February 22, 1995
Dear Jim Dore:
Global Industries, Ltd. (the "Company") considers it
essential to the best interest of the Company and its
shareholders that its management and key employees be encouraged
to remain with the Company and to continue to devote full
attention to the Company's business in the event of a change in
control of the Company, whether through a tender offer, a
negotiated merger or sale of the Company's business or otherwise.
In this connection, the Company recognizes that the possibility
of a change in control and the uncertainty and questions which it
may raise among management may result in the departure or
distraction of management personnel and key employees to the
detriment of the Company and its shareholders. Accordingly, the
Company's Board of Directors (the "Board") has determined that
appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the Company's
management, including yourself, to their assigned duties without
distraction in the face of the potentially disturbing
circumstances arising from the possibility of a change in control
of the Company under the circumstances described below.
In order to induce you to remain in the employ of the
Company or its subsidiary, this letter agreement ("Agreement")
sets forth the severance benefits which this Company agrees will
be provided to you in the event your employment with the Company
is terminated subsequent to a Change in Control of the Company
under the circumstances described below.
Nothing herein shall be construed to prevent either you or
the Company from terminating your employment at any time, for
cause or otherwise, subject only to the specific payment and
other provisions hereinafter provided for under certain
circumstances in the event a Change in Control of the Company
shall have occurred prior to the date your termination becomes
effective.
1. CONTINUED EMPLOYMENT. This confirms that you have
advised the Company that, in consideration of, among other
things, the Company's entering into this Agreement with you, it
is your present intention to remain in the employ of the Company
or its subsidiary unless and until there occurs a Change in
Control of the Company. This Agreement shall commence on the
date hereof and shall continue until December 31, 1995; provided,
however, that commencing on January 1, 1996 and each January 1st
thereafter, the term of this Agreement shall automatically be
extended for one additional year unless at least 30 days prior to
such January 1st date, the Company shall have given notice that
it does not wish to extend this Agreement. Notwithstanding
anything to the contrary contained in this paragraph 1, (a) it is
agreed that if a Change in Control occurs while this Agreement is
in effect, then this Agreement shall not be subject to
termination and shall remain in effect for two years after such
Change in Control, and if within such two-year period any
termination occurs that would entitle you to the benefits
hereunder, this Agreement shall remain in effect in accordance
with its terms, and (b) the Company may terminate this Agreement
at any time upon your Total Disability (as defined in paragraph
2).
2. DEFINITIONS. For purposes of this Agreement, the
following terms has the meaning set forth below:
"Cause" shall mean only (a) if termination shall have been
the result of an act or acts of dishonesty on your part
constituting a felony and resulting, or intending to result,
directly or indirectly, in gain or personal enrichment at the
expense of the Company or (b) upon the willful and continued
failure by you to substantially perform your duties with the
Company (other than any such failure resulting from your
incapacity due to mental or physical illness) after a demand in
writing for substantial performance is delivered to you by the
Board of Directors of the Company, which demand specifically
identifies the manner in which the Board of Directors of the
Company believes that you have not substantially performed your
duties, and such failure to perform your duties results in
demonstrably material injury to the Company. Your employment
shall in no event be considered to have been terminated by the
Company for Cause if such termination took place as the result of
(i) bad judgment or negligence on your part, or (ii) any act or
omission without intent of gaining therefrom, directly or
indirectly, a profit to which you were not legally entitled, or
(iii) any act or omission believed by you in good faith to have
been in or not opposed to the interest of the Company, or
(iv) any act or omission in respect of which a determination is
made that you met the applicable standard of conduct prescribed
for indemnification or reimbursement or payment of expenses under
the by-laws of the Company or the laws of the State of Louisiana
or the directors and officers liability insurance of the Company,
in each case as in effect at the time of such act or omission.
You shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to you a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board of Directors
of the Company at a meeting called and held for the purpose
(after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board of
Directors of the Company), finding that in the good faith opinion
of the Board of Directors of the Company you were guilty of
conduct set forth above in clauses (a) or (b) of the first
sentence of this definition and specifying the particulars
thereof in detail.
"Change in Control" shall mean (i) any merger,
consolidation or other reorganization in which the Company shall
not be the surviving entity (or survives only as a subsidiary of
an entity other than a previously wholly-owned subsidiary of the
Company), (ii) the dissolution or liquidation of the Company;
(iii) the sale, lease or exchange or agreement to sell, lease or
exchange all or substantially all of the assets of the Company to
any other person or entity (other than a wholly-owned subsidiary
of the Company); (iv) the acquisition, directly or indirectly, of
the beneficial ownership of more than 50% of the issued and
outstanding shares of the Common Stock of the Company by any
individual or entity (except William J. Dore or any of his
affiliates), including a "group" as contemplated by
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, except an underwriter or similar entity in connection
with a public offering of Common Stock, alone or in concert with
others; or (v) as a result of or in connection with a contested
election of directors, the persons who were directors of the
Company before such election shall cease to constitute a majority
of the Board.
"Date of Termination" shall mean the date on which your
employment relationship with the Company ends and shall be (a) if
this Agreement is terminated for Disability, thirty (30) days
after Notice of Termination is given (provided that you shall not
have returned to the performance of your duties on a full-time
basis during such thirty (30) day period); (b) if your employment
is terminated for Cause, the date on which a Notice of
Termination is given; (c) if your employment is terminated by you
for Good Reason, the date specified in the Notice of Termination;
and (d) if your employment is terminated for any other reason,
fifteen (15) calendar days following the date on which a Notice
of Termination is given; provided that if within thirty (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 of the parties, by a binding and final
arbitration award 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).
"Good Reason" shall mean:
(a) without your express written consent, the assignment to
you of any duties inconsistent with your positions, duties,
responsibilities and status with the Company or its subsidiaries
immediately prior to a Change in Control, or a change in your
reporting responsibilities, titles or offices as in effect
immediately prior to a Change in Control, or any removal of you
from or any failure to re-elect you to any of such positions,
except in connection with the termination of your employment for
Cause, Disability or Retirement or as a result of your death or
by you other than for Good Reason;
(b) a reduction by the Company in your total compensation
for the fiscal year in which the Change in Control occurred from
your total compensation in the fiscal year immediately preceding
the year in which the Change in Control occurred (assuming for
purposes of determining whether a reduction has occurred that
total compensation in the year preceding the fiscal year in which
the Change in Control occurred consisted of your base salary for
that year plus bonus or incentive compensation in an amount equal
to the highest bonus or incentive compensation you received in
any of the three years immediately preceding the year in which
the Change in Control occurred) or the failure by the Company to
increase your total salary and bonus or incentive compensation
(based on actual salary and bonus or incentive compensation) each
year after a Change in Control by an amount which at least
equals, on a percentage basis, the mean average percentage
increase in total compensation for all officers of the Company
during the three full fiscal years immediately preceding a Change
in Control of the Company;
(c) a failure by the Company to continue a bonus or
incentive compensation plan or policy substantially on the basis
in effect prior to the Change in Control, or a failure by the
Company to continue you as a participant on at least the same
basis as your participation for the fiscal year immediately
preceding a Change in Control;
(d) if your employment immediately before the Change in
Control occurred was at the Company's principal executive
offices, the relocation of the Company's principal executive
offices to a location outside Lafayette, Louisiana or in any
event if the Company requires you to be based at a distance
greater than 30 additional commuting miles from your principal
residence during the normal work week as compared with the
distance you commuted to the office of the Company where you were
based immediately prior to the Change in Control, except for
required travel on the Company's business to an extent
substantially consistent with your business travel obligations
prior to the Change in Control, or in the event you consent to
any such relocation of the Company's principal executive offices
or consent to being based at the greater commuting distance
described above, the failure by the Company to pay (or reimburse
you for) all reasonable moving expenses incurred by you relating
to a change of your principal residence in connection with such
relocation and to indemnify you against any loss in accordance
with the Company's relocation program, as in effect immediately
prior to the Change in Control;
(e) the failure by the Company to continue in effect any
benefit or compensation plan in addition to the bonus or
incentive compensation plan, including its retirement plans, life
insurance plan, health and accident plan or disability plan in
which you are participating at the time of a Change in Control of
the Company (or plans providing you with substantially similar
benefits) and stock option and stock purchase plans providing you
with substantially similar benefits as the Company plans in
existence immediately before the Change in Control, or the taking
of any action by the Company which would adversely affect your
participation in or materially reduce your benefits under any of
such plans or deprive you of any material fringe benefit enjoyed
by you at the time of the Change in Control, or the failure by
the Company to provide you with the number of paid vacation days
to which you are then entitled on the basis of years of service
with the Company in accordance with the Company's normal vacation
policy in effect immediately prior to the Change in Control;
(f) the failure of the Company to obtain an assumption of
this Agreement by any successor as contemplated in paragraph 5
hereof; or
(g) any purported termination of your employment which is
not effected pursuant to a Notice of Termination satisfying the
requirements set forth in the definition thereof (and, if
applicable, the requirements set forth in the definition of
Cause); and for purposes of this Agreement, no such purported
termination shall be effective.
"Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of your employment under the provisions so indicated.
With respect to termination by you for Good Reason, the Notice of
Termination shall state that you have made a good faith
determination that, due to a Change in Control, you are not able
effectively to discharge your duties.
"Retirement" shall mean termination of your employment
with your consent in accordance with the Company's retirement
policy, including early retirement, generally applicable to its
salaried employees or in accordance with any retirement
arrangement established with your consent with respect to you.
"Total Disability" shall mean that, as a result of your
incapacity due to physical or mental illness, you shall have been
absent from you duties with the Company or its subsidiary on a
full-time basis for a period of one year and a physician selected
by you is of the opinion that (i) you are suffering from "total
disability" as defined in any long-term disability plan or
program of the Company or (ii) you will qualify for Social
Security Disability Payment and (iii) within thirty (30) days
after Notice of Termination is given to you by the Company, you
shall not have returned to the full-time performance of your
duties.
3. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
No benefits shall be payable under this Agreement unless a
Change in Control shall have occurred and either your employment
by the Company has terminated or you are not performing your
duties as a result of incapacity due to physical or mental
illness. If your employment by the Company or any subsidiary or
successor thereto shall be terminated within two years after a
Change in Control, then the Company will, as additional
compensation for services rendered to the Company (including its
subsidiaries), pay to you the following amounts (subject to any
applicable payroll or other taxes required to be withheld and
employee benefit premiums):
(a) During any period that you fail to perform your
duties as a result of incapacity due to physical or mental
illness, you shall continue to receive your full base salary
and incentive compensation at the rate then in effect until
this Agreement is terminated pursuant to paragraph 1 hereof.
Thereafter, your benefits shall be determined in accordance
with the Company's long-term disability plan, or a
substitute plan then in effect.
(b) If your employment shall be terminated for Cause,
the Company shall pay your full base salary and incentive
compensation through the Date of Termination at the rate in
effect at the time Notice of Termination is given and the
Company shall have no further obligations to you under this
Agreement.
(c) If the Company shall terminate your employment
other than due to death, Disability, Retirement or for Cause
or if you shall terminate your employment for Good Reason,
then the Company shall pay to you in a lump sum, no later
than the fifth business day following the Date of
Termination, the following amounts:
(i) (A) your full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination
is given and (B) an amount equal to the highest bonus or
incentive compensation which you received for any one of the three
fiscal years immediately prior to the fiscal year which includes the
Date of Termination times a fraction, the numerator of which is the
number of days elapsed in the fiscal year to and including
the Date of Termination and the denominator of which is 365;
(ii) in lieu of any further salary payments to you
for periods subsequent to the Date of Termination, an amount equal
to (A) 2.99 times (B) the higher of (1) the highest annual salary
plus bonus paid to you in any of the five fiscal years preceding the
year in which the Date of Termination occurs or (2) your "annualized
includable compensation for the base period" (hereinafter, "Annualized
Includable Compensation") as defined in Section 280G(d)(1) of the Internal
Revenue Code of 1986, as amended (the "Code");
(iii) all options held by you granted under a Company stock
option plans, irrespective of whether such options are then exercisable,
shall be surrendered to the Company by you and such options shall be canceled
by the Company, in exchange for a cash payment by the Company in an amount
equal to the number of shares of the Company's common stock subject to your
option multiplied by the difference between (x) and (y) where (y) equals the
purchase price per share covered by the option and (x) equals the closing
sale price of a share of common stock on any exchange on which such shares
are traded or quoted as of the date of the Notice of Termination, or on the
next day on which shares are traded if none are traded on that day and
(ii) unrestricted ownership of all shares granted to you under the Company's
Restricted Stock Plan will vest in you, as of the date of the Notice of
Termination;
(iv) an amount equal to the difference between the amount you
are entitled to receive under the Company's retirement plans in a lump sum
upon termination of employment and the amount you would be entitled to
receive in a lump sum as of the Date of Termination if you had a 100% vested
interest in your accounts on the Date of Termination; and
(v) the Company shall also pay all relocation and indemnity
payments as set forth in clause (d)of the definition of Good Reason, and all
legal fees and expenses incurred by you as a result of such termination
(including all such fees and expenses, if any, incurred in contesting or
disputing any such termination or in seeking to obtain or enforce any right
or benefit provided by this Agreement). In addition, the Company hereby
agrees in the event you should desire to relocate within one year after the
Date of Termination, to apply all terms of its relocation policy then
in effect for internal transfers and to indemnify you in connection with
any loss you may sustain in the sale of your residence.
(d) Unless you are terminated as a result of death or
for Cause, the Company shall Cause you to continue to be
covered, without any cost to you in excess of the cost borne
by you prior to the Change in Control, under health, medical
and dental benefits and life insurance comparable to those
in effect immediately prior to the Change in Control
including, but not limited to, medical, dental, life
insurance, accidental death and dismemberment, and long term
disability benefits. Such continuation shall (i) also apply
to your dependents (including your spouse) who were covered
under such benefits immediately prior to the Change in
Control and (ii) apply for two years after the Date of
Termination; provided, however, that if Employee (and/or his
spouse) would have been entitled to retiree medical coverage
for life under the Company's medical plans had he
voluntarily retired on the date of such termination, then
such coverage shall be continued as provided under such
plans.
(e) Upon your termination of employment for any
reason, all country club memberships, luncheon clubs and
other memberships, which the Company was providing for your
use at the time Notice of Termination was given, to the
extent possible shall be transferred to you, at no cost to
you (other than taxes), the cost of transfer, if any, to be
borne by the Company.
(f) Upon your termination for any reason, the Company
shall enable you to purchase the automobile, if any, which
the Company was provided for your use at the time of
termination at dealer's wholesale cost as in effect at the
Date of Termination.
(g) Notwithstanding the foregoing, if the Company
shall terminate your employment other than for death,
Disability, Retirement or for Cause or if you shall
terminate your employment for Good Reason, the aggregate
compensation payable hereunder and any other payments to you
that are determined to be "parachute payments" under
Section 280G(b)(2) of the Code shall not equal or exceed
three times your Annualized Includable Compensation. In the
event that such payments would exceed such amount, the
compensation herein described determined to be parachute
payments shall be reduced to an amount that is one dollar
less than three times your Annualized Includable
Compensation, and you shall have the right to specify to the
Company the items of compensation and the amounts thereof to
be reduced in order to achieve the reduction. You agree to
cooperate with the Company by so specifying prior to the
time payments are due under the terms of this Agreement and
that, in the event of an overpayment, you shall immediately
upon demand pay such excess to the Company together with
interest thereon at a rate equal to the federal interest
rate determined by reference to Section 1274(b)(2) of the
Code. The determination of Annualized Includable
Compensation shall be made by either the independent public
accounting firm or any firm of counsel (general or special)
which had been employed by the Company prior to the Change
in Control, at the Company's election, and such
determination shall be binding on you and the Company.
(h) If you are a party to an employment agreement with
the Company, in the event of any termination of your
employment to which this Agreement would apply by its terms,
you shall have all of the benefits provided under either
this Agreement or such other agreement, whichever one (in
its entirety) you choose, but not under both agreements, and
when you have elected which agreement shall apply, the other
agreement shall be superseded in its entirety and shall be
of no further force or effect, and neither party shall have
any obligation to the other thereunder.
4. PAYMENT OBLIGATION ABSOLUTE. The Company's obligation
to pay (or cause one of its subsidiaries to pay) you the amounts
and to make the arrangements provided herein shall be absolute
and unconditional and shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company (including
its subsidiaries) may have against you or anyone else. All
amounts payable by the Company (including its subsidiaries
hereunder) shall be paid without notice or demand. You shall not
be required to mitigate the amount of any payment or benefit
provided for you herein by seeking other employment or otherwise,
nor shall the amount of any payment or benefit provided for
herein be reduced by any compensation earned by you as a result
of employment by another employer after the Date of Termination,
or otherwise.
5. SUCCESSORS, BINDING AGREEMENT. The Company will
require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company to expressly 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 had taken place. Failure of the Company to
obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitled
you to compensation from the Company in the same amount and on
the same terms as you would be entitled hereunder if you had
terminated your employment after a change in control of the
Company for Good Reason, except that for purposes of implementing
the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement
provided for in this paragraph 5 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of
law. This Agreement shall inure to the benefit of and be
enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If you should die while any amount would still be
payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to your devisee,
legatee, or other designee or, if there be no such designee, to
your estate.
6. NOTICE. Any termination by the Company shall be
communicated by written Notice of Termination to the other party
thereto. Notices and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page
of this Agreement, provided that all notices to the Company shall
be directed to the attention of the Secretary of the Company, or
to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
7. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver
or discharge is agreed to in writing signed by you and such
officer as may be specifically designated by the Board (which
shall in any event include the Company's Chief Executive
Officer). No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed
by the laws of the State of Louisiana. The obligation to pay
amounts under this Agreement is an unfunded obligation of the
Company (including its subsidiaries), and no such obligation
shall create a trust or be deemed to be secured by any pledge or
encumbrance on any property of the Company (including its
subsidiaries).
This Agreement shall not be deemed to constitute a contract
of employment, nor shall any provision hereof restrict the right
of the Company (or its subsidiaries) to discharge you at will.
8. VALIDITY. The invalidity or unenforceability of any
one or more provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same
instrument.
10. ARBITRATION. Any dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively
by arbitration in New Orleans, Louisiana in accordance with the
rules of the American Arbitration Association then in effect;
provided that all arbitration expenses shall be borne by the
Company. Notwithstanding the pendency of any dispute or
controversy concerning termination or the effects thereof, the
Company will continue to pay you twice monthly your full
compensation in effect immediately before any Notice of
Termination giving rise to the dispute was given (including, but
not limited to, base salary and bonus or incentive pay) and
continue you as a participant in all compensation, benefit and
insurance plans in which you were then participating, until the
dispute is finally resolved. Subject only to item (vii) of
paragraph 3, amounts paid under this paragraph are in addition to
all other amounts due under this Agreement and shall not be
offset against or reduce any other amounts due under this
Agreement. Judgment may be entered on the arbitrators' award in
any court having jurisdiction; provided, however, that you shall
be entitled to seek specific performance of your right to be paid
until the Date of Termination during the pendency of any dispute
or controversy arising under or in connection with this
Agreement.
If this letter correctly sets forth our agreement on the
subject matter hereof, kindly sign and return to the Company the
enclosed copy of this letter which will then constitute our
agreement on this subject.
Sincerely,
` Global Industries, Ltd.
By:
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Name:
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Title:
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AGREED TO THIS DAY
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OF , 1995
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Name:
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Title:
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