EXHIBIT 10.32
AMENDMENT NO. 3 TO
EXECUTIVE EMPLOYMENT AGREEMENT
BY AND BETWEEN
XXXXXXX X. XXXX AND SEABULK INTERNATIONAL, INC.
This Amendment No. 3 to the Executive Employment Agreement by and
between Seabulk International, Inc., a Delaware corporation, formerly known as
Hvide Marine Incorporated (the "Company"), and Xxxxxxx X. Xxxx ( "Executive")
dated as of April 18, 2000, as amended (the "Employment Agreement"), is entered
into as of the 15th day of September, 2004.
WHEREAS, the Company and Executive desire to amend the Employment
Agreement in certain respects, and the Compensation Committee and the Board of
Directors of the Company authorized this amendment to the Employment Agreement
at its meetings on July 29, 2004;
NOW, THEREFORE, in consideration of the premises set forth above and
the mutual agreements set forth herein, the Company and Executive hereby agree,
effective as of the date first set forth above, that the Employment Agreement
shall be amended as hereafter provided:
1. The following new section 4.3(b) shall be added to the Employment
Agreement:
4.3(b) If Executive's employment is terminated "without cause"
or "for good reason", as defined herein, within two years after the
date upon which a Change in Control occurs, then the Company will take
the following actions as of the last day of Executive's employment
within the Company:
(a) Cause any and all outstanding options to purchase common
stock of the Company and any and all restricted stock which have not
become nonforfeitable held by Executive to become immediately
exercisable and nonforfeitable in full; and cause Executive's accrued
benefits under any and all nonqualified deferred compensation plans
sponsored by the Company to become immediately nonforfeitable.
(b) Cause any and all outstanding options to purchase common
stock of the Company held by Executive to remain exercisable for
thirty-six months after the last day of Executive's employment with the
Company (but in no event shall any such option be exercisable for (i) a
longer period than the original term of such option or (ii) a shorter
period than that already provided for under the terms of such option).
2. The following new Section 4.7 shall be added to the Employment
Agreement:
4.7. Certain Additional Payments by the Company.
Notwithstanding anything to the contrary in this Agreement, in the
event that any payment, distribution or provision of a benefit by the
Company to or for the benefit of Executive, whether paid or payable,
distributed or distributable or provided or to be provided pursuant to
the terms of this Agreement or otherwise (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended, or any interest or penalties with
respect to such excise tax (such excise tax, together with any such
interest or penalties, are hereinafter collectively referred to as the
"Excise Tax"), the Company shall pay to Executive an additional payment
(a "Gross-up Payment") in an amount such that after payment by
Executive of all taxes (including any interest or penalties imposed
with respect to such taxes), including any Excise Tax imposed on any
Gross-up Payment, Executive retains an amount of the Gross-up Payment
equal to the Excise Tax imposed upon the Payments. The Company and
Executive shall make an initial determination as to whether a Gross-up
Payment is required and the amount of any such Gross-up Payment.
Executive shall notify the Company immediately in writing of any claim
by the Internal Revenue Service which, if successful, would require the
Company to make a Gross-up Payment (or a Gross-up Payment in excess of
that, if any, initially determined by the Company and Executive) within
ten days of the receipt of such claim. The Company shall notify
Executive in writing at least five days prior to the due date of any
response required with respect to such claim if it plans to contest the
claim. If the Company decides to contest such claim, Executive shall
cooperate fully with the Company in such action; provided, however, the
Company shall bear and pay directly or indirectly all costs and
expenses (including additional interest and penalties) incurred in
connection with such action and shall indemnify and hold Executive
harmless, on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as a
result of the Company's action. If, as a result of the Company's action
with respect to a claim, Executive receives a refund of any amount paid
by the Company with respect to such claim, Executive shall promptly pay
such refund to the Company. If the Company fails to timely notify
Executive whether it will contest such claim or the Company determines
not to contest such claim, then the Company shall immediately pay to
Executive the portion of such claim, if any, which it has not
previously paid to Executive.
3. Section 9.2 of the Agreement is hereby amended and restated by
deleting the text appearing therein in its entirety and inserting the following
text in lieu thereof:
9.2 In general, if Executive's employment is terminated
"without cause" or for "good reason," as defined herein, Executive will
receive an amount equal to the sum of (i) an amount equal to 2.00 times
Executive's annual base salary then in effect and (ii) 2.00 times
Executive's annual maximum bonus for the year in which such termination
occurs, such amount to be paid in equal monthly amounts over the
remaining term of the Agreement or, if the remaining term is less than
two years, over two years, or, at the election of the Company, in a
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lump sum, provided, however, that if Executive's employment is
terminated "without cause" or for "good reason" within two years after
a Change in Control, as defined herein, such amount shall be paid in a
single lump sum within five (5) days after date of termination. In the
event of Executive's death, any remaining payments shall be paid to
Executive's estate in a single lump sum amount.
4. This Amendment No. 3 to the Employment Agreement (a) shall supersede
any prior agreement between the Company and Executive relating to the subject
matter of this amendment and (b) shall be binding upon and inure to the benefit
of the parties hereto and any successors to the Company and all persons lawfully
claiming under Executive.
5. Except as expressly modified by this Amendment No. 3 to the
Employment Agreement, the terms of the Employment Agreement, as amended, shall
remain in full force and effect and are hereby confirmed and ratified.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 3 to the Employment Agreement as of the day and year first written
above.
"COMPANY"
SEABULK INTERNATIONAL, INC.
BY: /s/ XXXX X. XXXXXX
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"EXECUTIVE"
/s/ XXXXXXX X. XXXX
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XXXXXXX X. XXXX
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