EXHIBIT 10(d)
TIDEWATER
THIRD AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PENSION SERP
November 28, 2000
TIDEWATER INC.
THIRD AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
PREAMBLE............................................................ 1
ARTICLE 1: PURPOSE OF THE PLAN.................................... 1
ARTICLE 2: THE PENSION PLAN....................................... 1
ARTICLE 3: ADMINISTRATION......................................... 1
ARTICLE 4: ELIGIBILITY............................................ 2
ARTICLE 5: AMOUNT OF SUPPLEMENTAL PENSION BENEFIT................. 2
ARTICLE 6: PAYMENT OF SUPPLEMENTAL PENSION BENEFIT................ 3
ARTICLE 6A. PAYMENT ELECTION IN ANTICIPATION OF A CHANGE
OF CONTROL........................................... 3
ARTICLE 7: EMPLOYEES' RIGHTS...................................... 4
ARTICLE 8: AMENDMENT AND DISCONTINUANCE........................... 4
ARTICLE 8A: CHANGE OF CONTROL...................................... 5
ARTICLE 9: RESTRICTIONS ON ASSIGNMENT............................. 7
ARTICLE 10: NATURE OF AGREEMENT.................................... 7
ARTICLE 11: CONTINUED EMPLOYMENT................................... 7
ARTICLE 12: BINDING ON EMPLOYER, EMPLOYEES AND THEIR SUCCESSORS.... 8
ARTICLE 13: LAWS GOVERNING......................................... 8
ARTICLE 14: MISCELLANEOUS.......................................... 8
TIDEWATER INC.
THIRD AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PREAMBLE
Tidewater Inc. ("Employer") is the sponsor of the Tidewater Pension Plan
("Pension Plan"), which is a plan qualified under Section 401(a) of the Internal
Revenue Code of 1986 ("Code"). Benefits under the Pension Plan are limited by
various sections of the Code, such as Sections 401(a)(17) and 415. In order to
provide benefits to a select group of management or highly compensated
employees equal to the benefits that such employees are prevented from receiving
under the Pension Plan because of those Code limitations, the Employer adopted a
nonqualified unfunded plan known as the Tidewater Inc. Supplemental Executive
Retirement Plan ("Plan"), effective as of July 1, 1991. The Plan also replaces
certain service lost under the Pension Plan due to breaks in service, and
enhances the benefit calculation formula. The Employer amended and restated the
Plan effective January 1, 1993, further amended the Plan effective January 1,
1994, adopted two amendments and amended and restated the Plan effective October
1, 1999, further amended the Plan effective November 28, 2000 and hereby
restates the Plan effective November 28, 2000, as set forth below.
ARTICLE 1: PURPOSE OF THE PLAN
The Employer intends and desires by the adoption of this Plan to recognize
the value to the Employer of past and present services of certain Eligible
Employees and to encourage and assure their continued service with the Employer
by making more adequate provision for their future retirement security. The
establishment of this Plan is made necessary by certain limitations on
contributions and benefits which are imposed on the Pension Plan by the Code.
The Employer also wishes to compensate certain members of management or highly
compensated employees who may have been disadvantaged by the break in service
rules under the Pension Plan and to enhance the benefit calculation formula.
ARTICLE 2: THE PENSION PLAN
The Pension Plan, whenever referred to in this Plan, shall mean the
Tidewater Pension Plan, as amended, as it exists as of the date any
determination is made of benefits payable under this Plan. All terms used in
this Plan shall have the meanings assigned to them under the provisions of the
Pension Plan, unless otherwise qualified by the context. Since this Plan is
intended to supplement the Pension Plan, any ambiguities or gaps in this Plan
shall be resolved by reference to the Pension Plan document.
ARTICLE 3: ADMINISTRATION
This Plan shall be administered by the Compensation Committee of Employer's
Board of Directors, the Employee Benefits Committee, and the Board of Directors
of the Employer, which shall administer this Plan in a manner consistent with
their duties of administration of the Pension Plan. Each of these governing
bodies shall have full power and authority to interpret, construe and administer
this Plan in accordance with their respective duties under the Pension Plan, and
a governing body's interpretations and constructions hereof and actions
hereunder, including the timing, form, amount or recipient of any payment to be
made hereunder, within the
scope of its authority, shall be binding and conclusive on all persons for all
purposes. No member of a governing body shall be liable to any person for any
action taken or omitted in connection with the interpretation and administration
of this Plan, unless attributable to his own willful misconduct or lack of good
faith. Each administrator shall be fully indemnified as provided in the Pension
Plan. A member of a governing body shall not participate in any action or
determination regarding his own benefits hereunder.
ARTICLE 4: ELIGIBILITY
To be eligible to participate in this Plan, an Employee must satisfy the
following conditions, (a) and (b):
1. The Employee must be a Participant in the Pension Plan;
2. The Employee must serve as the Chief Executive Officer, the
President, a Vice President or the Corporate Controller of the Employer.
An Employee who satisfies conditions (a) and (b) is referred to as an
"Eligible Employee." An Eligible Employee who ceases to be an Eligible Employee
because of a change in his status as an officer under (b), shall have benefits
under this Plan frozen as of the date he ceases to be an officer described in
(b), and his benefits shall be paid as provided in Articles 6 and 6A.
Notwithstanding the foregoing, the Board of Directors or the Compensation
Committee of the Board of Directors of the Employer may, in its discretion,
determine to increase benefits hereunder, accelerate the time or times of
payment of benefits hereunder or change the date (but not retroactively) on
which benefits cease to accrue, for an Employee who is age 55 or older
and for whom a significant change in the terms of employment has occurred.
Notwithstanding anything to the contrary, the Plan may not be amended to
preclude the participation in the Plan, on the same basis as other Eligible
Employees, of the person serving on October 1, 1999 as the Chief Executive
Officer, the President, a Vice President or the Corporate Controller of the
Employer, as long as such person continues to serve in such position or in any
equivalent or higher position.
ARTICLE 5: AMOUNT OF SUPPLEMENTAL PENSION BENEFIT
Unless otherwise determined by the Board of Directors or Compensation
Committee under Article 4, the amount of supplemental pension benefit shall be:
(a) The supplemental pension benefit payable to an Eligible Employee or
his Beneficiary or Beneficiaries under this Plan shall be the actuarial
equivalent (based on the definition of this term in Section 1.02 of the Pension
Plan) of the excess, if any, of (i) over (ii) as described below:
(i) the benefit which would have been payable to such Eligible
Employee or on his behalf to his Beneficiary or Spouse, as the case may be,
under the Pension Plan (but not taking into account any Additional Monthly
Benefit payable under Section 5.07 of the Pension Plan), if the provisions of
Pension Plan were administered without regard to either the maximum amount of
retirement income limitations of Section 415 of the Code, or the maximum
compensation limitation of Section 401(a)(17) of the Code,
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(ii) the benefit (including any Additional Monthly Benefit) which
is in fact payable to such Eligible Employee or on his behalf to his Beneficiary
or Spouse under the Pension Plan.
(b) The computation in paragraph (a) above shall be made as though the
factor, 0.85%, in Section 5.01(b)(1) of the Pension Plan were 1.35%.
(c) The computation in paragraph (i) above shall be made as though the
Employee's service under the Pension Plan included the service prior to a break
in service lost under such Plan as a result of a break in service. After an
Employee becomes an Eligible Employee, he may request the Employer to provide
him with a written statement of the number of years of service lost under the
Pension Plan. If the Eligible Employee disagrees with the Employer's
determination, he immediately shall contest it through the Plan's Appeal
Procedure referenced in Article 14, below. In the absence of the Eligible
Employee's timely request and objection, the Employer's determination shall
become fixed.
(d) Supplemental pension benefits payable under this Plan to any
recipient shall be computed in accordance with the foregoing, with the objective
that such recipient should receive under this Plan and the Pension Plan the
total amount which would have been payable to that recipient solely under the
Pension Plan (as enriched by (b) and (c)), had neither Section 415 nor Section
401(a)(17) of the Code been applicable thereto. An Eligible Employee who is not
entitled to benefits under the Pension Plan is not entitled to supplemental
pension benefits under this Plan.
ARTICLE 6: PAYMENT OF SUPPLEMENTAL PENSION BENEFIT
Except as provided in Article 4, 8 or 8A or unless the Employee elects
otherwise under this Article 6 or Article 6A, the supplemental pension benefit
under the Plan with respect to an Employee shall commence at the same time and
be paid in the same form and to the same recipient as the benefit with respect
to the Employee that is payable under the Pension Plan. An Employee can elect,
on a form provided by the Committee, to receive a benefit commencing at an
earlier date following termination of employment and after reaching age 55, but
only if the election is made at least 13 months prior to the benefit
commencement date. The earlier benefit can be paid in any form permitted under
the Pension Plan. The benefit paid earlier than the benefit under the Pension
Plan shall be determined as if the Pension Plan benefit were being paid at the
same time and in the same form as the benefit under the Plan.
The foregoing notwithstanding, if the total value of the benefit payable
under the Plan to the Employee or the Employee's Spouse upon the Employee's
termination of employment (by retirement, death or otherwise) is less than
$10,000, the recipient shall receive an immediate lump sum benefit.
ARTICLE 6A. PAYMENT ELECTION IN ANTICIPATION OF A CHANGE OF CONTROL
An Employee or a former Employee who has not yet satisfied the
requirements to begin to receive payment of benefits under the Plan can also
elect at any time prior to a Change of Control, in a form and manner reasonably
satisfactory to the Company, to have the supplemental pension benefit that
becomes payable under the Plan to such Employee or former Employee following a
Change of Control paid in cash in the form of a lump sum as of the date payments
to the Employee would otherwise commence under the terms of the Plan, without
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regard to the form of payment provisions otherwise provided in the Plan and any
payment or distribution elections applicable to the payment of the Employee's or
former Employee's benefit in the absence of a Change of Control. A former
Employee who has satisfied the requirements to begin to receive the payment of
benefits under the Plan, whether or not payments have commenced, can also elect
at any time prior to a Change of Control, in a form and manner reasonably
satisfactory to the Company, to have the full value of the remaining
supplemental pension benefits payable to such former Employee paid in a lump sum
in cash within five business days of the Change of Control, without regard to
the form of payment provisions otherwise provided in the Plan and any payment or
distribution elections applicable to the payment of the former Employee's
benefit in the absence of a Change of Control. The determination of the lump
sum amount shall be made using the same assumptions as are used in the Pension
Plan to determine the amount of a lump sum benefit.
ARTICLE 7: EMPLOYEES' RIGHTS
No Employee, Spouse or Beneficiary shall have greater rights under this
Plan than those of general creditors of the Employer. Benefits payable under
this Plan shall be a mere promise to pay in the future and shall be general,
unsecured obligations of the Employer, to be paid by the Employer from its own
funds. Such payments shall not (i) impose any additional obligation upon the
Employer under the Pension Plan; (ii) be paid from the Pension Plan; or (iii)
have any effect whatsoever upon the Pension Plan. No Employee or his
Beneficiary or Spouse shall have any title to or beneficial ownership in any
assets which the Employer may use to pay benefits hereunder. Notwithstanding
the foregoing provisions of this Article 7 and any other provision of the Plan
(including, without limitation, Article 10), the Employer may, in its
discretion, establish a trust to pay amounts becoming payable pursuant to the
Plan, which trust shall be subject to the claims of the general creditors of the
Employer in the event of its bankruptcy or insolvency. Notwithstanding any
establishment of such a trust, the Company shall remain responsible for the
payment of any amounts so payable which are not so paid by such trust.
ARTICLE 8: AMENDMENT AND DISCONTINUANCE
The Employer expects to continue this Plan indefinitely but, except as
otherwise provided, reserves the right to amend or discontinue it if, in its
sole judgment, such a change is deemed necessary or desirable. However, if the
Employer should amend or discontinue this Plan, the Employer shall continue to
be liable to pay all benefits accrued under this Plan (determined on the basis
of each Employee's presumed termination of employment as of the date of such
amendment or discontinuance), as of the date of such action. Such accrued
benefits shall be calculated pursuant to the provisions of the Plan immediately
prior to any such amendment or discontinuance. Upon a discontinuance, all
benefits shall be 100% vested, and a lump sum equal to the actuarial present
value of each Employee's unpaid accrued benefit under this Plan shall be
distributed to the Employee (or his Beneficiary or Spouse), and the Employer
shall have no further obligation under this Plan. Such lump sum distributions
shall be distributed within the thirty (30) days immediately following such
discontinuance. No amendment shall be deemed to cause a reduction in an
Employee's accrued benefit under the Plan if the reduction of the benefit under
this Plan is paired with a corresponding increase in the accrued benefit under
the Pension Plan.
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ARTICLE 8A: CHANGE OF CONTROL
8A.01 Effect of Change of Control. Upon a Change of Control (as defined
in Section 8A.02 hereof) all benefits which have accrued under the Plan shall
immediately become fully vested. Upon or after a Change of Control, the Plan
shall be deemed to have been discontinued (within the meaning of Article 8
hereof) upon the first to occur of the following: (i) the date of the Change of
Control if the successor to the Employer shall have failed to assume the
obligations under the Plan prior to or upon such Change of Control, either by
express agreement or by operation of law, (ii) the date of any amendment to the
Plan which reduces or adversely affects either the benefit accrued with respect
to any Employee or the future benefit accrual of any Employee (unless paired
with a corresponding increase in the benefit paid under the Pension Plan), or
(iii) if the Employer shall have established a trust as described in the last
two sentences of Article 7 hereof, any failure of the Employer (or the successor
to the Employer) to make in a timely fashion any contribution to the trust with
respect to benefits accrued under the Plan which may be required by the terms of
such trust.
8A.02 Definition of Change of Control. As used in this Section 8A,
'Change of Control' shall mean:
(i) the acquisition by any 'Person' (as defined in Section 8A.03 hereof)
of 'Beneficial Ownership' (as defined in Section 8A.03 hereof) of 30% or
more of the outstanding Shares of the Company's Common Stock, $0.10 par
value per share (the 'Common Stock') or 30% or more of the combined voting
power of the Company's then outstanding securities; provided, however, that
for purposes of this subsection 8A.02(i), the following shall not
constitute a Change of Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 8A.02(iii) hereof) which constitutes a Change of
Control under Section 8A.02(iii) hereof) of Common Stock directly from
the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation pursuant
to a Business Combination which does not constitute a Change of
Control under Section 8A.02(iii) hereof; or
(ii) individuals who, as of the effective date of the Amendment,
constitute the Board (the 'Incumbent Board') cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the effective date of the
Amendment whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered a member
of the Incumbent Board, unless such individual's initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Incumbent Board; or
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(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of all or
substantially all of the assets of the Company (a 'Business Combination'),
in each case, unless, immediately following such Business Combination,
(A) the individuals and entities who were the Beneficial Owners
of the Company's outstanding Common Stock and the Company's voting
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination have direct or indirect
Beneficial Ownership, respectively, of more than 50% of the then
outstanding shares of common stock, and more than 50% of the combined
voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, of the Post-Transaction
Corporation (as defined in Section 8A.03 hereof), and
(B) except to the extent that such ownership existed prior to the
Business Combination, no Person (excluding the Post-Transaction
Corporation and any employee benefit plan or related trust of either
the Company, the Post-Transaction Corporation or any subsidiary of
either corporation) Beneficially Owns, directly or indirectly, 30% or
more of the then outstanding shares of common stock of the corporation
resulting from such Business Combination or 30% or more of the
combined voting power of the then outstanding voting securities of
such corporation, and
(C) at least a majority of the members of the board of directors
of the Post-Transaction Corporation were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
8A.03 Other Definitions. As used in Section 8A.02 hereof, the following
words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a Person
that controls, or is controlled by, or is under common control with,
another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants thereof), with
respect to a security, shall mean a Person who, directly or indirectly
(through any contract, understanding, relationship or otherwise), has or
shares (i) the power to vote, or direct the voting of, the security, and/or
(ii) the power to dispose of, or to direct the disposition of, the
security.
(iii) Person: 'Person' shall mean a natural person or company, and
shall also mean the group or syndicate created when two or more Persons act
as a syndicate or other group (including, without limitation, a partnership
or limited partnership) for the purpose of acquiring, holding, or disposing
of a security, except that 'Person' shall not
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include an underwriter temporarily holding a security pursuant to an
offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control includes a
Business Combination (as defined in Section 8A.02(iii) hereof), 'Post-
Transaction Corporation' shall mean the Company after the Change of
Control. If a Change of Control includes a Business Combination, 'Post-
Transaction Corporation' shall mean the corporation resulting from the
Business Combination unless, as a result of such Business Combination, an
ultimate parent corporation controls the Company or all or substantially
all of the Company's assets either directly or indirectly, in which case,
'Post-Transaction Corporation' shall mean such ultimate parent corporation.
ARTICLE 9: RESTRICTIONS ON ASSIGNMENT
The interest of an Employee or his Beneficiary or Spouse may not be sold,
transferred, assigned, or encumbered in any manner, either voluntarily or
involuntarily, and any attempt so to anticipate, alienate, sell, transfer,
assign, pledge, encumber, or charge the same shall be null and void; neither
shall the benefits hereunder be liable for or subject to the debts, contracts,
liabilities, engagement, or torts of any person to whom such benefits or funds
are payable, nor shall they be subject to garnishment attachment, or other legal
or equitable process nor shall they be an asset in bankruptcy, except that no
amount shall be payable hereunder until and unless any and all amounts
representing debts or other obligations owed to the Employer or any affiliate of
the Employer by the Employee with respect to whom such amount would otherwise be
payable shall have been fully paid and satisfied. The interest of any Employee,
Beneficiary or Spouse shall be held subject to the maximum restraint on
alienation permitted or required by applicable Louisiana law.
ARTICLE 10: NATURE OF AGREEMENT
Eligible Employees and their Beneficiaries by virtue of participating
under this Plan have only an unsecured right to receive benefits from their
Employer as a general creditor of the Employer. The Plan constitutes a mere
promise to make payments in the future. The adoption of the Plan and any
setting aside of amounts by the Employer with which to discharge its obligations
hereunder shall not be deemed to create a trust for the benefit of Eligible
Employees or their Beneficiaries; except as provided in any trust document,
legal and equitable title to any funds so set aside shall remain in the
Employer, and any recipient of benefits hereunder shall have no security or
other interest in such funds. Any and all funds so set aside shall remain
subject to the claims of the general creditors of the Employer, present and
future, and no payment shall be made under this Plan unless the Employer is then
solvent. This provision shall not require the Employer to set aside any funds,
but the Employer may set aside such funds if it chooses to do so.
ARTICLE 11: CONTINUED EMPLOYMENT
Nothing contained herein shall be construed as conferring upon any
Employee the right to continue in the employ of the Employer in any capacity.
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ARTICLE 12: BINDING ON EMPLOYER, EMPLOYEES AND THEIR SUCCESSORS
This Plan shall be binding upon and inure to the benefit of the Employer,
its successors and assigns and each Eligible Employee and his heirs, executors,
administrators and legal representatives.
ARTICLE 13: LAWS GOVERNING
This Plan shall be construed in accordance with and governed by the laws
of the State of Louisiana, except to the extent that the Plan is governed by the
Employee Retirement Income Security Act of 1974 ("ERISA"). It is the Employer's
intent that the Plan shall be exempt from ERISA's provisions, to the maximum
extent permitted by law. To the extent that the Plan is an excess benefit plan
(as defined in Section 3(36) of ERISA), it shall be exempt from coverage
entirely, as provided in ERISA Section 4(b)(5). The Plan is intended to be
unfunded for federal income tax purposes and for purposes of title I of ERISA
and intended to provide deferred compensation only for a select group of
management or highly compensated employees and shall be exempt from Parts 2, 3,
and 4 of ERISA, pursuant to Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA.
ARTICLE 14: MISCELLANEOUS
14.1 Claims and Appeal Procedures. All disputes over benefits allegedly
due under this Plan shall be resolved through the procedures for making claims,
and appealing from denials of claims, that are set forth in the Summary Plan
Description of the Pension Plan.
14.2 Recovery of Payments Made by Mistake. Notwithstanding anything to
the contrary, an Eligible Employee or other person receiving amounts from the
Plan is entitled only to those benefits provided by the Plan and promptly shall
return any payment, or portion thereof, made by mistake of fact or law. The
Committee may offset the future benefits of any recipient who refuses to return
an erroneous payment, in addition to pursuing any other remedies provided by
law.
EXECUTED effective this 28th day of November, 2000.
TIDEWATER INC.
By: /s/ J. Keith Lousteau
---------------------------------
J. Keith Lousteau
Senior Vice President, Chief
Financial Officer and Treasurer
ATTEST:
By: /s/ Michael L. Goldblatt
----------------------------
Michael L. Goldblatt
Assistant Secretary
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