EXHIBIT 10(b)
CHANGE OF CONTROL AGREEMENT
This is an amendment and restatement dated effective as of October 1, 1999
(the "Restatement Date"), of the Change of Control Agreement ("the Prior
Agreement") between Tidewater Inc., a Delaware corporation (the "Company"), and
Xxxxxxx X. X'Xxxxxx (the "Employee") dated effective as of September 30, 1996,
as now amended and restated, the "Agreement".
ARTICLE I
CERTAIN DEFINITIONS
1.1 AFFILIATE DEFINED. "Affiliate" (and variants thereof) shall mean
a Person that controls, or is controlled by, or is under common control with,
another specified Person, either directly or indirectly.
1.2 BENEFICIAL OWNER DEFINED. "Beneficial Owner" (and variants
thereof), with respect to a security, shall mean a Person who, directly or
indirectly (through any contract, understanding, relationship or otherwise), has
or shares (i) the power to vote, or direct the voting of, the security, and/or
(ii) the power to dispose of, or to direct the disposition of, the security.
1.3 CAUSE DEFINED. "Cause" shall mean:
(a) the willful and continued failure of the Employee to perform
substantially the Employee's duties with the Company or its Affiliates (other
than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Employee by the board of directors of the Company (the "Board") which
specifically identifies the manner in which the Board believes that the Employee
has not substantially performed the Employee's duties, or
(b) the willful engaging by the Employee in conduct which is
demonstrably and materially injurious to the Company or its subsidiaries,
monetarily or otherwise.
For purposes of this provision, no act or failure to act, on the part of the
Employee, shall be considered "willful" unless it is done, or omitted to be
done, by the Employee in bad faith or without reasonable belief that the
Employee's action or
omission was in the best interests of the Company or its Affiliates. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or upon the instructions of a senior officer of the Company or
based upon the advice of counsel for the Company or its Affiliates shall be
conclusively presumed to be done, or omitted to be done, by the Employee in good
faith and in the best interests of the Company or its Affiliates. The cessation
of employment of the Employee shall not be deemed to be for Cause unless his
action or inaction meets the foregoing standard and until there shall have been
delivered to the Employee a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after reasonable notice
is provided to the Employee and the Employee is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the good faith
opinion of the Board, the Employee is guilty of the conduct described in
subparagraph (a) or (b) above, and specifying the particulars thereof in detail.
1.4 CHANGE OF CONTROL DEFINED. "Change of Control" shall mean:
(a) the acquisition by any Person of Beneficial Ownership of 30%
or more of the outstanding shares of the Company's Common Stock, $0.10 par value
per share (the "Common Stock") or 30% or more of the combined voting power of
the Company's then outstanding securities; provided, however, that for purposes
of this subsection (a), the following shall not constitute a Change of Control:
(i) any acquisition (other than a Business Combination which
constitutes a Change of Control under Section 1.4(c) hereof) of Common
Stock directly from the Company,
(ii) any acquisition of Common Stock by the Company or its
subsidiaries,
(iii) any acquisition of Common Stock by any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
(iv) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a Change of
Control under Section 1.4(c) hereof; or
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(b) individuals who, as of the Restatement Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the Restatement Date whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered a member of the Incumbent Board, unless such individual's initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board; or
(c) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company), or sale or other disposition of all or
substantially all of the assets of the Company (a "Business Combination"), in
each case, unless, immediately following such Business Combination,
(i) the individuals and entities who were the Beneficial
Owners of the Company's outstanding common stock and the Company's voting
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination have direct or indirect
Beneficial Ownership, respectively, of more than 50% of the then
outstanding shares of common stock, and more than 50% of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, of the Post-Transaction Corporation
(as defined in Section 1.11 hereof), and
(ii) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-Transaction
Corporation and any employee benefit plan or related trust of either the
Company, the Post-Transaction Corporation or any subsidiary of either
corporation) Beneficially Owns, directly or indirectly, 30% or more of the
then outstanding shares of common stock of the corporation resulting from
such Business Combination or 30% or more of the combined voting power of
the then outstanding voting securities of such corporation, and
(iii) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members
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of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
1.5 CODE DEFINED. "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
1.6 COMPANY DEFINED. "Company" shall mean Tidewater Inc. (as
heretofore defined), and shall include any successor to or assignee of (whether
direct or indirect, by purchase, merger, consolidation or otherwise) all or
substantially all of the assets and/or business of the Company which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
1.7 DISABILITY DEFINED. "Disability" shall mean a condition that
would entitle the Employee to receive benefits under the Company's long-term
disability insurance policy in effect at the time either because he is totally
disabled or partially disabled, as such terms are defined in the Company's
policy in effect as of the Restatement Date or as similar terms are defined in
any successor policy. If the Company has no long-term disability plan in
effect, "Disability" shall occur if (a) the Employee is rendered incapable
because of physical or mental illness of satisfactorily discharging his duties
and responsibilities to the Company for a period of 90 consecutive days, (b) a
duly qualified physician chosen by the Company and acceptable to the Employee or
his legal representatives so certifies in writing, and (c) the Board determines
that the Employee has become disabled.
1.8 EMPLOYMENT AGREEMENT. "Employment Agreement" shall mean the
Employment Agreement between the Company and the Employee effective as of
September 19, 1997, as amended from time to time.
1.9 GOOD REASON DEFINED. Any act or failure to act by the Company or
its Affiliates specified in this Section 1.9 shall constitute "Good Reason"
unless the Employee shall otherwise agree in writing:
(a) Any failure of the Company or its Affiliates to provide the
Employee with the position, authority, duties and responsibilities at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding
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the Change of Control. The Employee's position, authority, duties and
responsibilities after a Change of Control shall be considered commensurate in
all material respects with Employee's position, authority, duties and
responsibilities prior to a Change of Control if after the Change of Control
Employee holds an equivalent position in the Post-Transaction Corporation.
(b) The assignment to the Employee of any duties inconsistent in
any material respect with Employee's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 3.1(b) of this Agreement, or any other action that
results in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith that is remedied within 10 days after receipt of written
notice thereof from the Employee to the Company;
(c) Any failure by the Company or its Affiliates to comply with
any of the provisions of this Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith that is remedied within 10
days after receipt of written notice thereof from the Employee to the Company;
(d) The Company or its Affiliates requiring the Employee to be
based at any office or location other than as provided in Section 3.1(b)(ii)
hereof or requiring the Employee to travel on business to a substantially
greater extent than required immediately prior to the Change of Control;
(e) Any purported termination of the Employee's employment
otherwise than as expressly permitted by this Agreement; or
(f) Any failure by the Company to comply with and satisfy
Sections 4.1 (c) and (d) of this Agreement.
1.10 PERSON DEFINED. "Person" shall mean a natural person or company,
and shall also mean the group or syndicate created when two or more Persons act
as a syndicate or other group (including, without limitation, a partnership or
limited partnership) for the purpose of acquiring, holding, or disposing of a
security, except that "Person" shall not include an underwriter temporarily
holding a security pursuant to an offering of the security.
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1.11 POST-TRANSACTION CORPORATION DEFINED. Unless a Change of Control
includes a Business Combination (as defined in Section 1.4(c) hereof), "Post-
Transaction Corporation" shall mean the Company after the Change of Control. If
a Change of Control includes a Business Combination, "Post-Transaction
Corporation" shall mean the corporation resulting from the Business Combination
unless, as a result of such Business Combination, an ultimate parent corporation
controls the Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, "Post-Transaction Corporation" shall mean
such ultimate parent corporation.
ARTICLE II
STATUS OF EMPLOYMENT AGREEMENTS
Notwithstanding any provisions thereof, this Agreement supersedes the
agreement dated as of June 13, 1994 between the Company and the Employee or any
subsequent employment agreement between Employee and the Company that so
provides, except with respect to those provisions of any such employment
agreement that are made a part of and specifically incorporated by reference
herein. Upon a Change of Control of the Company, as defined herein, or upon a
Change of Control of the company, as defined in such an employment agreement,
the Employee shall be entitled to the benefits and have the obligations provided
herein and not the benefits and obligations provided therein (except as provided
in provisions therein which are specifically incorporated herein).
ARTICLE III
CHANGE OF CONTROL BENEFIT
3.1 EMPLOYMENT TERM AND CAPACITY AFTER CHANGE OF CONTROL.
(a) This Agreement shall commence on the Restatement Date and
continue in effect through December 31, 2000; provided, however, that commencing
on January 1, 2001 and each January 1 thereafter, the term of this Agreement
shall automatically be extended for one additional year unless, not later than
March 31 of the preceding year, the Company shall have given notice that it does
not wish to extend this Agreement; provided, further, that notwithstanding any
such notice by the Company not to extend, if a Change of Control of the Company
shall have occurred during the original or extended term of this Agreement, this
Agreement shall continue in effect through the second anniversary of the Change
of Control (such period following a Change of Control being referred to herein
as the
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"Employment Term"), subject to any earlier termination of Employee's
status as an employee pursuant to this Agreement.
(b) After a Change of Control and during the Employment Term, (i)
the Employee's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding the Change of Control and (ii) the Employee's service shall be
performed during normal business hours at the Company's principal executive
office, at its location at the time of the Change of Control, or the location
where the Employee was employed immediately preceding the Change of Control or
any relocation of the Company's principal executive office to a location that is
not more than 35 miles from such current location. Employee's position,
authority, duties and responsibilities after a Change of Control shall not be
considered commensurate in all material respects with Employee's position,
authority, duties and responsibilities prior to a Change of Control unless after
the Change of Control Employee holds an equivalent position in the Post-
Transaction Corporation.
3.2 COMPENSATION AND BENEFITS. During the Employment Term, Employee
shall be entitled to the following compensation and benefits:
(a) Base Salary. The Employee shall receive an annual base salary
("Base Salary"), which shall be paid in at least monthly installments. The Base
Salary shall initially be equal to 12 times the highest monthly base salary that
was paid or is payable to the Employee, including any base salary which has been
earned but deferred by the Employee, by the Company and its Affiliates with
respect to any month in the 12-month period ending with the month that
immediately precedes the month in which the Change of Control occurs. During the
Employment Term, the Base Salary shall be reviewed at such time as the Company
undertakes a salary review of executive officers (but at least annually), and,
to the extent that salary increases are granted to other executive officers (or
have been granted during the immediately preceding 12-month period to the
executive officers of any Affiliate of the Company), the Employee shall be
granted a salary increase commensurate with any increase granted to other
executive officers of the Company and its Affiliates. Any increase in Base
Salary shall not serve to limit or reduce any other obligation to the Employee
under this Agreement. Base Salary shall not be reduced during the Employment
Term (whether or not any increase in Base Salary occurs) and, if any increase in
Base Salary occurs, the term Base Salary as utilized in this Agreement shall
refer to Base Salary as so increased from time to time.
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(b) Annual Bonus. In addition to Base Salary, the Employee shall
be awarded, for each fiscal year ending during the Employment Term, an annual
bonus (the "Bonus") in cash in an amount at least equal to the average of the
annual bonuses paid to the Employee with respect to the three fiscal years that
immediately precede the year in which the Change of Control occurs under the
Company's annual bonus plan, or any comparable bonus under a successor plan.
Each such Bonus shall be paid no later than the end of the third month of the
fiscal year next following the fiscal year for which the Bonus is awarded,
unless the Employee shall elect to defer the receipt of such Bonus.
(c) Fringe Benefits. The Employee shall be entitled to fringe
benefits (including, but not limited to, automobile allowance, reimbursement for
membership dues, and air travel) commensurate with those provided to other
executive officers of the Company and its Affiliates.
(d) Expenses. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in accordance
with the most favorable agreements, policies, practices and procedures of the
Company and its Affiliates in effect for the Employee at any time during the
120-day period immediately preceding the Change of Control or, if more favorable
to the Employee, as in effect generally at any time thereafter with respect to
other executive officers of the Company and its Affiliates.
(e) Incentive, Savings and Retirement Plans. The Employee shall
be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other executive
officers of the Company and its Affiliates, but in no event shall such plans,
practices, policies and programs provide the Employee with incentive
opportunities (measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less
favorable than the most favorable of those provided by the Company and its
Affiliates for the Employee under any agreements, plans, practices, policies and
programs as in effect at any time during the 120-day period immediately
preceding the Change of Control, including any agreement by the Company to
provide retirement benefits not less in amount than the retirement benefits to
which the Employee would have been entitled under the terms of any qualified
defined benefit pension plans of his immediate prior employer, or, if more
favorable to the Employee, those provided generally at any time after the Change
of Control to other executive officers of the Company and its Affiliates.
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(f) Welfare Benefit Plans. The Employee and/or the Employee's
family, as the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its Affiliates (including, without
limitation, medical, prescription drug, dental, disability, employee life, group
life, accidental death and travel accident insurance plans and programs) to the
extent applicable generally to other executive officers of the Company and its
Affiliates, but in no event shall such plans, practices, policies and programs
provide the Employee with benefits, in each case, less favorable than the most
favorable of any agreements, plans, practices, policies and programs in effect
for the Employee at any time during the 120-day period immediately preceding the
Change of Control or, if more favorable to the Employee, those provided
generally at any time after the Change of Control to his peer executives of the
Company and its Affiliates.
(g) Office and Support Staff. The Employee shall be entitled to
an office or offices of a size and with furnishings and other appointments, and
to secretarial and other assistance, commensurate with those provided to other
executive officers of the Company and its Affiliates.
(h) Vacation. The Employee shall be entitled to paid vacation in
accordance with the most favorable agreements, plans, policies, programs and
practices of the Company and its Affiliates as in effect for the Employee at any
time during the 120-day period immediately preceding the Change of Control or,
if more favorable to the Employee, as in effect generally at any time thereafter
with respect to other executive officers of the Company and its Affiliates.
(i) Indemnification. If in connection with any agreement related
to a transaction that will result in a Change of Control of the Company, an
undertaking is made to provide the Board of Directors with rights to
indemnification from the Company (or from any other party to such agreement),
the Employee shall, by virtue of this Agreement, be entitled to the same rights
to indemnification as are provided to the Board of Directors pursuant to such
agreement. Otherwise, the Employee shall be entitled to indemnification rights
on terms no less favorable to Employee than those available under the
Certificate of Incorporation, bylaws or resolutions of the Company at any time
after the Change of Control to other executive officers of the Company. Such
indemnification rights shall be with respect to all claims, actions, suits or
proceedings to which the Employee is or is threatened to be made a party that
arise out of or are connected to his services at any time prior to the
termination of his employment, without regard to whether such claims, actions,
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suits or proceedings are made, asserted or arise during or after the Employment
Term.
(j) Directors and Officers Insurance. If in connection with any
agreement related to a transaction that will result in a Change of Control of
the Company, an undertaking is made to provide the Board of Directors of the
Company with continued coverage following the Change of Control under one or
more directors and officers liability insurance policies, then the Employee
shall, by virtue of this Agreement, be entitled to the same rights to continued
coverage under such directors and officers liability insurance policies as are
provided to the Board of Directors. Otherwise, the Company shall agree to cover
Employee under any directors and officers liability insurance policies as are
provided generally at any time after the Change of Control to other executive
officers of the Company.
3.3 OBLIGATIONS UPON TERMINATION AFTER A CHANGE OF CONTROL.
(a) Termination by Company for Reasons other than Death,
Disability or Cause or by Employee for Good Reason. If, after a Change of
Control and during the Employment Term, the Company terminates the Employee's
employment other than for Cause, death or Disability, or the Employee terminates
employment for Good Reason,
(i) the Company shall pay to the Employee in a lump sum in
cash within five business days of the date of termination an amount equal
to three times the sum of (i) the amount of Base Salary in effect pursuant
to Section 3.2(a) hereof at the date of termination, plus (ii) the greater
of (x) the average of the annual bonuses paid or to be paid to the Employee
with respect to the immediately preceding three fiscal years or (y) the
target Bonus for which the Employee is eligible for the fiscal year in
which the date of termination occurs, as such target bonus has been
established by the Company for such year; provided, however, that, if the
Employee has in effect a deferral election with respect to any percentage
of the annual bonus which would otherwise become payable with respect to
the fiscal year in which termination occurs, such lump sum payment shall be
reduced by an amount equal to such percentage times the bonus component of
the lump sum payment (which reduction amount shall be deferred in
accordance with such election);
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(ii) the Company shall pay to the Employee in a lump sum in
cash within five business days of the date of termination an amount
calculated by multiplying the annual bonus that the Employee would have
earned with respect to the entire fiscal year in which termination occurs,
assuming the achievement at the target level of the objective performance
goals established with respect to such bonus and the elimination of any
subjective performance goals or evaluations otherwise applicable with
respect to such bonus, by the fraction obtained by dividing the number of
days in such year through the date of termination by 365; provided,
however, that, if the Employee has in effect a deferral election with
respect to any percentage of the annual bonus which would otherwise become
payable with respect to the fiscal year in which termination occurs, such
lump sum payment shall be reduced by an amount equal to such percentage
times the lump sum payment (which reduction amount shall be deferred in
accordance with such election);
(iii) if, at the date of termination, the Company shall not
yet have paid to the Employee (or deferred in accordance with any effective
deferral election by the Employee) an annual bonus with respect to a
completed fiscal year, the Company shall pay to the Employee in a lump sum
in cash within five business days of the date of termination an amount
determined as follows: (i) if the Compensation Committee of the Board shall
have already determined the amount of such annual bonus, the greater of
such amount or the amount provided under Section 3.2(b) hereof shall be
paid, and (ii) if the Compensation Committee shall not have already
determined the amount of such annual bonus, the amount to be paid shall be
the greater of the amount provided under Section 3.2(b) hereof or the
annual bonus that the Employee would have earned with respect to such
completed fiscal year, based solely upon the level of achievement of the
objective performance goals established with respect to such bonus and the
elimination of any subjective performance goals or evaluations otherwise
applicable with respect to such bonus; provided, however, that, if the
Employee has in effect a deferral election with respect to any percentage
of the annual bonus which would otherwise become payable with respect to
such completed fiscal year, such lump sum payment shall be reduced by an
amount equal to such percentage times the lump sum payment (which reduction
amount shall be deferred in accordance with such election);
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(iv) for a period of thirty-six (36) months following the
date of termination of employment (the "Continuation Period"), the Company
shall at its expense continue on behalf of the Employee and his dependents
and beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits (including any benefit under any individual
benefit arrangement that covers medical, dental or hospitalization expenses
not otherwise covered under any general Company plan) provided (x) to the
Employee at any time during the 120-day period prior to the Change in
Control or at any time thereafter or (y) to other similarly situated
executives who continue in the employ of the Company during the
Continuation Period. The coverage and benefits (including deductibles and
costs) provided in this Section 3.3(a)(iv) during the Continuation Period
shall be no less favorable to the Employee and his dependents and
beneficiaries, than the most favorable of such coverages and benefits
during any of the periods referred to in clauses (x) or (y) above;
provided, however, in the event of the disability of the Employee during
the Continuation Period, disability benefits shall not be paid for the
Continuation Period but shall instead commence immediately following the
end of the Continuation Period. In addition, if Employee has reached age 52
and has completed seven years of service at the time of a Change of
Control, Employee shall automatically become vested in the post-retirement
benefits provided under the Tidewater Group Welfare Benefits Plan (the "GWB
Plan") and be entitled to receive, following termination of employment with
the Company, all benefits that would be payable to Employee under the GWB
Plan or any successor plan of the Company or its Affiliates had the
Employee retired from employment with the Company or one of its Affiliates
on the later of the third anniversary of the Change of Control or the
Employee's date of retirement (as defined in the GWB Plan) from employment
with the Company. The Company's obligation hereunder with respect to the
foregoing benefits shall be limited to the extent that the Employee obtains
any such benefits pursuant to a subsequent employer's benefit plans, in
which case the Company may reduce the coverage of any benefits it is
required to provide the Employee hereunder as long as the aggregate
coverages and benefits of the combined benefit plans is no less favorable
to the Employee than the coverages and benefits required to be provided
hereunder. The Employee will be eligible for coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") at the
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end of the Continuation Period or earlier cessation of the Company's
obligation under the foregoing provisions of this Section 3.3(a)(iv) (or,
if the Employee shall not be so eligible for any reason, the Company will
provide equivalent coverage). Exhibit A hereto provides an informational
overview of COBRA-required coverage as it exists immediately prior to the
execution of the Agreement and is not to be considered part of the
Agreement; the actual coverage to be provided pursuant to this Section
3.3(a)(iv) will be the COBRA-required coverage at the time this provision
becomes effective;
(v) the Employee shall immediately become fully (100%) vested
in his benefit (as such benefit may be increased pursuant to Sections
3.3(a)(vii) and 3.3(a)(viii) hereof) under each supplemental or excess
retirement plan of the Company in which the Employee was a participant,
including, but not limited to the Tidewater Inc. Supplemental Executive
Retirement Plan (the "SERP"), the Supplemental Savings Plan and any
successor plans (collectively, the "Supplemental Plans");
(vi) if, prior to the Change of Control, in a form and manner
reasonably satisfactory to the Company, the Employee shall have elected
that his benefits under the Supplemental Plans be paid in a lump sum in
cash within five business days of the date of any termination of his
employment described in this Section 3.3(a), such benefits (as such
benefits may be increased pursuant to Sections 3.3(a) (vii) and
3.3(a)(viii) hereof) shall be so paid, notwithstanding the payment
provisions of the Supplemental Plans and any payment or distribution
elections made by the Employee prior to such lump sum election;
(vii) the Company shall contribute to the Tidewater Inc.
Executives' Supplemental Retirement Trust between the Company and Hibernia
National Bank, as amended and restated effective January 1, 1993, and
subsequently amended, for the Employee's account in cash within five
business days of the date of termination of employment an amount equal to
the then present value of the actuarial equivalent of the additional
benefits, if any, to which the Employee would be entitled under the
Tidewater Inc. Pension Plan, the SERP and any other qualified or non-
qualified defined benefit plan maintained by the Company and covering the
Employee, regardless of the vesting requirements thereof, or any agreement
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between the Company and the Employee with respect to retirement benefits
that is otherwise provided for in the Employment Agreement (such retirement
benefit agreement being made a part hereof and specifically incorporated by
reference herein), after giving the Employee, for purposes of calculating
the benefits due Employee under such plans, (a) full service credit for a
three-year period following the Change of Control and (b) compensation
credit for each of such three years, with the compensation for each year
being calculated by dividing the amount that the Employee will be entitled
to receive under Section 3.3(a)(i) hereof by three; notwithstanding any
SERP provision regarding accrual of benefits, such additional benefits
shall be treated for all purposes as increasing the benefit of the Employee
under the SERP and payment of the increased benefit shall be governed by
the terms of the SERP, unless the Employee has made an effective election
for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an
effective payment election at the time of execution of the Prior Agreement
with respect to such additional benefits;
(viii) the Company shall contribute to the trust under the
Xxxxxxx Xxxxx Non-Qualified Deferred Compensation Plan Trust Agreement
between the Company and Xxxxxxx Xxxxx Trust Company of America made June
26, 1997, as subsequently amended, for the Employee's account in cash
within five business days of the date of termination of employment an
amount equal to the amount of employer contributions that would have been
made on the Employee's behalf if the Employee had continued to participate
in the Company's Savings Plan, the Company's Supplemental Savings Plan and
any other qualified or non-qualified defined contribution plan maintained
by the Company until the third anniversary of the Change of Control. Such
contribution shall, in the case of a qualified plan, be calculated as if
the Employee were fully vested and participating to the maximum extent
permitted by such plan and, in the case of a non-qualified plan, be
calculated on the same basis as the Employee was participating in such
plans and, in all cases, be calculated on the basis of the Employee's Base
Salary (determined in accordance with Section 3.2(a) hereof) at the time of
the Change of Control or at the date of termination, whichever is greater;
notwithstanding any Supplemental Savings Plan provision regarding accrual
of benefits, such contribution shall be treated for all purposes as
increasing the
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benefit of the Employee under the Supplemental Savings Plan
and payment of the increased benefit shall be governed by the terms of the
Supplemental Savings Plan, unless the Employee has made an effective
election for a lump sum payment in accordance with Section 3.3(a)(vi)
hereof or an effective payment election at the time of execution of the
Prior Agreement with respect to such contribution; and
(ix) to the extent that Employee is not fully vested in his
accrued benefits under the Pension Plan, the Savings Plan or any other
qualified plan maintained by the Company, at the time of termination of
employment, the Company shall contribute to the trust for the Supplemental
Plan that supplements the respective qualified plan, within five business
days of the date of termination of employment, an amount in cash equal to
the unvested but accrued benefits under such plans (calculated as the
present value of the actuarial equivalents thereof in the case of any
qualified defined benefit plan) as of the date of termination of
employment; notwithstanding the provisions of any qualified plan or
Supplemental Plan regarding accrual of benefits, such contribution shall be
treated for all purposes as increasing the benefit of the Employee under
the Supplemental Plan which supplements the respective qualified plan, and
payment of the increased benefit shall be governed by the terms of such
Supplemental Plan, unless the Employee has made an effective election for a
lump sum payment in accordance with Section 3.3(a)(vi) hereof or an
effective payment election at the time of execution of the Prior Agreement
with respect to such contribution.
The payments and benefits provided in this Section 3.3(a) and under all of the
Company's employee benefit and compensation plans shall be without regard to any
amendment made after any Change of Control to any such plan, which amendment
adversely affects in any manner the computation of payments and benefits due the
Employee under such plan or the time or manner of payment of such payments and
benefits. After a Change of Control no discretionary power of the Board or any
committee thereof shall be used in a way (and no ambiguity in any such plan
shall be construed in a way) which adversely affects in any manner any right or
benefit of the Employee under any such plan.
(b) Death. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by reason of
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the Employee's death, this Agreement shall terminate without further obligation
to the Employee's legal representatives (other than those already accrued to the
Employee), other than the obligation to make any payments due pursuant to
employee benefit or compensation plans maintained by the Company or its
Affiliates and any death benefits to which the Employee is entitled under any
Employment Agreement in effect immediately prior to the Change of Control (the
death benefits provided by such Employment Agreement being made a part hereof
and specifically incorporated by reference herein).
(c) Disability. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by reason of
Employee's Disability, this Agreement shall terminate without further obligation
to the Employee (other than those already accrued to the Employee), other than
the obligation to make any payments due pursuant to employee benefit or
compensation plans maintained by the Company or its Affiliates and any
disability benefits to which Employee is entitled under any Employment Agreement
in effect immediately prior to the Change of Control (the disability provisions
of such Employment Agreement being made a part hereof and specifically
incorporated by reference herein).
(d) Cause. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by the
Company for Cause, this Agreement shall terminate without further obligation to
the Employee other than for obligations imposed by law and obligations imposed
pursuant to any employee benefit or compensation plan maintained by the Company
or its Affiliates.
(e) Voluntary Termination. If, after a Change of Control and
during the Employment Term, the Employee voluntarily terminates his employment
with the Company other than for Good Reason, this Agreement shall terminate
without further obligation to the Employee other than for obligations imposed by
law and obligations imposed pursuant to any employee benefit or compensation
plan maintained by the Company or its Affiliates.
3.4 ACCRUED OBLIGATIONS AND OTHER BENEFITS. It is the intent of this
Agreement that upon termination of employment for any reason following a Change
of Control the Employee be entitled to receive promptly, and in addition to any
other benefits specifically provided, (a) the Employee's Base Salary through the
date of termination to the extent not theretofore paid, (b) any accrued vacation
pay, to the extent not theretofore paid, and (c) any other amounts or benefits
required to be
16
paid or provided or which the Employee is entitled to receive
under any plan, program, policy, practice or agreement of the Company.
3.5 STOCK OPTIONS AND RESTRICTED STOCK. The foregoing benefits are
intended to be in addition to the value of any options to acquire Common Stock
of the Company or restricted stock the exercisability or vesting of which is
accelerated pursuant to the terms of any stock option, incentive or other
similar plan or agreement heretofore or hereafter adopted by the Company.
3.6 EXCISE TAX PROVISION.
(a) The "Gross-Up Payment" (as defined in Section 3.6(b) hereof
and reduced or increased pursuant to Section 3.6 (d) hereof) is provided in lieu
of any payment which would otherwise be made to the Employee pursuant to the
provisions of Section 7(e) of the Employment Agreement.
(b) Notwithstanding any other provisions of this Agreement, if a
Change of Control occurs during the original or extended term of this Agreement,
in the event that any of the payments or benefits received or to be received by
the Employee in connection with the Change of Control or the Employee's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company, any Person whose
actions result in a Change of Control or any Person Affiliated with the Company
or such Person) (all such payments and benefits, including the payments and
benefits under Section 3.3(a) hereof, but excluding any payment to be made
pursuant to this Section 3.6 (the "Gross-Up Payment"), being hereinafter
referred to as the "Initial Payments") will be subject (in whole or in part) to
an excise tax imposed by section 4999 of the Code (the "Excise Tax"), the
Company shall pay to the Employee an additional amount (the "Gross-Up Payment")
such that the net amount retained by the Employee, after deduction of (i) any
Excise Tax on the Initial Payments and (ii) any federal, state and local income
and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to
the Initial Payments.
(c) For purposes of determining whether any of the Initial
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(i) all of the Initial Payments shall be treated as "parachute payments" (within
the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax
counsel ("Tax Counsel") reasonably acceptable to the Employee and selected by
the accounting firm which was, immediately prior to the Change of Control, the
Company's
17
independent auditor (the "Auditor"), such payments or benefits (in
whole or in part) do not constitute parachute payments, including by reason of
section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within
the meaning of section 280G(b)(l) of the Code shall be treated as subject to the
Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of
the "Base Amount" (within the meaning set forth in section 280G(b)(3) of the
Code) allocable to such reasonable compensation, or are otherwise not subject to
the Excise Tax, and (iii) the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Auditor in accordance with the
principles of sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Employee shall be deemed to
pay federal income tax at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Employee's residence on the date of termination of the
Employee's employment (or if there is no date of termination, then the date on
which the Gross-Up Payment is calculated for purposes of this Section), net of
the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
(d) In the event that the Excise Tax is finally determined to be
less than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Employee shall repay to the Company, within five business days
following the time that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income and employment taxes imposed on the
Gross-Up Payment being repaid by the Employee, to the extent that such repayment
results in a reduction in the Excise Tax and a dollar-for-dollar reduction in
the Employee's taxable income and wages for purposes of federal, state and local
income and employment taxes, plus interest on the amount of such repayment at
120% of the rate provided in section 1274(b)(2)(B) of the Code). In the event
that the Excise Tax is determined to exceed the amount taken into account
hereunder in calculating the Gross-Up Payment (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest, penalties or additions payable by the
Employee with respect to such excess) within five business days following the
time that the amount of such excess is finally
18
determined. The Employee and the Company shall each reasonably cooperate with
the other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with respect to
the Initial Payments.
(e) The Gross-Up Payment provided in Section 3.6(b) hereof shall
be made not later than the "Payment Day". The Payment Day shall be the fifth
business day following the date of termination, or, if the Employee becomes
entitled, before the Employee's employment is terminated, to a Gross-Up Payment
under Section 3.6(b) hereof, then not later than the fifth business day
following the date as of which the present value of the Initial Payments is
calculated for purposes of determining the amount of such Gross-Up Payment.
Notwithstanding the preceding provisions of this Section 3.6(e), if the amount
of the Gross-Up Payment cannot be finally determined on or before the Payment
Day, the Company shall pay to the Employee on the Payment Day an estimate, as
determined in accordance with Section 3.6(c) hereof, of the minimum amount of
the Gross-Up Payment to which the Employee is clearly entitled and shall pay the
remainder of the Gross-Up Payment (together with interest on the unpaid
remainder at 120% of the rate provided in section 1274(b)(2)(B) of the Code) as
soon as the amount thereof can be determined but in no event later than the
thirtieth day after the Payment Day. In the event that the amount of the
estimated Gross-Up Payment so made exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan by the Company to the
Employee, payable on the fifth business day after demand by the Company
(together with interest at 120% of the rate provided in section 1274(b)(2)(B) of
the Code). At the time that any Gross-Up Payment is made pursuant to Section
3.6(b) hereof (and at the time that any additional Gross-Up Payment is made
pursuant to Section 3.5(d) hereof), the Company shall provide the Employee with
a written statement setting forth the manner in which any such payment was
calculated and the basis for such calculations including, without limitation,
any opinions or other advice the Company has received from Tax Counsel, the
Auditor or other advisors or consultants (and any such opinion or advice which
is in writing shall be attached to the statement).
3.7 LEGAL FEES. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the Employee may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Employee or others of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Employee about the amount or timing of any payment pursuant to
this Agreement) or
19
which the Employee may reasonably incur in connection with
any tax audit or proceeding to the extent attributable to the application of
section 4999 of the Code to any payment or benefit provided under this
Agreement.
3.8 SET-OFF; MITIGATION. After a Change of Control, the Company's
and its Affiliates' obligations to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company or its Affiliates may have against the Employee or
others; except that to the extent the Employee accepts other employment in
connection with which he is provided health insurance benefits, the Company
shall only be required to provide health insurance benefits to the extent the
benefits provided by the Employee's employer are less favorable than the
benefits to which he would otherwise be entitled hereunder. It is the intent of
this Agreement that in no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Employee under any of the provisions of this Agreement.
3.9 OUTPLACEMENT ASSISTANCE. Upon any termination of employment of
the Employee other than for Cause within three years following a Change of
Control, the Company shall provide to the Employee outplacement assistance by a
reputable firm specializing in such services for the period beginning with the
termination of employment and ending three years following the Change of
Control.
3.10 CERTAIN PRE-CHANGE-OF-CONTROL TERMINATIONS. Notwithstanding any
other provision of this Agreement, the Employee's employment shall be deemed to
have been terminated following a Change of Control by the Company without Cause
or by the Employee with Good Reason, if (i) the Employee's employment is
terminated by the Company without Cause prior to a Change of Control (whether or
not a Change of Control actually occurs) and such termination was at the request
or direction of a Person who has entered into an agreement with the Company the
consummation of which would constitute a Change of Control, (ii) the Employee
terminates his employment for Good Reason prior to a Change of Control (whether
or not a Change of Control actually occurs) and the act, circumstance or event
which constitutes Good Reason occurs at the request or direction of such Person,
or (iii) the Employee's employment is terminated by the Company without Cause or
by the Employee for Good Reason and such termination or the act, circumstance or
event which constitutes Good Reason is otherwise in connection with or in
anticipation of a Change of Control and occurred after
20
discussions with such Person regarding a possible Change-of-Control transaction
commenced and such discussions produced (whether before or after such
termination) either a letter of intent with respect to such a transaction or a
public announcement of the pending transaction (whether or not a Change of
Control actually occurs). For purposes of any determination regarding the
applicability of the immediately preceding sentence, if the Employee takes the
position that such sentence applies and the Company disagrees, the Company shall
have the burden of proof in any such dispute.
ARTICLE IV
MISCELLANEOUS
4.1 BINDING EFFECT; SUCCESSORS.
(a) This Agreement shall be binding upon and inure to the benefit
of the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being no
obligation to give such consent) other than such rights or benefits as are
transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
all or substantially all of the assets or businesses of the Company (i) to
assume unconditionally and expressly this Agreement and (ii) to agree to perform
or to cause to be performed all of the obligations under this Agreement in the
same manner and to the same extent as would have been required of the Company
had no assignment or succession occurred, such assumption to be set forth in a
writing reasonably satisfactory to the Employee.
(d) The Company shall also require all entities that control or
that after the transaction will control (directly or indirectly) the Company or
any such successor or assignee to agree to cause to be performed all of the
obligations under this Agreement, such agreement to be set forth in a writing
reasonably satisfactory to the Employee.
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(e) The obligations of the Company and the Employee which by
their nature may require either partial or total performance after the
expiration of the term of the Agreement shall survive such expiration.
4.2 NOTICES. All notices hereunder must be in writing and shall be
deemed to have been given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid, return
receipt requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) telecopy transmission with confirmation of
receipt. All such notices must be addressed as follows:
If to the Company, to:
Tidewater Inc.
Pan-American Life Center
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Cliffe X. Xxxxxxx
If to the Employee, to:
Xxxxxxx X. X'Xxxxxx
Tidewater Inc.
Pan-American Life Center
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
or such other address as to which any party hereto may have notified the other
in writing.
4.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws.
4.4 WITHHOLDING. The Employee agrees that the Company has the right
to withhold, from the amounts payable pursuant to this Agreement, all amounts
required to be withheld under applicable income and/or employment tax laws, or
as otherwise stated in documents granting rights that are affected by this
Agreement.
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4.5 AMENDMENT, WAIVER. No provision of this Agreement may be
modified, amended or waived except by an instrument in writing signed by both
parties.
4.6 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall at any time or to any
extent be invalid, illegal or unenforceable in any respect as written, Employee
and the Company intend for any court construing this Agreement to modify or
limit such provision so as to render it valid and enforceable to the fullest
extent allowed by law. Any such provision that is not susceptible of such
reformation shall be ignored so as to not affect any other term or provision
hereof, and the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid, illegal or unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
4.7 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
4.8 REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to all
of the rights and remedies provided for in this Agreement, the parties shall
have all other rights and remedies provided to them by applicable law, rule or
regulation.
4.9 COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the Board and that the
Company has the right at any time to terminate Employee's status as an employee
of the Company, or to change or diminish his status during the Employment Term,
subject to the rights of the Employee to claim the benefits conferred by this
Agreement.
4.10 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 shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Employee have caused this Agreement
to be executed as of the Restatement Date.
TIDEWATER INC.
By: /s/ Xxxxxx X. Xxx,
-----------------------------
Xxxxxx X. Xxx, Director and
Chairman of the Compensation
Committee of the
Board of Directors
EMPLOYEE:
/s/ Xxxxxxx X. X'Xxxxxx
---------------------------------
Xxxxxxx X. X'Xxxxxx
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