EXHIBIT 10(q)
CONTINUING EMPLOYMENT AND SEPARATION AGREEMENT
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This Continuing Employment and Separation Agreement ("Agreement") between
Tidewater Inc, a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx
(the "Employee") is dated as of December 31, 2000 (the "Agreement Date") and
shall be effective as of the Agreement Date subject to the limitations set forth
in Article VI hereof.
W I T N E S S E T H:
WHEREAS, Employee currently is employed by the Company as Executive Vice
President;
WHEREAS, the Company desires to retain the services of Employee pursuant to
the terms of this Agreement, subject to Employee's acceptance of the conditions
stated herein;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
EMPLOYMENT CAPACITY AND TERM
1. CAPACITY AND DUTIES OF EMPLOYEE. The Employee shall continue to be
employed by the Company to render services on behalf of the Company as Executive
Vice President. As an Executive Vice President, the Employee shall perform such
duties, consistent with the Employee's job title, as may be prescribed from time
to time by the Board of Directors of the Company (the "Board") and/or the
Company's Chief Executive Officer.
2. EMPLOYMENT TERM. The term of this Agreement (the "Employment Term")
shall commence on the Agreement Date and shall continue through March 31, 2003
or such earlier date on which Employee's status as an employee is terminated
pursuant to Article III of this Agreement. It is the understanding of the
parties that Employee's employment relationship with the Company will terminate
upon the expiration of the Employment Term unless earlier terminated under the
terms hereof. It is expressly understood and agreed by Employee that he will
have no right to or expectation of continued employment in any capacity upon
expiration of the Employment Term.
3. DEVOTION TO RESPONSIBILITIES. During the Employment Term, the Employee
shall devote that portion of his business time reasonably requested by the Chief
Executive Officer to the business of the Company and shall use his reasonable
best efforts to perform faithfully and efficiently his duties under this
Agreement.
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ARTICLE II
COMPENSATION AND BENEFITS
During the Employment Term, the Company shall provide the Employee with the
compensation and benefits described below:
1. SALARY. An annual salary ("Base Salary") of $44,445 for each calendar
year during the Employment Term payable monthly. Base salary for the final
three-month period of the Employment Term shall be $11,110.
2. BONUS. Employee shall be paid a bonus of $208,800 as his annual
incentive bonus for fiscal year 2001. Employee shall also be paid an additional
bonus of $100,000. Both bonuses shall be paid on the later of December 29, 2000
or the date the revocation period described in Article VI, Section 1 has
expired.
3. ADDITIONAL PAYMENTS AND BENEFITS. The Company shall provide the
Employee with the following additional payments, fringe benefits and
perquisites:
(a) Supplemental Executive Retirement Plan Benefit. In addition to
any Base Salary and bonus payable to Employee hereunder, the Employee shall be
entitled to receive from the Company, commencing on the Agreement Date, benefits
under the Company's Supplemental Executive Retirement Plan (the "SERP"), payable
from time to time in accordance with the provisions of the SERP (the "SERP
Benefit"). The Company and Employee agree that payment of the SERP Benefit
shall commence on the later of January 1, 2001 or the date the revocation period
described in Article VI, Section 1 has expired and such payments shall continue
on the first of each month thereafter. The SERP Benefit shall be calculated
based upon the prospective inclusion of service to the Company through December
31, 2002. It is understood and agreed that this SERP Benefit shall not be used
as a basis of calculation for entitlement to any increased benefits under any
other benefit plans of the Company.
(b) Other Benefits. During the Employment Term, the Employee shall be
entitled to certain benefits as specifically set forth hereinafter.
(1) Participation in the Tidewater Health Care Plan and the
Executive Medical Plan;
(2) Participation in the Tidewater Pension Plan;
(3) Participation in the Tidewater 401(k) Savings Plan; (but the
Company's matching contribution will be limited to 50% of
amount deferred up to 6% of the annual Base Salary of
$44,445;
(4) Participation in Administrative Long Term Disability Plan;
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(5) Participation in the Tidewater Life Insurance Plan (limited
to 1.2 times annual Base Salary of $44,445.) Any
participation in the Supplemental Life Insurance Plan will
continue to be fully paid by the employee;
(6) Participation in the Tidewater AD&D Plan (limited to 1.2
times annual Base Salary of $44,445.) Any participation in
the Supplemental AD&D plan will continue to be fully paid by
the employee;
(7) Participation in the Tidewater Business Travel Plan, covered
while traveling on Company business;
(8) Participation in the Tidewater Employees' Supplemental
Savings Plan; and
(9) Office space through May 2001 which may be provided on a
shared basis with other employees.
It is understood and agreed that the annual Base Salary of $44,445 shall be the
compensation amount used in calculating the benefits due under all of the
foregoing enumerated plans.
During the Employment Term, the Employee will not be entitled to the
following:
(1) Employee shall no longer participate in the Management Annual
Incentive Plan, or any successor or additional annual
incentive plan;
(2) Employee shall not accrue additional benefits under the SERP
after December 31, 2000;
(3) Employee shall not be entitled to additional grants of stock
options or other stock awards under the Company's stock
incentive plans;
(4) The Change of Control Agreement between the Company and
Employee shall terminate as described in Article VI,
Section 4;
(5) The use of the Company aircraft, except for business
functions where specific prior approval for use of the
aircraft has been obtained;
(6) Secretarial services, except on a pooled basis, and as
available;
(7) Reimbursement for social or business club or association
dues; and
(8) Reserved parking space (although the Company will reimburse
for parking expenses while performing Company business).
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4. EXPENSES. The Employee shall be reimbursed for reasonable out-of-
pocket expenses incurred from time to time on behalf of the Company or any
subsidiary in the performance of his duties under this Agreement, upon the
presentation of such supporting invoices, documents and forms as the Company
reasonably requests. However, Employee should obtain prior approval for any
particular expense which is expected to exceed $1,000 in the aggregate.
ARTICLE III
TERMINATION OF EMPLOYMENT
1. DEATH. The Employee's status as an employee will terminate immediately
and automatically upon the Employee's death prior to March 31, 2003.
2. CAUSE. The Company may terminate the Employee's status as an employee
for Cause. As used herein, termination by the Company of the Employee's status
as an employee for "Cause" shall mean termination as a result of (a) the
Employee's breach of this Agreement, or (b) the willful engaging by the Employee
in gross misconduct injurious to the Company, which in either case is not
remedied within 10 days after the Company provides written notice to the
Employee of such breach or willful misconduct.
3. NOTICE OF TERMINATION. Any termination by the Company for Cause shall
be communicated by Notice of Termination to the Employee given in accordance
with Article VII, Section 2 of this Agreement. For purposes of this Agreement,
a "Notice of Termination" means a written notice that (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 Employee's employment under the
provisions so indicated and (c) if the Date of Termination (as defined below) is
other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than 30 days after the giving of such notice).
The failure by the Company to set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Cause shall not negate the effect
of the notice nor waive any right of the Employee or the Company, respectively,
hereunder, or preclude the Company from asserting such fact or circumstance in
enforcing the Company's rights hereunder.
4. DATE OF TERMINATION. "Date of Termination" means (a) if Employee's
employment is terminated by reason of his death, the date of the death of
Employee, and (b) if Employee's employment is terminated by the Company for
Cause, the date of delivery of the Notice of Termination or any later date
specified therein, (which date shall not be more than 30 days after the giving
of such notice) as the case may be.
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ARTICLE IV
OBLIGATIONS UPON TERMINATION
1. DEATH. If the Employee's status as an employee is terminated by reason
of the Employee's death during the Employment Term, the Employee's estate, heirs
or other legal representatives, as appropriate, shall continue to receive the
salary payments provided herein during the Employment Term until the
commencement of benefits under the Company's Pension Plan. In all other
respects, this Agreement shall terminate upon death without further obligations
to the Employee's estate, heirs or other legal representatives under this
Agreement, other than the obligation to make any payments due to Employee
pursuant to employee benefit plans maintained by the Company or its
subsidiaries.
2. CAUSE. If the Employee's status as an employee is terminated by the
Company for Cause during the Employment Term, 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 plan maintained by
the Company or its subsidiaries.
3. STOCK OPTION PLANS. The terms of the Company's 1992 Stock Option and
Restricted Stock Plan and the Company's 1997 Stock Incentive Plan and agreements
thereunder shall govern the treatment of the Employee's stock options in the
event of termination of employment.
ARTICLE V
NONDISCLOSURE, NONCOMPETITION AND PROPRIETARY RIGHTS
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "Confidential Information" means any information, knowledge or
data of any nature and in any form (including information that is electronically
transmitted or stored on any form of magnetic or electronic storage media)
relating to the past, current or prospective business or operations of the
Company and its subsidiaries, that at the time or times concerned is not
generally known to persons engaged in businesses similar to those conducted or
contemplated by the Company and its subsidiaries (other than information known
by such persons through a violation of an obligation of confidentiality to the
Company), whether produced by the Company and its subsidiaries or any of their
consultants, agents or independent contractors or by Employee, and whether or
not marked confidential, including without limitation information relating to
the Company's or its subsidiaries' services, business plans, business
acquisitions, processes, research and development methods or techniques,
training methods and other operational methods or techniques, quality assurance
procedures or standards, operating procedures, files, plans, specifications,
proposals, drawings, charts, graphs, support data, trade secrets, supplier
lists, supplier information, purchasing methods or practices, distribution and
selling activities, consultants' reports, marketing and engineering or other
technical studies, maintenance records, employment or personnel data, marketing
data, strategies or techniques, financial reports, budgets, projections, cost
analyses, price lists, formulae and analyses, employee lists, customer records,
customer lists, customer source lists, proprietary computer software, and
internal notes and memoranda relating to any of the foregoing.
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(b) "Business" means the business of providing vessel services for the
offshore oil and gas industry.
2. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the Employment Term,
Employee shall hold in a fiduciary capacity for the benefit of the Company all
Confidential Information which shall have been obtained by Employee during
Employee's employment (whether prior to or after the Agreement Date) and shall
use such Confidential Information solely within the scope of his employment with
and for the exclusive benefit of the Company. For a period of five years after
the expiration of the Employment Term, Employee agrees (a) not to communicate,
divulge or make available to any person or entity (other than the Company) any
such Confidential Information, except upon the prior written authorization of
the Company or as may be required by law or legal process, and (b) to deliver
promptly to the Company any Confidential Information in his possession,
including any duplicates thereof and any notes or other records Employee has
prepared with respect thereto. In the event that the provisions of any
applicable law or the order of any court would require Employee to disclose or
otherwise make available any Confidential Information, Employee shall give the
Company prompt prior written notice of such required disclosure and an
opportunity to contest the requirement of such disclosure or apply for a
protective order with respect to such Confidential Information by appropriate
proceedings.
3. LIMITED COVENANT NOT TO COMPETE. For a period of two years commencing
on the Agreement Date (the "Restricted Period"), Employee agrees that within any
parish of the State of Louisiana (as set forth in Appendix A), or any other
jurisdiction (whether within or outside the United States), in which the Company
or any of its subsidiaries or joint ventures carries on the Business, so long as
the Company or any of its subsidiaries or joint ventures carries on a like line
of business therein (collectively, the "Subject Areas"), Employee will restrict
his activities within the Subject Areas during the Restricted Period as follows:
(a) Employee will not, directly or indirectly, for himself or others,
own, manage, operate, control, be employed in an executive, managerial or
supervisory capacity by, or otherwise engage or participate in or allow his
skill, knowledge, experience or reputation to be used in connection with, the
ownership, management, operation or control of, any company or other business
enterprise engaged in the Business within any of the Subject Areas; provided,
however, that nothing contained herein shall prohibit Employee from making
passive investments as long as Employee does not beneficially own more than 2%
of the equity interests of a business enterprise engaged in the Business within
any of the Subject Areas. For purposes of this paragraph, "beneficially own"
shall have the same meaning ascribed to that term in Rule 13d-3 under the
Securities Exchange Act of 1934.
(b) Employee will not call upon any customer of the Company or its
subsidiaries for the purpose of soliciting, diverting or enticing away the
business of such person or entity, or otherwise disrupting any previously
established relationship existing between such person or entity and the Company
or its subsidiaries;
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(c) Employee will not solicit, induce, influence or attempt to
influence any supplier, lessor, licensor, potential acquiree or any other person
who has a business relationship with the Company or its subsidiaries, or who is
engaged in discussions or negotiations to enter into a business relationship
with the Company or its subsidiaries, to discontinue or reduce the extent of
such relationship with the Company or its subsidiaries; and
(d) Employee will not make contact with any of the employees of the
Company or its subsidiaries with whom he had contact during the course of his
employment with the Company for the purpose of soliciting such employee for
hire, whether as an employee or independent contractor, or otherwise disrupting
such employee's relationship with the Company or its subsidiaries.
(e) Employee will not hire, on behalf of himself or any company
engaged in the Business, any employee of the Company or its subsidiaries as an
employee or independent contractor, whether or not such engagement is solicited
by Employee.
Employee agrees that he will from time to time upon the Company's request
promptly execute any supplement, amendment, restatement or other modification of
Appendix A as may be necessary or appropriate to correctly reflect the
jurisdictions which, at the time of such modification, should be covered by
Appendix A and this Article V Section 3. Furthermore, Employee agrees that all
references to Appendix A in this Agreement shall be deemed to refer to Appendix
A as so supplemented, amended, restated or otherwise modified from time to time.
4. PROPRIETARY RIGHTS. The Employee agrees to and hereby does assign to
the Company all his right, title and interest in and to all inventions, business
plans, work models or procedures, whether or not patentable, which are made or
conceived solely or jointly by him:
(a) At any time during the term of his employment by the Company, or
(b) With the use of time or materials of the Company.
The Employee agrees to communicate to the Company or its
representatives all facts known to him concerning such matters, to sign all
necessary instruments, make all necessary oaths and generally, at the Company's
expense, to do everything reasonably practicable (without expense to the
Employee) to aid the Company in obtaining and enforcing proper legal protection
for all such matters in all countries and in vesting title to such matters in
the Company. At the Company's request (during or after the term of this
Agreement) and expense, the Employee will promptly execute a specific assignment
of title to the Company, and perform any other acts reasonably necessary to
implement the foregoing assignment.
5. INJUNCTIVE RELIEF; OTHER REMEDIES. Employee acknowledges that a breach
by Employee of Section 2, 3 or 4 of this Article V would cause immediate and
irreparable harm to the Company for which an adequate monetary remedy does not
exist; hence, Employee agrees that, in the event of a breach or threatened
breach by Employee of the provisions of Section 2, 3 or 4 of this Article V
during or after the Employment Term, the Company shall be entitled to injunctive
relief
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restraining Employee from such violation without the necessity of proof of
actual damage or the posting of any bond, except as required by non-waivable,
applicable law. Nothing herein, however, shall be construed as prohibiting the
Company from pursuing any other remedy at law or in equity to which the Company
may be entitled under applicable law in the event of a breach or threatened
breach of this Agreement by Employee, including without limitation the recovery
of damages and/or costs and expenses, such as reasonable attorneys' fees,
incurred by the Company as a result of any such breach. In addition to the
exercise of the foregoing remedies, the Company shall have the right upon the
occurrence of any such breach to cancel any unpaid salary, bonus, commissions or
reimbursements otherwise outstanding at the end of the Employment Term. In
particular, Employee acknowledges that the payments provided hereunder are
conditioned upon Employee fulfilling any noncompetition and nondisclosure
agreements contained in this Article V. In the event Employee shall at any time
materially breach any noncompetition or nondisclosure agreements contained in
this Article V, the Company may suspend or eliminate payments under Article IV
during the period of such breach. Employee acknowledges that any such suspension
or elimination of payments would be an exercise of the Company's right to
suspend or terminate its performance hereunder upon Employee's breach of this
Agreement; such suspension or elimination of payments would not constitute, and
should not be characterized as, the imposition of liquidated damages.
6. REQUESTS FOR WAIVER IN CASES OF UNDUE HARDSHIP. In the event that
Employee should find any of the limitations of Article V, Section 3 (including
without limitation the geographic restrictions of Appendix A) to impose a severe
hardship on Employee's ability to secure other employment, Employee may make a
request to the Company for a waiver of the designated limitations before
accepting employment that otherwise would be a breach of Employee's promises and
obligations under this Agreement. Such request must be in writing and clearly
set forth the name and address of the organization with that employment is
sought and the location, position and duties that Employee will be performing.
The Company will consider the request and, in its sole discretion, decide
whether and on what conditions to grant such waiver.
7. GOVERNING LAW OF THIS ARTICLE V; CONSENT TO JURISDICTION. Any dispute
regarding the reasonableness of the covenants and agreements set forth in this
Article V, or the territorial scope or duration thereof, or the remedies
available to the Company upon any breach of such covenants and agreements, shall
be governed by and interpreted in accordance with the laws of the State of the
United States in which the alleged prohibited competing activity or disclosure
occurs, and, with respect to each such dispute, the Company and Employee each
hereby irrevocably consent to the exclusive jurisdiction of the state and
federal courts sitting in the relevant State for resolution of such dispute or
in the case of prohibited competing activity or disclosure occurring outside of
the United States, the Company and the Employee each irrevocably consent to the
exclusive jurisdiction of the federal courts sitting in Louisiana for resolution
of such dispute, and the Company and Employee agree to be irrevocably bound by
any judgment rendered thereby in connection with such dispute, and further agree
that service of process may be made upon him or it in any legal proceeding
relating to this Article V and/or Appendix A by any means allowed under the laws
of such jurisdiction. Each party irrevocably waives any objection he or it may
have as to the venue of any such suit, action or proceeding brought in such a
court or that such a court is an inconvenient forum.
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8. EMPLOYEE'S UNDERSTANDING OF THIS ARTICLE. Employee acknowledges that
the geographic scope and duration of the covenants contained in Article V
Section 3 are the result of arm's-length bargaining and are fair and reasonable
in light of (i) the importance of the functions performed by Employee, (ii) the
nature and wide geographic scope of the operations of the Company and its
subsidiaries, (iii) Employee's level of control over and contact with the
business and operations of the Company and its subsidiaries in all jurisdictions
where same are conducted and (iv) the fact that all facets of the Business are
conducted by the Company and its subsidiaries throughout the geographic area
where competition is restricted by this Agreement. It is the desire and intent
of the parties that the provisions of this Agreement be enforced to the fullest
extent permitted under applicable law, whether now or hereafter in effect and,
therefore, to the extent permitted by applicable law, the parties hereto waive
any provision of applicable law that would render any provision of this Article
V invalid or unenforceable.
ARTICLE VI
WAIVERS; RIGHT OF REVOCATION; CHANGE OF CONTROL
1. WAIVER AND RELEASE BY EMPLOYEE. In consideration of the Company's
agreement to enter into and to provide the terms of this Agreement, Employee
hereby and forever, irrevocably and unconditionally, waives and releases any and
all rights, claims and causes of action against the Company of whatever kind or
nature, known or unknown, asserted or unasserted, that may have arisen prior to
or that may exist as of the date of Employee's execution and acceptance of this
Agreement or that may arise in connection with the expiration of the Employment
Term and the termination of Employee's employment pursuant to the terms of this
Agreement. It is expressly understood and agreed that the claims covered by
Employee's release include, but are not limited to, any and all claims or rights
arising or that could be asserted under the Employee Retirement Income Security
Act, 29 U.S.C. (S) 1001 et seq.; Title VII of the Civil Rights Act of 1964, 42
U.S.C. (S) 2000e et seq.; the Age Discrimination in Employment Act, 29 U.S.C.
(S) 621 et seq.; the Americans with Disabilities Act, 42 U.S.C. (S) 12101 et
seq.; the Louisiana Employment Discrimination Law, La. R.S. 23:331 et seq.; the
Louisiana penalty wage statute, La. R.S. (S) 631 and 632; or any other federal,
state, or local statute, law, rule or regulation concerning employment
discrimination or otherwise concerning the employment relationship. In addition,
it is understood and agreed that by this Agreement, Employee waives any claims
he may have against the Company based on any other theory of liability,
statutory or non-statutory, in contract or in tort, including, but not limited
to, claims for wrongful or constructive discharge, breach of any express or
implied employment contract or agreement, breach of any covenant of good faith
and fair dealing, fraud, defamation, or any personal or emotional injury. It is
further understood and agreed that the parties covered by Employee's release
include the Company's present and former shareholders, officers, directors,
employees, agents, insurers, assigns, predecessors, and successors, and that any
reference to the Company in this Agreement is understood to include all of the
foregoing persons or entities.
2. REVIEW AND CONSULTATION; INFORMATION PROVIDED TO EMPLOYEE. It is
understood and agreed that Employee has entered into and executed this Agreement
voluntarily and that such execution by Employee is not based upon any
representations or promises of any kind made by the Company or any of its
representatives except as expressly recited in this Agreement. Employee further
acknowledges that he has read and fully understands each paragraph of this
Agreement, that
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he was advised in writing by the Company to consult with an attorney prior to
executing this Agreement, and that he has availed himself of legal or other
counsel to the full extent that he desires. Employee also acknowledges that he
was advised in writing by the Company that he could take up to forty-five (45)
days within which to consider and sign this Agreement and that he has considered
this Agreement to the full extent that he desires. Employee further acknowledges
that prior to or upon the commencement of the forty-five day period, he was
provided with the following information in writing:
(a) the names of all employees who were offered and eligible to
participate in this continuing employment and separation program;
(b) the eligibility factors for participation in this program;
(c) the time limits applicable to this program;
(d) the job titles and ages of all individuals eligible for and selected
to participate in this program; and
(e) the ages of all persons in the same job classification who are not
eligible for participation in this program.
Finally, Employee agrees and acknowledges that the consideration provided under
this Agreement is in addition to any other payments, benefits or other things of
value to which he is entitled and that he would not be entitled to any of the
consideration provided under this Agreement in the absence of his execution and
acceptance of this Agreement.
3. RIGHT OF REVOCATION. Employee shall have seven (7) days following his
execution of this Agreement within which to exercise a right of revocation, and
this Agreement will not be enforceable or effective, and no payments shall be
made hereunder, until the expiration of such seven-day period. Any such
revocation of this Agreement must be communicated in writing and delivered in
person or by fax to the Company as specified in Article VII, Section 2 not later
than the close of business on the seventh (7th) day following Employee's
execution of this Agreement. Otherwise, such revocation shall be of no force or
effect.
4. TERMINATION OF CHANGE OF CONTROL AGREEMENT. In consideration of the
Company's agreement to enter into and provide the terms of this Agreement,
concurrently with the execution hereof Employee shall execute and deliver to the
Company a termination of the Change of Control Agreement, dated October 1, 1999,
by and between Employee and the Company, substantially in the form attached
hereto as Appendix B.
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ARTICLE VII
MISCELLANEOUS
1. BINDING EFFECT.
(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 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. In the event of any such assignment or succession, the term
"Company" as used in this Agreement shall refer also to such successor or
assign.
2. NOTICES. All notices hereunder must be in writing and shall be deemed
to have given upon receipt of delivery by: (a) hand (against a receipt
therefore), (b) certified or registered mail, postage prepaid, return receipt
requested, (c) a nationally recognized overnight courier service (against a
receipt therefore) 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
Executive Vice President and Secretary
If to the Employee, addressed to:
Xxxxxxx X. Xxxxxxxx
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.
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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, except as expressly provided
in Article V Section 7 above with respect to the resolution of disputes arising
under, or the Company's enforcement of, Article V of this Agreement.
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.
5. SEVERABILITY. If any term or provision of this Agreement (including
without limitation those contained in Appendix A), 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
temporally, spatially or otherwise 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.
6. 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.
7. 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.
8. 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.
9. JURY TRIAL WAIVER. THE PARIES HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT.
10. SURVIVAL. The rights and obligations of the Company and Employee
contained in Article V of this Agreement shall survive the termination of the
Agreement. Following the Date of Termination, each party shall have the right
to enforce all rights, and shall be bound by all obligations, of such party that
are continuing rights and obligations under this Agreement.
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11. CODE OF BUSINESS CONDUCT. Employee acknowledges and agrees to comply
with the Company's Code of Business Conduct during the Employment Term. To the
extent that this Agreement imposes more stringent restrictions on Employee's
activities than the restrictions contained in the Company's Code of Business
Conduct, the terms of this Agreement shall govern.
12. 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 Agreement Date.
TIDEWATER INC.
Date of Execution: 12/31/00 By: /s/ Xxxxxxx X. X'Xxxxxx
-------------- -----------------------
Xxxxxxx X. X'Xxxxxx
Chairman, Chief Executive
Officer and President
EMPLOYEE:
Date of Execution: 12/31/00 By: /s/ Xxxxxxx X. Xxxxxxxx
-------------- -----------------------
Name: Xxxxxxx X. Xxxxxxxx
14
APPENDIX A
Parishes of the State of Louisiana
Acadia Madison
Xxxxx Xxxxxxxxx
Ascension Natchitoches
Assumption Orleans
Avoyelles Ouachita
Xxxxxxxxxx Plaquemines
Bienville Pointe Coupee
Bossier Rapides
Caddo Red River
Calcasieu Richland
Xxxxxxxx Xxxxxx
Xxxxxxx St. Xxxxxxx
Catahoula St. Xxxxxxx
Xxxxxxxxx St. Helena
Concordia St. Xxxxx
XxXxxx St. Xxxx the Baptist
East Baton Rouge St. Xxxxxx
East Xxxxxxx St. Xxxxxx
East Xxxxxxxxx St. Xxxx
Xxxxxxxxxx St. Tammany
Franklin Tangipahoa
Grant Tensas
Iberia Terrebonne
Iberville Union
Xxxxxxx Xxxxxxxxxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx Washington
Xxxxxxxxx Xxxxxxx
Lafourche West Baton Rouge
LaSalle West Xxxxxxx
Xxxxxxx West Xxxxxxxxx
Xxxxxxxxxx Xxxx
A-1
APPENDIX B
TERMINATION OF CHANGE OF CONTROL AGREEMENT
This TERMINATION OF CHANGE OF CONTROL AGREEMENT (this "Termination
Agreement"), dated as of December 31, 2000, is by and between Tidewater Inc.
(the "Company"), a Delaware corporation and Xxxxxxx X. Xxxxxxxx (the
"Employee").
WHEREAS, the parties hereto desire that that certain Change of Control
Agreement dated as of October 1, 1999, by and between Employee and the Company
(the "Change of Control Agreement") be terminated and of no further force or
effect.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Termination. Employee and the Company agree that, upon the
effectiveness of that Continuing Employment and Separation Agreement, dated as
of the date hereof, by and between Employee and the Company, and subject to the
limitations set forth in Article VI thereof, which shall apply equally to this
Termination Agreement, the Change of Control Agreement be and it hereby is
terminated and is of no further force or effect.
2. Miscellaneous. This Termination Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Louisiana,
without giving effect to the choice of law provisions of such state. This
Termination Agreement may be executed in counterparts, and it shall not be
necessary that the signatures of all parties hereto be contained on any one
counterpart thereof. Each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Termination Agreement as
of the day and year first above written.
TIDEWATER INC.
By: s/ Xxxxxxx X. X'Xxxxxx
------------------------
Xxxxxxx X. X'Xxxxxx
Chairman, Chief Executive
Officer and President
s/Xxxxxxx X. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx
B-1
