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EXHIBIT 10.2
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EMPLOYMENT AGREEMENT
BY AND BETWEEN
NOBLE DRILLING CORPORATION
AND
XXXXX X. XXXXXXXX
October 22, 1998
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EMPLOYMENT AGREEMENT
TABLE OF CONTENTS
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1. Employment ............................................................ 1
2. Employment Term ....................................................... 1
(a) Term .............................................................. 1
(b) Relationship Prior to Effective Date .............................. 1
3. Positions and Duties .................................................. 2
4. Compensation and Related Matters ...................................... 3
(a) Base Salary ....................................................... 3
(b) Annual Bonus ...................................................... 3
(c) Employee Benefits ................................................. 4
(i) Incentive, Savings, and Retirement Plans ..................... 4
(ii) Welfare Benefit Plans ........................................ 4
(d) Expenses .......................................................... 4
(e) Fringe Benefits ................................................... 4
(f) Vacation .......................................................... 5
5. Termination of Employment ............................................. 5
(a) Death ............................................................. 5
(b) Disability ........................................................ 5
(c) Termination by Company ............................................ 5
(d) Termination by Executive .......................................... 6
(e) Notice of Termination ............................................. 7
(f) Date of Termination ............................................... 7
6. Obligations of the Company Upon Termination ........................... 8
(a) Good Reason or During the Window Period; Other Than for
Cause, Death, or Disability ....................................... 8
(b) Death ............................................................. 10
(c) Disability ........................................................ 11
(d) Cause; Other Than for Good Reason or During the Window
Period ............................................................ 11
7. Certain Additional Payments by the Company ............................ 12
8. Representations and Warranties ........................................ 14
9. Confidential Information .............................................. 14
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10. Certain Definitions ................................................... 15
(a) Effective Date .................................................... 15
(b) Change of Control Period .......................................... 15
(c) Change of Control ................................................. 15
11. Full Settlement ....................................................... 17
12. No Effect on Other Contractual Rights ................................. 18
13. Indemnification; Directors and Officers Insurance ..................... 18
14. Injunctive Relief ..................................................... 18
15. Governing Law ......................................................... 18
16. Notices ............................................................... 18
17. Binding Effect; Assignment; No Third Party Benefit .................... 19
18. Miscellaneous ......................................................... 19
(a) Amendment ......................................................... 19
(b) Waiver ............................................................ 20
(c) Withholding Taxes ................................................. 20
(d) Nonalienation of Benefits ......................................... 20
(e) Severability ...................................................... 20
(f) Entire Agreement .................................................. 20
(g) Captions .......................................................... 20
(h) References ........................................................ 20
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 22,
1998, by and between NOBLE DRILLING CORPORATION, a Delaware corporation (the
"Company"), and XXXXX X. XXXXXXXX (the "Executive");
WITNESSETH:
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
to assure that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat, or occurrence of a Change of Control
(as defined in Paragraph 10(c)) of the Company; and
WHEREAS, the Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any pending or threatened Change of Control, and to provide the
Executive with compensation and benefits upon a Change of Control which ensure
that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other corporations; and
WHEREAS, in order to accomplish these objectives, the Board has caused
the Company to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and the Executive hereby agree as follows:
1. Employment. The Company agrees that the Company or an affiliated
company (as hereafter defined) will continue the Executive in its employ, and
the Executive agrees to remain in the employ of the Company or an affiliated
company, for the period set forth in Paragraph 2(a), in the positions and with
the duties and responsibilities set forth in Paragraph 3, and upon the other
terms and conditions herein provided. As used in this Agreement, the term
"affiliated company" shall include any company controlled by, controlling, or
under common control with the Company.
2. Employment Term.
(a) Term. The employment of the Executive by the Company as provided in
Paragraph 1 shall be for the period commencing on the Effective Date (as defined
in Paragraph 10 (a)) through and ending on the third anniversary of such date
(the "Employment Term").
(b) Relationship Prior to Effective Date. The Executive and the Company
acknowledge that, except as may otherwise be provided under any written
agreement between the Executive and the Company other than this Agreement, the
employment of the Executive by the
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Company is "at will" and, prior to the Effective Date, may be terminated by
either the Executive or the Company at any time. Moreover, if prior to the
Effective Date, the Executive's employment with the Company terminates, then the
Executive shall have no further rights under this Agreement. For purposes of
this Paragraph 2(b) only, the term Company shall mean and include the company
that employs Executive, whether Noble Drilling Corporation or an affiliated
company of Noble Drilling Corporation.
3. Positions and Duties.
(a) During the Employment Term, the Executive's position (including
status, offices, titles, and reporting requirements), duties, functions,
responsibilities, and authority shall be at least commensurate in all material
respects with the most significant of those held or exercised by or assigned to
the Executive in respect of the Company and its affiliated companies at any time
during the 120-day period immediately preceding the Effective Date.
(b) During the Employment Term, the Executive shall devote the
Executive's full time, skill, and attention and the Executive's reasonable best
efforts during normal business hours to the business and affairs of the Company,
and in furtherance of the business and affairs of its affiliated companies, to
the extent necessary to discharge faithfully and efficiently the duties and
responsibilities delegated and assigned to the Executive herein or pursuant
hereto, except for usual, ordinary, and customary periods of vacation and
absence due to illness or other disability; provided, however, that the
Executive may (i) serve on industry-related, civic or charitable boards or
committees, (ii) with the approval of the Board, serve on corporate boards or
committees, (iii) deliver lectures, fulfill speaking engagements, or teach at
educational institutions, and (iv) manage the Executive's personal investments,
so long as such activities do not significantly interfere with the performance
and fulfillment of the Executive's duties and responsibilities as an employee of
the Company or an affiliated company in accordance with this Agreement and, in
the case of the activities described in clause (ii) of this proviso, will not,
in the good faith judgment of the Board, constitute an actual or potential
conflict of interest with the business of the Company or an affiliated company.
It is expressly understood and agreed that, to the extent that any such
activities have been conducted by the Executive during the term of the
Executive's employment by the Company or its affiliated companies prior to the
Effective Date consistent with the provisions of this Paragraph 3(b), the
continued conduct of such activities (or of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance and fulfillment of the Executive's duties and
responsibilities to the Company.
(c) In connection with the Executive's employment hereunder, the
Executive shall be based at the location where the Executive was regularly
employed immediately prior to the Effective Date or any office which is the
headquarters of the Company and is less than 50 miles from such location,
subject, however, to required travel on the business of the Company to an extent
substantially consistent with the Executive's business travel obligations during
the three-year period immediately preceding the Effective Date.
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(d) All services that the Executive may render to the Company or any of
its affiliated companies in any capacity during the Employment Term shall be
deemed to be services required by this Agreement and consideration for the
compensation provided for herein.
4. Compensation and Related Matters.
(a) Base Salary. During the Employment Term, the Executive shall
receive an annual base salary ("Base Salary") at least equal to 12 times the
highest monthly base salary paid or payable, including any base salary that has
been earned but deferred, to the Executive by the Company and its affiliated
companies in respect of the 12-month period immediately preceding the month in
which the Effective Date occurs. The Base Salary shall be payable in
installments in accordance with the general payroll practices of the Company in
effect at the time such payment is made, but in no event less frequently than
monthly, or as otherwise mutually agreed upon. During the Employment Term, the
Executive's Base Salary shall be subject to such increases (but not decreases)
as may be determined from time to time by the Board in its sole discretion;
provided, however, that the Executive's Base Salary (i) shall be reviewed by the
Board no later than 12 months after the last salary increase awarded to the
Executive prior to the Effective Date and thereafter at least annually, with a
view to making such upward adjustment, if any, as the Board deems appropriate,
and (ii) shall be increased at any time and from time to time as shall be
substantially consistent with increases in base salary generally awarded in the
ordinary course of business to the Executive's peer executives of the Company or
any of its affiliated companies. Base Salary shall not be reduced after any such
increase. The term Base Salary as used in this Agreement shall refer to the Base
Salary as so increased. Payments of Base Salary to the Executive shall not be
deemed exclusive and shall not prevent the Executive from participating in any
employee benefit plans, programs, or arrangements of the Company and its
affiliated companies in which the Executive is entitled to participate. Payments
of Base Salary to the Executive shall not in any way limit or reduce any other
obligation of the Company hereunder, and no other compensation, benefit, or
payment to the Executive hereunder shall in any way limit or reduce the
obligation of the Company regarding the Executive's Base Salary hereunder.
(b) Annual Bonus. In addition to Base Salary, the Executive shall be
awarded, in respect of each fiscal year of the Company ending during the
Employment Term, an annual bonus (the "Annual Bonus") in cash in an amount at
least equal to the Executive's highest aggregate bonus under all Company bonus
plans, programs, arrangements, and awards (including the Company's Short-Term
Incentive Plan and any successor plan), in respect of any fiscal year in the
three full fiscal year period ended immediately prior to the Effective Date
(annualized for any fiscal year consisting of less than 12 full months or with
respect to which the Executive has been employed by the Company for less than 12
full months) (such highest amount is hereinafter referred to as the "Recent
Annual Bonus"). Each such Annual Bonus shall be paid no later than the end of
the third month of the fiscal year next following the fiscal year in respect of
which the Annual Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus.
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(c) Employee Benefits.
(i) Incentive, Savings, and Retirement Plans. During the
Employment Term, the Executive shall be entitled to participate in all
incentive, savings, and retirement plans, programs, and arrangements
applicable generally to the Executive's peer executives of the Company
and its affiliated companies, but in no event shall such plans,
programs, and arrangements provide the Executive with incentive
opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such distinction
is applicable), savings opportunities, and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than the
most favorable of those provided by the Company and its affiliated
companies for the Executive under such plans, programs, and
arrangements as in effect at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective
Date to the Executive's peer executives of the Company and its
affiliated companies.
(ii) Welfare Benefit Plans. During the Employment Term,
the Executive and/or the Executive's family, as the case may be, shall
be eligible to participate in and shall receive all benefits under all
welfare benefit plans, programs, and arrangements provided by the
Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, salary continuance, employee
life, group life, accidental death, and travel accident insurance
plans, programs, and arrangements) to the extent applicable generally
to the Executive's peer executives of the Company and its affiliated
companies, but in no event shall such plans, programs, and arrangements
provide the Executive with welfare benefits that are less favorable, in
the aggregate, than the most favorable of such plans, programs, and
arrangements as in effect for the Executive at any time during the
120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, those provided generally at any time after
the Effective Date to the Executive's peer executives of the Company
and its affiliated companies.
(d) Expenses. During the Employment Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in performing the Executive's duties and responsibilities
hereunder, in accordance with the most favorable policies, practices, and
procedures of the Company and its affiliated companies as in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally at
any time thereafter with respect to the Executive's peer executives of the
Company and its affiliated companies.
(e) Fringe Benefits. During the Employment Term, the Executive shall be
entitled to fringe benefits, including, without limitation, tax and financial
planning services, payment of club dues, and, if applicable, use of an
automobile and payment of related expenses, in accordance with the most
favorable policies, practices, and procedures of the Company and its affiliated
companies as in effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the Executive,
as in effect generally at any
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time after the Effective Date with respect to the Executive's peer executives of
the Company and its affiliated companies.
(f) Vacation. During the Employment Term, the Executive shall be
entitled to paid vacation and such other paid absences, whether for holidays,
illness, personal time, or any similar purposes, in accordance with the most
favorable policies, practices, and procedures of the Company and its affiliated
companies as in effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the Executive,
as in effect generally at any time after the Effective Date with respect to the
Executive's peer executives of the Company and its affiliated companies.
5. Termination of Employment.
(a) Death. The Executive's employment shall terminate automatically
upon the Executive's death during the Employment Term.
(b) Disability. If the Company determines in good faith that the
Disability (as defined below) of the Executive has occurred during the
Employment Term, the Company may give the Executive notice of its intention to
terminate the Executive's employment. In such event, the Executive's employment
hereunder shall terminate effective on the 30th day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided that, within the
30-day period after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
hereunder on a full-time basis for an aggregate of 180 days within any given
period of 270 consecutive days (in addition to any statutorily required leave of
absence and any leave of absence approved by the Company), as a result of
incapacity of the Executive, despite any reasonable accommodation required by
law, due to bodily injury or disease or any other mental or physical illness,
which will, in the opinion of a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal
representative, be permanent and continuous during the remainder of the
Executive's life.
(c) Termination by Company. The Company may terminate the Executive's
employment hereunder for Cause (as defined below). For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties hereunder (other than any
such failure resulting from bodily injury or disease or any other
incapacity due to mental or physical illness), after a written demand
for substantial performance is delivered to the Executive by the Board
or the Chief Executive Officer of the Company which specifically
identifies the manner in which the Board or Chief Executive Officer
believes the Executive has not substantially performed the Executive's
duties; or
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(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct that is materially and demonstrably
detrimental to the Company, monetarily or otherwise.
For purposes of this provision, no act, or failure to act, on the part of the
Executive shall be considered "willful" unless done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the Executive's
action or omission was in the best interests of the Company. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the
Board or upon the instructions of the Chief Executive Officer or another senior
officer of the Company or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment
of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than two-thirds of the entire membership of
the Board then in office at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, to be heard before the Board)
finding that, in the good faith opinion of the Board, the Executive is guilty of
the conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
(d) Termination by Executive. The Executive may terminate the
Executive's employment hereunder (i) at any time during the Employment Term for
Good Reason (as defined below) or (ii) during the Window Period (as defined
below) without any reason.
For purposes of this Agreement, the "Window Period" shall mean the 30-day period
immediately following the first anniversary of the Effective Date, and "Good
Reason" shall mean any of the following (without the Executive's express written
consent):
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position (including
status, offices, titles, and reporting requirements), duties,
functions, responsibilities, or authority as contemplated by Paragraph
3(a) of this Agreement, or any other action by the Company that results
in a diminution in such position, duties, functions, responsibilities,
or authority, excluding for this purpose an isolated, insubstantial,
and inadvertent action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
(ii) any failure by the Company to comply with any of the
provisions of Paragraph 4 of this Agreement, other than an isolated,
insubstantial, and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof
given by the Executive;
(iii) the Company's requiring the Executive to be based at
any office or location other than as provided in Paragraph 3(c) of this
Agreement or the Company's
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requiring the Executive to travel on Company business to a
substantially greater extent than during the three-year period
immediately preceding the Effective Date;
(iv) any failure by the Company to comply with and satisfy
Paragraph 17(c) of this Agreement; or
(v) any purported termination by the Company of the
Executive's employment hereunder otherwise than as expressly permitted
by this Agreement, and for purposes of this Agreement, no such
purported termination shall be effective.
For purposes of this Paragraph 5(d), any good faith determination of "Good
Reason" made by the Executive shall be conclusive.
(e) Notice of Termination. Any termination of the Executive's
employment hereunder by the Company or by the Executive (other than a
termination pursuant to Paragraph 5(a)) shall be communicated by a Notice of
Termination (as defined below) to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) in the case
of a termination for Disability, Cause, or Good Reason, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated, and (iii) specifies
the Date of Termination (as defined in Paragraph 5(f) below); provided, however,
that, notwithstanding any provision in this Agreement to the contrary, a Notice
of Termination given in connection with a termination for Good Reason shall be
given by the Executive within a reasonable period of time, not to exceed 120
days, following the occurrence of the event giving rise to such right of
termination. The failure by the Company or the Executive to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Disability, Cause, or Good Reason shall not waive any right of the Company or
the Executive hereunder or preclude the Company or the Executive from asserting
such fact or circumstance in enforcing the Company's or the Executive's rights
hereunder.
(f) Date of Termination. For purposes of this Agreement, the "Date of
Termination" shall mean the effective date of termination of the Executive's
employment hereunder, which date shall be (i) if the Executive's employment is
terminated by the Executive's death, the date of the Executive's death, (ii) if
the Executive's employment is terminated because of the Executive's Disability,
the Disability Effective Date, (iii) if the Executive's employment is terminated
by the Company for Cause or by the Executive for Good Reason, the date on which
the Notice of Termination is given, (iv) if the Executive's employment is
terminated pursuant to Paragraph 2(a), the date on which the Employment Term
ends pursuant to Paragraph 2(a) due to a party's delivery of a Notice of
Termination thereunder, and (v) if the Executive's employment is terminated for
any other reason, the date specified in the Notice of Termination, which date
shall in no event be earlier than the date such notice is given; provided,
however, that if within 30 days after any Notice of Termination is given, the
party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual written
agreement
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of the parties or by a final judgment, order, or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected).
6. Obligations of the Company Upon Termination.
(a) Good Reason or During the Window Period; Other Than for Cause,
Death, or Disability. If, during the Employment Term, the Company shall
terminate the Executive's employment hereunder other than for Cause or
Disability or the Executive shall terminate the Executive's employment either
for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum
in cash within 30 days after the Date of Termination the aggregate of
the following amounts:
(A) the sum of (1) the Executive's Base Salary
through the Date of Termination to the extent not
theretofore paid, (2) the product of (x) the greater of
(I) the Recent Annual Bonus and (II) the Annual Bonus paid
or payable, including by reason of any deferral, to the
Executive (and annualized for any fiscal year consisting
of less than 12 full months or for which the Executive has
been employed by the Company for less than 12 full months)
in respect of the most recently completed fiscal year of
the Company during the Employment Term, if any (such
greater amount hereinafter referred to as the "Highest
Annual Bonus"), and (y) a fraction, the numerator of which
is the number of days in the current fiscal year through
the Date of Termination, and the denominator of which is
365, and (3) any compensation previously deferred by the
Executive (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case to the
extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) are hereinafter
referred to as the "Accrued Obligations"); and
(B) an amount (such amount is hereinafter
referred to as the "Severance Amount") equal to the
product of (1) three and (2) the sum of (x) the
Executive's Base Salary and (y) the Highest Annual Bonus;
and
(C) a separate lump-sum supplemental
retirement benefit (the amount of such benefit hereinafter
referred to as the "Supplemental Retirement Amount") equal
to the difference between (1) the actuarial equivalent
(utilizing for this purpose the actuarial assumptions
utilized with respect to the qualified defined benefit
retirement plan of the Company and its affiliated
companies in which the Executive is eligible to
participate (or any successor plan thereto) (the
"Retirement Plan") during the 120-day period immediately
preceding the Effective Date) of the benefit payable under
the Retirement Plan and any supplemental and/or excess
retirement plan of the Company and its affiliated
companies providing benefits for the Executive (the
"SERP") which the Executive would receive if the
Executive's employment continued at the compensation level
provided for in Paragraphs 4(a) and 4(b)(i) for the
remainder
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of the Employment Term, assuming for this purpose that all
accrued benefits are fully vested and that benefit accrual
formulas are no less advantageous to the Executive than
those in effect during the 120-day period immediately
preceding the Effective Date, and (2) the actuarial
equivalent (utilizing for this purpose the actuarial
assumptions utilized with respect to the Retirement Plan
during the 120-day period immediately preceding the
Effective Date) of the Executive's actual benefit (paid or
payable), if any, under the Retirement Plan and the SERP;
and
(ii) for three years after the Executives's Date of
Termination, or such longer period as any plan, program, or arrangement
may provide, the Company shall continue benefits to the Executive
and/or the Executive's family at least equal to those that would have
been provided to them in accordance with the plans, programs, and
arrangements described in Paragraph 4(c)(ii) if the Executive's
employment had not been terminated, in accordance with the most
favorable plans, programs, and arrangements of the Company as in effect
and applicable generally to the Executive's peer executives of the
Company and its affiliated companies and their families during the
120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to the Executive's peer executives of the
Company and its affiliated companies and their families; provided,
however, that if the Executive becomes reemployed with another employer
and is eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility (such continuation of
such benefits for the applicable period herein set forth is hereinafter
referred to as "Welfare Benefit Continuation") (for purpose of
determining eligibility of the Executive for retiree benefits pursuant
to such plans, programs, and arrangements, the Executive shall be
considered to have remained employed until three years after the Date
of Termination and to have retired on the last day of such period); and
(iii) the Company shall, at its sole expense as incurred,
provide the Executive with outplacement services the scope and provider
of which shall be selected by the Executive in the Executive's sole
discretion; and
(iv) with respect to all options to purchase Common Stock
held by the Executive pursuant to a Company stock option plan on or
prior to the Date of Termination, irrespective of whether such options
are then exercisable, the Executive shall have the right, during the
60-day period after the Date of Termination, to elect to surrender all
or part of such options in exchange for a cash payment by the Company
to the Executive in an amount equal to the number of shares of Common
Stock subject to the Executive's option multiplied by the excess of (x)
over (y), where (x) equals the highest reported sale price of a share
of Common Stock in any transaction reported on the New York Stock
Exchange during the 60-day period prior to and including the
Executive's Date of Termination and (y) equals the purchase price per
share covered by the option. Such cash payments shall be made within 30
days after the date of the Executive's election; provided,
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however, that if the Executive's Date of Termination is within six
months after the date of grant of a particular option held by the
Executive and the Executive is subject to Section 16(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), any
cash payments related thereto shall be made on the date which is six
months and one day after the date of grant of such option to the extent
necessary to prevent the imposition of the disgorgement provisions
under Section 16(b). Notwithstanding the foregoing, if any right
granted pursuant to the foregoing would make any change of control
transaction ineligible for pooling of interests accounting treatment
under XXX Xx. 00 that but for this Section 6(a)(iv) would otherwise be
eligible for such accounting treatment, the Executive shall receive
shares of Common Stock with a fair market value equal to the cash that
would otherwise be payable hereunder in substitution for the cash,
provided that any such shares of Common Stock so delivered to the
Executive shall be registered under the Securities Act of 1933, as
amended; any options outstanding as of the Date of Termination and not
then exercisable shall become fully exercisable as of the Executive's
Date of Termination, and to the extent the Executive does not elect to
surrender same for a cash payment (or the equivalent number of shares
of Common Stock) as provided above, such options shall remain
exercisable after the Executive's Date of Termination in accordance
with the terms thereof; and restrictions applicable to any shares of
Common Stock awarded to the Executive by the Company shall lapse, as of
the date of the Executive's Date of Termination; and
(v) all club memberships and other memberships that the
Company was providing for the Executive's use at the time Notice of
Termination is given shall, to the extent possible, be transferred and
assigned to the Executive at no cost to the Executive (other than
income taxes owed), the cost of transfer, if any, to be borne by the
Company; and
(vi) all benefits under the Noble Drilling Corporation
1991 Stock Option and Restricted Stock Plan and any other similar
plans, including any stock options or restricted stock held by the
Executive, not already vested shall be 100% vested, to the extent such
vesting is permitted under the Code; and
(vii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts
or benefits required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy, practice, or
arrangement or contract or agreement of the Company and its affiliated
companies (such other amounts and benefits hereinafter referred to as
the "Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Term, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for (i) payment of Accrued Obligations (which shall be
paid to the Executive's estate or beneficiary, as applicable, in a lump sum in
cash within 30 days of the Date of Termination) and the timely payment or
provision of the Welfare Benefit Continuation and the Other Benefits and (ii)
payment to the
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Executive's estate or beneficiaries, as applicable, in a lump sum in cash within
30 days of the Date of Termination of an amount equal to the sum of the
Severance Amount and the Supplemental Retirement Amount. With respect to the
provision of Other Benefits, the term Other Benefits as used in this Section
6(b) shall include, without limitation, and the Executive's estate and/or
beneficiaries shall be entitled to receive, benefits at least equal to the most
favorable benefits provided by the Company and affiliated companies to the
estates and beneficiaries of peer executives of the Company and such affiliated
companies under such plans, programs, practices, and policies relating to death
benefits, if any, as in effect with respect to other peer executives and their
beneficiaries at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive's estate and/or the
Executive's beneficiaries, as in effect on the date of the Executive's death
with respect to other peer executives of the Company and its affiliated
companies and their beneficiaries.
(c) Disability. If the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Term, this Agreement shall
terminate without further obligations to the Executive, other than for (i)
payment of Accrued Obligations (which shall be paid to the Executive in a lump
sum in cash within 30 days of the Date of Termination) and the timely payment or
provision of the Welfare Benefit Continuation and the Other Benefits and (ii)
payment to the Executive in a lump sum in cash within 30 days of the Date of
Termination of an amount equal to the sum of the Severance Amount and the
Supplemental Retirement Amount. With respect to the provision of Other Benefits,
the term Other Benefits as used in this Section 6(c) shall include, without
limitation, and the Executive shall be entitled after the Disability Effective
Date to receive, disability and other benefits at least equal to the most
favorable of those generally provided by the Company and affiliated companies to
disabled executives and/or their families in accordance with such plans,
programs, practices, and policies relating to disability, if any, as in effect
generally with respect to other peer executives and their families at any time
during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in effect at any
time thereafter generally with respect to other peer executives of the Company
and its affiliated companies and their families.
(d) Cause; Other Than for Good Reason or During the Window Period. If
the Executive's employment is terminated for Cause during the Employment Term,
this Agreement shall terminate without further obligations to the Executive
other than the obligation to pay to the Executive Base Salary through the Date
of Termination plus the amount of any compensation previously deferred by the
Executive, in each case to the extent theretofore unpaid. If the Executive
voluntarily terminates the Executive's employment during the Employment Term,
excluding a termination either for Good Reason or without any reason during the
Window Period, this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations and the timely payment or
provision of the Other Benefits. In such case, all Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of the Date of
Termination subject to applicable laws and regulations.
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7. Certain Additional Payments by the Company.
(a) Notwithstanding any provision in this Agreement to the contrary and
except as set forth below, if it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required pursuant to this Paragraph 7) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross- Up Payment
equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing
provisions of this Paragraph 7(a), if it shall be determined that the Executive
is entitled to a Gross-Up Payment, but that the Executive, after taking into
account the Payments and the Gross-Up Payment, would not receive a net after-tax
benefit of at least $50,000 (taking into account both income taxes and any
Excise Tax) as compared to the net after-tax proceeds to the Executive resulting
from an elimination of the Gross-Up Payment and a reduction of the Payments, in
the aggregate, to an amount (the "Reduced Amount") such that the receipt of
payments would not give rise to any Excise Tax, then no Gross-Up Payment shall
be made to the Executive and the Payments, in the aggregate, shall be reduced to
the Reduced Amount.
(b) Subject to the provisions of Paragraph 7(c), all determinations
required to be made under this Paragraph 7, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
PricewaterhouseCoopers (the "Accounting Firm") or, as provided below, such other
certified public accounting firm as may be designated by the Executive, which
shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days after the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Company. If the Accounting Firm is serving as accountant or auditor for the
individual, entity, or group effecting the Change of Control, the Executive
shall have the option, in the Executive's sole discretion, to appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Paragraph 7, shall be paid by the Company to the Executive within five days of
the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments that will not have been made by the Company
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should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. If the Company exhausts its remedies pursuant to
Paragraph 7(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment (or an additional amount of Gross-Up
Payment) in the event the Internal Revenue Service seeks higher payment. Such
notification shall be given as soon as practicable but no later than 10 business
days after the Executive is informed in writing of such claim and shall apprise
the Company of the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such notice
to the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies the Executive
in writing prior to the expiration of such period that it desires to contest
such claim, the Executive shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim;
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to
time, including the acceptance of legal representation with respect to
such claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions of
this Paragraph 7(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings, and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction, and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to
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the Executive, on an interest-free basis, and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and provided further that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Paragraph 7(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Paragraph 7(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to Paragraph 7(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
8. Representations and Warranties.
(a) The Company represents and warrants to the Executive that the
execution, delivery, and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action of the Company and do not and
will not conflict with or result in a violation of any provision of, or
constitute a default under, any contract, agreement, instrument, or obligation
to which the Company is a party or by which it is bound.
(b) The Executive represents and warrants to the Company that the
execution, delivery, and performance by the Executive of this Agreement do not
and will not conflict with or result in a violation of any provision of, or
constitute a default under, any contract, agreement, instrument, or obligation
to which the Executive is a party or by which the Executive is bound.
9. Confidential Information. The Executive recognizes and acknowledges
that the Company's trade secrets and other confidential or proprietary
information, as they may exist from time to time, are valuable, special, and
unique assets of the Company's business, access to and knowledge of which are
essential to the performance of the Executive's duties hereunder. The Executive
confirms that all such trade secrets and other information constitute the
exclusive property of the Company. During the Employment Term and thereafter
without limitation of time, the Executive shall hold in strict confidence and
shall not, directly or indirectly, disclose or reveal to any person, or use for
the Executive's own personal benefit or for the benefit of anyone else, any
trade secrets, confidential dealings, or other confidential or proprietary
information of any kind, nature, or description (whether or not acquired,
learned, obtained, or developed by the
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Executive alone or in conjunction with others) belonging to or concerning the
Company or any of its affiliated companies, except (i) with the prior written
consent of the Company duly authorized by its Board, (ii) in the course of the
proper performance of the Executive's duties hereunder, (iii) for information
(x) that becomes generally available to the public other than as a result of
unauthorized disclosure by the Executive or the Executive's affiliates or (y)
that becomes available to the Executive on a nonconfidential basis from a source
other than the Company or its affiliated companies who is not bound by a duty of
confidentiality, or other contractual, legal, or fiduciary obligation, to the
Company, or (iv) as required by applicable law or legal process. The provisions
of this Paragraph 9 shall continue in effect notwithstanding termination of the
Executive's employment hereunder for any reason.
10. Certain Definitions.
(a) Effective Date. The "Effective Date" shall mean the first date
during the Change of Control Period (as defined in Paragraph 10(b)) on which a
Change of Control occurs. Notwithstanding anything in this Agreement to the
contrary, if a Change of Control occurs and if the Executive's employment with
the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or (ii) otherwise
arose in connection with or anticipation of a Change of Control, then for all
purposes of this Agreement the "Effective Date" shall mean the date immediately
prior to the date of such termination of employment.
(b) Change of Control Period. The "Change of Control Period" shall mean
the period commencing on the date of this Agreement and ending on the third
anniversary of such date; provided, however, that commencing on the date one
year after the date hereof, and on each annual anniversary of such date (such
date and each annual anniversary thereof herein referred to as the "Renewal
Date"), the Change of Control Period shall be automatically extended so as to
terminate three years after such Renewal Date, unless at least 60 days prior to
the Renewal Date the Company shall give notice to the Executive that the Change
of Control Period shall not be so extended.
(c) Change of Control. For purposes of this Agreement, a "Change of
Control" shall mean:
(i) the acquisition by any individual, entity, or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 15% or more of either (A)
the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of
the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subparagraph
(c)(i) the following acquisitions shall not constitute a Change of
Control: (w) any acquisition directly from the Company (excluding an
acquisition by virtue of the exercise of a conversion privilege), (x)
any acquisition by the Company,
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(y) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by
the Company, or (z) any acquisition by any corporation pursuant to a
reorganization, merger, or consolidation, if, following such
reorganization, merger, or consolidation, the conditions described in
clauses (A), (B), and (C) of subparagraph (iii) of this Paragraph 10
(c) are satisfied; or
(ii) individuals who, as of the date of this Agreement,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders, was
approved by a vote of a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(iii) consummation of a reorganization, merger, or
consolidation of the Company, with or without approval by the
stockholders of the Company, in each case, unless, following such
reorganization, merger, or consolidation, (A) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger, or
consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such reorganization, merger, or consolidation in
substantially the same proportions as their ownership, immediately
prior to such reorganization, merger, or consolidation, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding the Company,
any employee benefit plan (or related trust) of the Company or such
corporation resulting from such reorganization, merger, or
consolidation, and any Person beneficially owning, immediately prior to
such reorganization, merger, or consolidation, directly or indirectly,
15% or more of the Outstanding Company Common Stock or Outstanding
Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 15% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from
such reorganization, merger, or consolidation or the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors, and (C) a
majority of the members of the board of directors of the corporation
resulting from such reorganization, merger, or consolidation were
members of the Incumbent Board at the time of the execution of the
initial agreement providing for such reorganization, merger, or
consolidation; or
(iv) consummation of a sale or other disposition of all or
substantially all the assets of the Company, with or without approval
by the stockholders of the Company, other than to a corporation, with
respect to which following such sale or other disposition,
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(A) more than 50% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior
to such sale or other disposition, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be,
(B) no Person (excluding the Company, any employee benefit plan (or
related trust) of the Company or such corporation, and any Person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, 15% or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities, as the
case may be) beneficially owns, directly or indirectly, 15% or more of,
respectively, the then outstanding shares of common stock of such
corporation or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors, and (C) a majority of the members of the board
of directors of such corporation were members of the Incumbent Board at
the time of the execution of the initial agreement or action of the
Board providing for such sale or other disposition of assets of the
Company; or
(v) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
11. Full Settlement.
(a) There shall be no right of set off or counterclaim against, or
delay in, any payments to the Executive, or to the Executive's heirs or legal
representatives, provided for in this Agreement, in respect of any claim against
or debt or other obligation of the Executive or others, whether arising
hereunder or otherwise.
(b) In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, and such amounts
shall not be reduced whether or not the Executive obtains other employment.
(c) The Company agrees to pay as incurred, to the full extent permitted
by law, all costs and expenses (including attorneys' fees) that the Executive,
or the Executive's heirs or legal representatives, may reasonably incur as a
result of any contest (regardless of the outcome thereof) by the Company, the
Executive, or others of the validity or enforceability of, or liability under,
any provision of this Agreement, or any guarantee of performance thereof
(including as a result of any contest by the Executive, or the Executive's heirs
or legal representatives, about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2) of the Code.
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12. No Effect on Other Contractual Rights. The provisions of this
Agreement, and any payment provided for hereunder, shall not reduce any amounts
otherwise payable to the Executive, or in any way diminish the Executive's
rights as an employee of the Company, whether existing on the date of this
Agreement or hereafter, under any employee benefit plan, program, or arrangement
or other contract or agreement of the Company providing benefits to the
Executive.
13. Indemnification; Directors and Officers Insurance. The Company
shall (a) during the Employment Term and thereafter without limitation of time,
indemnify and advance expenses to the Executive to the fullest extent permitted
by the laws of the State of Delaware from time to time in effect and (b) during
the Employment Term, acquire and maintain directors and officers liability
insurance covering the Executive (and to the extent the Company desires, other
directors and officers of the Company and its affiliated companies) to the
extent it is available at commercially reasonable rates as determined by the
Board; provided, however, that in no event shall the Executive be entitled to
indemnification or advancement of expenses under this Paragraph 13 with respect
to any proceeding, or matter therein, brought or made by the Executive against
the Company other than one initiated by the Executive to enforce the Executive's
rights under this Paragraph 13. The rights of indemnification and to receive
advancement of expenses as provided in this Paragraph 13 shall not be deemed
exclusive of any other rights to which the Executive may at any time be entitled
under applicable law, the certificate of incorporation or bylaws of the Company,
any agreement, a vote of stockholders, a resolution of the Board, or otherwise.
The provisions of this Paragraph 13 shall continue in effect notwithstanding
termination of the Executive's employment hereunder for any reason.
14. Injunctive Relief. In recognition of the fact that a breach by the
Executive of any of the provisions of Paragraph 9 will cause irreparable damage
to the Company for which monetary damages alone will not constitute an adequate
remedy, the Company shall be entitled as a matter of right (without being
required to prove damages or furnish any bond or other security) to obtain a
restraining order, an injunction, an order of specific performance, or other
equitable or extraordinary relief from any court of competent jurisdiction
restraining any further violation of such provisions by the Executive or
requiring the Executive to perform the Executive's obligations hereunder. Such
right to equitable or extraordinary relief shall not be exclusive but shall be
in addition to all other rights and remedies to which the Company may be
entitled at law or in equity, including without limitation the right to recover
monetary damages for the breach by the Executive of any of the provisions of
this Agreement.
15. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas, without regard
to the principles of conflicts of laws thereof.
16. Notices. All notices, requests, demands, and other communications
required or permitted to be given or made hereunder by either party hereto shall
be in writing and shall be deemed to have been duly given or made (i) when
delivered personally, (ii) when sent by telefacsimile transmission, or (iii)
five days after being deposited in the United States mail, first class
registered or certified mail, postage prepaid, return receipt requested, to the
party for which
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intended at the following addresses (or at such other addresses as shall be
specified by the parties by like notice, except that notices of change of
address shall be effective only upon receipt):
If to the Company, at: Noble Drilling Corporation
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
Attention: Chief Executive Officer
If to the Executive, at: Xxxxx X. Xxxxxxxx
Noble Drilling Corporation
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
17. Binding Effect; Assignment; No Third Party Benefit.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and shall be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor or assign (whether direct
or indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all the business and/or assets of the Company, by agreement in
writing in form and substance reasonably satisfactory to the Executive,
expressly, absolutely, and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. As
used in this Agreement, the "Company" shall mean the Company as hereinbefore
defined and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Paragraph 17(c)
or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(d) Nothing in this Agreement, express or implied, is intended to or
shall confer upon any person other than the parties hereto, and their respective
heirs, legal representatives, successors, and permitted assigns, any rights,
benefits, or remedies of any nature whatsoever under or by reason of this
Agreement.
18. Miscellaneous.
(a) Amendment. This Agreement may not be modified or amended in any
respect except by an instrument in writing signed by the party against whom such
modification or amendment is sought to be enforced. No person, other than
pursuant to a resolution of the Board
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or a committee thereof, shall have authority on behalf of the Company to agree
to modify, amend, or waive any provision of this Agreement or anything in
reference thereto.
(b) Waiver. Any term or condition of this Agreement may be waived at
any time by the party hereto which is entitled to have the benefit thereof, but
such waiver shall only be effective if evidenced by a writing signed by such
party, and a waiver on one occasion shall not be deemed to be a waiver of the
same or any other type of breach on a future occasion. No failure or delay by a
party hereto in exercising any right or power hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right or power.
(c) Withholding Taxes. The Company may withhold from any amounts
payable under this Agreement such federal, state, local, or foreign taxes as
shall be required to be withheld pursuant to any applicable law or regulation.
(d) Nonalienation of Benefits. The Executive shall not have any right
to pledge, hypothecate, anticipate, or in any way create a lien upon any
payments or other benefits provided under this Agreement; and no benefits
payable hereunder shall be assignable in anticipation of payment either by
voluntary or involuntary acts, or by operation of law, except by will or
pursuant to the laws of descent and distribution.
(e) Severability. If any provision of this Agreement is held to be
invalid or unenforceable, (a) this Agreement shall be considered divisible, (b)
such provision shall be deemed inoperative to the extent it is deemed invalid or
unenforceable, and (c) in all other respects this Agreement shall remain in full
force and effect; provided, however, that if any such provision may be made
valid or enforceable by limitation thereof, then such provision shall be deemed
to be so limited and shall be valid and/or enforceable to the maximum extent
permitted by applicable law.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto concerning the subject matter hereof, and from and
after the date of this Agreement, this Agreement shall supersede any other prior
agreement or understanding, both written and oral, between the parties with
respect to such subject matter.
(g) Captions. The captions herein are inserted for convenience of
reference only, do not constitute a part of this Agreement, and shall not affect
in any manner the meaning or interpretation of this Agreement.
(h) References. All references in this Agreement to Paragraphs,
subparagraphs, and other subdivisions refer to the Paragraphs, subparagraphs,
and other subdivisions of this Agreement unless expressly provided otherwise.
The words "this Agreement", "herein", "hereof", "hereby", "hereunder", and words
of similar import refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited. Whenever the words "include",
"includes", and "including" are used in this Agreement, such words shall be
deemed to be followed by the words "without limitation". Words in the singular
form shall be construed to include the plural and vice versa, unless the context
otherwise requires.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer, and the Executive has
executed this Agreement, as of the date first above set forth.
NOBLE DRILLING CORPORATION
By: /S/ XXXXX X. DAY
---------------------------------------------
Name: Xxxxx X. Day
Title: Chairman, Chief Executive Officer
and President
"COMPANY"
/S/ XXXXX X. XXXXXXXX
-------------------------------------------------
Xxxxx X. Xxxxxxxx
"EXECUTIVE"
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