EXHIBIT 10.30
Agreement
THIS AGREEMENT is entered into this 15th day of December
1999 by and between GLOBAL MARINE INC., a Delaware corporation
(the "Company"), and ________________ (the "Executive").
WHEREAS, the Company's Board of Directors (the "Board") has
determined that it is in the best interests of the Company and
its stockholders to ensure that the Company and its affiliates
will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a
termination of the Executive's employment in certain
circumstances, including following a Change in Control as defined
herein; and
WHEREAS, the Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened
termination of the Executive's employment in such circumstances
and to provide the Executive with compensation and benefits
arrangements upon such a termination which ensure that the
compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other
corporations;
NOW, THEREFORE, in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement with
the Executive, and it is hereby agreed as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
terms will have the following meanings unless otherwise expressly
provided in this Agreement:
(a) BENEFICIARY. "Beneficiary" means any individual, trust
or other entity named by the Executive to receive the
severance payments and benefits payable hereunder in
the event of the death of the Executive during the
Salary Continuation Period or CIC Salary Continuation
Period (both as defined hereunder). Executive may
designate a Beneficiary to receive such payments and
benefits by completing a form provided by the Company
and delivering it to the Company's Corporate Secretary.
The Executive may change his or her designated
Beneficiary at any time (without the consent of any
prior Beneficiary) by completing and delivering to the
Company a new beneficiary designation form. If a
Beneficiary has not been designated by the Executive,
or if no designated Beneficiary survives the Executive,
then the payment and benefits provided under this
Agreement, if any, will be paid to the Executive's
estate.
(b) CAUSE. "Cause" means an act or acts of misconduct
harmful to the Company or any of its affiliates,
including without limitation any violation of any
policy regarding the use and possession of alcohol,
illegal drugs, firearms or dangerous weapons that is
applicable to the employees of the Company and its
affiliates generally, and will not mean inadequate
performance or incompetence.
(c) CHANGE IN CONTROL. A "Change in Control" means the
occurrence of any of the following events:
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d) or
14(d) of the U.S. Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act)
of 35% or more of either (A) the then
outstanding shares of common stock of the
Company or of any affiliate of the Company by
which the Executive is employed or which
directly or indirectly owns or controls any
affiliate by which the Executive is employed
(the "Outstanding Company Common Stock") or
(B) the combined voting power of the then
outstanding voting securities of the Company
or of any affiliate of the Company by which
the Executive is employed or which directly
or indirectly owns or controls any affiliate
by which the Executive is employed entitled
to vote generally in the election of
directors (the "Outstanding Company Voting
Securities"); provided, however, that the
following acquisitions will not constitute a
Change in Control: (I) any acquisition by
the Company or by any affiliate of the
Company that remains under the Company's
control, (II) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by the Company or by any affiliate
controlled by the Company, (III) the sale,
exchange, transfer or other disposition of
substantially all of the assets of the
Company or of any affiliate of the Company by
which the Executive is employed or which
directly or indirectly owns or controls any
affiliate by which the Executive is employed
to the Chief Executive Officer of the Company
or of any affiliate of the Company by which
the Executive is employed or which directly
or indirectly owns or controls any affiliate
by which the Executive is employed (the
"CEO"), alone or with other officers, or a
merger, consolidation or other reorganization
involving the Company or any affiliate of the
Company by which the Executive is employed or
which directly or indirectly owns or controls
any affiliate by which the Executive is
employed and the CEO, alone or with other
officers, or any entity in which the CEO
(alone or with other officers) has, directly
or indirectly, a substantial equity or
ownership interest, (IV) a transaction
otherwise commonly referred to as a
"management leveraged buyout," or (V) any
acquisition by any corporation pursuant to a
reorganization, merger or consolidation, if,
following such reorganization, merger or
consolidation, the conditions described in
clauses (I), (II), (III), or (IV) are
satisfied; or
(ii) Individuals who, as of the date hereof,
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 date hereof whose election,
or nomination for election by the Company's
stockholders, was approved by a vote of at
least a majority of the directors then
comprising the Incumbent Board will 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 (meaning a solicitation of
the type that would be subject to Rule 14a-ll
of Regulation 14A under the Exchange Act) or
other actual or threatened solicitation of
proxies or consents by or on behalf of a
Person other than the Board; or
(iii) Approval by the stockholders of the Company
of a reorganization, merger or consolidation,
in each case unless, following such
reorganization, merger or consolidation, (A)
more than 50% of, respectively, the then
outstanding shares of common stock of the
corporation resulting from such
reorganization, merger or consolidation 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 of the individuals and
entities who were the beneficial owners,
respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such
reorganization, merger or consolidation in
substantially the same proportions as their
ownership, immediately prior to such
reorganization, merger or consolidation, of
the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the
case may be, (B) no Person (excluding the
Company, any affiliate of the Company that
remains under the Company's control, any
employee benefit plan (or related trust)
sponsored or maintained by the Company or by
any affiliate controlled by the Company or
such corporation resulting from such
reorganization, merger or consolidation, and
any Person beneficially owning, immediately
prior to such reorganization, merger or
consolidation, directly or indirectly, 35% or
more of the Outstanding Company Common Stock
or Outstanding Company Voting Securities, as
the case may be) beneficially owns, directly
or indirectly, 35% or more of, respectively,
the then outstanding shares of common stock
of the corporation resulting from such
reorganization, merger or consolidation 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) at least a
majority of the members of the board of
directors of the corporation resulting from
such reorganization, merger or consolidation
were members of the Incumbent Board at the
time of the execution of the initial
agreement providing for such reorganization,
merger or consolidation; or
(iv) Approval by the stockholders of the Company of any
plan or proposal which would result directly or
indirectly in (A) a complete liquidation or
dissolution of the Company or of any affiliate of
the Company by which the Executive is employed, or
(B) the liquidation, transfer, sale or other
disposition of all or substantially all of the
assets of the Company or of any affiliate of the
Company by which the Executive is employed or
which directly or indirectly owns or controls any
affiliate by which the Executive is employed,
other than to a corporation with respect to which
following such sale or other disposition (I) more
than 50% of, respectively, the then outstanding
shares of common stock 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 of the individuals and
entities who were the beneficial owners,
respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities
immediately prior to such sale or other
disposition in substantially the same proportions
as their ownership, immediately prior to such sale
or other disposition, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, as the case may be, (II) no Person
(excluding the Company, any affiliate of the
Company that remains under the Company's control,
any employee benefit plan (or related trust)
sponsored or maintained by the Company or by any
affiliate controlled by the Company or such
corporation, and any Person beneficially owning,
immediately prior to such sale or other
disposition, directly or indirectly, 35% or more
of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case
may be) beneficially owns, directly or indirectly,
35% or more of, respectively, the then outstanding
shares of common stock 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
(III) at least 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 Board providing for such sale or other
disposition of assets.
(d) DISABILITY. "Disability" means the Executive's total
disability as defined under the terms of the Company's
long-term disability plan in effect on the Date of
Termination.
(e) EFFECTIVE PERIOD. The "Effective Period" means the 36-
month period following any Change in Control.
(f) GOOD REASONS "Good Reason" means, unless the
Executive has consented in writing thereto, the
occurrence of any of the following:
(i) The assignment to the Executive of any duties
inconsistent with the Executive's position,
including any change in status, title, authority,
duties or responsibilities or any other action
which results in a diminution in such status,
title, authority, duties or responsibilities,
excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company or
the Executive's employer promptly after receipt of
notice thereof given by the Executive;
(ii) A reduction by the Company or the Executive's
employer in the Executive's base salary;
(iii)The relocation of the Executive's office to a
location more than 40 miles outside Houston, Texas;
(iv) Following a Change in Control, unless a plan
providing a substantially similar compensation or
benefit is substituted, (A) the failure by the
Company or any of its affiliates to continue in
effect any material fringe benefit or compensation
plan, retirement plan, life insurance plan, health
and accident plan or disability plan in which the
Executive is participating prior to the Change in
Control, or (B) the taking of any action by the
Company or any of its affiliates which would
adversely affect the Executive's participation in
or materially reduce his benefits under any of
such plans or deprive him of any material fringe
benefit; or
(v) Following a Change in Control, the failure of the
Company or the affiliate of the Company by which
the Executive is employed, or any affiliate which
directly or indirectly owns or controls any
affiliate by which the Executive is employed, to
obtain the assumption in writing of the Company's
obligation to perform this Agreement by any
successor to all or substantially all of the
assets of the Company or such affiliate within 15
days after a reorganization, merger,
consolidation, sale or other disposition of assets
of the Company or such affiliate.
For purposes of this Agreement, any good faith
determination of "Good Reason" made by the Executive
will be conclusive.
2. TERM. The term ("Term") of this Agreement will commence
on the date first above written (the "Commencement Date") and
will end when the Executive is no longer an employee of GMI and
its affiliates and has received all severance payments and
benefits to which he or she is entitled under this Agreement.
3. NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company, or by any affiliate of the Company by
which the Executive is employed, for Cause, or by the Executive
for Good Reason will be communicated by Notice of Termination to
the other party hereto given in accordance with Paragraph 11 of
this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (a) indicates the
specific termination provision in this Agreement relied upon, (b)
to the extent applicable, sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated, and (c) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the
employment termination date. The failure to set forth in the
Notice of Termination any fact or circumstance which contributes
to a showing of Good Reason or Cause will not waive any right of
the party giving the Notice of Termination hereunder or preclude
such party from asserting such fact or circumstance in enforcing
its rights hereunder.
4. DATE OF TERMINATION. "Date of Termination" means the
date of receipt of the Notice of Termination or any later date
specified therein, or the Executive's last date as an active
employee of the Company and its affiliates before a termination
of employment due to death or disability, or a termination other
than for Cause, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF EXECUTIVE'S
EMPLOYMENT.
(a) TERMINATION OF EMPLOYMENT FOR GOOD REASON OR OTHER THAN
FOR CAUSE. The Company will pay the following
severance payments and benefits to the Executive upon
the termination of the Executive's employment with the
Company and its affiliates, by the Company or by any
affiliate of the Company by which the Executive is
employed, other than for Cause, or by the Executive for
Good Reason within six months following the occurrence
of any event constituting Good Reason:
(i) Cash in the amount of the Executive's annual base
salary through the Date of Termination to the
extent not theretofore paid;
(ii) Any and all compensation deferred under a deferred
compensation plan or program of the Company or any
of its affiliates in a lump sum cash payment;
(iii) Cash in an amount equal to the product of two
times the Executive's annual base salary at the rate in effect
at the time Notice of Termination is given, payable in equal
monthly installments over a period of two years following the
Date of Termination (the"Salary Continuation Period");
(iv) If recommended specifically in the Executive's
case by the Company's Chief Executive Officer and
approved specifically in the Executive's case by
the Board's Compensation Committee, in their sole
and absolute discretion, a lump sum cash amount
equal to the sum of actual bonuses paid or
payable, including any amount deferred (whether
mandatory or elective), to the Executive in the
two years immediately prior to the Date of
Termination, payable within 30 days after the Date
of Termination;
(v) The continuation of the provision of health
insurance, dental insurance and life insurance
benefits for the Salary Continuation Period to the
Executive and the Executive's family at least
equal to those which would have been provided to
them in accordance with the plans, programs,
practices and policies of the Company as in effect
and applicable generally to other peer executives
and their families during the 90-day period
immediately preceding the Date of Termination;
provided, however, that if the Executive becomes
re-employed with another employer and is eligible
to receive medical or other welfare benefits under
another employer provided plan, the medical and
other welfare benefits described herein will be
secondary to those provided under such other plan
during such applicable period of eligibility;
(vi) The continued accrual of years of service under
any and all defined benefit retirement plans
sponsored or maintained by the Company or by any
affiliate controlled by the Company in effect on
and in which the Executive was a participant on
the Date of Termination, in each case for the
Salary Continuation Period, but in no event beyond
the date the Executive or Executive's spouse
begins to receive a benefit under any such plan;
and
(vii) The immediate vesting of benefits under the
Company's Executive Supplemental Retirement
Plan of 1990, as amended and in effect at the
Date of Termination, as if the Executive had
attained at least age 55 and at least 5 years
of service, thereby entitling the Executive
to Normal Retirement Benefits commencing at
any time on or after the Executive's Normal
Retirement Date or Early Retirement Benefits
commencing at any time on or after the
Executive attains or would have attained age
55, in each case as such term is defined in
said plan.
(b) TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN
CONTROL. If, during the Effective Period, the Company
or any affiliate of the Company by which the Executive
is employed terminates the Executive's employment,
other than for Cause, or any event constituting Good
Reason occurs and the Executive terminates employment
with the Company for Good Reason within six months
after such occurrence, the Company will pay the
following to the Executive:
(i) Cash in the amount of the Executive's annual base
salary through the Date of Termination to the
extent not theretofore paid;
(ii) Any and all compensation deferred under a deferred
compensation plan or program of the Company or any
of its affiliates in a lump sum cash payment;
(iii) Cash in an amount equal to the product of
three times the Executive's annual base
salary at the greater of (A) the rate in
effect at the time Notice of Termination is
given or (B) the rate in effect immediately
preceding the Change in Control, payable in
equal monthly installments over a period of
three years following the Date of Termination
(the "CIC Salary Continuation Period");
(iv) A lump sum cash amount equal to the product of
three times the highest total bonus paid or
payable in any one year, including any amounts
deferred (whether mandatory or elective), to the
Executive in the three years immediately prior to
the Date of Termination;
(v) The continuation of the provision of health
insurance, dental insurance and life insurance
benefits for the CIC Salary Continuation Period to
the Executive and the Executive's family at least
equal to those which would have been provided to
them in accordance with the plans, programs,
practices and policies of the Company as in effect
and applicable generally to other peer executives
and their families during the 90-day period
immediately preceding the Effective Period or on
the Date of Termination, at the election of the
Executive; provided, however, that if the
Executive becomes re-employed with another
employer and is eligible to receive medical or
other welfare benefits under another employer
provided plan, the medical and other welfare
benefits described herein will be secondary to
those provided under such other plan during such
applicable period of eligibility;
(vi) The continued accrual of years of service under
any and all defined benefit retirement plans
sponsored or maintained by the Company or by any
affiliate controlled by the Company in effect on
and in which the Executive was a Participant on
the Date of Termination, in each case for the CIC
Salary Continuation Period, but in no event beyond
the date the Executive or Executive's spouse
begins to receive a benefit under any such plan;
and
(vii)The immediate vesting of benefits under the
Company's Executive Supplemental Retirement Plan
of 1990, as amended and in effect at either the
Date of Termination or immediately preceding the
Change in Control, at the election of the
Executive, as if the Executive had attained at
least age 55 and at least 5 years of service,
thereby entitling the Executive to Normal
Retirement Benefits commencing at any time on or
after the Executive's Normal Retirement Date or
Early Retirement Benefits commencing at any time
on or after the Executive attains or would have
attained age 55, in each case as such term is
defined in said plan.
(c) TERMINATION OF EMPLOYMENT UPON EXECUTIVE'S DISABILITY.
In the event of the termination of the Executive's
employment with the Company and its affiliates due to
the Executive's Disability, the Company will pay to the
Executive the severance payments and benefits listed in
paragraph 5(a) of this Agreement; provided, however,
that the amounts that the Executive would otherwise be
entitled to receive under this Agreement in the amount
of or otherwise in respect of the Executive's annual
base salary will be reduced by the amount of any
disability payments received by the Executive that have
been funded or insured wholly or in part at the expense
of the Company or any affiliate of the Company.
(d) EFFECT OF DEATH. In the event of the Executive's death
during the Salary Continuation Period or the CIC Salary
Continuation Period, the severance payments and
benefits listed in paragraphs 5(a) or 5(b) of this
Agreement, as applicable, will be paid to the
Executive's Beneficiary for remainder of the Salary
Continuation Period or the CIC Salary Continuation
Period, as the case may be.
(e) "BASIC EARNINGS" UNDER RETIREMENT PLANS. Any and all
amounts paid under this Agreement in the amount of or
otherwise in respect of the Executive's annual base
salary and bonuses, whether or not deferred under a
deferred compensation plan or program, are intended to
be and will be "Basic Earnings" for purposes of
determining Basic Earnings under any and all retirement
plans sponsored or maintained by the Company or by any
affiliate controlled by the Company.
6. EFFECT OF RETIREMENT OR ATTAINMENT OF AGE 65. In the event
the Executive or the Executive's spouse begins to receive a
benefit under one or more retirement plans sponsored or
maintained by the Company or by any affiliate of the Company
before the Executive becomes or would have become eligible for
Normal Retirement under any such plan at age 65, the amounts that
the Executive or the Executive's spouse would otherwise be
entitled to receive under this Agreement in the amount of or
otherwise in respect of the Executive's annual base salary will
be reduced by the amount of any payments received by the
Executive or the Executive's spouse under such plan or plans.
Furthermore, in no event will the severance payments or benefits
provided for under this Agreement be paid or otherwise provided
to the Executive, the Executive's spouse, or the Beneficiary
beyond the date the Executive becomes or would have become
eligible for normal retirement at age 65 under one or more of the
retirement plans sponsored or maintained by the Company or any
affiliate of the Company.
7. MITIGATION OF DAMAGES. The Executive will not be required
to mitigate damages or the amount of any payment provided for
under this Agreement by seeking other employment or otherwise.
Except as otherwise specifically provided in this Agreement, the
amount of any payment provided for under this Agreement will not
be reduced by any compensation earned by the Executive as the
result of self-employment or employment by another employer or
otherwise.
8. TAX EFFECT.
(a) If the Company's independent accounting firm determines
that any non-stock payment or distribution, as defined
below, by the Company or its affiliates to or for the
benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of
this Agreement or otherwise) (a "Payment") constitutes
a "parachute payment" as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code")
(or any successor provision thereto) ("Parachute
Payment") which would be subject to the excise tax
imposed by Section 4999 of the Code, or any interest or
penalties are incurred by the Executive with respect to
such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the
Executive will be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount equal to
the sum of the Excise Tax, any and all federal, state
and local income taxes and Medicare tax on the Excise
Tax, and the excise tax imposed by Section 4999 of the
Code on the Excise Tax, together with any interest or
penalties incurred by the Executive with respect to
such income, Medicare and excise taxes. For purposes
of this paragraph, a "non-stock payment or
distribution" is a payment, distribution, deemed
payment, or deemed distribution that is not in the form
of or in respect of a security that represents an
equity interest in the Company or a derivative thereof,
including without limitation Company stock, restricted
Company stock, Company performance stock, stock options
and stock appreciation rights in respect of Company
stock, the lapse or termination of any restriction in
respect of any of the foregoing, and any other similar
interest, right, or benefit.
(b) Subject to the provisions of paragraph 8(d) below, all
determinations required to be made under this paragraph
8, including whether and when a Gross-Up Payment is
required, the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such
determinations, will be made by the Company's
independent accounting firm, which will provide
detailed supporting calculations both to the Company
and the Executive within 15 business days of the
receipt of notice from the Executive that there has
been a Payment, or such earlier time as is requested by
the Company. All fees and disbursements of the
Company's independent accounting firm will be paid by
the Company.
(c) Any Gross-Up Payment will be paid by the Company to the
Executive within five days of the Company's receipt of
the determination of the Company's independent
accounting firm. If such firm determines that no
Excise Tax is payable by the Executive, it will furnish
the Executive with a written opinion that the Executive
has substantial authority not to report any Excise Tax
on the Executive's Federal income tax return. If the
Executive is subsequently required to make a payment of
any Excise Tax , then the Company's independent
accounting firm will determine the amount of such
additional payment ("Gross-Up Underpayment"), and any
such Gross-Up Underpayment will be promptly paid by the
Company to or for the benefit of the Executive. The
fees and disbursements of the Company's independent
accounting firm will be paid by the Company.
(d) The Executive will notify the Company in writing within
15 days of any claim by the Internal Revenue Service
that, if successful, would require the payment by the
Company of a Gross-Up Payment. If the Company notifies
the Executive in writing that it desires to contest
such claim and that it will bear the costs and provide
the indemnification as required by this paragraph, the
Executive will:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company reasonably requests in
writing from time to time, including, without
limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company,
(iii)cooperate with the Company in good faith in order
to effectively contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided,
however, that the Company will bear and pay
directly all costs and expenses (including
additional interest and penalties) incurred in
connection with such contest and will indemnify
and hold the 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 such representation and
payment of costs and expenses. The Company will
control all proceedings taken in connection with
such contest; provided, however, that if the
Company directs the Executive to pay such claim
and xxx for a refund, the Company will advance the
amount of such payment to the Executive, on an
interest-free basis, and will indemnify and hold
the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax, including
interest or penalties with respect thereto,
imposed with respect to such advance or with
respect to any imputed income with respect to such
advance.
(e) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to paragraph 8(d)(iv),
the Executive becomes entitled to receive any refund
with respect to such claim, the Executive will, within
10 days of receipt thereof, pay to the Company the
amount of such refund, together with any interest paid
or credited thereon after taxes applicable thereto.
If, after the receipt by the Executive of an amount
advanced by the Company pursuant to paragraph 8(d)(iv),
a determination is made that the Executive will not be
entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of
its intent to contest such denial of refund prior to
the expiration of 30 days after such determination,
then such advance will be forgiven and will not be
required to be repaid and the amount of such advance
will offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
9. CONFIDENTIAL INFORMATION; NON-SOLICITATION. During all
periods while the Executive is an employee of the Company or any
of its affiliates and during any Salary Continuation Period or
CIC Salary Continuation Period, the Executive covenants and
agrees as follows:
(a) to hold in a fiduciary capacity for the benefit of the
Company and its affiliates all secret, proprietary or
confidential material, knowledge, data or any other
information relating to the Company or any of its
affiliated companies and their respective businesses
("Confidential Information"), which has been obtained
by the Executive during the Executive's employment by
the Company or any of its affiliated companies and that
has not been, is not now and hereafter does not become
public knowledge (other than by acts by the Executive
or representatives of the Executive in violation of
this Agreement), and will not, without the prior
written consent of the Company or as may otherwise be
required by law or legal process, communicate or
divulge any such information, knowledge or data to
anyone other than the Company and those designated by
it; the Executive further agrees to return to the
Company any and all records and documents (and all
copies thereof) and all other property belonging to the
Company or relating to the Company, its affiliates or
their businesses, upon termination of Executive's
employment with the Company and its affiliates; and,
(b) not to solicit or entice any other employee of the
Company or its affiliates to leave the Company or its
affiliates to go to work for any other business or
organization which is in direct or indirect competition
with the Company or any of its affiliates, nor request
or advise a customer or client of the Company or its
affiliates to curtail or cancel such customer's
business relationship with the Company or its
affiliates.
10. RIGHTS AND REMEDIES UPON BREACH. If the Executive
breaches, or threatens to commit a breach of, any of the
provisions contained in paragraph 9 of this Agreement (the
"Restrictive Covenants"), the Company will have the following
rights and remedies, each of which rights and remedies will be
independent of the others and severally enforceable, and each of
which is in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity:
(a) SPECIFIC PERFORMANCE. The right and remedy to have
the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that
any breach or threatened breach of the Restrictive
Covenants would cause irreparable injury to the Company
and that money damages would not provide an adequate
remedy to the Company.
(b) ACCOUNTING. The right and remedy to require the
Executive to account for and pay over to the Company
all compensation, profits, monies, accruals, increments
or other benefits derived or received by the Executive
as the result of any action constituting a breach of
the Restrictive Covenants.
(c) CESSATION OF SEVERANCE BENEFITS. The right and remedy
to cease any further severance, benefit or other
compensation payments under this Agreement to the
Executive or the Beneficiary from and after the
commencement of such breach by the Executive.
The Executive hereby acknowledges and agrees that the Restrictive
Covenants are reasonable and valid in duration and in all other
respects. If any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants will not thereby be
affected and will be given full effect without regard to the
invalid portions.
11. NOTICES. Any notice provided for in this Agreement will be
given in writing and will be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice
will be deemed given when so delivered personally, telegraphed,
telexed or sent by facsimile transmission, or, if mailed, on the
date of actual receipt thereof. Notices will be properly
addressed to the parties at their respective addresses set forth
below or to such other address as either party may later specify
by notice to the other in accordance with the provisions of this
paragraph:
If to the Company:
Global Marine Inc.
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Corporate Secretary
If to the Executive:
____________________________
____________________________
____________________________
12. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements, written or oral, with
respect thereto, including, without limitation, any and all prior
employment or severance agreements and related amendments entered
into between the Company and the Executive. Furthermore, the
severance payments and benefits provided for under this Agreement
are separate and apart from and, to the extent they are actually
paid, will be in lieu of any payment under any plan or policy of
the Company or any of its affiliates regarding severance payments
generally.
13. WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument
signed by the parties hereto or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder will operate
as a waiver thereof, nor will any waiver on the part of any party
of any such right, power or privilege hereunder, nor any single
or partial exercise of any right, power or privilege hereunder,
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder.
14. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the state of Texas
(without giving effect to the choice of law provisions thereof),
where the employment of the Executive will be deemed, in part, to
be performed, and enforcement of this Agreement or any action
taken or held with respect to this Agreement will be taken in the
courts of appropriate jurisdiction in Houston, Texas.
15. ASSIGNMENT. This Agreement, and any rights and obligations
hereunder, may not be assigned by the Executive and may be
assigned by the Company only to any successor in interest,
whether by merger, consolidation, acquisition or the like, or to
purchasers of substantially all of the assets of the Company.
16. BINDING AGREEMENT. This Agreement will inure to the benefit
of and be binding upon the Company and its respective successors
and assigns and the Executive and his legal representatives.
17. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered will
be deemed an original, but all of which together will constitute
one and the same instrument.
18. HEADINGS. The headings in this Agreement are for reference
purposes only and will not in any way affect the meaning or
interpretation of this Agreement.
19. AUTHORIZATION. The Company represents and warrants that the
Board of Directors of the Company has authorized the execution of
this Agreement.
20. VALIDITY. The invalidity or unenforceability of any
provisions of this Agreement will not affect the validity or
enforceability of any other provisions of this Agreement, which
will remain in full force and effect.
21. TAX WITHHOLDING. The Company will have the right to deduct
from all benefits and/or payments made under this Agreement to
the Executive any and all taxes required by law to be paid or
withheld with respect to such benefits or payments.
22. NO CONTRACT OF EMPLOYMENT. Nothing contained in this
Agreement will be construed as a contract of employment between
the Company or any of its affiliates and the Executive, as a
right of the Executive to be continued in the employment of the
Company or any of its affiliates, or as a limitation of the right
of the Company or any of its affiliates to discharge the
Executive with or without cause.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
The Company The Executive
GLOBAL MARINE INC.
________________________
By: ________________________ [Name]
Xxxxxx X. Xxxx
Chairman, President
and Chief Executive Officer
