Exhibit 10.1
General Maritime Management LLC
000 Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
April 22, 0000
Xxxx X. Xxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Dear Xxxx:
You are party to an employment agreement (the "Old Employment
Agreement") dated as of August 7, 2003 between you and General Maritime
Management LLC, a Xxxxxxxx Islands corporation (the "Company"), pursuant to
which you are presently employed as Chief Executive Officer of the Company.
You and the Company hereby agree that the Old Employment Agreement shall be
terminated and this letter agreement (the "Agreement") shall become effective
on January 1, 2005 (the "Effective Date").
Accordingly, in consideration of the mutual covenants hereinafter
set forth and intending to be legally bound, the Company and you hereby agree
as follows:
1. Employment; Term. The Company hereby employs you as Chief
Executive Officer, and you hereby accept such employment. You agree to serve the
Company, upon the terms and conditions hereinafter set forth, for a term
commencing on the Effective Date and (unless sooner terminated as hereinafter
provided) expiring on December 31, 2007 (the "Term"). Thereafter, the Term shall
automatically renew for successive one-year terms, unless either party gives
written notice to the other party not less than 120 days prior to the expiration
of any such Term that the Term will not be extended. In any event, the Term
shall terminate if either party terminates your employment hereunder in
accordance with the provisions of Section 4 hereof, in which event the Term
shall terminate on the Termination Date. An election not to renew shall be
deemed "termination" of your employment for purposes of Section 5 hereof.
2. Position; Duties.
(a) During your term of employment, you will hold the title and
office of, and serve in the position of, Chief Executive Officer of the Company
and as a member of the Board of Managers of the Company. You shall report to the
Board of Managers of the Company and its senior executive designee and shall
have such authorities and duties consistent with your positions in a company the
size and nature of the Company. You shall also perform such specific duties and
services of a senior executive nature (including service as an officer, director
or equivalent position of any subsidiary, affiliated company or joint venture of
the General Maritime Group, without additional compensation) as such Board of
Managers or designee shall reasonably request and as the Board of Managers,
Board of Directors of Parent or similar body of such subsidiary, affiliated
company or venture shall approve, consistent with your position. As used in this
Agreement, the term the "General Maritime Group" means and includes General
Maritime Corporation, a Xxxxxxxx Islands corporation ("Parent"), and each of its
subsidiaries and affiliates and joint ventures from time to time. For purposes
of this Agreement, an "affiliate" of a person or other entity shall mean a
person or other entity that directly or indirectly controls, is controlled by,
or is under common control with the person or other entity specified.
(b) During the Term, you shall (i) devote your full business time
and attention to the business and affairs of the Company (and the members of the
General Maritime Group, to the extent requested pursuant to Section 2(a) above)
and use your reasonable best efforts to faithfully perform your duties and
responsibilities; and (ii) abide by all applicable policies of the Company and
the General Maritime Group from time to time in effect known to you or provided
to you electronically or in writing. To the extent consistent with your duties
and responsibilities hereunder, you may (A) engage in charitable, educational
and community affairs, including serving on the board of directors of any
charitable, educational or community organization, (B) manage your personal
passive investments, (C) upon approval of the Board of Directors of Parent serve
as a director of another company and (D) engage in activities approved by the
Board of Directors of Parent.
3. Salary; Additional Compensation; Perquisites and Benefits.
(a) During the Term, the Company will pay you a base salary at an
annual rate of Five Hundred Twenty-five Thousand Dollars ($525,000) ("Base
Salary"), subject to annual review by the Board of Managers of the Company in
consultation with the Compensation Committee of the Board of Directors of Parent
(the "Compensation Committee") and, in the discretion of such Board in
consultation with the Compensation Committee, increase, but not decrease, Base
Salary from time to time. After any such increase, the term "Base Salary" as
utilized in this Agreement shall thereafter refer to the increased amount. Such
Base Salary shall be paid in installments in accordance with the Company's
standard practice, but not less frequently than monthly.
(b) For each fiscal year throughout the Term, you will be
eligible to earn a bonus in the discretion of the Board of Managers of the
Company in consultation with the Compensation Committee.
(c) During the Term, you will be eligible to participate in all
benefit programs as are from time to time made generally available to other
senior executives of the General Maritime Group. The Company intends to consider
obtaining (i) Company-paid life insurance and (ii) long-term disability
insurance for your benefit but any such program will depend upon the Company's
assessment of the availability and cost of such a program and will obtain such
coverage so long as it provides benefits the Company reasonably determines are
appropriate for a cost per executive of not more than $10,000 per annum.
(d) The Company will reimburse you, in accordance with its
standard policies from time to time in effect, for such reasonable and necessary
out-of-pocket business expenses as may be incurred by you during the Term in the
performance of your duties and responsibilities for any member of the General
Maritime Group. You will provide documentation of such expenses as reasonably
required under standard Company policies from time to time. The Company will
also reimburse you for reasonable legal fees in the negotiation of this
Agreement up to $25,000.
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(e) You shall be entitled to a vacation period to be credited and
taken in accordance with General Maritime Group policy, from time to time in
effect, of four weeks per annum.
(f) You shall be eligible to receive stock option and other
equity grants from time to time pursuant to Parent's 2001 Stock Incentive Plan,
as amended from time to time, or any successor employee stock incentive plan in
accordance with the terms and conditions thereof.
4. Termination.
(a) The Company may terminate your employment under this
Agreement at any time for Cause in accordance herewith. As used herein, the term
"Cause" means:
(i) Any act or failure to act by you involving fraud,
material theft or embezzlement involving the Company or any other
member of the General Maritime Group;
(ii) Conviction of (or a plea nolo contendere to) a crime
that constitutes a felony or other crime involving moral
turpitude, in either case within the meaning of applicable law;
(iii) In carrying out your duties for the Company, you engage
in conduct that constitutes willful gross neglect or willful gross
misconduct resulting, in either case, in material economic harm to
the Company; or
(iv) Failure or refusal to perform or observe any of your
material duties, responsibilities or obligations set forth in this
Agreement which results in a material adverse effect on the
Company or any other member of the General Maritime Group.
Notwithstanding anything herein to the contrary, your employment
shall not be terminated for Cause under Section 4(a)(i), (iii) or (iv) above
unless you are given notice by the Company of circumstances constituting the
basis for such termination and, if such circumstances are curable, for 30 days
after receipt of such notice you have failed to cure. Prior to termination
pursuant to Section 4(a)(i), (iii) or (iv), you shall have an opportunity to be
heard before the full Board of Directors of Parent (at which you may be
accompanied by counsel). After such hearing, there shall be a vote of two-thirds
of the members of the Board of Directors of Parent (other than you) to terminate
your employment for Cause which vote is communicated to you in writing.
(b) Your employment hereunder will terminate forthwith upon your
death or, at your or the Company's option, 30 days after notice is given by the
party terminating your employment for Disability. As used herein the term
"Disability" means your inability to perform your duties and responsibilities as
contemplated under this Agreement for a period of more than 180 consecutive
days, or for a period aggregating more than 240 days, whether or not continuous,
during any 360-day period, due to physical or mental incapacity or impairment as
determined in accordance herewith. A determination of Disability will be made by
a physician
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satisfactory to both you and the Company; provided that if you and the Company
cannot agree as to a physician, then each will select a physician and these two
together will select a third physician, whose determination as to Disability
will be binding on you and the Company. You, your legal representative or any
adult member of your immediate family shall have the right to present to the
Company and such physician such information and arguments on your behalf as you
or they deem appropriate, including the opinion of your personal physician.
Should your employment be terminated due to Disability, all base salary and
other compensation otherwise due to you hereunder shall be continued through the
date on which your employment is terminated for Disability.
(c) You may terminate your employment voluntarily or for Good
Reason (as defined below) and a termination of your employment by you for any
reason shall not be deemed to be a breach of this Agreement.
(d) For purposes of this Agreement, "Termination Date" shall
mean: (i) if your employment is terminated by the Company for Cause, the date of
notice of termination from the Company, provided that if termination is for
Cause pursuant to Section 4(a)(i), (iii) or (iv) of the definition of Cause, and
the circumstances constituting the basis for such termination are curable, then
the Termination Date shall be the date on which the applicable cure period
lapses if you have not cured (so long as any required Board vote has been
obtained); (ii) if your employment is terminated by the Company without Cause or
by you without Good Reason (other than for Disability pursuant to Section 4(b)),
the date set forth in the notice of termination (which in no event shall be
earlier than the date such notice is effective); (iii) if your employment is
terminated by reason of death, the date of death; (iv) if your employment is
terminated upon Disability, 30 days after notice is given as specified in
Section 4(b) above; and (v) if your employment is terminated by you for Good
Reason, 30 days after such notice is given unless the Company has cured the
grounds for such termination within 30 days after such notice is given.
5. Severance; Consequences of a Change of Control. In the event that
your employment is terminated, you shall be entitled only to the following
compensation, benefits and entitlements:
(a) In the event that your employment is terminated for Cause, or
if you resign without Good Reason (as hereinafter defined) (other than for
Disability pursuant to Section 4(b)), you shall be entitled to (i) an amount
equal to your accrued but unpaid Base Salary through the Termination Date, (ii)
any amounts owing to you but not yet paid, including without limitation, any
bonus payment awarded for any performance period that has ended and any business
expenses required to be reimbursed pursuant to Section 3(d), and (iii) other
payments, entitlements and benefits, if any, in accordance with applicable
plans, programs, arrangements of, or any agreement, including this Agreement,
with, the Company or any other member of the General Maritime Group.
(b) Except as otherwise provided in Section 5(d) below, in the
event that your employment is terminated (other than upon your death or
Disability) during the Term (i) by the Company other than for Cause or (ii) by
you for Good Reason, then the Company shall pay to you an amount equal to your
accrued but unpaid Base Salary through the Termination Date and shall also (A)
provide you with coverages under any General Maritime Group medical, dental,
long term disability or life insurance benefit plan or program in which you
participated
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existing immediately prior to such termination or any replacement plan or
program (so long as such coverage is available under the Company's applicable
plans or programs and as to long term disability and life insurance coverage
costs the Company no more than 120% of the cost per annum prior to termination
of your employment) for a period of 24 months following the Termination Date,
and (B) pay you, in a lump sum no later than 20 days after the Termination Date,
an amount equal to two times (x) Base Salary plus (y) the average of the Annual
Incentive Awards granted to you for each of the three years preceding the year
in which the Termination Date occurs and (C) pay you, in a lump sum no later
than 20 days after the Termination Date, a pro-rata bonus for the year in which
the Termination Date occurs equal to the amount by which (I) the amount
determined by multiplying the average Annual Incentive Award granted to you
during the three years preceding the year in which the Termination Date occurs
by a fraction, the numerator of which is the number of days you were employed by
the Company during the year of termination and the denominator of which is 365
exceeds (II) the value of any Annual Incentive Award granted or paid to you in
respect of the year of termination ("Pro-rata Bonus"). For purposes of this
Agreement, "Annual Incentive Award" for any year shall mean the cash bonus
earned by you for such year, including any amounts deferred. In addition, with
respect to a termination of your employment by you for Good Reason or by the
Company without Cause upon or within two years of a Change of Control, Annual
Incentive Award shall also include the value on the date of grant of any equity
awards granted to you for such year which for stock options shall be the
Black-Scholes value. In addition, the Company agrees that your rights (your
"COBRA" rights) to continued medical coverage pursuant to Section 4980B of the
Internal Revenue Code of 1986, as amended (the "Code") shall be deemed to
commence after the expiration of the period described in clause (A) above, or if
the Company's policies do not allow such a commencement, the Company shall pay
you an amount, which on an after-tax basis, will enable you to obtain equivalent
benefits. Finally, you shall be entitled to any amounts owing to you but not yet
paid, including, without limitation, any bonus payment awarded for any
performance period that has ended and any business expenses required to be
reimbursed pursuant to Section 3(d), as well as any other payments, entitlements
and benefits, if any, in accordance with applicable plans, programs,
arrangements of, or any agreement, including this Agreement, with, the Company
or any other member of the General Maritime Group.
For the purpose of this Agreement, termination of employment
hereunder by you for "Good Reason" shall mean your termination of your
employment by notice to the Company following the occurrence of any of the
following without your prior consent (1) reduction in your Base Salary, (2) a
material diminution in your positions, duties or authorities, (3) assignment to
you of duties materially inconsistent with your position as Chief Executive
Officer of the Company, (4) failure to reelect you to, or your removal from,
the position of Chief Executive Officer of the Company, as a member of the
Board of Managers or as a member of the Board of Directors of Parent, (5) your
assignment to an office more 25 miles from the location of the Company's
headquarters as of the Effective Date, (6) a change in reporting structure so
that you no longer report to the Board of Managers or its senior executive
designee, (7) a breach by the Company of any material provision of this
Agreement or (8) the failure by the Company to obtain the assumption in writing
of its obligation to perform any agreement between you and the Company by any
successor to all or substantially all of the assets of the Company or Parent,
within 15 days after a merger, consolidation, sale or similar transaction
involving the Company or Parent, as the case may be. Any such termination by
you for "Good Reason" shall be effective only upon 30 days prior notice by you
to the Company of
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circumstances constituting "Good Reason" and the failure of the Company to cure
such circumstances within 30 days following such notice.
(c) In the event that your employment is terminated on account of
your death or Disability, the Company will pay to you (or your estate or legal
representative, as the case may be) in a lump sum within 30 days after the
Termination Date an amount equal to the sum of (i) Base Salary plus a Pro-rata
Bonus through the Termination Date and (ii) one year's Base Salary and shall
provide you (in the case of Disability) and your eligible dependents with
continued medical coverage, at the Company's cost, for 12 months following the
Termination Date to the extent available under the Company's applicable plans or
programs. In addition, you (or your estate or legal representative, as the case
may be) shall be entitled to any amounts owing to you but not yet paid,
including without limitation, any bonus payments awarded for any performance
period that has ended and any unreimbursed business expenses required to be
reimbursed under Section 3(d) as well as any other payments, entitlements and
benefits, if any, in accordance with applicable plans, programs, arrangements
of, or any agreement, including this Agreement, with, the Company or any other
member of the General Maritime Group.
(d) Change of Control. If (i) a Change of Control occurs; and
(ii) upon the Change of Control or within 2 years thereafter you terminate your
employment for Good Reason as defined above or the Company terminates your
employment without Cause, you shall be entitled to all the payments, benefits
and entitlements as of the Termination Date as set forth in Section 5(b)
provided that (i) the multiple in Section 5(b)(B) shall be three, and (ii) the
time period in Section 5(b)(A) shall be for 36 months.
(e) As used herein, "Change of Control" shall mean the occurrence
of any of the following:
(i) any "person" (as such term is used in Sections 3(a)(9)
and 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) or "group" (within the meaning of Section
13(d)(3) of the Exchange Act), other than Xxxxx X. Xxxxxxxxxxxxx
or entities which he directly or indirectly controls (as defined
in Rule 12b-2 under the Exchange Act), acquiring "beneficial
ownership" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of thirty percent (30%) or more of the
Voting Stock of Parent;
(ii) the sale of all or substantially all of Parent's assets
in one or more related transactions to a "person" (as such term is
used in Sections 3(a)(9) and 13(d) of the Exchange Act) other than
such a sale (x) to a subsidiary of Parent which does not involve a
change in the equity holdings of the Parent or (y) to Xxxxx X.
Xxxxxxxxxxxxx or entities which he directly or indirectly
controls;
(iii) any merger, consolidation, reorganization or similar
event of Parent, as a result of which the holders of the Voting
Stock of Parent immediately prior to such merger, consolidation,
reorganization or similar event do not directly or indirectly hold
at least fifty-one percent (51%) of the Voting Stock of the
surviving entity;
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(iv) a majority of the members of the Board of Directors of
Parent are no longer Continuing Directors; as used herein, a
"Continuing Director" means any member of the Board of Directors
of Parent who was a member of such Board of Directors on the date
hereof; provided that any person becoming a director subsequent to
such date whose election or nomination for election was supported
by a majority of the directors who then comprised the Continuing
Directors shall be considered to be a Continuing Director; or
(v) the Company or Parent adopts any plan of liquidation or
dissolution providing for the distribution of all or substantially
all of its assets.
For purposes of the Change of Control definition, the "Company" or
"Parent" shall include any entity that succeeds to all or substantially all of
the business of the Company or Parent, as the case may be, and "Voting Stock"
shall mean capital stock of any class or classes having general voting power,
in the absence of specified contingencies, to elect the directors of a
corporation.
(f) Anything in this Agreement to the contrary notwithstanding,
in the event it shall be determined (as hereafter provided) that any payment,
benefit or distribution to or for your benefit, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"), would be subject to the excise tax imposed by Section
4999 of the Code (or any successor provision thereto), or any interest or
penalties with respect to such excise tax (other than interest or penalties
payable solely as a result of action or inaction by you other than any action or
inaction which is at the direction of, or results from a determination by, the
Firm (as defined below) or the Company) (such tax, together with any such
interest and penalties, hereafter collectively referred to as the "Excise Tax"),
then you shall be entitled to receive an additional payment or payments (a
"Gross-Up Payment") in an amount such that, after payment by you of all taxes
(including any interest or penalties imposed with respect to such taxes, other
than interest or penalties payable solely as a result of action or inaction by
you other than any action or inaction which is at the direction of, or results
from a determination by, the Firm or the Company), including any Excise Tax,
imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments (disregarding any Payments
made pursuant to this Section 5(f)). For purposes of determining the amount of
the Gross-Up Payment, you shall be deemed to pay federal income taxes at the
highest marginal rates of federal income taxation applicable to individuals in
the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rates of taxation applicable to
individuals as are in effect in the state and locality of your residence in the
calendar year in which the Gross-Up Payment is to be made, net of the maximum
reduction in federal income taxes that can be obtained from deduction of such
state and local taxes, taking into account any limitations applicable to
individuals subject to federal income tax at the highest marginal rates.
All determinations required to be made under this Section 5(f),
including whether an Excise Tax is payable by you, the amount of such Excise
Tax, whether a Gross-Up Payment is required, and the amount of such Gross-Up
Payment, shall be made by an independent auditor (the "Firm") selected by you
and reasonably acceptable to the Company. The Firm shall be a
nationally-recognized United States public accounting firm which has not, during
the two years
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preceding the date of its selection, acted in any way for the Company, Parent or
any affiliate thereof. Either the Company or you may request that a
determination be made. The Firm shall submit its determination and detailed
supporting calculations to you and the Company as promptly as practicable. If
the Firm determines that any Excise Tax is payable by you and that a Gross-Up
Payment is required, the Company shall pay you the required Gross-Up Payment (i)
within thirty (30) days of receipt of such determination and calculations or
(ii) if later, upon the earlier of (x) the payment to you of any Payment that
gives rise to an Excise Tax or (y) the imposition upon you or payment by you of
any Excise Tax. If the Firm determines that no Excise Tax is payable by you, it
shall, at the same time it makes such determination, furnish you with an opinion
that you have substantial authority not to report any Excise Tax on your federal
income tax return. Any determination by the Firm as to the amount of the
Gross-Up Payment shall be binding upon you and the Company.
As a result of the uncertainty in the application of Section 4999 of
the Code (or any successor provision thereto) at the time of the initial
determination by the Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made (an
"Underpayment"). If you thereafter are required to make a payment of any Excise
Tax, the Firm shall determine the amount of the Underpayment (if any) that has
occurred and submit its determination and detailed supporting calculations to
you and the Company as promptly as possible. Any such Underpayment shall be
promptly paid by the Company to you, or for your benefit, within thirty (30)
days of receipt of such determination and calculations.
In the event that the Internal Revenue Service makes any claim,
gives notice of any potential claim or institutes a proceeding against you
asserting that any Excise Tax or additional Excise Tax is due in respect of the
Payments, you shall promptly give the Company notice of any such claim,
potential claim or proceeding. The Company shall have the right to conduct all
discussions, negotiations, defenses, actions and proceedings, solely to the
extent relating to any Excise Tax payable in respect of the Payments, and you
shall cooperate with and assist the Company, at the Company's expense, in any
such discussions, negotiations, defenses, actions and proceedings, to the extent
reasonably requested by the Company. You will not settle any claim or proceeding
relating solely to the Excise Tax payable in respect of the Payments without the
consent of the Company, which consent shall not be unreasonably withheld. You
shall file, at the Company's expense, all requests for refunds of the Gross-Up
Amount, or any portion thereof, paid to any taxing authority as shall be
reasonably requested by the Company and shall pay over to the Company (net of
any tax payable thereon) any such refunds, together with any interest thereon,
when and as such refunds and interest are received by you. All fees and expenses
for services in connection with the determinations and calculations contemplated
by this Section 5(f), including without limitation the reasonable costs of your
own counsel, shall be borne by the Company.
(g) You shall have no duty to mitigate the severance amounts or
any other amounts, benefits or entitlements payable to you hereunder or
otherwise, and such amounts, benefits and entitlements shall not be subject to
reduction, offset or repayment for any compensation received by you from
employment in any capacity or other source following the termination of your
employment with the Company or on account of any claim the Company, Parent or
any other member of the General Maritime Group may have against you.
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6. Confidential Information.
(a) The Company and the other members of the General Maritime
Group owns and has developed and compiled, and will own, develop and compile,
certain techniques, information, and materials tangible or intangible, relating
to itself, its customers, suppliers and others, which are secret, proprietary
and confidential, and which have great value to its business (referred to in
this Agreement, collectively, as "Confidential Information"). Confidential
Information shall not in any event include information which (i) was generally
known or generally available to the public or within the relevant trade or
industry prior to its disclosure to you or (ii) becomes generally known or
generally available to the public or within the relevant trade or industry
subsequent to disclosure to you other than due to your breach of your
obligations. Confidential information includes, but is not limited to,
information contained in manuals, documents, computer programs, compilations of
technical, financial, legal or other data, specifications, designs, business or
marketing plans, forecasts, financial information, work in progress, and other
technical or business information.
(b) You acknowledge and agree that in the performance of your
duties hereunder the Company and the other members of the General Maritime Group
will from time to time disclose to you and entrust you with Confidential
Information. You also acknowledge and agree that the unauthorized disclosure of
Confidential Information obtained by you during your employment, among other
things, may be prejudicial to the interests of the Company and the other members
of the General Maritime Group's interests and an improper disclosure of trade
secrets. Unless the Company otherwise consents, you agree that during the Term
hereunder and for three years thereafter you shall not, except as otherwise
provided herein, directly or indirectly, use, make available, sell, disclose or
otherwise communicate to any corporation, partnership, individual or other third
party, other than in the ordinary course of your employment, any Confidential
Information. Anything herein to the contrary notwithstanding, the provisions of
this Section 6 shall not apply (x) when disclosure is required by law or by any
court, arbitrator, mediator or administrative or legislative body (including any
committee thereof) with actual or apparent jurisdiction to order you to disclose
or make accessible any information or (y) to the extent reasonably necessary to
enforce or defend your rights pursuant to this Agreement or any other agreement
between you and the General Maritime Group (provided that in the case of clause
(x), unless otherwise prohibited by law, you provide the Company with prior
notice of the contemplated disclosure and reasonably cooperate with the Company
at the Company's expense in seeking a protective order or other appropriate
protection of such information).
(c) Upon termination of your employment, you shall not retain or
take with you any Confidential Information in a Tangible Form (defined below),
and you shall as promptly as possible deliver to the Company any Confidential
Information in a Tangible Form that you then control, as well as all other
General Maritime Group property, including equipment, documents or other things,
that was issued to you or otherwise received or obtained during your employment
with the Company that you then control. "Tangible Form" includes information or
materials in written or graphic form, on a computer disk or other medium, or
otherwise stored in or available through electronic or other form. Anything
herein to the contrary notwithstanding, you shall be entitled to retain (i)
papers and other materials of a personal nature, including, but not limited to,
photographs, personal correspondence, personal diaries, personal calendars and
Rolodexes, personal files and phone books, (ii) information
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showing your compensation or relating to reimbursement of expenses, (iii)
information that you reasonably believe may be needed for tax purposes, (iv)
copies of plans, programs relating to your employment, or termination thereof,
with the Company or any other member of the General Maritime Group and (v)
minutes, presentation materials and personal notes from any meeting of the Board
of Managers or Board of Directors of Parent, or any committee thereof, while you
were a member of such boards or committees provided that you shall provide the
Company with a list and, to the extent related to the General Maritime Group's
business, copies of the foregoing upon request (in which event the General
Maritime Group will keep your confidential personal information confidential in
accordance with its customary business practice).
(d) The provisions of this Section 6 shall survive the
termination of the Term.
7. Non-solicitation.
(a) You acknowledge and agree (i) that the services to be
rendered by you for the General Maritime Group are of a special, unique,
extraordinary and personal character, and (ii) that you have and will continue
to develop a personal acquaintance and relationship with the employees of the
Company and of the other members of the General Maritime Group. Consequently,
you agree that it is fair, reasonable and necessary for the protection of the
business, operations, assets and reputation of the General Maritime Group that
you make the covenants contained in this Section 7.
(b) You agree that for a period of two years following the
Termination Date, you shall not, directly or indirectly, without the prior
consent of the Company, solicit or induce or attempt to solicit or induce (i)
any employee of the General Maritime Group to leave the employ of the General
Maritime Group to be employed by you or by an entity with which you are
affiliated (but the foregoing shall not apply to the placement of or responses
to general advertising which does not name specific employees or the Company) or
(ii) any customer of the General Maritime Group which accounted for more than 5%
of its revenues during the preceding fiscal year to cease doing business with
the General Maritime Group or reduce the amount of business it does with the
General Maritime Group (but the foregoing shall not prevent your seeking
business for other business entities in activities which do not violate Section
8).
(c) The provisions of this Section 7 shall survive the
termination of the Term.
8. Certain Competitive Activities.
(a) You shall not engage in any Competitive Activity (as defined
below) during the Term and for a period of two years thereafter. In the event of
a Change of Control or a termination of your employment by the Company without
Cause or by you for Good Reason the provisions of this Section 8 shall not be
effective.
(b) As used in this Section 8, "Competitive Activity" means
substantial involvement in the management or operation of tankers transporting
crude oil or other similar materials wherever such business is located in the
world if such business is a competitor of the Company or any other member of the
General Maritime Group. Holding more than 50% of the voting equity of a business
shall be deemed to be substantial involvement in its
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management or operations. Mere investment in 50% or less of such equity shall
not in and of itself constitute such involvement.
9. Specific Performance. You acknowledge that the Company and the
other members of the General Maritime Group would sustain irreparable injury in
the event of a violation by you of any of the provisions of Sections 6, 7 or
8(a) hereof, and by reason thereof you consent and agree that if you violate any
of the provisions of said Sections 6, 7 or 8(a), in addition to any other
remedies available, the Company shall be entitled to a decree specifically
enforcing such provisions, and shall be entitled to a temporary and permanent
injunction restraining you from committing or continuing any such violation,
from any arbitrator duly appointed in accordance with the terms of this
Agreement or any court of competent jurisdiction, without the necessity of
proving actual damages, posting any bond, or seeking arbitration.
10. Life Insurance. You agree that, during the Term, the General
Maritime Group will have the right to obtain and maintain life insurance on your
life, at its expense, and for its benefit, subject to such aggregate coverage
limitation as you and the Company shall agree, your consent not to be
unreasonably withheld. You agree to cooperate fully with the Company or such
other member of the General Maritime Group in obtaining such life insurance, to
sign any necessary consents, applications and other related forms or documents
and to take any required medical examinations.
11. Indemnification and Liability Insurance.
(a) The Company agrees that if you are made a party to, are
threatened to be made a party to, receive any legal process in, or receive any
discovery request or request for information in connection with, any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that you are or were a director, officer,
employee, consultant or agent of the Company or Parent or are or were serving at
the request of, or on behalf of, the Company, Parent or any other member of the
General Maritime Group as a director, officer, member, employee, consultant or
agent of another corporation, limited liability corporation, partnership, joint
venture, trust or other entity, including service with respect to employee
benefit plans and service with respect to any member of the General Maritime
Group, whether or not the basis of such Proceeding is your alleged action in an
official capacity while serving as a director, officer, member, employee,
consultant or agent of the Company, Parent, any other member of the General
Maritime Group or other entity, you shall be indemnified and held harmless by
the Company, Parent and any other member of the General Maritime Group to the
fullest extent permitted by such entities' corporate documents, including, but
not limited to, Parent's articles of incorporation or by-laws in effect as of
the Effective Date (provided that you shall have the benefit of any amendments
to such documents after the Effective Date that are favorable to you) and
applicable law, against any and all costs, expenses, liabilities and losses
(including, without limitation, attorneys' fees reasonably incurred, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement and any reasonable costs and fees incurred in enforcing your rights
to indemnification or contribution) incurred or suffered by you in connection
therewith, and such indemnification shall continue as to you even though you
have ceased to be a director, officer, member, employee, consultant or agent of
the Company, Parent, any other member of the General Maritime Group or other
entity and shall inure to the benefit of your heirs, executors and
administrators. The Company shall advance you all costs and expenses (including,
without limitation, attorneys' fees) reasonably incurred by you in connection
with any Proceeding within
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20 business days after receipt by the Company of a written request for such
reimbursement and appropriate documentation associated with these expenses. Such
request shall include an undertaking by you to repay the amount of such advance
to the extent required by law.
(b) Neither the failure of the Company (including its Board of
Managers, independent legal counsel or members) nor Parent (including its Board
of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any Proceeding concerning payment of
amounts claimed by you under Section 11(a) above that indemnification of you is
proper because you have met the applicable standard of conduct, nor a
determination by the Company (including its Board of Managers, Directors,
independent legal counsel or members) or Parent (including its Board of
Directors, independent legal counsel or stockholders) that you have not met such
applicable standard of conduct, shall create a presumption or inference that you
have not met the applicable standard of conduct.
(c) The Company and Parent agree to continue and maintain a
directors' and officers' liability insurance policy covering you at a level, and
on terms and conditions, no less favorable to you than the coverage the Company
or Parent provides other directors and similarly-situated executives so long as
such coverage is available from the carrier and does not increase the cost of
such policy by more than 10% per annum until the fifth anniversary of the
Termination Date.
(d) Nothing in this Section 11 shall be construed as reducing or
waiving any right to indemnification, or advancement of expenses, you would
otherwise have under the corporate documents of any member of the General
Maritime Group, including, but not limited to, Parent's articles of
incorporation or by-laws, or under applicable law.
12. Withholding. The parties understand and agree that all payments
to be made by the Company pursuant to this Agreement shall be subject to all tax
withholding obligations of the Company under applicable laws of the United
States or any state thereof.
13. No Conflict. As of the Effective Date, you represent and warrant
that you are not party to or subject to any agreement, contract, understanding,
covenant, judgment or decree or under any obligation, contractual or otherwise,
in any way restricting or adversely affecting your ability to act for the
Company as contemplated hereby.
14. Company Representations. The Company represents and warrants
that as of the date hereof (i) the execution, delivery and performance of this
Agreement by the Company has been fully and validly authorized by all necessary
corporate action, (ii) the officer signing this Agreement on behalf of the
Company is duly authorized to do so, (iii) the execution, delivery and
performance of this Agreement does not violate any applicable law, regulation,
order, judgment or decree or any agreement, plan or corporate governance
document to which the Company or Parent is a party or by which it is bound and
(iv) upon execution and delivery of this Agreement by the parties, it shall be a
valid and binding obligation of the Company enforceable against it in accordance
with its terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
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15. Notices. All notices and consents required or permitted
hereunder will be given in writing by personal delivery; by express delivery via
any reputable express courier service; or by registered or certified mail,
return receipt requested, postage prepaid, in each case addressed to the parties
at the respective addresses set forth above or at such other address as may be
designated in writing by either party to the other in the manner set forth
herein. Notices which are delivered personally, or by courier as aforesaid, will
be effective on the date of delivery. Notices delivered by mail will be deemed
effectively given upon the fifth calendar day subsequent to the postmark date
thereof.
16. Cooperation. Subject to your other personal and business
commitments and to the extent not inconsistent with your legal position, you
agree that both during and after your employment you shall, at the request of
the Company, render all reasonable and lawful assistance and perform all
reasonable and lawful acts that the Company considers necessary or advisable in
connection with any litigation, investigation, proceeding, claim or dispute
involving the Company or any director, officer, employee, shareholder, agent,
representative, consultant, client or vendor of the Company ("Claims") to the
extent such Claim arose during your employment and relates to the General
Maritime Group. The Company agrees to reimburse you for your reasonable
out-of-pocket expenses (including reasonable travel expenses and attorneys' fees
if you reasonably determine that the matter is of a nature which indicates that
you should have separate representation).
17. Miscellaneous.
(a) The failure of either party at any time to require
performance by the other party of any provision hereunder will in no way affect
the right of that party thereafter to enforce the same, nor will it affect any
other party's right to enforce the same, or to enforce any of the other
provisions in this Agreement; nor will the waiver by either party of the breach
of any provision hereof be taken or held to be a waiver of any prior or
subsequent breach of such provision or as a waiver of the provision itself. Any
waiver to be effective must be in writing and be signed by the party against
whom it is being enforced.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, heirs (in the case of you) and
assigns. This Agreement is a personal contract calling for the provision of
unique services by you, and your rights and obligations hereunder may not be
sold, transferred, assigned, pledged or hypothecated by you, without the
Company's prior consent, except that your rights to compensation and benefits
may be transferred by will, operation of law, in accordance with applicable law
or any applicable plan, policy, program or agreement of the Company, Parent or
any other member of the General Maritime Group or in accordance with this clause
(b). In the event of your death or a judicial determination of your
incompetence, the compensation, entitlements and benefits due you under this
Agreement or otherwise shall be paid to your estate or legal representative or
your designated beneficiary or beneficiaries. No rights or obligations of the
Company under this Agreement may be assigned or transferred by the Company
without your prior consent, except that such rights or obligations may be
assigned or transferred pursuant to a merger or consolidation in which Parent is
not the continuing entity, or a sale, liquidation or other disposition of all or
substantially all of the assets of Parent, provided that the assignee or
transferee is the successor to all or substantially all of the assets of Parent
and assumes the liabilities, obligations and duties of the Company and Parent
under this Agreement, either contractually or as a matter of law.
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(c) Each of the covenants and agreements set forth in this
Agreement are separate and independent covenants, each of which has been
separately bargained for and the parties hereto intend that the provisions of
each such covenant shall be enforced to the fullest extent permissible. Should
the whole or any part or provision of any such separate covenant be held or
declared invalid by a court of competent jurisdiction, such invalidity shall not
in any way affect the validity of any other such covenant or of any part or
provision of the same covenant not also held or declared invalid. If any
covenant shall be found to be invalid by a court of competent jurisdiction but
would be valid if some part thereof were deleted or the period or area of
application reduced, then such covenant shall apply with such minimum
modification as may be necessary to make it valid and effective.
(d) This Agreement shall be governed by the laws of the State of
New York, without reference to principles of conflicts of law.
(e) Any controversy arising out of or relating to this Agreement
or the breach hereof shall be settled by arbitration in the City of New York in
accordance with the commercial arbitration rules then obtaining of the American
Arbitration Association and judgment upon the award rendered may be entered in
any court having jurisdiction thereof, except that in the event of any
controversy relating to any violation or alleged violation of any provision of
Section 6, 7 or 8 hereof, the Company in its sole discretion shall be entitled
to seek injunctive relief from a court of competent jurisdiction in accordance
with Section 9 hereof without any requirement to seek arbitration for such
injunction. The parties hereto agree that any arbitral award may be enforced
against the parties to an arbitration proceeding or their assets wherever they
may be found. The Company and Parent consent to the personal jurisdiction of the
Courts of the State of New York (including the United States District Court of
New York) for purpose of enforcing any arbitral award and the Company and Parent
further agree not to interpose any objection for improper venue in any such
proceeding. In the event that you prevail in any claim or proceeding between you
and the Company and/or Parent arising in relation to this Agreement, the Company
shall reimburse you for your reasonable costs and expenses (including reasonable
attorneys' fees) incurred by you in pursuing such claim or proceeding.
(f) Upon the expiration of the Term, the respective rights and
obligations of the parties shall survive such expiration to the extent necessary
to carry out the intentions of the parties as embodied in such rights and
obligations. This Agreement shall continue in effect until there are no further
rights or obligations of the parties outstanding hereunder or until terminated
by the consent of both parties.
(g) This Agreement sets forth the entire understanding between
the parties as to the subject matter hereof and merges and supersedes all prior
agreements, commitments, representations, writings and discussions between the
parties with respect to that subject matter. This Agreement may be terminated,
altered, modified or changed only by a written instrument signed by both parties
hereto.
(h) The Section headings contained herein are for purposes of
convenience only and are not intended to define or list the contents of the
Sections.
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Please confirm your agreement with the foregoing by signing and
returning the enclosed copy of this letter, following which this will be a
legally binding agreement between us as of the date first written above.
Very truly yours,
GENERAL MARITIME MANAGEMENT LLC
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Accepted and Agreed:
/s/ Xxxx X. Xxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxx
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