EXHIBIT 10.30
PRIDE INTERNATIONAL, INC.
EMPLOYMENT/NON-COMPETITION/
CONFIDENTIALITY AGREEMENT
XXXXXXX X. XXXXXXX
EFFECTIVE OCTOBER 31, 2002
EMPLOYMENT/NON-COMPETITION/CONFIDENTIALITY AGREEMENT
DATE: October 31, 2002
COMPANY/EMPLOYER: Pride International, Inc.
a Delaware corporation
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
EXECUTIVE/EMPLOYEE: Xxxxxxx X. Xxxxxxx
This Agreement is made as of the date first above written and to become
effective as herein provided.
PREAMBLE
WHEREAS, the Company wishes to attract and retain well-qualified
Executies and key personnel and to assure itself of the continuity of its
management;
WHEREAS, Executive will be elected an officer of the Company with
significant management responsibilities in the conduct of its business;
WHEREAS, the Company recognizes that Executive is a valuable resource
of the Company , however this Agreement is no assurance of continued employment;
WHEREAS, the Company desires to obtain assurances that Executive will
devote his best efforts to his employment with the Company and will not enter
into competition with the Company in its business as now conducted and to be
conducted, or solicit customers or other employees of the Company to terminate
their relationships with the Company;
WHEREAS, Executive is a key employee of the Company and he acknowledges
that his talents and services to the Company are of a special, unique, unusual
and extraordinary character and are of particular and peculiar benefit and
importance to the Company;
WHEREAS, the Company is concerned that in the event of a possible or
threatened Change in Control of the Company the Executive may feel insecure, and
therefore the Company desires to provide security to Executive in the event of a
Change in Control;
WHEREAS, the Company further desires to assure Executive that, if a
possible or threatened Change in Control should arise and Executive should be
involved in deliberations or negotiations in connection therewith, Executive
would be in a secure position to consider and participate in such transaction as
objectively as possible in the best interests of the Company and to
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this end desires to protect Executive from any direct or implied threat to his
financial well-being by a Change in Control;
WHEREAS, Executive is willing to continue to serve as such but desires
assurances that in the event of such a Change in Control he will have fair and
reasonable severance protection;
WHEREAS, different factors affect the Company and Executive under
circumstances of regular employment between the Company and the Executive when
there is no threat of Change in Control and/or none has occurred, as opposed to
circumstances under which a Change in Control is rumored, threatened, occurring
or has occurred. For this reason this Change in Control Agreement deals with
circumstances whereby a Change in Control is threatened, occurring or has
occurred; and
WHEREAS, Executive is willing to enter into and carry out the
Non-Competition and Confidentiality Agreement provisions set forth herein in
consideration of this Agreement.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
I. PRIOR AGREEMENTS/CONTRACTS.
1.01 PRIOR AGREEMENTS. Executive has no continuing non-competition
agreements with any prior employers that have not been disclosed to
Company. Executive has completed a Company employment application and
all information provided therein is true and correct and is
incorporated herein by reference.
II DEFINITION OF TERMS.
2.01 COMPANY. Company means Pride International, Inc., a Delaware
corporation, as the same presently exists, as well as any and all
successors, regardless of the nature of the entity or the State or
Nation of organization, whether by reorganization, merger,
consolidation, absorption or dissolution. For the purpose of the
Non-Competition and Confidentiality Agreement, Company includes any
subsidiary or affiliate of the Company to the extent it is carrying on
any portion of the business of the Company or a business similar to
that being conducted by the Company.
2.02 EXECUTIVE/OFFICER/EMPLOYEE. Executive/Officer/Employee means Xxxxxxx X.
Xxxxxxx.
2.03 OFFICE/POSITION/TITLE. The Office, Position and Title for which the
Executive is employed is that of Vice-President Corporate and
Governmental Affairs of Pride International, Inc.
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2.04 EFFECTIVE DATE. This Agreement becomes effective and binding as of
October 31, 2002.
2.05 CHANGE IN CONTROL. The term "Change in Control" of the Company shall
mean, and shall be deemed to have occurred on the date of the first to
occur of any of the following:
a. there occurs a Change in Control of the Company of the nature
that would be required to be reported in response to item 6(e) of
Schedule 14A of Regulation 14A or Item 1 of Form 8(k) promulgated
under the Securities Exchange Act of 1934 as in effect on the
date of this Agreement, or if neither item remains in effect, any
regulations issued by the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 which serve
similar purposes;
b. any "person" (as such term is used in Sections 12(d) and 14(d)(2)
of the Securities Exchange Act of 1934) is or becomes a
beneficial owner, directly or indirectly, of securities of the
company representing twenty percent (20%) or more of the combined
voting power of the Company's then outstanding securities;
c. the individuals who were members of the Board of Directors of the
Company immediately prior to a meeting of the shareholders of the
Company involving a contest for the election of Directors shall
not constitute a majority of the Board of Directors following
such election;
d. the Company shall have merged into or consolidated with another
corporation, or merged another corporation into the Company, on a
basis whereby less than fifty percent (50%) of the total voting
power of the surviving corporation is represented by shares held
by former shareholders of the Company prior to such merger or
consolidation;
e. the Company shall have sold, transferred or exchanged all, or
substantially all, of its assets to another corporation or other
entity or person.
2.06 TERMINATION. The term "termination" shall mean termination, for any
reason other than cause (as described below) or voluntary resignation
(as described below):
a. The term "cause" means: (i) the failure of the Executive to
perform his duties with the Company (other than any failure due
to physical or mental incapacity) after a demand for substantial
performance is delivered to him by his supervisor which
specifically identifies the manner in which he believes he has
not substantially performed his duties, (ii) misconduct
materially and demonstrably injurious to the Company, (iii)
violation of any Company policy including the covenant not to
compete (except after termination under the change in Control
provisions and confidentiality provisions hereof), or
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(iv) making a false statement on his employment application which
is incorporated herein by reference. The unwillingness of the
Executive to accept any change in the nature or scope of his
position, authorities or duties or any other reasonable request
of the Company in respect of his position, authority, or
responsibility may be considered by his supervisor to be a
failure to perform by the Executive unless it occurs after a
Change in Control. Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for cause for
purposes of this Agreement unless and until there shall have been
delivered to him a letter setting out the particulars and basis
for his termination for cause.
b. The resignation of the Executive shall be deemed "voluntary" if
it is for any reason other than one or more of the following:
(1) the Executive's resignation or retirement is requested
by the Company other than for cause;
(2) any reduction in the Executive's total compensation or
benefits from that provided herein;
(3) the material breach by the Company of any other provision
of this Agreement;
Termination that entitles the Executive to the payments and benefits
provided herein shall not be deemed or treated by the Company as the termination
of the Executive's employment or the forfeiture of his participation, award, or
eligibility, for the purpose of any plan, practice or other agreement of the
Company.
2.07 CUSTOMER. The term "Customer" includes all persons, firms or entities
that are purchasers or end-users of services or products offered,
provided, developed, designed, sold or leased by the Company during the
relevant time periods, and all persons, firms or entities which
control, or which are controlled by, the same person, firm or entity
which controls such purchase.
III. CHANGE IN CONTROL.
3.01 CHANGE IN CONTROL TERMINATION PAYMENTS AND BENEFITS. In the event the
Executive is terminated (except for cause) within two (2) years
following a Change in Control, the Executive will receive the payments
and benefits specified below:
a. An amount equal to two (2) full years of his base salary
(including the amount allocated to the covenant not to compete),
which base salary is here defined as twelve (12) times the then
current monthly salary in effect for the Executive and all other
benefits due him based upon the salary in effect on the Date of
Termination (but not less than the highest annual base salary
paid
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to the Executive during any of the three (3) years immediately
preceding his Date of Termination). There shall be deducted
only such amounts as may be required by law to be withheld for
taxes and other applicable deductions.
b. The Company shall make available to Executive and his immediate
family for a period of two (2) full years following the Date of
Termination, life, health, accident and disability insurance
which are not less than the highest benefits furnished to the
Executive and his immediate family during the term of this
Agreement.
c. An amount equal to two (2) times the target award that the
Executive under the Company's annual bonus plan for the fiscal
year in which the termination occurs, provided that if the
Executive has deferred his award for such year under a Company
plan, the payment due the Executive under this subparagraph shall
be paid in accordance with the terms of the deferral or as
specified by the Executive.
3.02 VOLUNTARY RESIGNATION UPON CHANGE IN CONTROL. If the Executive
voluntarily resigns his employment within six (6) months after a Change
in Control (whether or not Company may be alleging the right to
terminate employment for cause), he will receive the same payments,
compensation and benefits as if he had been terminated on the date of
resignation after Change in Control.
3.03 This Agreement is no guaranty of continued employment. Executive
remains an "at-will" employee hereunder and may be terminated at any
time for any reason or for no reason.
IV. NON-COMPETITION AND CONFIDENTIALITY
4.01 CONSIDERATION. The base salary awarded to the Executive and to be paid
to the Executive in the future includes consideration for the
Non-Competition and Confidentiality agreement set forth herein and
under a Change in Control, hereof constitute payment, in part, for the
Non-Competition and Confidentiality of the Executive. It is contracted,
stipulated and agreed that fifteen percent (15%) of such amount paid
and to be paid to the Executive shall constitute the consideration for
the non-Competition and Confidentiality Agreement set forth herein.
4.02 NON-COMPETITION. Executive acknowledges that his employment with the
Company has in the past and will, of necessity, provide him with
specialized knowledge which, if used in competition with the Company
could cause serious harm to the Company. Accordingly, the Executive
agrees that during his employment with the company and for a period of
one (1) year after he is no longer employed by the Company (unless his
employment is terminated after a Change in Control, in which event
there will be no covenant not to compete and the provisions of the
covenant not to compete herein contained will terminate on the date of
termination of Executive). Executive will not, directly or indirectly,
either as an individual, proprietor, stockholder {other than as a
holder of up to one percent (1%) of the
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outstanding shares of a corporation whose shares are listed on a stock
exchange or traded in accordance with the automated quotation system of
the National Association of Securities Dealers}, partner, officer,
employee or otherwise:
a. work for, become an employee of, invest in, provide consulting
services or in any way engage in any business which provides,
produces, leases or sells products or services of the same or
similar type provided, produced, leased or sold by the Company
and with regard to which Executive was engaged , or over which
Executive had direct or indirect supervision or control, within
one (1) year preceding the Executive's termination of employment,
in any area where the company provided, produced, leased or sold
such products or services at any time during the one (1) year
preceding such termination of employment; or
b. provide, sell, offer to sell, lease, offer to lease, or solicit
any orders for any products or services which the Company
provided and with regard to which the Executive had direct or
indirect supervision or control, within one (1) year preceding
Executive's termination of employment, to or from any person,
firm or entity which was a customer for such products or services
of the Company during the one (1) year preceding such termination
from whom the Company had solicited business during such one (1)
year; or
c. solicit, aid, counsel or encourage any officer, director,
employee or other individual to (i) leave his or her employment
or position with the Company or (ii) compete with the business of
the Company, or (iii) violate the terms of any employment,
non-competition or similar agreement with the Company; or
d. employ, directly or indirectly, permit the employment of,
contract for services or work to be performed by, or otherwise
use, utilize or benefit from the services of any officer,
director, employee or any other individual holding a position
with the Company within two (2) years after the Date of
Termination of employment of Executive with the Company or within
two (2) years after such officer, director, employee or
individual terminated employment with the Company, whichever
occurs earlier.
4.03 CONFIDENTIALITY. Executive acknowledges that his employment with the
Company has in the past and will, of necessity, provide him with
specialized knowledge which, if used in competition with the Company,
or divulged to others, could cause serious harm to the Company.
Accordingly, Executive will not at any time during or after his
employment by the Company, directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation in any manner whatsoever
any information concerning any matter affecting or relating to the
Company or the business of the Company. While engaged as an employee of
the Company, Executive may only use information concerning any matters
affecting or relating to the Company or the business of the company for
a purpose which is necessary to
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the carrying out of the Executive's duties as an employee of the
company, and Executive may not make use of any information of the
Company after he is no longer an employee of the company. Executive
agrees to the foregoing without regard to whether all of the foregoing
matters will be deemed confidential, material or important, it being
stipulated by the parties that all information, whether written or
otherwise, regarding the Company's business, including, but not limited
to, information regarding customers, customer lists, costs, prices,
earnings, products, services, formulae, compositions, machines,
equipment, apparatus, systems, manufacturing procedures, operations,
potential acquisitions, new location plans, prospective and executed
contracts and other business arrangements, and sources of supply, is
prima facie presumed to be important, material and confidential
information of the Company for the purposes of this Agreement, except
to the extent that such information may be otherwise lawfully and
readily available to the general public. Executive further agrees that
he will, upon termination of his employment with the Company, return to
the company all books, records, lists and other written, typed or
printed materials, whether furnished by the company or prepared by
Executive, which contain any information relating to the Company's
business, and Executive agrees that he will neither make nor retain any
copies of such materials after termination of employment.
4.04 GEOGRAPHICAL AREA. The geographical area within which the
non-competition covenants of this Agreement shall apply is that
territory within two hundred (200) miles of: (i) any of the Company's
present offices, (ii) any of the Company's present rig yards or rig
operations, and (iii) any additional location where the Company, as of
the date of any action taken in violation of the non-competition
covenants of this Agreement, has an office, a rig yard, rig operation
or definitive plans to locate an office, a rig operation or a rig yard
or has recently conducted rig operations. Notwithstanding the
foregoing, if the two hundred (200) mile radius extends into another
country or its territorial waters and the Company is not then doing
business in that other country, there will be no territorial
limitations extending into such other country.
4.05 COMPANY REMEDIES FOR VIOLATION OF NON-COMPETITION OR CONFIDENTIALITY
AGREEMENT. Without limiting the right of the Company to pursue all
other legal and equitable rights available to it for violation of any
of the covenants made by Executive herein, it is agreed that:
a. the skills, experience and contacts of Executive are of a
special, unique, unusual and extraordinary character which give
them a peculiar value;
b. because of the business of the Company, the restrictions agreed
to by Executive as to time and area contained in this Agreement
are reasonable; and
c. the injury suffered by the Company by a violation of any covenant
in this Agreement resulting from loss of profits created by the
competitive use of such skills, experience and contacts and
otherwise will be difficult to
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calculate in damages in an action at law and cannot fully
compensate the Company for any violation of any covenant in this
Agreement, accordingly:
(i) the Company shall be entitled to injunctive relief to
prevent violations thereof and to prevent Executive from
rendering any services to any person, firm or entity in
breach of such covenant and to prevent Executive from
divulging any confidential information; and
(ii) compliance with this Agreement is a condition precedent to
the Company's obligation to make payments of any nature to
Executive.
4.06 TERMINATION OF BENEFITS FOR VIOLATION OF NON-COMPETITION AND
CONFIDENTIALITY. If Executive's termination was not after a Change in
Control and if Executive shall be violating the Confidentiality and/or
Non-Competition Agreement or any agreement he may have signed as an
employee of the Company, Executive agrees that after receipt of written
notice and he shall continue such action and that there shall be no
obligation on the part of the Company to provide any payments or
benefits (other than payments or benefits already earned or accrued)
described in this Agreement, subject to the other provisions hereof.
There will be no withholding of benefits or payments if the termination
occurred after a Change in Control and Executive will not be bound by
the non-competition provisions if terminated while the Change in
Control provisions hereof are applicable.
V. GENERAL
5.01 ENFORCEMENT COSTS. The Company is aware that upon the occurrence of a
Change in Control, or under other circumstances even when a Change in
Control has not occurred, the Board of Directors or a shareholder of
the Company may then cause or attempt to cause the Company to refuse to
comply with its obligations under this Agreement, or may cause or
attempt to cause the Company to institute, or may institute, litigation
seeking to have this Agreement declared unenforceable, or may take, or
attempt to take, other action to deny Executive the benefits intended
under this Agreement; or actions may be taken to enforce the
non-competition or confidentiality provisions of this Agreement. In
these circumstances, the purpose of this Agreement could be frustrated.
It is the intent of the parties that the Executive not be required to
incur the legal fees and expenses associated with the protection or
enforcement of his rights under this agreement by litigation or other
legal action because such costs would substantially detract from the
benefits intended to be extended to Executive hereunder, nor be bound
to negotiate any settlement of his rights hereunder under threat of
incurring such costs. Accordingly, if at any time after the Effective
Date of this Agreement, it should appear to Executive that the Company
is or has acted contrary to or is failing or has failed to comply with
any of its obligations under this Agreement for the reason that it
regards this Agreement to be void or unenforceable, that Executive has
violated the terms of this Agreement, or for any other reason, or that
the company has purported to terminate his
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employment for cause or is in the course of doing so, or is withholding
payments or benefits, or is threatening to withhold payments or
benefits, contrary to this Agreement, or in the event that the Company
or any other person takes any action to declare this Agreement void or
unenforceable, or institutes any litigation or other legal action
designed to deny, diminish or to recover from Executive the benefits
provided or intended to be provided to him hereunder, and Executive has
acted in good faith to perform his obligations under this Agreement,
the Company irrevocably authorized Executive from time to time to
retain counsel of his choice at the expense of the company to represent
him in connection with the protection and enforcement of his rights
hereunder, including, without limitation, representation in connection
with termination of his employment or withholding of benefits or
payments contrary to this Agreement or with the initiation or defense
of any litigation or any other legal action, whether by or against
Executive or the company or any Director, Officer, Shareholder or other
person affiliated with the Company, in any jurisdiction. Company is not
authorized to withhold the periodic payments of attorneys' fees and
expenses hereunder based upon any belief or assertion by the Company
that Executive has not acted in good faith or has violated this
Agreement. If Company subsequently establishes that Executive was not
acting in good faith and has violated this Agreement, Executive will be
liable to the company for reimbursement of amounts paid due to
Executive's actions not based on good faith and in violation of this
Agreement. The reasonable fees and expenses of counsel selected from
time to time by Executive as hereinabove provided shall be paid or
reimbursed to Executive by the Company, on a regular, periodic basis
within thirty (30) days after presentation by Executive of a statement
or statements prepared by such counsel in accordance with its customary
practices, up to a maximum aggregate amount of Fifty Thousand Dollars
($50,000.00).
5.02 INCOME, EXCISE OR OTHER TAX LIABILITY. Executive will be liable for and
will pay all income tax liability by virtue of any payments made to
Executive under this Agreement, as if the same were earned and paid in
the normal course of business and not the result of a Change in
Control.
5.03 PAYMENT OF BENEFITS UPON TERMINATION FOR CAUSE. If the termination of
Executive is for cause and not after a Change in Control, the Company
will have the right to withhold all payments; provided however, that if
a final judgment is entered finding that cause did not exist for
termination, the Company will pay all benefits to Executive to which he
would have been entitled had the termination not been for cause, plus
interest on all amounts withheld from Executive at the rate specified
for judgments under Article 5069-1.05 V.A.T.S. If the termination for
cause occurs after a Change in Control, the Company shall have the
right to suspend or withhold payments to Executive under any provision
of this Agreement until or unless a final judgment is entered upholding
the company's determination that the termination was for cause, in
which event Executive will be liable to the Company for all amounts
paid, plus interest at the rate allowed for judgments under Article
5069-1.05 V.A.T.S.
5.04 NON-EXCLUSIVE AGREEMENT. The specific arrangements referred to herein
are not intended to exclude or limit Executive's participation in other
benefits available to executive personnel generally, or to preclude or
limit other compensation or benefits as may be
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authorized by the Board of Directors of the company at any time, or to
limit or reduce any compensation or benefits to which Executive would
be entitled but for this Agreement.
5.05 NOTICES. Notices, requests, demands and other communications provided
for by this Agreement shall be in writing and shall either be
personally delivered by hand or sent by: (i) Registered or Certified
Mail, Return Receipt Requested, postage prepaid, properly packaged,
addressed and deposited in the United States Postal System; (ii) via
facsimile transmission if the receiver acknowledges receipt; or (iii)
via Federal Express or other expedited delivery service provided that
acknowledgment of receipt is received and retained by the deliverer and
furnished to the sender, if to Executive, at the last address he has
filed, in writing, with the Company, or if to the Company, to its
Corporate Secretary at is principal executive offices.
5.06 NON-ALIENATION. Executive shall not have any right to pledge,
hypothecate, anticipate, or in any way create a lien upon any amounts
provided under this Agreement, and no payments or benefits due
hereunder shall be assignable in anticipation of payment either by
voluntary or involuntary acts or by operation of law. So long as
Executive lives, no person, other than the parties hereto, shall have
any rights under or interest in this Agreement or the subject matter
hereof. Upon the death of Executive, his Executors, Administrators,
Devisees and Heirs, in that order, shall have the right to enforce the
provisions hereof.
5.07 ENTIRE AGREEMENT: AMENDMENT. This Agreement constitutes the entire
agreement of the parties with respect of the subject matter hereof. No
provision of this Agreement may be amended, waived, or discharged
except by the mutual written agreement of the parties. The consent of
any other person(s) to any such amendment, waiver or discharge shall
not be required.
5.08 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Company, its successors and assigns, by operation
of law or otherwise, including, without limitation, any corporation or
other entity or persons which shall succeed (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, and the
Company will require any successor, by agreement in form and substance
satisfactory to Executive, expressly to assume and agree to perform
this Agreement. Except as otherwise provided herein, this agreement
shall be binding upon and inure to the benefit of Executive and his
legal representatives, heirs and assigns, provided however, that in the
event of Executive's death prior to payment or distribution of all
amounts, distributions and benefits due him hereunder, each such unpaid
amount and distribution shall be paid in accordance with this Agreement
to the person or persons designated by Executive to the company to
receive such payment or distribution and in the event Executive has
made no applicable designation, to his Estate. If the Company should
split, divide or otherwise become more than one entity, all liability
and obligations of the Company shall be the joint and several liability
and obligation of all of the parts.
5.09 GOVERNING LAW. Except to the extent required to be governed by the laws
of the State of Delaware because the company is incorporated under the
laws of said State, the validity,
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interpretation and enforcement of this Agreement shall be governed by
the laws of the State of Texas.
5.10 VENUE. Venue for all proceedings hereunder will be in the U.S. District
Court for the Southern District of Texas, Houston Division. Executive
hereby waives his right to request a jury.
5.11 HEADINGS. The headings in this Agreement are inserted for convenience
of reference only and shall not affect the meaning or interpretation of
this Agreement.
5.12 SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected
hereby and shall remain in full force and effect.
5.13 PARTIAL INVALIDITY. In the event that any part, portion or Section of
this Agreement is found to be invalid or unenforceable for any reason,
the remaining provisions of this Agreement shall be binding upon the
parties hereto and the Agreement will be construed to give meaning to
the remaining provisions of this Agreement in accordance with the
intent of this Agreement.
5.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be original, but all of
which together constitute one and the same instrument.
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IN WITNESS WHEREOF, Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors and the Compensation Committee,
the Company has caused these presents to be executed in its name and on its
behalf, and its corporate seal to be hereunto affixed and attested by its
Secretary or Assistant Secretary, all as of the day and year first above
written.
EXECUTED in multiple originals and/or counterparts as of the Effective
Date.
/s/ XXXXXXX X. XXXXXXX
------------------------------------------
XXXXXXX X. XXXXXXX
PRIDE INTERNATIONAL, INC.
BY: /s/ XXXX X. XXXXX
--------------------------------------
XXXX X. XXXXX
President and Chief Executive Officer
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