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EXHIBIT 10.2
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("the Agreement") between Tidewater,
Inc., a Delaware corporation (the "Company"), and Ken C. Tamblyn (the
"Employee") is dated effective as of September 30, 1996 (the "Change of Control
Agreement Date").
ARTICLE I
DEFINITIONS
1.1 AFFILIATE DEFINED. "Affiliate" or "affiliated companies" shall
mean any company controlled by, controlling, or under common control with, the
Company.
1.2 CAUSE DEFINED. "Cause" shall mean:
(a) the willful and continued failure of the Employee
to perform substantially the Employee's duties with the Company
or its affiliates (other than any such failure resulting from
incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to the Employee
by the Board of the Company which specifically identifies the
manner in which the Board believes that the Employee has not
substantially performed the Employee's duties, or
(b) the willful engaging by the Employee in illegal
conduct or gross misconduct.
For purposes of this provision, no act or failure to act, on the part of the
Employee, shall be considered "willful" unless it is done, or omitted to be
done, by the Employee in bad faith or without reasonable belief that the
Employee's action or omission was in the best interests of the Company or its
Affiliates. Any act, or failure to act, based upon authority given pursuant to
a resolution duly adopted by the Board or upon the instructions of a senior
officer of the Company or based upon the advice of counsel for the Company or
its Affiliates shall be conclusively presumed to be done, or omitted to be
done, by the Employee in good faith and in the best interests of the Company or
its Affiliates. The cessation of employment of the Employee shall not be
deemed to be for Cause unless his action or inaction meets the foregoing
standard and until there shall have been delivered to the Employee a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice is provided to the Employee and the
Employee is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Employee is
guilty of the conduct described in subparagraph (a) or (b) above, and
specifying the particulars thereof in detail.
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1.3 CHANGE OF CONTROL DEFINED. "Change of Control" shall mean:
(a) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934 of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than 30% of the outstanding
shares of the Company's Common Stock, $0.10 par value per share (the
"Common Stock"); provided, however, that for purposes of this subsection
(a), the following shall not constitute a Change of Control:
(i) any acquisition of Common Stock directly from the
Company,
(ii) any acquisition of Common Stock by the Company,
(iii) 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
(iv) any acquisition of Common Stock by any corporation
pursuant to a transaction that complies with clauses (i), (ii)
and (iii) of subsection (c) of this Section 1.3; or
(b) individuals who, as of the Change of Control Agreement
Date, 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 Change of Control
Agreement Date 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
(c) consummation of a reorganization, merger or consolidation,
or sale or other disposition of all of substantially all of the assets
of the Company (a "Business Combination"), in each case, unless,
following such Business Combination,
(i) all or substantially all of 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 corporation resulting from such Business
Combination (which, for purposes of this paragraph (i) and
paragraphs (ii) and (iii), shall include a corporation which as a
result of such transaction controls the Company
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or all or substantially all of the Company's assets either
directly or through one or more subsidiaries), and
(ii) except to the extent that such ownership existed
prior to the Business Combination, no person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan or related trust of the Company or such
corporation resulting from such Business Combination)
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
(iii) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination 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
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
1.4 COMPANY DEFINED. As used in this Agreement, "Company" shall mean
the Company as defined above and any successor to or assignee of (whether
direct or indirect, by purchase, merger, consolidation or otherwise) all or
substantially all of the assets or business of the Company.
1.5 DISABILITY DEFINED. "Disability" shall mean a condition that
would entitle the Employee to receive benefits under the Company's long-term
disability insurance policy in effect at the time either because he is totally
disabled or partially disabled, as such terms are defined in the Company's
policy in effect as of the date of this Agreement or as similar terms are
defined in any successor policy. If the Company has no long-term disability
plan in effect, "Disability" shall occur if (a) the Employee is rendered
incapable because of physical or mental illness of satisfactorily discharging
his duties and responsibilities to the Company for a period of 90 consecutive
days, (b) a duly qualified physician chosen by the Company and acceptable to
the Employee or his legal representatives so certifies in writing, and (c) the
Board determines that the Employee has become disabled.
1.6 GOOD REASON DEFINED. "Good Reason" shall mean:
(a) Any failure of the Company or its Affiliates to provide
the Employee with the position, authority, duties and responsibilities
at least commensurate in all material respects with the most significant
of those held, exercised and assigned at any time during the 120-day
period immediately preceding the Change of Control. The Employee's
position, authority, duties and responsibilities after a Change of
Control shall be considered commensurate in all material respects with
Employee's position, authority, duties and responsibilities prior to a
Change of Control if after the Change of Control Employee either holds
(i) an equivalent position in the Company or, (ii) if
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the Company is controlled or will after the transaction be controlled by
another company (directly or indirectly), an equivalent position in the
ultimate parent company.
(b) The assignment to the Employee of any duties inconsistent
in any material respect with Employee's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3.1(b) of this Agreement, or
any other action that results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith
that is remedied within 10 days after receipt of written notice thereof
from the Employee to the Company;
(c) Any failure by the Company or its Affiliates to comply
with any of the provisions of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith that is
remedied within 10 days after receipt of written notice thereof from the
Employee to the Company;
(d) The Company or its Affiliates requiring the Employee to be
based at any office or location other than as provided in Section
3.1(b)(ii) hereof or requiring the Employee to travel on business to a
substantially greater extent than required immediately prior to the
Change of Control;
(e) Any purported termination of the Employee's employment
otherwise than as expressly permitted by this Agreement; or
(f) Any failure by the Company to comply with and satisfy
Sections 4.1(c) and (d) of this Agreement.
ARTICLE II
STATUS OF CHANGE OF CONTROL AGREEMENTS
Notwithstanding any provisions thereof, this Agreement supersedes the
agreement dated October 8, 1986 between the Company and the Employee that
provided for certain severance benefits in the event of a Change of Control of
the Company, as defined therein.
ARTICLE III
CHANGE OF CONTROL BENEFIT
3.1 EMPLOYMENT TERM AND CAPACITY AFTER CHANGE OF CONTROL. (a) This
Agreement shall commence on the date hereof and continue in effect through
December 31, 1997; provided, however, that commencing on January 1, 1998 and
each January 1 thereafter, the term of this Agreement shall automatically be
extended for one additional year unless, not later than September 30 of the
preceding year, the Company shall have given notice that it does not wish to
extend this Agreement; provided, further, that notwithstanding any such notice
by the Company not to extend, if a Change of Control of the Company shall have
occurred during the original or extended term of this Agreement, this Agreement
shall continue in effect through the second anniversary of the Change of
Control (such period following a Change of
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Control being referred to herein as the "Employment Term"), subject to any
earlier termination of Employee's status as an employee pursuant to this
Agreement.
(b) After a Change of Control and during the Employment Term, (i) the
Employee's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding the Change of Control and (ii) the Employee's service shall be
performed during normal business hours at the Company's principal executive
office, at its location at the time of the Change of Control, or the location
where the Employee was employed immediately preceding the Change of Control or
any relocation of the Company's principal executive office to a location that
is not more than 35 miles from such current location. Employee's position,
authority, duties and responsibilities after a Change of Control shall not be
considered commensurate in all material respects with Employee's position,
authority, duties and responsibilities prior to a Change of Control unless
after the Change of Control Employee holds (x) an equivalent position in the
Company or, (y) if the Company is controlled or will after the transaction be
controlled by another company (directly or indirectly), an equivalent position
in the ultimate parent company.
3.2 COMPENSATION AND BENEFITS. During the Employment Term, Employee
shall be entitled to the following compensation and benefits:
(a) Base Salary. The Employee shall receive an annual base
salary ("Base Salary"), which shall be paid at a monthly rate, at least
equal to 12 times the highest monthly base salary that was paid or is
payable, including any base salary which has been earned but deferred by
the Employee, by the Company and its affiliated companies with respect
to any month in the 12-month period ending with the month that
immediately precedes the month in which the Change of Control occurs.
During the Employment Term, the Base Salary shall be reviewed at such
time as the Company undertakes a salary review of its other executive
officers, and, to the extent that salary increases are granted to such
other executive officers, the Employee shall be granted a salary
increase commensurate with his peer executives of the Company and its
affiliates. Any increase in Base Salary shall not serve to limit or
reduce any other obligation to the Employee under this Agreement. Base
Salary shall not be reduced after any such increase and the term Base
Salary as utilized in this Agreement shall refer to Base Salary as so
increased.
(b) Annual Bonus. In addition to Base Salary, the Employee
shall be awarded, for each fiscal year ending during the Employment
Term, an annual bonus (the "Bonus") in cash in an amount at least equal
to the average of the annual bonuses paid to the Employee with respect
to the three fiscal years that immediately precede the year in which the
Change of Control occurs under the Company's annual bonus plan, or any
comparable bonus under a successor plan. Each such Bonus shall be paid
no later than the end of the third month of the fiscal year next
following the fiscal year for which the Bonus is awarded, unless the
Employee shall elect to defer the receipt of such Bonus.
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(c) Fringe Benefits. The Employee shall be entitled to fringe
benefits (including, but not limited to, automobile allowance,
reimbursement for membership dues, and air travel) commensurate with
those provided to other peer executive officers of the Company and its
affiliated companies.
(d) Expenses. The Employee shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Employee in accordance with the most favorable agreements, policies,
practices and procedures of the Company and its affiliated companies in
effect for the Employee at any time during the 120-day period
immediately preceding the Change of Control or, if more favorable to the
Employee, as in effect generally at any time thereafter with respect to
other peer employees of the Company and its affiliated companies.
(e) Incentive, Savings and Retirement Plans. The Employee
shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally
to other peer employees of the Company and its affiliated companies, but
in no event shall such plans, practices, policies and programs provide
the Employee 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 than the most
favorable of those provided by the Company and its affiliated companies
for the Employee under any agreements, plans, practices, policies and
programs as in effect at any time during the 120-day period immediately
preceding the Change of Control or, if more favorable to the Employee,
those provided generally at any time after the Change of Control to
other peer employees of the Company and its affiliated companies.
(f) Welfare Benefit Plans. The Employee and/or the Employee's
family, as the case may be, shall be eligible for participation in and
shall receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable
generally to other peer employees of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and
programs provide the Employee with benefits, in each case, less
favorable than the most favorable of any agreements, plans, practices,
policies and programs in effect for the Employee at any time during the
120-day period immediately preceding the Change of Control or, if more
favorable to the Employee, those provided generally at any time after
the Change of Control to other peer employees of the Company and its
affiliated companies.
(g) Office and Support Staff. The Employee shall be entitled
to an office or offices of a size and with furnishings and other
appointments, and to secretarial and other assistance, commensurate with
those provided to other peer executive officers of the Company and its
affiliated companies.
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(h) Vacation. The Employee shall be entitled to paid vacation
in accordance with the most favorable agreements, plans, policies,
programs and practices of the Company and its affiliated companies as in
effect for the Employee at any time during the 120-day period
immediately preceding the Change of Control or, if more favorable to the
Employee, as in effect generally at any time thereafter with respect to
other peer employees of the Company and its affiliated companies.
(i) Indemnification. If in connection with any agreement
related to a transaction that will result in a Change of Control of the
Company, an undertaking is made to provide the Board of Directors with
rights to indemnification from the Company (or from any other party to
such agreement), the Employee shall, by virtue of this Agreement, be
entitled to the same rights to indemnification as are provided to the
Board of Directors pursuant to such agreement. Otherwise, the Employee
shall be entitled to indemnification rights on terms no less favorable
to Employee than those available under the Certificate of Incorporation,
bylaws or resolutions of the Company at any time after the Change of
Control to other peer employees of the Company. Such indemnification
rights shall be with respect to all claims, actions, suits or
proceedings to which the Employee is or is threatened to be made a party
that arise out of or are connected to his services at any time prior to
the termination of his employment, without regard to whether such
claims, actions, suits or proceedings are made, asserted or arise during
or after the Employment Term.
(j) Directors and Officers Insurance. If in connection with
any agreement related to a transaction that will result in a Change of
Control of the Company, an undertaking is made to provide the Board of
Directors of the Company with continued coverage following the Change of
Control under one or more directors and liability insurance policies,
then the Employee shall, by virtue of this Agreement, be entitled to the
same rights to continued coverage under such directors and officers
liability insurance policies as are provided to the Board of Directors.
Otherwise, the Company shall agree to cover Employee under any directors
and officers liability insurance policies as are provided generally at
any time after the Change of Control to other executive officers of the
Company.
3.3 OBLIGATIONS UPON TERMINATION AFTER A CHANGE OF CONTROL.
(a) Termination by Company for Reasons other than Death,
Disability or Cause or by Employee for Good Reason. If, after a Change
of Control and during the Employment Term, the Company terminates the
Employee's employment other than for Cause, death or Disability, or the
Employee terminates employment for Good Reason,
(i) the Company shall pay to the Employee in a lump sum
in cash within five business days of the date of termination an
amount equal to three times the sum of (i) the amount of Base
Salary in effect at the date of termination, plus (ii) the
greater of (x) the average of the annual bonuses paid or to be
paid to the Employee with respect to the immediately preceding
three fiscal years or (y) the target Bonus for which the Employee
is eligible for the
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12-month period in which the date of termination occurs, as such
target bonus has been established by the Company for such year;
(ii) for a period of thirty-six (36) months following
the date of termination of employment (the "Continuation
Period"), the Company shall at its expense continue on behalf of
the Employee and his dependents and beneficiaries the life
insurance, disability, medical, dental and hospitalization
benefits provided (x) to the Employee at any time during the
120-day period prior to the Change in Control or at any time
thereafter or (y) to other similarly situated executives who
continue in the employ of the Company during the Continuation
Period. The coverage and benefits (including deductibles and
costs) provided in this Section 2.3(a)(ii) during the
Continuation Period shall be no less favorable to the Employee
and his dependents and beneficiaries, than the most favorable of
such coverages and benefits during any of the periods referred to
in clauses (x) or (y) above. In addition, if Employee has
reached age 52 and has completed seven years of service at the
time of a Change of Control, Employee shall automatically become
vested in the post-retirement benefits provided under the
Tidewater Group Welfare Benefits Plan (the "GWB Plan") and be
entitled to receive, following termination of employment with the
Company, all benefits that would be payable to Employee under the
GWB Plan or any successor plan of the Company or its affiliated
companies had the Employee retired from employment with the
Company or one of its affiliated companies on the later of the
third anniversary of the Change of Control or the Employee's date
of retirement (as defined in the GWB Plan) from employment with
the Company. The Company's obligation hereunder with respect to
the foregoing benefits shall be limited to the extent that the
Employee obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Company may reduce
the coverage of any benefits it is required to provide the
Employee hereunder as long as the aggregate coverages and
benefits of the combined benefit plans is no less favorable to
the Employee than the coverages and benefits required to be
provided hereunder. The Employee will be eligible for coverage
under the Consolidated Omnibus Budget Reconciliation Act at the
end of the Continuation Period or earlier cessation of the
Company's obligation hereunder.
(iii) the Employee shall immediately become fully (100%)
vested in his benefit under each supplemental or excess
retirement plan of the Company in which the Employee was a
participant, including, but not limited to the Tidewater, Inc.
Supplemental Executive Retirement Plan (the "SERP") , the
Supplemental Savings Plan and any successor plans;
(iv) the Company shall contribute to the trust
established in connection with the SERP and the Supplemental
Savings Plan (the "Trust") for the Employee's account in cash
within five business days of the date of termination of
employment an amount equal to the then present value of the
actuarial equivalent of the additional benefits, if any, to which
the Employee would be entitled under the Tidewater, Inc. Pension
Plan, the SERP and any other
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qualified or non-qualified defined benefit plan maintained by the
Company and covering the Employee, regardless of the vesting
requirements thereof, if the Employee had continued to be
employed by the Company until the third anniversary of the Change
of Control.
(v) the Company shall contribute to the Supplemental
Savings Plan trust for the Employee's account in cash within five
business days of the date of termination of employment an amount
equal to the amount of employer contributions that would have
been made on the Employees's behalf if the Employee had continued
to participate in the Company's Savings Plan, the Company's
Supplemental Savings Plan and any other qualified or
non-qualified defined contribution plan maintained by the Company
until the third anniversary of the Change of Control. Such
contribution shall, in the case of a qualified plan, be
calculated as if the Employee were fully vested and participating
to the maximum extent permitted by such plan and, in the case of
a non-qualified plan, be calculated on the same basis as the
Employee was participating in such plans and, in all cases be
calculated on the basis of the Employee's annual salary rate at
the time of the Change of Control.
(vi) to the extent that Employee is not fully vested in
his accrued benefits under the Pension Plan, the Savings Plan or
any other qualified plan maintained by the Company, at the time
of termination of employment, the Company shall contribute to the
Trust, within five business days of the date of termination of
employment, an amount in cash equal to the unvested but accrued
benefits under such plans as of the date of termination of
employment.
Any contributions by the Company to the Trust as provided herein shall
be distributed at such time as shall be elected by the Employee at the
time of execution of this Agreement, except that amounts relating to
services previously provided shall be distributed in accordance with the
provisions of the plans or the related participant elections to which
such contributions relate. The benefits provided in this Section 3.3(a)
shall be without regard to any amendment to any plans made after the
Change of Control but prior to Employee's date of termination of
employment, which amendment adversely affects in any manner the
computation of benefits under such plans.
(b) Death. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by
reason of the Employee's death, this Agreement shall terminate without
further obligation to the Employee's legal representatives (other than
those already accrued to the Employee), other than the obligation to
make any payments due pursuant to employee benefit plans maintained by
the Company or its affiliated companies.
(c) Disability. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by
reason of Employee's Disability, this Agreement shall terminate without
further obligation to the Employee
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(other than those already accrued to the Employee), other than the
obligation to make any payments due pursuant to employee benefit plans
maintained by the Company or its affiliated companies.
(d) Cause. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by
the Company for Cause, this Agreement shall terminate without further
obligation to the Employee other than for obligations imposed by law and
obligations imposed pursuant to any employee benefit plan maintained by
the Company or its affiliated companies.
(e) Voluntary Termination. If, after a Change of Control and
during the Employment Term, the Employee voluntarily terminates his
employment with the Company other than for Good Reason, this Agreement
shall terminate without further obligation to the Employee other than
for obligations imposed by law and obligations imposed pursuant to any
employee benefit plan maintained by the Company or its affiliated
companies.
3.4 ACCRUED OBLIGATIONS AND OTHER BENEFITS. It is the intent of this
Agreement that upon termination of employment for any reason following a Change
of Control the Employee be entitled to receive promptly, and in addition to any
other benefits specifically provided, (a) the Employee's Base Salary through
the date of termination to the extent not theretofore paid, (b) any accrued
vacation pay, to the extent not theretofore paid, and (c) any other amounts or
benefits required to be paid or provided or which the Employee is entitled to
receive under any plan, program, policy practice or agreement of the Company.
3.5 STOCK OPTIONS AND RESTRICTED STOCK. The foregoing benefits are
intended to be in addition to the value of any options to acquire Common Stock
of the Company or restricted stock the exercisability or vesting of which is
accelerated pursuant to the terms of any stock option, incentive or other
similar plan heretofore or hereafter adopted by the Company.
3.6 CERTAIN ADDITIONAL PAYMENTS. Notwithstanding anything contained
in this Agreement to the contrary, if the Employee would be subject to an
excise tax by virtue of the "excess parachute payment" provisions of Section
4999 of the Internal Revenue Code of 1986, as amended (or any successor
thereto) with respect to any amounts attributable to any payment or benefit
provided under this Agreement, or any other payment or benefits provided to, or
for the benefit of Employee under any other Company plan or arrangement (the
"Payments"), and if the imposition of such excise tax could be avoided by a
reduction of the benefits payable pursuant to this Agreement, then the payments
due hereunder shall be automatically reduced by such amount as shall be
necessary to eliminate any obligation of the Employee to pay such excise tax,
provided however that if the amount by which any payments or benefits payable
pursuant to this Agreement would have to be reduced to avoid the imposition of
the excise tax would exceed the excise tax that would be payable with respect
to any "excess parachute payments"(as such term is defined in the Code), then
no such reduction of any payments hereunder shall be made.
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3.7 LEGAL FEES. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the Employee may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Employee or others of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Employee about the amount or timing of any payment pursuant to
this Agreement.)
3.8 SET-OFF; MITIGATION. After a Change of Control, the Company's
and its Affiliates' obligations to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company or its Affiliates may have against the
Employee or others; except that to the extent the Employee accepts other
employment in connection with which he is provided health insurance benefits,
the Company shall only be required to provide health insurance benefits to the
extent the benefits provided by the Employee's employer are less favorable than
the benefits to which he would otherwise be entitled hereunder. It is the
intent of this Agreement that in no event shall the Employee be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Employee under any of the provisions of this Agreement.
3.9 OUTPLACEMENT ASSISTANCE. Upon any termination of employment of
the Employee other than for Cause within two years following a Change of
Control, the Company shall provide to the Employee outplacement assistance by a
reputable firm specializing in such services for the period beginning with the
termination of employment and ending three years following the Change of
Control.
ARTICLE IV
MISCELLANEOUS
4.1 BINDING EFFECT; SUCCESSORS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not
be assignable by the Employee without the consent of the Company (there being
no obligation to give such consent) other than such rights or benefits as are
transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
all or substantially all of the assets or businesses of the Company (i) to
assume unconditionally and expressly this Agreement and (ii) to agree to
perform or to cause to be performed all of the obligations under this Agreement
in the same manner and to the same extent as would have been required of the
Company had no assignment or succession occurred, such assumption to be set
forth in a writing reasonably satisfactory to the Employee.
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(d) The Company shall also require all entities that control
or that after the transaction will control (directly or indirectly) the Company
or any such successor or assignee to agree to cause to be performed all of the
obligations under this Agreement, such agreement to be set forth in a writing
reasonably satisfactory to the Employee.
4.2 NOTICES. All notices hereunder must be in writing and shall be
deemed to have been given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid, return
receipt requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) telecopy transmission with confirmation of
receipt. All such notices must be addressed as follows:
If to the Company, to:
Tidewater, Inc.
1440 Canal Street
New Orleans, Louisiana 70112
Attn: Cliffe F. Laborde
If to the Employee, to:
Ken C. Tamblyn
Tidewater, inc.
1440 Canal Street
New Orleans, Louisiana 70112
or such other address as to which any party hereto may have notified the other
in writing.
4.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws.
4.4 WITHHOLDING. The Employee agrees that the Company has the right
to withhold, from the amounts payable pursuant to this Agreement, all amounts
required to be withheld under applicable income and/or employment tax laws, or
as otherwise stated in documents granting rights that are affected by this
Agreement.
4.5 AMENDMENT, WAIVER. No provision of this Agreement may be
modified, amended or waived except by an instrument in writing signed by both
parties.
4.6 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall at any time or to any
extent be invalid, illegal or unenforceable in any respect as written, Employee
and the Company intend for any court construing this Agreement to modify or
limit such provision so as to render it valid and enforceable to the fullest
extent allowed by law. Any such provision that is not susceptible of
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such reformation shall be ignored so as to not affect any other term or
provision hereof, and the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid, illegal or unenforceable, shall not be affected thereby and
each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
4.7 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach thereof.
4.8 REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to all
of the rights and remedies provided for in this Agreement, the parties shall
have all other rights and remedies provided to them by applicable law, rule or
regulation.
4.9 COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the Board and that the
Company has the right at any time to terminate Employee's status as an employee
of the Company, or to change or diminish his status during the Employment Term,
subject to the rights of the Employee to claim the benefits conferred by this
Agreement.
4.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have caused this
Agreement to be executed as of the Change of Control Agreement Date.
TIDEWATER, INC.
By:
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Robert H. Boh
Chairman, Compensation Committee
EMPLOYEE:
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Ken C. Tamblyn
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