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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into
effective as of the 1st day of July, 2000 (the "Effective Date")
by and between GM Offshore, Inc., a Delaware corporation (the
"Company"), and Bruce A. Streeter (the "Executive").
WITNESSETH:
WHEREAS, the Company wishes to assure itself of the services
of the Executive for the period provided in this Agreement, and
the Executive wishes to serve in the employ of the Company on the
terms and conditions hereinafter provided; and
WHEREAS, it is in the best interests of the Company and its
shareholders to assure that the Company will have the continued
attention and dedication of the Executive to their assigned
duties without distraction in potentially disturbing
circumstances arising from the possibility of a Change of Control
(as defined in Section 1 below) of GulfMark Offshore, Inc., a
Delaware corporation ("Parent"), which is the sole shareholder of
the Company; and
WHEREAS, it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change
of Control and to encourage the Executive's full attention and
dedication to the Company currently and in the event of any
threatened or pending Change of Control; and
WHEREAS, it is imperative to provide the Executive with
compensation and benefits arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of
the Executive will be satisfied and which are competitive with
those of other corporations.
NOW, THEREFORE, in order to accomplish these objectives, and
in consideration of the mutual covenants and agreements set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
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1. Change of Control. For the purposes of this Agreement,
a "Change of Control" shall mean the occurrence of any one or
more of the following:
(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, as amended (the "Exchange Act"))
(a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty percent (20%)
or more of either (i) the then outstanding shares of common stock
of Parent or (ii) the combined voting power of the then
outstanding voting securities of Parent entitled to vote
generally in the election of directors; provided, however, that
the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from Parent; (ii) any
acquisition by Parent; (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by Parent
or any corporation controlled by Parent; or
(b) Parent shall sell, lease, exchange or transfer
(in one transaction or a series of related transactions)
substantially all of its assets, except to a wholly owned
subsidiary; or
(c) Approval by the stockholders of Parent of any
plan or proposal for the liquidation or dissolution of the
Company; or
(d) Individuals who, as of the date hereof,
constitute the Board of Parent (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 date hereof 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 as though such individual
were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office
occurs as a result of 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 Board; or
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(e) Subject to applicable law, in a Chapter 11
bankruptcy proceeding, the appointment of a trustee or the
conversion of a case involving Parent to a case under Chapter 7;
or
(f) Any consolidation, reorganization, or merger of
Parent in which Parent is not the continuing or surviving
corporation or pursuant to which shares of Parent's common stock
would be converted into cash, securities or other property, other
than a consolidation, reorganization or merger of Parent in which
the holders of Parent's common stock immediately prior to the
consolidation, reorganization or merger have the same
proportionate ownership of common stock of the surviving
corporation immediately after the consolidation, reorganization
or merger.
2. Employment Period. The Company hereby agrees to
continue the Executive in its employ, and the Executive hereby
agrees to remain in the employ of the Company, in accordance with
the terms and provisions of this Agreement, for the period
commencing on the Effective Date and ending on June 30, 2003 (the
"Term").
3. Terms of Employment. The following terms shall govern
the Executive's employment during the Term:
(a) Position and Duties.
(i) During the Term, the Executive shall
employed as President of the Company with corresponding
authority, duties and responsibilities.
(ii) During the Term, and excluding any periods of
vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the
business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the
Executive hereunder, to use the Executive's reasonable best
efforts to perform faithfully and efficiently such
responsibilities. During the Term, it shall not be a
violation of this Agreement for the Executive to serve on
corporate, civic or charitable boards or committees, deliver
lectures, fulfill speaking engagements, teach at educational
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institutions, and manage personal investments, so long as
such activities do not significantly interfere with the
performance of the Executive's responsibilities as an
employee of the Company in accordance with this Agreement.
It is expressly understood and agreed that to the extent
that any such activities have been conducted by the
Executive prior to the Effective Date, the continued
nature and scope thereto) subsequent to the Effective Date
shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the
Company.
(b) Compensation. During the Term, and prior to the
termination of the Executive's employment as described in Section
4 or 5 hereof, the Executive shall be entitled to the following
items of compensation:
(i) Base Salary. During the Term, the Executive
shall receive an annual base salary ("Annual Base
Salary"), which shall be paid in equal installments on a
semi-monthly basis (less applicable withholding and salary
deductions), of $220,000.00. Any discretionary increase in
Annual Base Salary during the Term shall not serve to limit
or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after
any such increase, and the term "Annual Base Salary" as
utilized in this Agreement shall refer to Annual Base Salary
as so increased.
(ii) Annual Bonus. During the Term, the
Executive shall receive, for each fiscal year ending during
the Term, an annual bonus (the "Annual Bonus"), which
shall be paid in cash within thirty (30) days of the end of
each fiscal year for which the Annual Bonus is awarded, in
an amount to be determined at the discretion of the Company.
Any discretionary increase in the Annual Bonus during the
Term shall not serve to limit or reduce any other obligation
to the Executive under this Agreement.
(iii) Incentive, Savings and Retirement Plans.
During the Term, the Executive shall be entitled to
participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated
companies. As used in this Agreement, the term "affiliated
companies" shall include any company controlled by,
controlling or under common control with the Company.
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(iv) Welfare Benefit Plans. During the Term, the
Executive and/or the Executive'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,
supplemental health, prescription, dental, disability,
salary continuance, employee life, group life, accidental
death and travel accident insurance plans and programs) to
the extent applicable generally to other peer executives of
the Company and its affiliated companies.
(v) Expenses. During the Term, the Executive
shall be entitled to receive prompt reimbursement for all
reasonable out-of-pocket employment expenses incurred by the
Executive in accordance with the policies, practices and
procedures of the Company and its affiliated companies in
effect with respect to other peer executives of the Company
and its affiliated companies.
(vi) Vacation. During the Term, the Executive
shall be entitled to paid vacation in amounts to be
determined by the Company at the beginning of each fiscal
year. Such vacations shall be taken at such times as are
consistent with the reasonable business needs of the
Company. Up to an aggregate total of two weeks of unused
vacation time may be carried forward and used by the
Executive in succeeding years.
(vii) Automobile. During the Term, the Company
will provide the Executive with an automobile (the
"Automobile") for use by the Executive in connection with
the performance of his duties under this Agreement. The
Executive may also use the Automobile for reasonable
personal use. The Executive agrees to pay all operating
costs of the Automobile, and the Company agrees to reimburse
to the Executive, to cover operating costs of the Automobile
related to non-personal use, 87.5% of the actual operating
costs of the Automobile upon the submission by the Executive
to the Company of receipts evidencing such operating costs.
The Executive agrees to limit personal use so as to not
violate any of the lease provisions concerning the
Automobile, including, without limitation, provisions
related to mileage and maintenance restrictions, and agrees
to return the Automobile to the Company at the termination
of this Agreement.
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(viii) Life Insurance. The Company shall purchase,
or have Parent purchase and assign to the Company, a split
dollar whole life insurance policy on the life of the
Executive with a face value of $500,000. The insurance
policy shall be owned by the Executive. The Executive shall
have the right to designate one or more beneficiaries, and
to change such designation at any time and from time to
time. The Company shall pay all premiums on such policy.
The Company shall own the cash value of the insurance policy
up to the aggregate amount of premiums paid by the Company,
and the Company shall be entitled to recover from the cash
value of the insurance policy or the death proceeds the
aggregate amount of premiums paid by the Company. The
Executive agrees to execute a collateral assignment in order
to assign the insurance policy to the Company from the
purpose of securing the Company's interest in the insurance
policy. Such insurance coverage shall be in addition to,
and not in lieu of, any other insurance normally provided by
the Company to other peer executives of the Company and its
affiliated companies.
(ix) Club Membership. During the Term, the
Company will pay all reasonable period dues for membership
in The Petroleum Club of Lafayette. The membership will
remain the property of the Company and on the expiration of
this Agreement will be transferred to such individual as the
Company may designate.
(x) Office and Support Staff. During the Term,
the Executive shall be entitled to an office or offices of a
size and with furnishings and other appointments, and to
secretarial and other assistance, at least equal to the most
favorable of the foregoing provided to other peer executives
of the Company and its affiliated companies.
(xi) Benefits Not in Lieu of Compensation. No
benefit or prerequisite provided to the Executive shall be
deemed to be in lieu of the Executive's Annual Base Salary,
Annual Bonus or other compensation.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment
shall terminate automatically upon the Executive's death during
the Term. If the Company determines in good faith that the
Disability of the Executive has occurred during the Term
(pursuant to the definition of Disability set forth below), it
may give to the Executive written notice in accordance with
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Section 15(b) hereof of its intention to terminate the
Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the
"Disability Date"), provided that, within the 30 days after such
receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis
for 180 consecutive days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be
withheld unreasonably).
(b) Termination by the Company for Cause. The
Company may terminate the Executive's employment during the Term
for Cause. For purposes of this Agreement, "Cause" shall mean
(i) a material breach by the Executive of the Executive's
obligations under Section 3(a) (other than as a result of
incapacity due to physical or mental illness) which is
demonstrably willful and deliberate on the Executive's part and
which is not remedied in a reasonable period of time after
receipt of written notice from the Company specifically
identifying such breach, (ii) the conviction of the Executive of
a felony involving moral turpitude, or (iii) the willful engaging
by the Executive in gross misconduct materially and demonstrably
injurious to the Company. For purposes of this paragraph, no
act, or failure to act, on the Executive's part shall be
considered "willful" unless done, or omitted to be done, by him
not in good faith and without reasonable belief that his action
or omission was not in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed
to have been terminated for cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by
the affirmative vote of not less than two-thirds (2/3) of the
entire authorized membership of the Board at a meeting of the
Board (after reasonable notice and an opportunity for the
Executive, together with counsel, to be heard before the Board)
finding that in the good faith of the Board the Executive was
guilty of conduct set forth in clauses (i), (ii) or (iii) of the
second sentence of this paragraph and specifying the particulars
thereof in detail.
(c) Voluntary Termination by Executive for Good
Reason. The Executive's employment may be terminated during the
Term by the Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
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(i) the assignment to the Executive of any
duties inconsistent in any respect with the Executive's
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 3(a) or any removal of the Executive
from or failure to re-elect the Executive to any of such
positions or any other actions by the Company which results
in a diminution in such position, authority, duties or
responsibilities (except in connection with the termination
of the Executive's employment for Cause, Disability or
retirement or as a result of the Executive's death or by the
Executive other than for Good Reason), excluding for this
purpose an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the
Executive;
(ii) any failure by the Company to comply with
any of the provisions of Section 3(b) or the taking of any
action by the Company which would adversely affect the
Executive's participation in or materially reduce his
benefits under any of the items described in Section 3(b),
other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given
by the Executive;
(iii) the failure by the Company to pay (
incurred by the Executive relating to a change of principal
residence in connection with a relocation;
(iv) any purported termination by the Company of
the Executive's employment otherwise than as expressly
permitted by this Agreement (and for purposes of this
Agreement, no such purported termination shall be
effective); or
(v) any failure by the Company to comply with
and satisfy Section 14(c) hereof, provided that such
successor has received at least ten days, prior written
notice from the Company or the Executive of the requirements
of Section 14(c) hereof.
For purposes of this Section 4(c), any good faith
determination of "Good Reason" made by the Executive shall be
conclusive.
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(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive for Good Reason, shall be
communicated by Notice of Termination to the other party hereto
given in accordance with Section 15(b). For purposes of this
Agreement, a "Notice of Termination" means a written notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth
in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment
nder the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date of receipt
of such notice, specifies the termination date (which date shall
be not more than 15 days after the giving of such notice). The
failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes
to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company hereunder or preclude the Executive
or the Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means
(i) if the Executive's employment is terminated by the Company
for Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's employment
is terminated by the Company other than for Cause or Disability,
the Date of Termination shall be the date on which the Company
notifies the Executive of such termination, and (iii) if the
Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Date, as the case may be.
5. Obligations of the Company upon Termination or upon a
Change of Control.
(a) Termination for Good Reason or Other Than for
Cause, Death or Disability Prior to a Change of Control or after
Twelve Months after a Change of Control. If, during the Term and
prior to a Change of Control or after twelve (12) months after a
Change of Control, the Company shall terminate the Executive's
employment other than for Cause, Death or Disability or the
Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a
lump sum in cash within 30 days after the Date of
Termination the aggregate of the following amounts:
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A. the sum of (1) the Executive's Annual
Base Salary through the Date of Termination, (2) the
product of (x) the Annual Bonus paid or payable to the
Executive for the immediately preceding year and (y) a
fraction, the numerator of which is the number of days
in the current fiscal year through the Date of
Termination, and the denominator of which is 365, (3)
any compensation previously deferred by the Executive
(together with any accrued interest or earnings
thereon) and (4) any accrued vacation pay, in each case
to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), (3) and (4)
shall be hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to the sum of (1) the
Executive's Annual Base Salary, calculated from the
Date of Termination through the remainder of the Term,
and (2) the Annual Bonus paid or payable to the
Executive for the immediately preceding fiscal year
annualized and calculated from the Date of Termination
through the remainder of the Term; provided, however,
that such amount shall be reduced by the present value
(determined as provided in Section 280G(d)(4) of the
Internal Revenue Code of 1986, as amended (the
"Code")) of any other amount of severance relating to
salary or bonus continuation, if any, to be received by
the Executive upon termination of employment of the
Executive under any severance plan, policy or
arrangement of the Company; and
(ii) any or all Stock Options awarded to the
Executive under any plan not previously exercisable and
vested shall become fully exercisable and vested; and
(iii) for the remainder of the Term, provided that
the Executive's continued participation is possible under
the general terms and provisions of such plans and programs,
the Company shall continue benefits to the Executive and/or
the Executive's family at least equal to those which would
have been provided to them in accordance with the plans,
programs, practices and policies described in Section
3(b)(iv) if the Executive's employment had not been
terminated in accordance with the most favorable plans,
practices, programs or policies of the Company and its
affiliated companies as in effect generally at any time
thereafter with respect to other peer executives of the
Company and its affiliated companies and their families
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provided, however, that if the Executive becomes re-employed
with another employer and is eligible to receive medical or
other welfare benefits under another employer-provided plan,
the medical and other welfare benefits described herein
shall be secondary to those provided under such other plan
during such applicable period of eligibility; in the event
that the Executive's participation in any such plan or
program is barred, the Company shall arrange to provide the
Executive with benefits substantially similar to those which
he is entitled to receive under such plans and programs; and
(iv) subject to the provisions of Section 6, to
the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to
be paid or provided or which the Executive and/or the
Executive's family is eligible to receive pursuant to this
Agreement and under any plan, program, policy or practice of
or contract or agreement with the Company and its affiliated
companies as in effect generally thereafter with respect to
other peer executives of the Company and its affiliated
companies and their families (such other amounts and
benefits shall be hereinafter referred to as the "Other
Benefits"); and
(v) the Executive shall be entitled to use of
the Automobile until the earliest to occur of (x) the date
the Executive is employed elsewhere, or (y) six (6) months
from the Date of Termination; provided, however, that during
such time period, the Executive shall be solely responsible
for all expenses incurred in the use of the Automobile,
including maintaining insurance of the same types and at the
same levels as previously maintained by the Company
immediately prior to the Date of Termination; and
(vi) in addition to the benefits to which the
Executive is entitled under any retirement plans or programs
in which the Executive participates or any successor plans
or programs in effect on the Date of Termination, the
Company shall pay the Executive in one sum in cash at the
Executive's normal retirement age (or earlier retirement age
should the Executive so elect) as defined in the retirement
plans or programs in which the Executive participates or any
successor plans or programs in effect on the Date of
Termination, an amount equal to the actuarial equivalent of
the retirement pension to which the Executive would have
been entitled under the terms of such retirement plans or
programs without regard to "vesting" thereunder, had the
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Executive accumulated additional years of continuous service
through the remainder of the Term at his Annual Base Salary
in effect on the Date of Termination under such retirement
plans or programs reduced by the single sum actuarial
equivalent of any amounts to which the Executive is entitled
pursuant to the provisions of said retirement plans and
programs; for purposes of this paragraph, "actuarial
equivalent" shall be determined using the same methods and
assumptions utilized under the Company's retirement plans
and programs on the Effective Date; and
(vii) the Company shall promptly transfer and
assign to the Executive all such life insurance policies for
which the Company or Parent was previously reimbursing
premium payments made by the Executive pursuant to an
agreement between the Executive and the Company or Parent;
and
(viii) for a period of six (6) months after the
Date of Termination, the Company shall promptly reimburse
the Executive for reasonable expenses incurred for
outplacement services and/or counseling.
(b) Termination upon Death. If the Executive's
employment is terminated by reason of the Executive's death
during the Term, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this
Agreement, other than for (i) payment of Accrued Obligations
(which shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of
Termination) and (ii) the timely payment or provision of any and
all Other Benefits, which under their terms are available in the
event of death.
(c) Termination upon Disability. If the Executive's
employment is terminated by reason of the Executive's Disability
during the Term, this Agreement shall terminate without further
obligations to the Executive, other than for (i) payment of
Accrued Obligations (which shall be paid to the Executive in a
lump sum in cash within 30 days of the Date of Termination) and
(ii) the timely payment or provision of any and all Other
Benefits, which under their terms are available in the event of a
Disability.
(d) Termination for Cause or Other than for Good
Reason. If the Executive's employment shall be terminated for
Cause during the Term, this Agreement shall terminate without
further obligations to the Executive other than the obligation to
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pay to the Executive Annual Base Salary through the Date of
Termination plus the amount of any compensation previously
deferred by the Executive and any accrued vacation pay, in each
case to the extent theretofore unpaid. If the Executive
terminates employment during the Term, excluding a termination
for Good Reason, this Agreement shall terminate without further
obligations to the Executive, other than for payment of Accrued
Obligations and the timely payment or provision of any and all
Other Benefits. In such case, all Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of the
Date of Termination.
(e) Termination within Twelve Months after a Change
of Control. If, within twelve (12) months after a Change of
Control, the Company (or any successor of the Company) shall
terminate the Executive's employment other than pursuant to
Sections 2, 4(a) or 4(b) hereof or if the Executive shall
terminate his employment for Good Reason:
(i) the Company (or any successor of the
Company) shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate
of the following amounts:
A. the Accrued Obligations; and
B. the amount equal to the sum of (1) the
Executive's Annual Base Salary at the rate in effect as
of the Date of Termination multiplied by two (2), and
(2) the Annual Bonus paid or payable to the Executive
for the immediately preceding fiscal year annualized
and calculated from the Date of Termination through the
second anniversary of the Date of Termination;
provided, however, that such amount shall be reduced by
the present value (determined as provided in Section
280G(d)(4) of the Code) of any other amount of
severance relating to salary or bonus continuation, if
any, to be received by the Executive upon termination
of employment of the Executive under any severance
plan, policy or arrangement of the Company; and
(ii) any or all Stock Options awarded to the
Executive under any plan not previously exercisable and
vested shall become fully exercisable and vested; and
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(iii) for the period from the Date of Termination
through the first anniversary of the Date of Termination,
provided that the Executive's continued participation is
possible under the general terms and provisions of such
plans and programs, the Company shall continue benefits to
the Executive and/or the Executive's family at least equal
to those which would have been provided to them in
accordance with the plans, programs, practices and policies
described in Section 3(b)(iv) if the Executive's employment
had not been terminated in accordance with the most
favorable plans, practices, programs or policies of the
Company and its affiliated companies as in effect and
applicable generally to other peer executives and their
families during the 90-day period immediately preceding the
Date of Termination or, if more favorable to the Executive,
as in effect generally at any time thereafter with respect
to other peer executives of the Company and its affiliated
companies and their families; provided, however, that if the
Executive becomes re-employed with another employer and is
eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other
welfare benefits described herein shall be secondary to
those provided under such other plan during such applicable
period of eligibility; in the event that the Executive's
participation in any such plan or program is barred, the
Company shall arrange to provide the Executive with benefits
substantially similar to those which he is entitled to
receive under such plans and programs; and
(iv) subject to the provisions of Section 6, to
the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to
be paid or provided or which the Executive and/or the
Executive's family is eligible to receive pursuant to this
Agreement and under any plan, program, policy or practice of
or contract or agreement with the Company and its affiliated
companies as in effect and applicable generally to other
peer executives and their families during the 90-day period
immediately preceding the Date of Termination or, if more
favorable to the Executive, as in effect generally
thereafter with respect to other peer executives of the
Company and its affiliated companies and their families; and
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(v) the Executive shall be entitled to use of
the Automobile until the earliest to occur of (x) the date
the Executive is employed elsewhere, or (y) six (6) months
from the Date of Termination; provided, however, that during
such time period, the Executive shall be solely responsible
for all expenses incurred in the use of the Automobile,
including maintaining insurance of the same types and at the
same levels as previously maintained by the Company
immediately prior to the Date of Termination; and
(vi) in addition to the benefits to which the
Executive is entitled under any retirement plans or programs
in which the Executive participates or any successor plans
or programs in effect on the Date of Termination, the
Company shall pay the Executive in one sum in cash at the
Executive's normal retirement age (or earlier retirement age
should the Executive so elect) as defined in the retirement
plans or programs in which the Executive participates or any
successor plans or programs in effect on the Date of
Termination, an amount equal to the actuarial equivalent of
the retirement pension to which the Executive would have
been entitled under the terms of such retirement plans or
programs without regard to "vesting" thereunder, had the
Executive accumulated additional years of continuous service
through the first anniversary of the Date of Termination at
his Annual Base Salary in effect on the Date of Termination
under such retirement plans or programs reduced by the
single sum actuarial equivalent of any amounts to which the
Executive is entitled pursuant to the provisions of said
retirement plans and programs; for purposes of this
paragraph, "actuarial equivalent" shall be determined
using the same methods and assumptions utilized under the
Company's retirement plans and programs on the Effective
Date; and
(vii) the Company shall promptly transfer and
assign to the Executive all such life insurance policies for
which the Company or Parent was previously reimbursing
premium payments made by the Executive pursuant to an
agreement between the Executive and the Company or Parent;
and
(viii) for a period of six (6) months after the
Date of Termination, the Company shall promptly reimburse
the Executive for reasonable expenses incurred for
outplacement services and/or counseling.
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<PAGE>16
Notwithstanding the foregoing provisions of this Section
5(e), if the Company shall be required to pay the Executive
pursuant to this Section 5(e), the Company shall be entitled to a
credit and may deduct from any payment to the Executive the
amount paid to the Executive pursuant to Section 5(f) of this
Agreement.
(f) Upon a Change of Control. Upon a Change of
Control, the Company (or any successor of the Company) shall pay
to the Executive in a lump sum in cash within 30 days after the
date of the Change of Control the amount equal to the sum of (1)
the Executive's Annual Base Salary at the rate in effect as of
the date of the Change of Control multiplied by two (2), and (2)
the Annual Bonus paid or payable to the Executive for the
immediately preceding fiscal year annualized and calculated from
the date of the Change of Control through the second anniversary
of the date of the Change of Control.
No amount paid to the Executive upon a Change of Control
pursuant to this section shall be deemed to be in lieu of the
Executive's Annual Base Salary, Annual Bonus or other
compensation for employment by the Company after the Change of
Control.
6. Waiver of Rights For Other Severance. The Executive
hereby agrees any and all benefits or payments arising out of or
relating to any plan, program, policy or practice of or contract
or agreement with the Company and its affiliated companies
relating to the severance of employment, shall be fully offset
against any benefits or payments due and owing hereunder.
7. Non-Exclusivity of Rights. Nothing herein shall limit
or otherwise affect such rights as the Executive may have under
any contract or agreement with the Company or any of its
affiliated companies. Amounts which are vested benefits or which
the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with
the Company or any of its affiliated companies at or subsequent
to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement
except as explicitly modified by this Agreement.
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<PAGE>17
8. Full Settlement; Resolution of Disputes.
(a) The Company's obligation 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 may have against the Executive or others. In
no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of
this Agreement and, except as specifically provided in Section 5,
such amounts shall not be reduced whether or not the Executive
obtains other employment. The Company agrees to pay promptly as
incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company,
the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee
of performance thereof (including as a result of any contest by
the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at
the applicable Federal rate provided for in Section 7872(f)(2)(A)
of the Code.
(b) If there shall be any dispute between the Company
and the Executive (i) in the event of any termination of the
Executive's employment by the Company, whether such termination
was for Cause, or (ii) in the event of any termination of
employment by the Executive, whether Good Reason existed, then,
unless and until there is a final, nonappealable judgment by a
court of competent jurisdiction declaring that such termination
was for Cause or that the determination by the Executive of the
existence of Good Reason was not made in good faith, as the case
may be, the Company shall pay all amounts, and provide all
benefits, to the Executive and/or the Executive's family or other
beneficiaries, as the case may be, that the Company would be
required to pay or provide pursuant to Section 5 as though such
termination were by the Company without Cause or by the Executive
with Good Reason; provided, however, that the Company shall not
be required to pay any disputed amounts pursuant to this
paragraph except upon receipt of an undertaking by or on behalf
of the Executive and/or the Executive's family or other
beneficiaries, as the case may be, to repay all such amounts to
which the Executive is ultimately adjudged by such court not to
be entitled.
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<PAGE>18
9. Certain Additional Payments by the Company.
(a) Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional
payments required under this Section 9) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code, or
any successor provision thereto, or any interest or penalties are
incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment
(a "Gross-Up Payment") in an amount such that after payment by
the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and any Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9,
including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the
Company's independent certified public accountants (the
"Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15
business days of the receipt of notice from the Executive that
there has been a Payment, or such earlier time as is requested by
the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive shall appoint
another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All fees
and expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this
Section 9, shall be paid by the Company to the Executive within
five days of the receipt of the Accounting Firm's determination.
If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Executive with a written
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<PAGE>19
opinion that failure to report the Excise Tax on the Executive's
applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have
been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 9(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment
that has occurred, and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no
later than ten business days after the Executive is informed in
writing of such claim and shall apprise the Company of the nature
of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which it
gives such notice to the Company (or such shorter period ending
on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior
to the expiration of such period that it desires to contest such
claim, the Executive shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with
contesting such claim as the Company shall reasonably
request in writing from time to time, including, without
limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the
Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim;
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<PAGE>20
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 9(c), the
Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and
all administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at
its sole option, either direct the Executive to pay the tax
claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute and
contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that
if the Company directs the Executive to pay such claim and sue
for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such
advance or with respect to any imputed income with respect to
such advance; and further provided that any extension of the
statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-
Up Payment would be payable hereunder, and the Executive shall be
entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 9(c) hereof,
the Executive becomes entitled to receive any refund with respect
to such claim, the Executive shall, subject to the Company's
complying with the requirements of Section 9(c), promptly pay to
the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 9(c) hereof, a determination is made
that the Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of
20
<PAGE>21
refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not
be required to be repaid and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
10. Confidential Information. The Executive shall hold in
a fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public
knowledge (other than by acts by the Executive or representatives
of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the
Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In no
event shall an asserted violation of the provisions of this
section constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under this Agreement.
11. No Competition. During the Term and, unless the
Agreement terminates pursuant to Section 5(a) or 5(e), through
the first anniversary of the expiration thereof, the Executive
shall not directly or indirectly engage in any business which is
competitive with any of those business activities in which the
Company or its affiliated companies were engaged directly or
indirectly during the Term of the Agreement; provided, however,
that the restriction in this section shall apply to the
reasonable and limited geographic area consisting of any state in
which the Company or its affiliated companies directly or
indirectly has offices, operations or customers, or otherwise
conducts business. For purposes of this section, the Executive
shall be deemed to engage in a business if he directly or
indirectly engages or invests in, owns, manages, operates,
controls or participates in the ownership, management, operation
or control of, is employed by, associated or in any manner
connected with, or renders services or advice to, any enterprise
engaged in any business which is competitive with any of those
business activities in which the Company or its affiliated
companies were engaged directly or indirectly during the Term of
the Agreement; provided, however, that the Executive may invest
in the securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if (x) such
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<PAGE>22
securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the
Exchange Act and (y) the Executive does not beneficially own (as
defined in Rule 13d-3 promulgated under the Exchange Act) in
excess of 5% of the outstanding capital stock of such enterprise.
The Executive agrees that if a court of competent
jurisdiction determines that the length of time or any other
restriction, or portion thereof, set forth in this section is
overly restrictive and unenforceable, the court may reduce or
modify such restrictions to those which it deems reasonable and
enforceable under the circumstances, and as so reduced or
modified, the parties hereto agree that the restrictions of this
section shall remain in full force and effect. The Executive
further agrees that if a court of competent jurisdiction
determines that any provision of this section is invalid or
against public policy, the remaining provisions of this section
and the remainder of this Agreement shall not be affected
thereby, and shall remain in full force and effect.
The Executive acknowledges that the restrictions imposed by
this Agreement are legitimate, reasonable and necessary to
protect the Company's and its affiliated companies' investment in
their business and the goodwill thereof. The Executive
acknowledges that the scope and duration of the restrictions
contained herein are reasonable in light of the time that the
Executive has been engaged in the business of the Company and its
affiliated companies and the Executive's relationship with the
suppliers, customers and clients of the Company and its
affiliated companies. The Executive further acknowledges that
the restrictions contained herein are not burdensome to the
Executive in light of the consideration paid therefor and the
other opportunities that remain open to the Executive. Moreover,
the Executive acknowledges that he has other means available to
him for the pursuit of his livelihood.
12. No Tampering. During the Term and, unless the
Agreement terminates pursuant to Section 5(a) or 5(e), through
the first anniversary of the expiration thereof, the Executive
shall not (a) request, induce or attempt to influence any
distributor or supplier of goods or services to the Company or
its affiliated companies to curtail or cancel any business they
may transact with the Company or its affiliated companies; (b)
request, induce or attempt to influence any customers of the
Company or its affiliated companies or potential customers which
have been in contact with the Company or its affiliated companies
to curtail or cancel any business they may transact with any
22
<PAGE>23
member of the Company or its affiliated companies; or (c)
request, induce or attempt to influence any employee of the
Company or its affiliated companies to terminate his or her
employment with the Company or its affiliated companies.
13. Remedies. The Executive acknowledges that a remedy at
law for any breach or attempted breach of the Executive's
obligations under Sections 10, 11 and 12 may be inadequate,
agrees that the Company may be entitled to specific performance
and injunctive and other equitable remedies in case of any such
breach or attempted breach, and further agrees to waive any
requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable
relief. The Company shall have the right to offset against
amounts paid to the Executive pursuant to the terms hereof any
amounts from time to time owing by the Executive to the Company.
The termination of the Agreement shall not be deemed a waiver by
the Company of any breach by the Executive of this Agreement or
any other obligation owed the Company, and notwithstanding such a
termination the Executive shall be liable for all damages
attributable to such a breach.
14. Successors and Assigns.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(c) The Company 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. 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 assumes and agrees to perform
this Agreement by operation of law, or otherwise.
15. Miscellaneous.
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<PAGE>24
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, without
reference to principles of conflict of laws. The captions of
this Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: Bruce A. Streeter
108 Hanover Square
Lafayette, Louisiana 70508
If to the Company: GM Offshore, Inc.
5 Post Oak Park, Suite 1170
Houston, Texas 77027
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as shall
be required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive's or the Company's failure to
insist upon strict compliance with any provision of this
Agreement or the failure to assert any right the Executive or the
Company may have hereunder, including, without limitation, the
right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(v) hereof, shall not be deemed to be
a waiver of such provision or right or any other provision or
right of this Agreement.
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<PAGE>25
16. Prior Employment Agreements Superseded. Upon
execution and delivery of this Agreement, any and all prior
employment agreements, if any, between (a) the Company, GulfMark
Offshore, Inc., GulfMark International, Inc. and its and their
affiliates and subsidiaries and (ii) the Executive shall be of no
further force or effect and this Agreement shall supersede all
such prior agreements, if any.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Executive:
By:/s/ Bruce A. Streeter
-------------------------------
Bruce A. Streeter
President
Company:
GM OFFSHORE, INC.
/s/ Edward A. Guthrie
By:--------------------------------
Edward A. Guthrie
Executive Vice President and
Chief Financial Officer
The undersigned executes this Agreement to evidence its
agreement to guarantee to the Executive the prompt payment and
the prompt performance when due of all obligations and
liabilities of the Company to the Executive arising out of or
pursuant to this Agreement, in which event the undersigned shall
have all of the rights of the Company described in this
Agreement.
GULFMARK OFFSHORE, INC.
/s/ David J. Butters
By:-------------------------------
David J. Butters
Chairman of the Board
25
