability to serve on corporate, civic, or charitable
boards or committees and manage his personal investments and affairs, provided that such
activities do not unreasonably interfere with the performance of the Consultant’s duties
under this Agreement.
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(d) Nature of Relationship Between Parties. The Consultant shall render the
consulting services in this Agreement as an independent contractor. Except as otherwise
specifically authorized in writing by the Company, the Consultant shall have no authority or
power to bind the Company (or any other member of the Company Group) with respect to third
parties and the Consultant shall not represent to third parties that the Consultant has
authority or power to bind the Company (or any other member of the Company Group). It is
not the intention of the parties to this Agreement to create, by virtue of this Agreement,
any employment relationship, trust, partnership or joint venture between the Consultant and
the Company (or any other member of the Company Group), except as specifically provided in
this Agreement, to make them legal representatives or agents of each other or to create any
fiduciary relationship or additional contractual relationship among them. As an independent
contractor, the Consultant is not eligible for any Company Group provided employee benefits.
Notwithstanding the foregoing, the Consultant is eligible for certain benefits by virtue of
his status as a retired executive of the Company and this Agreement does not terminate,
modify or supersede any benefit to which the Consultant, as a retired executive of the
Company, otherwise is entitled to receive, including (as applicable and without limitation)
retirement plans (whether qualified or nonqualified), health and welfare plans, bonus plans
or agreements, equity compensation plans, awards or agreements, and performance awards, in
which the Consultant participated or which the Consultant was awarded or made a party to in
connection with his employment by the Company including without limitation those set forth
on Schedule A hereto.
2. Relinquishment of Amended and Restated Employment Agreement. In consideration of
the benefits provided under this Agreement, the Consultant hereby relinquishes and waives any and
all amounts, benefits or other rights to which he may have been entitled under the Amended and
Restated Employment Agreement between the Consultant and Noble Drilling Corporation dated as of
April 30, 2002 (the “Employment Agreement”). This relinquishment and waiver of the
Employment Agreement shall be effective as of the date of this Agreement. The Parties acknowledge
that Consultant’s retirement and termination of employment with the Company (and any other members
of the Company Group, as applicable) is not in connection with or in anticipation of a “Change of
Control” (as such term is defined in the Employment Agreement).
3. Consulting Fee, Benefits and Reimbursement.
(a) Consulting Fee. During the Consultant’s service to the Company Group
pursuant to this Agreement, the Company shall pay the Consultant the following fees: (i) a
consulting fee of $20,834.00 per month, payable on the first business day of each month
commencing on May 1, 2007, and ending with the payment made on the first business day after
March 1, 2008, and (ii) a consulting fee of $20,834.00 per month, payable on the first
business day of each month commencing on April 1, 2008, and ending with the payment made on
April 1, 2009.
(b) Reimbursement of Expenses. The Company shall reimburse the Consultant for
all reasonable out-of-pocket expenses incurred by the Consultant in the course of his duties
during the term of this Agreement, upon presentation of appropriate
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documentation of such costs as and when required by and to the satisfaction of the
Company, on a basis that is consistent with the Company’s policies and practices as in
effect from time to time. Notwithstanding anything to the contrary herein, the amount of
expenses eligible for reimbursement under this provision or office and secretarial
assistance to be provided pursuant to Section 3(c) below in any taxable year of the
Consultant shall not affect the expenses eligible for reimbursement under this paragraph or
the office and secretarial assistance to be provided under Section 3(c) in any other taxable
year.
(c) Office and Secretarial Assistance. From May 1, 2007, through the
Completion Date, the Company shall provide to the Consultant a furnished office of at least
1,200 square feet, in a Class A building in Sugar Land, Texas substantially similar to
property such as is included in Sugar Land Town Square, and shall provide the Consultant
with up to 30 hours per week of secretarial assistance by Xxxxxx Xxxxx, who shall continue
to be an employee of the Company or its affiliate Noble Drilling Services Inc., with such
secretary’s compensation and benefits commensurate with her compensation and benefits as of
the date of this Agreement (or, in the event that Xx. Xxxxx’x employment with the Company
terminates for any reason, a replacement secretary reasonably acceptable to the Consultant).
(d) Country Club Membership. As soon as practicable following the execution of
this Agreement by the Consultant, the Company shall transfer ownership of the membership in
Sweetwater Country Club, 0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxx 00000, Membership No.
3136, to the Consultant. The Company shall bear any expenses associated with such transfer
except any tax obligations of the Consultant relating to such transfer. All costs of
membership arising after April 30, 2007 shall be borne solely by the Consultant.
4. Termination of Agreement.
(a) By the Company for Cause. In the event the Consultant willfully fails to
substantially fulfill any of his obligations in this Agreement prior to the Completion Date
then after written notice of such failure and if such failure is not cured, if curable,
within 15 business days after such notice, the Company may, in its sole discretion, (a)
terminate this Agreement by providing written notice of such termination and the effective
date thereof to the Consultant, (b) terminate all remaining consulting fee payment
obligations of the Company set forth in Section 3(a) of this Agreement (and the Consultant
will not be entitled to receive such payments after the effective date of such termination),
other than amounts that accrued prior to the effective date of such termination, and (c)
recover any and all damages to which the Company may be entitled. Notwithstanding any such
termination, the Consultant’s obligations under Section 5 through 21 of this Agreement shall
continue in full force and effect provided that the Company has paid in the aggregate under
this Agreement at the time of such termination (or concurrently with such termination makes
additional payments such that in the aggregate it has paid) at least $125,000 .
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(b) By the Consultant For Good Reason. In the event the Company willfully
fails to substantially fulfill any of its obligations in this Agreement then after written
notice of such failure (which must be given within 90 calendar days following the date such
failure first occurred) and if such failure is not cured, if curable, within 30 calendar
days after such notice, the Consultant may terminate this Agreement by providing notice of
such termination and the effective date thereof to the Company and the Company shall be
obligated to fulfill all remaining obligations set forth in Section 3 of this Agreement
through the Completion Date and, with respect to the consulting fee payable pursuant to
Section 3(a), all remaining monthly payments through the Completion Date shall be paid to
the Consultant, as a single lump sum, on the tenth business day following the Consultant’s
termination of this Agreement; provided, however, that if the Consultant terminates this
Agreement pursuant to this paragraph and the effective date of such termination (the
“Termination Effective Date”) occurs before April 1, 2008 and at a time when any
stock of the Company (or any entity that is considered a single service recipient along with
the Company within the meaning of Section 409A of the Code and the regulations promulgated
thereunder) is publicly traded on an established securities market or otherwise, then any
amounts to be paid to Consultant pursuant to clause (i) of Section 3(a) shall be paid on the
tenth business day following the Termination Effective Date and the payment of any amounts
to be paid pursuant to clause (ii) of Section 3(a) shall be delayed for six months following
the Termination Effective Date and shall be paid to Consultant upon the first day following
the date that such six month period expires, along with interest on the delayed amount
through the date of payment at the prime interest rate reported in the Wall Street Journal
on the Termination Effective Date. In order to be eligible for benefits pursuant to this
Section 4(b), the effective date of the Consultant’s termination of this Agreement must be
no later than two years following the initial existence of the failure giving rise to the
Consultant’s right to terminate this Agreement pursuant to this Section 4(b).
(c) Consultant’s Death Prior to the Completion Date. In the event that the
Consultant dies prior to the Completion Date, the Company shall pay the Consultant’s estate
any unpaid fees under Section 3(a) through the date of death on the dates such fees would
otherwise be due and have no further obligations under this Agreement.
(d) Change of Control. In the event of a Change of Control, all amounts
payable and benefits to be provided under this Agreement, to the extent not previously paid
or provided to the Consultant, shall become immediately due and payable and the Company or
its successor shall pay, in a single lump sum payment on the tenth business day following
the date upon which such Change in Control shall have occurred, an amount equal to the sum
of all remaining unpaid consulting fees under this Agreement to the Consultant, plus an
amount equal to the fair market value of the secretarial and office space benefits to be
provided to the Consultant pursuant to Section 3(c) through the Completion Date. For
purposes of this Agreement, a “Change of Control” shall mean: (i) the acquisition by
any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934) (a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of either (A) more than 50% of
the then outstanding Ordinary Shares of the Company (the “Outstanding Shares”) or
(B) 30% or more of the combined voting power of the then
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outstanding voting securities of the Company entitled to vote generally in the election
of directors (the “Outstanding Voting Securities”); provided, however, that the
following acquisitions shall not constitute a Change of Control: (w) any acquisition
directly from the Company (excluding an acquisition by virtue of the exercise of a
conversion privilege), (x) any acquisition by the Company, (y) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company or any
company controlled by the Company, or (z) any acquisition by any corporation pursuant to a
reorganization, merger, amalgamation or consolidation, if, following such reorganization,
merger, amalgamation or consolidation, the conditions described in clauses (A), (B) and (C)
of clause (iii) below are satisfied; or (ii) individuals who, as of the date of this
Agreement, constitute the Company Board of Directors (the “Incumbent Board”) cease
for any reason to constitute a majority of such Board of Directors; provided, however, that
any individual becoming a director of the Company subsequent to the date hereof whose
election, or nomination for election by the Company’s shareholders (hereinafter,
“Members”), was approved by a vote of a majority of the directors of the Company
then comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or threatened election
contest or other actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Company Board; or (iii) consummation of a reorganization, merger,
amalgamation or consolidation of the Company, with or without approval by the Members of the
Company, in each case, unless, following such reorganization, merger, amalgamation or
consolidation, (A) more than 50% of, respectively, the then outstanding shares of common
stock (or equivalent security) of the company resulting from such reorganization, merger,
amalgamation or consolidation and the combined voting power of the then outstanding voting
securities of such company entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding Shares and
Outstanding Voting Securities immediately prior to such reorganization, merger, amalgamation
or consolidation in substantially the same proportions as their ownership, immediately prior
to such reorganization, merger, amalgamation or consolidation, of the Outstanding Shares and
Outstanding Voting Securities, as the case may be, (B) no Person (excluding the Company, any
employee benefit plan (or related trust) of the Company or such company resulting from such
reorganization, merger, amalgamation or consolidation, and any Person beneficially owning,
immediately prior to such reorganization, merger, amalgamation or consolidation, directly or
indirectly, 15% or more of the Outstanding Shares or Outstanding Voting Securities, as the
case may be) beneficially owns, directly or indirectly, 15% or more of, respectively, the
then outstanding shares of common stock (or equivalent security) of the company resulting
from such reorganization, merger, amalgamation or consolidation or the combined voting power
of the then outstanding voting securities of such company entitled to vote generally in the
election of directors, and (C) a majority of the members of the board of directors of the
company resulting from such reorganization, merger, amalgamation or consolidation were
members of the Incumbent Board at the time of the execution of the initial agreement
providing for such reorganization, merger, amalgamation or consolidation; or (iv)
consummation of a sale or
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other disposition of all or substantially all the assets of the Company, with or
without approval by the Members of the Company, other than to a corporation, with respect to
which following such sale or other disposition, (A) more than 50% of, respectively, the then
outstanding shares of common stock (or equivalent security) of such corporation and the
combined voting power of the then outstanding voting securities of such corporation entitled
to vote generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Shares and Outstanding Voting Securities
immediately prior to such sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other disposition, of the Outstanding
Shares and Outstanding Voting Securities, as the case may be, (B) no Person (excluding the
Company, any employee benefit plan (or related trust) of the Company or such corporation,
and any Person beneficially owning, immediately prior to such sale or other disposition,
directly or indirectly, 15% or more of the Outstanding Shares or Outstanding Voting
Securities, as the case may be) beneficially owns, directly or indirectly, 15% or more of,
respectively, the then outstanding shares of common stock (or equivalent security) of such
corporation or the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors, and (C) a majority of
the members of the board of directors of such corporation were members of the Incumbent
Board at the time of the execution of the initial agreement or action of the Company Board
providing for such sale or other disposition of assets of the Company.
5. Return of Company Property. Not later than the seventh (7th) day after the
Completion Date, or earlier upon termination of this Agreement for any reason, the Consultant
shall, to the extent not previously returned or delivered: (a) return all equipment, records,
files, programs or other materials and property in his possession that belong to the Company or any
other member of the Company Group, including, without limitation, all computer software, computer
access codes, laptops, cell phone, Blackberries, keys and access cards; and (b) deliver all
original and copies of materials, records, plans, technical data or other documents, files or
programs (whether stored in paper form, computer form, digital form, electronically or otherwise)
that relate or refer to the Company or any other member of the Company Group, including without
limitation any such entity’s financial statements, business contacts and sales lists, but
excluding any notes taken by the Consultant and provided that the Consultant shall be entitled to
retain copies (electronic or otherwise) of any of the items set forth in subsection (b) which
copies shall remain subject to the provisions of Section 7 hereof. By signing this Agreement, the
Consultant represents and warrants that he will timely return and deliver all the items described
or referenced in subsections (a) or (b) above; and, that should he later discover additional items
described or referenced in subsections (a) or (b) above, he will promptly notify the Company’s
General Counsel and return/deliver such items to the Company.
6. Release. As a material inducement to the Company to enter into this Agreement and
in consideration of the promises, covenants and other valuable consideration provide and to be
provided by the Company in this Agreement, and without limiting the relinquishment of the
Employment Agreement described above, the Consultant hereby releases, acquits and forever
discharges each entity in the Company Group and their respective parents, predecessors, successors,
subsidiaries, affiliates, related companies, organizations, officers, directors,
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shareholders, attorneys and agents from any and all charges, complaints, claims, causes of
action, losses, obligations, liabilities, damages, judgments, costs, expenses (including attorneys’
fees) of any kind whatsoever, known or unknown, asserted or unasserted, accrued or unaccrued,
relating to his employment with the Company or the termination of such employment, including, but
not limited to, disputes or claims arising out of the Consultant’s hiring, employment or
termination of such employment with the Company (and any other entity in the Company Group), or
arising out of any act committed or omitted during or after the existence of such employment
relationship, including any disputes regarding compensation. This Release includes, but is not
limited to, all claims, whether arising in contract or allegations of tort, common law or assertion
of federal or state statutory rights, including, but not limited to, Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act, the Family and Medical Leave
Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, the Texas
Commission on Human Rights Act, the Texas Payday Law, the Xxxxxxxx-Xxxxx Act, the employment laws
of any state or municipality; claims for wrongful discharge, breach of express or implied contract
or implied covenant of good faith and fair dealing, as well as any expenses, costs or attorneys’
fees. Notwithstanding anything in this Section 6 to the contrary, the Consultant does not release
his right to enforce the terms of this Agreement, any written agreement contemporaneously or
hereafter executed by the Company or any of the written benefit plans, programs or agreements
referenced in Section 1(d). The parties acknowledge that $125,000.00 of the consulting fees to be
paid hereunder shall be deemed separate consideration for the release contained in this Section 6.
7. Confidentiality, Non-Competition and Non-Solicitation. From time to time during
the term of this Agreement, the Company will provide the Consultant with access to confidential and
proprietary information that he has not previously received, to the extent needed by the Consultant
in order to perform his consulting services under this Agreement. In consideration of the
Company’s promise to provide him confidential and proprietary information, and the other promises
in this Agreement, the Consultant shall not, without the prior written permission of the Company,
directly or indirectly:
(a) From May 1, 2007, through the one-year anniversary of the Completion Date, be
employed by any person or entity in, or otherwise act or provide services as an executive,
consultant, owner, shareholder, director, partner, agent, independent contractor, trustee,
beneficiary, advisor, volunteer or in any other capacity engage in, or propose to engage in,
the business of providing services in the offshore oil and gas drilling industry in any
country (or its territorial waters) in which the Company currently provides offshore oil and
gas drilling services, in which the Company provided such services during the five-year
period ended April 30, 2007, or in which the Company provides such services prior to the
Completion Date. Notwithstanding the foregoing, during the period during which the
Consultant’s obligations pursuant to this paragraph are in effect, nothing herein shall
prohibit Consultant from acquiring or holding, solely as a passive investment, not more than
five percent (5%) of the outstanding shares of, or other interests in, any entity that is
subject to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
or traded on a recognized exchange.
(b) From May 1, 2007, through the one-year anniversary of the Completion Date, solicit,
for purposes of providing services or products in the offshore oil and gas
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drilling and services business, any persons or companies who were customers of the
Company Group or known to the Consultant as a result of his employment with the Company.
For purposes of this Agreement, “Customer” means any person, entity or groups of persons or
entities that in any way broker, purchase or consume any service or product of the Company
Group during the period from May 1, 2007 through the Completion Date.
(c) From May 1, 2007, through the one-year anniversary of the Completion Date, either
on behalf of himself, or as an executive, employer, consultant or agent for any person or
entity, solicit, hire, induce or recruit any employee of the Company Group for employment,
or to encourage or suggest to any employee of the Company Group that such employee should
terminate employment with the Company Group; provided, however, that nothing in this
paragraph (c) shall prohibit the Consultant from soliciting, hiring, inducing or recruiting
any former employee of the Company or any of its subsidiaries or affiliates whose employment
with such entities was terminated at least six (6) months prior to such solicitation,
hiring, inducement or recruiting. Without limiting the foregoing, the Consultant shall not
furnish or otherwise make available to any person for the purpose of solicitation, the
names, phone numbers or backgrounds of persons employed by the Company Group at any time
during the period from May 1, 2007 through the Completion Date.
(d) Disclose to anyone, including, without limitation, any person, firm, corporation,
or other entity, or publish, or use for any purpose, any Confidential Information (defined
below), except as the Company directs and authorizes. The Consultant shall take all
reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of,
the Confidential Information and shall immediately notify the Company’s General Counsel in
the event of any unauthorized use or disclosure of the Confidential Information by the
Consultant or uses or disclosures of Confidential Information by third parties to the extent
attributable to a use or disclosure by the Consultant. For purposes of this Agreement,
“Confidential Information” includes, without limitation, all of the Company Group’s
technical and business information that is of a confidential, trade secret or proprietary
character; information services system products; product, product plans and internal and
external customer project information; current, past and prospective customer and account
lists; customer information; operation and cost data; agents lists and agreements; vendor
and provider lists or agreements; business, financial and marketing plans, budgets or
reports; contract terms; bidding information and strategies; pricing methods or information;
photographs; internal communications and reports; computer software; computer software
methods and documentation; graphic designs; hardware; the Company Group’s methods of
operation; the procedures, forms and techniques used in servicing accounts; and other
information or documents that the Company Group requires to be maintained in confidence;
provided, however, that Confidential information shall not include any information that
becomes generally known other than through unauthorized use or disclosure by the Consultant
or that becomes known to the Consultant from sources other than the Company or its
subsidiaries or affiliates who the Consultant does not know to be bound by a duty of
confidentiality to the Company or its subsidiaries or affiliates. The Parties covenant and
acknowledge that this confidentiality agreement is contractual and its terms are material
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to this Agreement. Nothing in this paragraph shall prohibit the Consultant from
disclosing any information required to be disclosed by law, rule or regulation or in any
official proceeding or by any order issued by a court or governmental agency nor shall it
restrict the Consultant in his use of Confidential Information in connection with his
provision of consulting services pursuant to this Agreement.
(e) If the Consultant is required by law or otherwise to reveal any confidential or
proprietary information of the Company Group, to the extent reasonably possible, he
or his attorney shall promptly contact the Company’s General Counsel prior to disclosing
such information in order that the Company can take appropriate steps to safeguard the
disclosure of such confidential and proprietary information.
(f) Notwithstanding anything herein to the contrary, each party to this Agreement may
disclose information regarding the tax treatment and tax structure of the transaction
covered by this Agreement and all materials of any kind that are provided to the party
relating to such tax treatment and tax structure to the parties’ tax consultants and
advisors and, to the extent required by law, government agencies.
(g) The Parties acknowledge that the limitations as to time, geographical area and
scope of activity to be restrained do not impose a greater restraint upon the Consultant
than is necessary to protect the goodwill or other business interest of the Company Group.
(h) The Parties acknowledge that the Company Group has a legitimate interest in
protecting (a) the Company Group’s trade secrets and confidential and proprietary
information, and (b) the business and goodwill that the Company Group has developed, and
that the Company Group is entitled to protection of its interests in these areas. In the
event the Consultant violates any of the provisions in this Section 7 of this Agreement, the
Company shall be entitled to (i) recover damages and all consideration provided to the
Consultant pursuant to this Agreement, except the amount of $125,000.00, and (ii) seek a
temporary restraining order and/or an injunction against the Consultant for the breach or
violation or continued breach or violation of this covenant, in addition to all other
damages and rights the Company may have at law. Such remedies shall not be deemed the
exclusive remedies for a breach of this Agreement, but shall be in addition to all remedies
for a breach of this Agreement available at law or in equity to the Company. If a court of
competent jurisdiction determines that the length of time or any other restriction or
portion thereof set forth in this Agreement is overly restrictive and unenforceable, the
court may reduce or so modify such restriction to those which it deems reasonable,
appropriate and enforceable under the circumstances. Additionally, any periods of breach of
this Section 7 of this Agreement shall not count toward the restricted period ending on the
second anniversary of the Completion Date, but shall instead be added to such restricted
period.
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8. Consultant’s Legal Expenses; Challenges to this Agreement.
(a) The Company shall reimburse the Consultant his out of pocket expenses (including
but not limited to reasonable attorneys’ fees) incurred in connection with the negotiation
of and entry into this Agreement.
(b) If the Consultant or anyone acting on his behalf brings suit against the Company
seeking to declare any terms of this Agreement void or unenforceable, including Sections 2,
6, 7, 8 or 9, and if one or more material terms of this Agreement are ruled by a court or
arbitrator to be void or unenforceable or subject to reduction or modification, then the
Company shall be entitled to (i) refuse to make any payments, or any additional payments,
described in this Agreement, except for the sum of $125,000.00; (ii) recover from the
Consultant all payments already paid to the Consultant pursuant to this Agreement, except
for the sum of $125,000.00; and (iii) to the extent ordered by a court of competent
jurisdiction, recover its attorneys’ fees incurred in defending such action and seeking
recovery of such amounts. Notwithstanding the foregoing provisions of this paragraph, the
Consultant shall not be prohibited from filing or participating in any charges of employment
discrimination before the Equal Employment Opportunity Commission or the Texas Commission on
Human Rights.
(c) The Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Consultant reasonably incurs as a result of any contest by
any person or entity (other than the Consultant or his heirs or successors or the Company or
its successors) of the validity or enforceability of any provision of this Agreement,
provided such fees and expenses arise from bona fide claims within the meaning of Section
409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) and the
regulations promulgated thereunder. The Company’s obligations under this paragraph shall
apply without regard to the outcome of any such contest.
9. Non-Disparagement. The Consultant shall not, directly or indirectly, disclose,
communicate or publish any disparaging information concerning any entity in the Company Group,
their respective parents, predecessors, successors, subsidiaries, affiliates, or related companies,
organizations, officer, directors, shareholders, attorneys and agents, or any Company Group
operations, technology, proprietary or technical information or software, or cause others to
disclose, communicate, or publish any disparaging information concerning the same. The Consultant
shall not disclose, directly or indirectly, communicate, or publish any disparaging information
concerning the terms of his prior employment with the Company, and other circumstances that arose
from his prior employment with the Company, or any action or event that occurred during his prior
employment with the Company, or cause others to disclose, communicate, or publish any disparaging
information concerning the same. Nothing in this paragraph shall prohibit the Consultant from
disclosing any information required to be disclosed by law, rule or regulation or in any official
proceeding or by any order issued by a court or governmental agency. Further, nothing in this
paragraph shall prohibit the Consultant from providing truthful information in response to
investigations by the Company’s Board of Directors or any committees thereof or the Company’s
internal or external auditors, or pursuant to a subpoena or administrative process in response to
governmental agencies or as otherwise required by law, court order or administrative proceeding.
11
10. Voluntary Execution of the Agreement. The Consultant and the Company represent
and acknowledge that they have had an opportunity to review all aspects of this Agreement, and that
they fully understand all the provisions of the Agreement and are voluntarily entering into this
Agreement.
11. Binding Effect. This Agreement shall be binding upon the Company and upon the
Consultant and his heirs, administrators, representatives, executors, successors and assigns. In
the event of the Consultant’s death, this Agreement shall operate in favor of his estate and all
payments, obligations and consideration will continue to be performed in favor of his estate.
12. Severability. Should any provision of this Agreement be declared or determined to
be illegal or invalid by any government agency or court of competent jurisdiction, the validity of
the remaining parts, terms or provisions of this Agreement shall not be affected and such
provisions shall remain in full force and effect, subject to Section 8.
13. Entire Agreement. Except as provided in the written benefit plans, programs and
agreements referenced in Section 1(d), or any written agreement contemporaneously or hereafter
executed by the Company and the Consultant, this Agreement sets forth the entire agreement between
the parties, and fully cancels and supersedes any and all prior agreements, understandings, or
representations between the parties pertaining to the Consultant’s post-employment consulting for
the Company and the other subject matter of this Agreement or any other term or condition of the
relationship between the Company Group and the Consultant addressed herein. The Consultant
represents and acknowledges that in executing this Agreement, he does not rely, and has not relied,
upon any representation(s) by the Company or its agents except as expressly contained in this
Agreement.
14. Review. The Consultant acknowledges that he has been given a sufficient period of
time to review and consider this Agreement before signing it and has consulted with an attorney of
his choosing regarding the terms and provisions of this Agreement.
15. Notices. All notices and other communications hereunder will be in writing. Any
notice or other communication hereunder shall be deemed duly given if it is sent by registered or
certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient
as set forth:
If to the Consultant:
Xxxxx X. Day
00 Xxxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxx 00000
00 Xxxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxx 00000
If to the Company
Noble Corporation
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxx 00000
Attention: Executive Vice President and Corporate Secretary
00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxx 00000
Attention: Executive Vice President and Corporate Secretary
Any party may send any notice or other communication hereunder to the intended recipient at the
address set forth using other means (including personal delivery, expedited courier, messenger
12
services, fax, or ordinary mail), but no such notice or other communication shall be deemed to have
been duly given unless and until it is actually received by the intended recipient. Any party may
change the address to which notices and other communications are to be delivered by giving the
other party notice.
16. Governing Law; Jurisdiction; Venue. This Agreement shall in all respects be
interpreted, enforced, and governed under the laws of the State of Texas without giving effect to
any rules governing conflict of laws. The language in this Agreement shall, in all cases, be
construed as a whole, according to its fair meaning, and not strictly for, or against, any of the
parties. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
TEXAS AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA IN EACH CASE LOCATED IN XXXXXX COUNTY,
THE STATE OF TEXAS IN CONNECTION WITH ANY DISPUTE THAT ARISES IN RESPECT OF THE INTERPRETATION AND
ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A
DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF THAT IT IS NOT
SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE
IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH
DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS. THE PARTIES HEREBY CONSENT TO AND GRANT ANY
SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE
AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR
PROCEEDING IN THE MANNER PROVIDED IN SECTION 15 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW
SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
17. Counterparts. This Agreement may be executed in counterparts, each of which when
executed and delivered (which deliveries may be by facsimile) shall be deemed an original and all
of which together shall constitute one and the same instrument.
18. No Assignment of Claims. The Consultant represents that he has not transferred or
assigned, to any person or entity, any claim involving the Company Group, or any portion thereof or
interest therein.
19. No Waiver. This Agreement may not be waived, modified, amended, supplemented,
canceled or discharged, except by written agreement of the Parties. Failure to exercise and/or
delay in exercising any right, power or privilege in this Agreement shall not operate as a waiver.
No waiver of any breach of any provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any waiver be implied from any
course of dealing between or among the Parties.
20. Knowing and Voluntary Waiver. The Consultant, by his free and voluntary act of
signing below, (i) acknowledges that he has been given a period of twenty-one (21) days to consider
whether to agree to the terms contained herein, (ii) acknowledges that he has been advised to
consult with an attorney prior to executing this Agreement, (iii) acknowledges that he understands
that this Agreement specifically releases and waives all rights and claims he may
13
have under the Age Discrimination in Employment Act, as amended (the “ADEA”) prior to
the date on which he signs this Agreement, and (iv) agrees to all of the terms of this Agreement
and intends to be legally bound thereby. Furthermore, the Consultant acknowledges that the
payments and benefits provided for in Section 3 of this Agreement will be delayed until this
Agreement becomes effective, enforceable and irrevocable. This Agreement will become effective,
enforceable and irrevocable on the eighth day after the date on which it is executed by the
Consultant (the “Effective Date”). During the seven-day period prior to the Effective
Date, the Consultant may revoke his agreement to accept the terms hereof by indicating in writing
to the Company his intention to revoke. If the Consultant exercises his right to revoke hereunder,
he shall forfeit his right to receive any of the payments or benefits provided for herein, and to
the extent such payments or benefits have already been made, the Consultant shall immediately
reimburse the Company for the amounts of such payments and benefits.
21. Payment of Taxes. The Consultant shall be solely responsible for withholding
taxes or necessary payments to any taxing authority based on the Company’s payments to the
Consultant under this Agreement. These withholdings include, without limitation, Federal income
tax, FICA, and Medicare. The Consultant understands and acknowledges that the Company will not
withhold any sums on the Consultant’s behalf for income tax, unemployment insurance, social
security or any other withholding requirements. The Consultant shall indemnify and hold the
Company Group harmless from any and all loss or liability arising from its failure to make such
payments or withholdings, if any.
22. Indemnification. During the term of this Agreement, and thereafter without
limitation of time, the Company shall indemnify and advance expenses to Consultant for matters in
which Consultant is named or threatened to be named a party, to the extent arising out of
Consultant’s services under this Agreement, or his status as a consultant to the Company, in each
case with such indemnity and advancement being on the same terms, and subject to the same
conditions and requirements, as then apply to indemnification and advancement of expenses to the
Company’s directors; provided such fees and expenses arise from bona fide claims within the meaning
of Section 409A of the Code and the regulations promulgated thereunder; and provided further,
however, that in no event shall Consultant be entitled to indemnification or advancement of
expenses under this Section 22 with respect to any proceeding or matter brought or made by
Consultant against the Company other than one initiated by Consultant solely to enforce
Consultant’s rights under this Section 22. The rights of indemnification and to receive
advancement of expenses as provided in this Section 22 shall not be deemed exclusive of any other
rights to which Consultant may at any time be entitled under applicable law, the Articles of
Association of the Company, any agreement (including that certain Indemnity Agreement dated April
30, 2002), a vote of shareholders or members, a resolution of the Company’s Board of Directors, or
otherwise. The provisions of this Section 22 shall continue in effect notwithstanding termination
of Consultant’s services hereunder for any reason.
[Remainder of Page Intentionally Blank]
14
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING agreement, THAT I UNDERSTAND ALL OF ITS
TERMS AND THAT I AM RELEASING CLAIMS AND THAT I AM ENTERING INTO IT VOLUNTARILY.
AGREED TO BY:
/s/ Xxxxx X. Day
Xxxxx X. Day
|
Date: | April 26, 0000 |
XXXXX XX XXXXX
XXXXXX XX XXXX XXXX
Before me, a Notary Public, on this day personally appeared Xxxxx X. Day, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledges to me that he has
executed this Agreement on behalf of himself and his heirs, for the purposes and consideration
therein expressed.
Given under my hand and seal of office this 26th day of April, 2007.
| /s/ Xxxxx X. Xxxxxx | ||
| Notary Public in and for the State of Texas |
(PERSONALIZED SEAL)
Signature Page to Transition Consulting Services Agreement
NOBLE CORPORATION
AGREED TO BY:
By:
|
/s/ Xxxx X. Xxxxxxx | |||
Name:
|
Xxxx X. Xxxxxxx | Date: April 26, 2007 | ||
Title:
|
President and CEO |
STATE OF TEXAS
COUNTY OF FORT BEND
Before me, a Notary Public, on this day personally appeared Xxxx X. Xxxxxxx, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledges to me that he has
executed this Agreement on behalf of the Company as its President and CEO, for the purposes and
consideration therein expressed.
Given under my hand and seal of office this 26th day of April, 2007.
| /s/ Xxxxx X. Xxxxxx | ||
| Notary Public in and for the State of Texas |
(PERSONALIZED SEAL)
Signature Page to Transition Consulting Services Agreement
SCHEDULE A
Xxxxx X. Day
Transition Consulting Services Agreement
Transition Consulting Services Agreement
Noble Benefit Plan Participation
Noble Drilling Corporation Salaried Employees’ Retirement Plan
Noble Drilling Corporation Retirement Restoration Plan
Noble Drilling Corporation 401(k) Savings Plan
Noble Drilling Corporation 401(k) Savings Restoration Plan
Noble Corporation 1991 Stock Option and Restricted Stock Plan and all award agreements thereunder
Noble Drilling Corporation Employee Benefit Plan (medical and dental)
Noble Drilling Corporation Vision Plan
Noble Drilling Corporation Basic Life and Basic Accidental Death and Dismemberment Noble Drilling
Corporation Voluntary Accidental Death and Disability Plan
Noble Drilling Corporation Long Term Disability Plan
Noble Drilling Corporation Short Term Disability Plan
Schedule A
