Employment Agreement
This EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of
March 1, 1999, is by and among GLOBAL MARINE INC., a Delaware
corporation ("GMI"), GLOBAL MARINE CORPORATE SERVICES INC., a
California corporation (the "COMPANY"), and XXXX X. XXXX (the
"EMPLOYEE").
WHEREAS, GMI and the Company have determined that the
Employee, a former President and Chief Operating Officer of GMI,
has a disability as such term is used in that certain letter
agreement between the Employee and GMI dated August 5, 1998 (the
"SEVERANCE AGREEMENT), which letter agreement relates to the
Employee's right to a severance payment as a result of termination
of his employment under certain circumstances, including
disability; and
WHEREAS, GMI and the Company have determined that the Employee
could terminate his employment due to his disability and that,
under such circumstance, he would be entitled to, among other
things, a severance payment consisting of salary continuation and
the continuation of his medical, dental and life insurance benefits
for an additional 24 months pursuant to the terms of the Severance
Agreement; and
WHEREAS, GMI and the Company have requested that the Employee
remain an employee, providing such services and undertaking such
duties and responsibilities as GMI or the Company may request from
time to time consistent with the Employee's ability, to all of
which the Employee has agreed;
NOW THEREFORE, the parties agree as follows:
1. EMPLOYMENT, DUTIES, AND ACCEPTANCE.
1.1 EMPLOYMENT AND DUTIES. GMI and the Company hereby agree
to continue the Employee's employment for a 24-month term
commencing March 1, 1999, and expiring at the end of the day on
February 28, 2001 (such date, or later date to which this Agreement
is extended in accordance with the terms hereof, the "TERMINATION
DATE"), unless earlier terminated as provided in Article 4 or
unless extended as provided herein (the "TERM"). During the Term,
the Employee will initially serve in an untitled capacity and will
also serve in those offices and directorships of GMI, the Company,
and GMI's other Subsidiaries and Affiliates (as hereinafter
defined) to which he may from time to time be appointed or elected.
During the Term, the Employee will provide such services and
undertake such duties and responsibilities as GMI or the Company
may request from time to time consistent with the Employee's
ability, subject to the direction of the Chief Executive Officer of
GMI, the Board of Directors of GMI (the "GMI BOARD"), and the Board
of Directors of the Company (the "COMPANY BOARD" and together with
the GMI Board, the "BOARDS"). The Employee will not engage in any
other business activities except for passive investments and such
other activities as may be approved in writing by GMI or the
Company, which activities will not materially interfere with the
Employee's obligations hereunder.
1.2 ACCEPTANCE BY THE EMPLOYEE. The Employee hereby accepts
such continuation of his employment and agrees to provide the
services and undertake the duties and responsibilities described
above.
2. COMPENSATION, BENEFITS, AND PERQUISITES.
2.1 ANNUAL SALARY. During the Term, the Company will
continue to pay to the Employee his present annual salary (the
"ANNUAL SALARY"). The Annual Salary will be payable in accordance
with the payroll policies of the Company as from time to time in
effect, but in no event less frequently than once each month, less
such deductions as may be required to be withheld by applicable law
and regulations and as may otherwise be agreed to by the Employee.
2.2 EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN. The Employee is
and will remain a participant in the Global Marine Executive
Supplemental Retirement Plan (the "SERP") and will have a vested
benefit under the SERP, whether or not he attains age 55 as an
employee, and the second sentence of Section 2.8 of the SERP will
not apply; provided, however, that this provision will not
accelerate any payment under the SERP or under any other retirement
plan sponsored by GMI, the Company, or any other Subsidiary or GMI
Affiliate to a date earlier than the date such payment would have
been made if the Employee had actually attained age 55 as an
employee on August 26, 2007.
2.3 PARTICIPATION IN EMPLOYEE BENEFIT PLANS AND CERTAIN
PERQUISITES. The Company and GMI agree to permit the Employee
during the Term, if and to the extent eligible, to participate in
any 401(k) plan, retirement plan, group life, hospitalization or
disability insurance plan, health program, pension plan, similar
benefit plan or other so-called "fringe benefits" of GMI, the
Company, or any other Subsidiary or GMI Affiliate (collectively,
"BENEFITS") which may be available to other employees on terms no
less favorable to the Employee than the terms offered to such other
employees. In addition, during the Term the Company will provide
the Employee with an automobile allowance in an amount no less than
the amount of his present automobile allowance.
3. CONFIDENTIALITY, NON-SOLICITATION, AND NON-COMPETITION.
Because it is important that GMI, the Company, and each other
Subsidiary and GMI Affiliate protect secret, proprietary and
confidential information pertaining to their businesses, and
because it is reasonable to expect that the Employee has obtained
or will obtain such information in the course of his employment,
the Employee agrees that he will not:
(a) divulge or appropriate to the Employee's own use or to the
use of others any secret, proprietary or confidential
information pertaining to the business of GMI, the Company, or
any other Subsidiary or GMI Affiliate obtained in any way
during the Employee's employment by GMI, the Company, or any
other Subsidiary or GMI Affiliate, it being understood and
agreed that the Employee will promptly deliver to GMI, the
Company, or any Subsidiary or GMI Affiliate upon the earlier
of the request of any such entity or the date of the
Employee's termination of such employment all documents,
copies thereof, and other material in the Employee's
possession or under his control relating to any of the kinds
of information identified above; or
(b) during the period of two years commencing with any
termination of his employment with GMI, the Company, or any
other Subsidiary or GMI Affiliate, solicit on his own behalf,
or on behalf of any other firm, company or other Person (as
hereinafter defined) the employment of any person employed by
GMI, the Company, or any other Subsidiary or GMI Affiliate; or
(c) during the period of two years commencing with any
termination of his employment with GMI, the Company, or any
other Subsidiary or GMI Affiliate, compete with GMI, the
Company, or any other Subsidiary or GMI Affiliate in obtaining
or performing offshore drilling contracts or services,
offshore turnkey drilling, integrated drilling or drilling
management contracts or services, or other similar offshore
contracts or services, either as an employee, officer,
director, consultant, independent contractor or agent of a
direct competitor of GMI, the Company, or any other Subsidiary
or GMI Affiliate or on his own behalf, it being understood and
agreed, however, that this agreement will not preclude the
Employee from working for any firm, company or other Person
that drills oil and gas xxxxx for its own account or provides
onshore oil and gas drilling services and does not compete
with GMI, the Company, or any other Subsidiary or GMI
Affiliate in obtaining or performing offshore drilling
contracts or services, offshore turnkey drilling, integrated
drilling or drilling management contracts or services, or
other similar offshore services;
and the Employee further agrees that if he violates any provision
of this paragraph (i) GMI and/or the Company may bring such action
or actions in such court and/or courts as either or both of them
may deem necessary or advisable in order to enforce the Employee's
compliance with this provision and for damages in respect of such
violation, and (ii) GMI and/or the Company may terminate this
Agreement, in which case the Employee will be ineligible to receive
any further salary, benefit, perquisite or other compensation
hereunder from and after such termination.
4. TERMINATION.
4.1 TERMINATION IN THE EVENT OF DEATH. In the event of the
Employee's death during the Term, the Company will continue to pay
the Employee's Annual Salary, at the times and upon the terms
provided for herein, for the remainder of the Term to his
designated beneficiary or his estate, and any Benefits that have
vested in the Employee at the time of his death as a result of his
participation in any benefit plans sponsored by GMI, the Company,
or any other Subsidiary or GMI Affiliate will be paid to his
designated beneficiary or his estate in accordance with the
provisions of such plan.
4.2 TERMINATION WITH CAUSE. GMI and the Company each has the
right, at any time during the Term, subject to all of the
provisions hereof, exercisable by serving notice, effective on or
after the date of service of such notice as specified therein, to
terminate the Employee's employment under this Agreement and
discharge the Employee with Cause. If such right is exercised, the
Term will terminate on the date of such termination and the
obligation of GMI and the Company to the Employee will be limited
solely to the payment of unpaid Annual Salary accrued and, subject
to the provisions of the applicable benefit plans, any benefits
vested up to the effective date specified in the notice of
termination. As used in this Agreement, the term "Cause" will mean
an act of fraud, dishonesty or other misconduct on the part of the
Employee that is harmful to GMI, the Company, or any other
Subsidiary or GMI Affiliate, but will not mean inadequate
performance, incompetence, or failure to perform due to inability
caused by his disability as determined in his sole discretion.
Prior to the effectiveness of termination for Cause, the Employee
will be given 30 days' prior notice from the GMI Board specifically
identifying the reasons which are alleged to constitute Cause for
any termination hereunder and an opportunity to be heard by the GMI
Board in the event the Employee disputes such allegations.
4.3 TERMINATION WITHOUT CAUSE. GMI and the Company each has
the right, at any time during the Term, subject to all of the
provisions hereof, exercisable by serving notice, effective on or
after the date of service of such notice as specified therein, to
terminate the Employee's employment under this Agreement and
discharge the Employee without Cause. If the Employee is
terminated during the Term without Cause (including any termination
which is deemed to be a constructive termination without Cause
under Section 4.5 hereof), the Term will terminate on the date of
such termination and the obligation of GMI and the Company to the
Employee will be limited to (i) the payment, at the times and upon
the terms provided for herein, of the Employee's Annual Salary for
the remainder of the Term of this Agreement had the Employee not
been so terminated, and (ii) the continuation of the Employee's
medical, dental and life insurance benefits for the remainder of
such Term. In the event of a termination by the Company without
Cause within 180 days after a Change of Control (as hereinafter
defined), including a constructive termination without Cause
pursuant to Section 4.5, the amounts due to the Employee pursuant
to this Section 4.3 will be due and payable in one lump-sum payment
within 60 days after such termination. In all other cases, any
amounts due to the Employee pursuant to this Section 4.3 will be
due and payable as and when they would have become due and payable
absent such termination. In addition, any Benefits that have
vested in the Employee at the time of such termination as a result
of his participation in any benefit plans sponsored by GMI, the
Company, or any other Subsidiary or GMI Affiliate will be paid to
the Employee, or to his estate or designated beneficiary, subject
to the provisions of such plans.
4.4 TERMINATION BY THE EMPLOYEE. Any termination of this
Agreement by the Employee during the Term, except such termination
as is deemed to be a constructive termination without Cause by the
Company under Section 4.5 of this Agreement, will be deemed to be
a breach of the terms of this Agreement and will entitle GMI and
the Company to discontinue payment of all Annual Salary and
benefits accruing from and after the date of such termination. Any
Benefits that have vested in the Employee at the time of such
termination as a result of his participation in any benefit plans
sponsored by GMI, the Company, or any other Subsidiary or GMI
Affiliate will be paid to the Employee, or to his estate or
designated beneficiary, subject to the provisions of such plans.
4.5 CONSTRUCTIVE TERMINATION WITHOUT CAUSE. Notwithstanding
any other provision of this Agreement, the Employee's employment
under this Agreement may be terminated during the Term by the
Employee, which termination will be deemed to be constructive
termination by the Company without Cause if such employment is
terminated by the Employee within 12 months following a Change of
Control, as hereinafter defined, of GMI, of the Company, or of any
other Subsidiary or GMI Affiliate by which he is employed or which
directly or indirectly owns or controls any Subsidiary or GMI
Affiliate by which he is employed.
4.6 CHANGE OF CONTROL. For the purposes hereof, a "CHANGE OF
CONTROL" will be deemed to have occurred if direct or indirect
beneficial ownership of securities representing, or other direct or
indirect control of, 35% or more of the voting power of the subject
entity is held by one holder or by a group of holders working in
concert for the purpose of such ownership or control where such
holder or holders are not GMI, the Company, or any other Subsidiary
or GMI Affiliate.
4.7 CONTINUATION OF "SERVICE". It is expressly understood
and agreed that any and all periods through the earlier of the date
the Employee's employment is terminated with Cause, the date the
Employee's employment is terminated by death, or the Termination
Date will be "Service" for all purposes under any and all
retirement plans sponsored by GMI, the Company, or any other
Subsidiary or GMI Affiliate in which the Employee participates.
5. LEGAL FEES. In the event of a dispute or disagreement
regarding the right of the Employee to receive any compensation or
other benefit under this Agreement or the amount of such
compensation or other benefit, the Employee will be reimbursed by
GMI for any and all attorney's fees and other costs and expenses as
and when expended by the Employee in connection with such dispute
or disagreement, regardless of the outcome thereof. Further, in
the event the Employee becomes entitled to any monies or benefits
hereunder, GMI agrees to pay such monies and provide such benefits
without regard to any and all claims, offsets or causes of action
which GMI may have against the Employee until such time, if ever,
as GMI or the Company obtains a final judgment in its favor in a
court of competent jurisdiction regarding such claim, offset or
cause of action.
6.OTHER PROVISIONS.
6.1 CERTAIN DEFINITIONS. As used in this Agreement, the
following terms have the following meanings unless the context
otherwise requires:
6.1.1 "AFFILIATE" with respect to a person means any
other person controlled by or under common control with such
person but will not include any stockholder or director of an
entity, as such.
6.1.2 "PERSON" means any individual, corporation,
partnership, firm, joint company, association, joint-stock
company, trust, unincorporated organization, governmental or
regulatory body or other entity.
6.1.3 "SUBSIDIARY" means any corporation 50% or more
of the voting securities of which are owned directly or
indirectly by GMI or the Company.
6.2 NOTICES. Any notice or other communication required or
permitted hereunder will be in writing and will be delivered
personally, telegraphed, telexed, sent by facsimile transmission or
sent by certified, registered or express mail, postage prepaid.
Any such notice will be deemed given when so delivered personally,
telegraphed, telexed or sent by facsimile transmission or, if
mailed, on the date of actual receipt thereof, as follows:
If to the Company and GMI, to:
Global Marine Inc.
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: General Counsel
If to the Employee, to:
Xxxx X. Xxxx
00000 Xxx Xxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Any party may change its address for notice hereunder by notice to
the other parties hereto.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements or other undertakings,
written or oral, with respect thereto, including without limitation
the Severance Agreement.
6.4 WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument
signed by the parties hereto or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder will operate as
a waiver thereof. Nor will any waiver on the part of any party of
any such right, power or privilege hereunder, nor any single or
partial exercise of any right, power or privilege hereunder,
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder.
6.5 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the state of Texas
(without giving effect to the choice of law provisions thereof)
where the employment of the Employee will be deemed, in part, to be
performed, and enforcement of this Agreement or any action taken or
held with respect to this Agreement will be taken in the courts of
appropriate jurisdiction in Houston, Texas.
6.6 ASSIGNMENT. This Agreement, and any rights and
obligations hereunder, may not be assigned by the Employee and may
be assigned by GMI and the Company only to any successor in
interest, whether by merger, consolidation, acquisition or the
like, or to purchasers of substantially all of the assets of GMI.
6.7 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered will be
deemed an original, but all of which together will constitute one
and the same instrument.
6.8 HEADINGS. The headings in this Agreement are for
reference purposes only and will not in any way affect the meaning
or interpretation of this Agreement.
6.9 NO PRESUMPTION AGAINST INTEREST. This Agreement has been
negotiated, drafted, edited and reviewed by the respective parties,
and, therefore, no provision arising directly or indirectly here
from will be construed against any party as being drafted by said
party.
6.10 VALIDITY CONTEST. GMI will promptly pay any and all
legal fees and expenses incurred by the Employee from time to time
as a direct result of GMI or the Company contesting the due
execution, authorization, validity or enforceability of this
Agreement.
6.11 BINDING AGREEMENT. This Agreement will inure to the
benefit of and be binding upon (i) GMI, the Company, and their
respective successors and assigns, and (ii) the Employee, his
beneficiaries, his estate, and their legal representatives.
6.12 AUTHORIZATION. GMI and the Company each represents and
warrants that its Board of Directors has approved and authorized
the execution of this Agreement, and GMI represents and warrants
that the Compensation Committee of its Board of Directors has
approved and authorized the provisions of this Agreement that
modify the terms of stock options granted to the Employee by GMI.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
GLOBAL MARINE INC. THE EMPLOYEE
By: /s/ Xxxxx X. XxXxxxxxx /s/ Xxxx X. Xxxx
Name: Xxxxx X. XxXxxxxxx Xxxx X. Xxxx
Title: Vice President and General
Counsel
GLOBAL MARINE CORPORATE
SERVICES INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
