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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 13, 1994
TIDEWATER INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-6311 72-0487776
(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification
Incorporation) Number)
1440 Canal Street, Suite 2100, New Orleans, Louisiana 70112
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (504) 568-1010
NOT APPLICABLE
Former name, former address and former fiscal year, if changed since last
report.
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ITEM 5. OTHER EVENTS.
On June 13, 1994 the Company announced that its Board of Directors had
appointed William C. O'Malley as chairman, president and chief executive
officer to succeed John P. Laborde who is retiring in the fall of 1994. Mr.
O'Malley will be appointed president and chief operating officer of the Company
on September 19, 1994 and will hold that office until Mr. Laborde's retirement
becomes effective at the conclusion of the Company's annual meeting of
shareholders, which is expected to be held in October 1994.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
Exhibit No. Description
- - - - - ----------- -----------
10 Employment Agreement dated June 13, 1994 between
Tidewater Inc. and William C. O'Malley
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TIDEWATER INC.
(Registrant)
Date: June 23, 1994 /s/ Victor I. Koock
Victor I. Koock
Senior Vice President, Secretary, and
Co-General Counsel
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INDEX TO EXHIBITS
Exhibit No. Description
- - - - - ----------- -----------
10 Employment Agreement dated June 13, 1994 between
Tidewater Inc. and William C. O'Malley
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Exhibit 10
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") between Tidewater Inc., a
Delaware corporation ("Company"), and William C. O'Malley ("Employee") is dated
as of June 13, 1994 (the "Agreement Date").
The Company and the Employee agree as follows:
1. EMPLOYMENT CAPACITY AND TERM.
(a) CAPACITY AND TERM. The Employee will serve as the President
and Chief Executive Officer of the Company for the period beginning no later
than the 1994 annual meeting of stockholders of the Company through December
31, 1997. At his option, the Employee may elect to serve as the President and
Chief Operating Officer of the Company commencing at any time after September
19, 1994 and prior to the 1994 annual meeting of stockholders. The period from
the date that the Employee commences employment as President of the Company
(the "Commencement Date") through December 31, 1997 is referred to in this
Agreement as the "Employment Term."
(b) DUTIES. As the President and Chief Executive Officer, the
Employee shall perform such duties, consistent with the Employee's job title,
as may be prescribed from time to time by the Board of Directors of the Company
(the "Board") and shall perform such duties as are described in the Company's
Bylaws. As the President and Chief Operating Officer of the Company, the
Employee shall perform such duties, consistent with the Employee's job title,
as may be prescribed from time to time by the Board and/or the Chief Executive
Officer of the Company and shall perform such duties as President as are
described in the Company's Bylaws.
(c) CHAIRMAN. When the Employee assumes the position of the
President and Chief Executive Officer of the Company, the Board will appoint
the Employee as a director and as the Chairman of the Board of Directors. The
Employee will be appointed to serve in such class of the Board of Directors as
may be designated by the Board in its sole discretion. If the Employee
thereafter ceases for any reason to be the President and Chief Executive
Officer of the Company, the Employee will, if requested by the Company, resign
as the Chairman of the Board of Directors of the Company and as a director of
the Company.
2. TERM OF AGREEMENT. The term of this Agreement shall commence
on the Agreement Date and shall continue through the last day of the Employment
Term, subject to any earlier termination of Employee's status as an employee
pursuant to the terms of this Agreement. Following the term of this Agreement,
each party shall have the right to enforce all rights, and shall be bound by
all obligations, of such party that are continuing rights and obligations under
the terms of this Agreement.
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3. DEVOTION TO RESPONSIBILITIES.
During the Employment Term, the Employee will devote all of
his time and attention to the business of the Company, and he will not engage
in or be employed by any other business activity or business, whether or not
such business activity or business is for gain, profit or other pecuniary
advantage; provided, however, that nothing herein contained shall prohibit the
Employee from (i) serving as a member of the Board of Directors, Board of
Trustees or the like of any for profit or non-profit entity, or performing
services of any type for any civic or community entity, whether or not the
Employee receives compensation therefor, (ii) investing his assets in such form
or manner as will require no more than nominal services on the part of the
Employee in the operation of the business of the entity in which such
investment is made, or (iii) serving in various capacities with, and attending
meetings of, industry or trade groups and associations, including without
limitation the industry or trade groups and associations with which the
Employee is currently involved, as long as the Employee's engaging in any
activities permitted by virtue of clauses (i), (ii) and (iii) above does not
materially and unreasonably interfere with the ability of the Employee to
perform the services and discharge the responsibilities required of him under
this Agreement. Notwithstanding clause (ii) above, during the Employment Term,
the Employee may not beneficially own more than 2% of the outstanding shares of
any class of equity security of a business organization required to file
periodic reports with the Securities and Exchange Commission under the
Securities Exchange Act of 1934 (the "Exchange Act") and may not beneficially
own more than 5% of the outstanding shares of any class of equity security of a
business organization that competes with the Company. For purposes of this
paragraph, "beneficially own" shall have the same meaning ascribed to that term
in Rule 13d-3 under the Exchange Act.
4. COMPENSATION AND BENEFITS. The Company will provide the
Employee with the compensation and benefits described below:
(a) SALARY. An annual salary during the Employment Term
of $500,000 ("Annual Base Compensation"), payable to the Employee in equal
semi-monthly installments.
(b) BONUS. An annual incentive bonus, payable, if at
all, only with respect to services provided by the Employee during the
Employment Term. The annual incentive bonus will be determined, accrued and
paid in accordance with the terms of the Company's Annual Management Incentive
Compensation Plan (the "Incentive Plan") that covers certain key employees of
the Company or any incentive or bonus compensation plan that is a successor or
substitute therefor. The parties acknowledge and agree that the award of
bonuses under the Incentive Plan by the Board is discretionary and that this
Section 4(b) imposes no obligation on the Company to award a bonus to the
Employee. A copy of the Incentive Plan in effect for fiscal year 1993 is
attached as Appendix A.
(c) RESTRICTED STOCK. On the date the Employee becomes
the President and Chief Executive Officer of the Company, and pursuant to the
Tidewater 1992 Stock Option and
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Restricted Stock Plan (the "1992 Plan"), a copy of which is attached as
Appendix B, the Employee will be granted 70,000 shares of the Company's common
stock. In accordance with the terms of the 1992 Plan, such shares will be
deemed to be "restricted shares", with such restrictions on transferability,
vesting and risks of forfeiture as are consistent with the terms of the 1992
Plan and are specified in an agreement (the "Restricted Share Agreement") to be
entered into between the Company and Employee that is substantially in the form
of Appendix C hereto. The Restricted Share Agreement will have the following
vesting restrictions: (i) 25,000 shares will vest and become freely
transferable on the first day following the date that the "Average Sales Price"
of the Company's common stock on the New York Stock Exchange exceeds 150% of
the "Grant Price;" (ii) an additional 25,000 shares will vest and become freely
transferable on the first day following the date that the Average Sales Price
of the Company's common stock on the New York Stock Exchange exceeds 200% of
the Grant Price, and; (iii) the remaining 20,000 shares will vest and become
freely transferable on the first day following the date that the Average Sales
Price of the Company's common stock on the New York Stock Exchange exceeds 250%
of the Grant Price. As used herein, the term "Average Sales Price" means the
average of the high and low sales prices of the Company's common stock reported
on the New York Stock Exchange over a 20 consecutive trading day period and the
term "Grant Price" means the average of the high and low sales prices of the
Company's common stock as reported on the New York Stock Exchange on the date
the Employee becomes the President and Chief Executive Officer of the Company
(or if no shares of the Company's common stock are traded on that date, on the
most recent preceding date on which such shares are traded). The 70,000
"restricted shares" to be granted to Employee by virtue of this Section are
hereinafter referred to as the "Restricted Shares."
The Restricted Share Agreement will also provide that, to the
extent Restricted Shares have not otherwise become vested and freely
transferable in accordance with the terms of the immediately preceding
paragraph, the Restricted Shares will become fully vested and freely
transferable by the Employee at the earliest of (i) the termination of the
Employee's employment during the Employment Term by the Employee for Good
Reason or by the Employer without Cause, (ii) the death of the Employee or a
determination by the Board that the Employee has become disabled pursuant to
Section 6(a) or (iii) the attainment by the Employee of age 65 (each of (i),
(ii) and (iii) a "Vesting Event"); provided however that in each case the
Restricted Shares will become fully vested and freely transferable by the
Employee only if the Employee has been continually employed by the Company from
the Commencement Date through the occurrence of the Vesting Event. If the
Employee does not perform the services required under Section 1(a) through the
end of the Employment Term for any reason other than the termination of his
employment without Cause by the Company, his voluntary retirement for Good
Reason, or his death or disability (as determined pursuant to Section 6(a) of
this Agreement), or if the employment of Employee is terminated by the Company
for Cause, then all of the Restricted Shares will be forfeited to the Company.
(d) STOCK OPTIONS. On the date the Employee becomes the
President and Chief Executive Officer of the Company, and pursuant to the 1992
Plan, the Employee will be granted nonqualified options to purchase 375,000
shares of the Company's common stock.
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The per share exercise price of any shares subject to the options will be equal
to the "fair market value," as defined in the 1992 Plan, of one share of the
Company's common stock on the date the option is granted, and on the date the
options are granted, the Company and the Employee shall execute a Stock Option
Agreement substantially in the form of Appendix D hereto.
(e) COMPENSATING RETIREMENT BENEFIT. In addition to any
benefits payable to Employee after his retirement by virtue of his
participation in the Tidewater defined benefit pension plan and Supplemental
Executive Retirement Plan, the Company shall, from and after the date of the
Employee's normal retirement on or after age 65 (the "Retirement Date"), pay to
the Employee, from time to time, such additional amounts as are necessary to
make the Employee's total retirement benefits payable after the Retirement Date
(including retirement benefits provided by Employee's prior employer and
benefits paid prior to the Retirement Date under the Tidewater defined benefit
plan and Supplemental Executive Retirement Plan) not less in amount than the
retirement benefits to which the Employee would have been entitled under the
terms of any qualified and non-qualified defined benefit pension plans of his
immediate prior employer. The Company's obligation hereunder shall, in the
event that Employee's employment with the Company is terminated for any reason
(including his death) prior to age 65, be limited by reference to the amount
that the Employee would have been entitled to receive under the defined benefit
pension plans of his immediate prior employer assuming that Employee's
employment by his immediate prior employer had terminated on the same date his
employment with the Company is terminated. In making any benefit calculation
contemplated hereby, it shall be assumed that the Employee's compensation for
purposes of such plans was, for periods prior to the Commencement Date, his
covered compensation with such prior employer and, for periods after the
Commencement Date, his compensation under this Agreement. This compensating
retirement benefit will be paid in the same manner as payments are made under
the Company's Supplemental Executive Retirement Plan and will be based on
calculations using the same actuarial assumptions used in the Company's defined
benefit plan. The Employee has provided the Company with copies of all
documents related to retirement compensation available to the Employee from the
prior employer, which documents are attached hereto as Appendix E.
(f) INDEMNIFICATION. Under its Bylaws, the Company
provides, as of the Commencement Date, certain indemnification rights to its
officers and directors that will be applicable to the Employee with respect to
his acts and omissions in his capacity as an officer and director of the
Company. The Company agrees to provide indemnification rights to the Employee
identical to those provided for in its Bylaws as in existence on the
Commencement Date as to all 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 during the Employment Term, without regard to whether such actions,
suits or proceedings are made, asserted or arise during or after the Employment
Term.
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(g) OTHER BENEFITS. During the Employment Term, the
Employee shall be entitled to all benefits and perquisites provided to senior
executive employees of the Company, including but not limited to the benefits
referred to in Appendix F hereof.
5. EXPENSES. (a) MOVING EXPENSES. The Company will pay the
Employee's expenses associated with moving the Employee's residence to the New
Orleans, Louisiana area, in accordance with the Company's relocation package, a
copy of which is attached as Appendix G, and will also pay to the Employee in
cash the amount needed by the Employee to pay any federal and state income
taxes due with respect to the moving expense reimbursement.
(b) OTHER EXPENSES. The Employee will be reimbursed for
out-of-pocket expenses incurred from time to time on behalf of the Company or
any subsidiary in the performance of his duties under this Agreement, upon the
presentation of such supporting invoices, documents and forms as the Company
reasonably requests.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Employee's status as an
employee will terminate immediately and automatically upon the Employee's death
during the Employment Term. If (i) the Employee is rendered incapable because
of physical or mental illness of satisfactorily discharging his duties and
responsibilities under this Agreement for a period of 60 consecutive days and
(ii) a duly qualified physician chosen by the Company and acceptable to the
Employee or his legal representatives so certifies in writing, the Board of
Directors of the Company shall have the power to determine that the Employee
has become disabled. If the Board of Directors makes such a determination, the
Company shall have the continuing right and option, during the period that such
disability continues, and by notice given in the manner provided in Section 15,
to terminate the status of Employee as an employee. Any such termination shall
become effective thirty days after such notice of termination is given (the
"Disability Effective Date"), unless within such thirty day period, the
Employee becomes capable of rendering services of the character contemplated
hereby (and a physician chosen by the Company and acceptable to the Employee or
his legal representatives so certifies in writing) and the Employee in fact
resumes such services. The Employee's death or the Employee's incapacity due
to physical or mental illness to discharge the responsibilities assigned by
this Agreement shall not constitute a breach of this Agreement by the Employee.
(b) CAUSE. The Company may terminate the Employee's
status as an employee for Cause. As used herein, termination by the Company of
the Employee's status as an employee for "Cause" shall mean termination as a
result of (i) the willful and continuing failure by the Employee to perform the
services contemplated by this Agreement (other than any such failure resulting
from the Employee's disability of the type specified in Section 6(a)), (ii) the
Employee's breach of or failure to comply with the covenants set forth in
Sections 8, 9 or 11 of this Agreement, or (iii) the willful engaging by the
Employee in gross misconduct injurious to the Company; provided that, no act,
or failure to act, on the Employee's part shall
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be considered "willful" for purposes of this Agreement unless done, or omitted
to be done, without a reasonable belief that such action or omission was in, or
not opposed to, the best interests of the Company. Any act, or failure to act,
by the Employee that is based upon authority given pursuant to a resolution
duly adopted by the Board of Directors or based upon the advice of counsel for
the Company shall be presumed to be done, or omitted to be done, by the
Employee in good faith and in the best interests of the Company.
(c) GOOD REASON. The Employee may terminate his status
as an employee for Good Reason. The termination by the Employee of his status
as an employee for Good Reason shall be deemed to be a justifiable termination
and shall excuse the Employee from the obligation to render services under or
relating to this Agreement. As used herein, the term "Good Reason" shall mean:
(i) The occurrence of any of the following during
the Employment Term:
(A) the assignment by the Board of
Directors to the Employee of any duties or responsibilities which are
inconsistent with the Employee's status, title and position as President and
Chief Executive Officer of the Company;
(B) any removal of the Employee from, or
any failure to reappoint or reelect the Employee to, the position of President
and Chief Executive Officer of the Company, except in connection with a
termination by the Company of the Employee's employment for Cause or on account
of disability or death of the Employee, or the termination by the Employee of
his employment other than for Good Reason;
(C) the Company's requiring the Employee
to be based anywhere other than in New Orleans, Louisiana, except for required
travel in the ordinary course of the Company's business;
(ii) a reduction in the Employee's annual salary
or a failure by the Company to pay to the Employee any installment of the
annual salary or to pay any other amounts required to be paid under this
Agreement, which failure continues for a period of ten days after written
notice thereof is given by the Employee to the Company;
(iii) the failure by the Company to obtain the
assumption of its obligations under this Agreement by any successor or assign
as contemplated in Paragraph 13 of the Agreement;
(iv) any purported termination by the Company of
the Employee's status as an employee which is not effected pursuant to a Notice
of Termination satisfying the requirements of Paragraph 6(d) hereof, or which
is not justified as a termination based on Cause; or
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(v) any breach of this Agreement by the Company.
(d) NOTICE OF TERMINATION. Any purported notice of termination of
the Employee's status as an employee must be communicated in a writing
delivered to the other party as provided in Paragraph 15 hereof (a notice of
termination complying with this sentence is referred to in this Agreement as a
"Notice of Termination"). Any such Notice of Termination that purports to
terminate Employee's employment for Cause or for Good Reason shall specify the
provision or provisions of this Agreement relied upon by the party giving such
notice and shall set forth in reasonable detail the facts and circumstances
claimed by such party to provide a basis for termination of the Employee's
employment under the provision(s) so indicated.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
Employee's employment is terminated by the Company for Cause, or by Employee
for Good Reason, the date of delivery of the Notice of Termination or any later
date specified therein, as the case may be, (ii) if the Employee'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 Employee of
such termination and (iii) if Employee's employment is terminated by reason of
his death or disability, the Date of Termination shall be the date of death of
Employee or the Disability Effective Date, as the case may be.
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON, OTHER THAN FOR CAUSE, DEATH OR
DISABILITY. If (i) the Company terminates the Employee's status as an employee
other than for Cause, death or disability, or (ii) the Employee shall terminate
his employment for Good Reason, then the Company shall pay to the Employee in a
lump sum in cash within 30 days after the Date of Termination the aggregate of
the following amounts:
(A) the sum of (1) the amount of
the Employee's Annual Base Compensation
earned through the Date of Termination, to
the extent not theretofore paid and (2) any
compensation previously deferred by the
Employee (together with any accrued interest
on earnings thereon) and any accrued vacation
pay, in each case to the extent not
previously paid (the sum of the amounts
described in clauses (1) and (2) being
hereinafter referred to as the "Accrued
Obligations").
(B) the aggregate amount of the
Employee's Annual Base Compensation for the
period beginning the day of the Date of
Termination and continuing through the last
day of the Employment Term (such amount being
referred to herein as the "Non-Accrued
Compensation").
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(C) to the extent not theretofore
paid or provided, the Company shall timely
pay or provide to the Employee any other
amounts required to be paid or provided or
which the Employee is eligible to receive
under any plan, program, policy or practice
of the Company (such other amounts being
referred to herein as the "Other Benefits").
In the event that, during the term of this Agreement, the Employer
status as an Employee is terminated under the circumstances described in
subsections 7(a)(i) or (ii) above following a change of control of the Company,
and such change of control occurs after December 31, 1995, then, in lieu of any
amount that Employee would otherwise be entitled to receive by virtue of
paragraph 7(a)(B) above, Employee shall be entitled to receive an amount equal
to two times his Annual Base Compensation.
As used in this Section, the phrase "change in control of the Company"
shall mean a change in control of the type that would be required to be
reported in response to Item 6(e) of Schedule 14A promulgated under the
Exchange Act, whether or not the Company is then subject to such reporting
requirement; provided that, without limitation, such a change of control shall
be deemed to have occurred if (A) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or
fiduciary holding securities under an employee benefit plan of the Company, is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act) directly or indirectly, of securities of the Company representing 35% or
more of the Company's combined voting power of the Company's then outstanding
securities, (B) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), a majority of the Board of
Directors is not comprised of (1) individuals who at the beginning of such
period were members of the Board plus (2) any new directors whose nomination
for election by the Board or the Company's stockholders was approved by the
vote of two-thirds of the directors then in office who either were directors at
the beginning of the period or whose nomination was previously so approved.
(b) DEATH. If the Employee's status as an employee is
terminated by reason of the Employee's death, this Agreement shall terminate
without further obligations to the Employee's legal representatives under this
Agreement, other than for payment of (i) Accrued Obligations, (ii) 50% of the
Non-Accrued Compensation (the "Death Cash Payment") and (iii) the timely
payment or provision of Other Benefits. The sum of the Accrued Obligations and
the Death Cash Payment shall be paid to the Employee's estate or beneficiary,
as applicable, in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
used in this Section 7(b) shall include, without limitation, and the Employee's
estate and/or beneficiaries shall be entitled to receive, benefits at least
equal to the most favorable benefits provided by the Company to the estates and
beneficiaries of its senior executive officers under such plans, programs,
practices and policies relating to death benefits, if any, as in effect on the
date of Employee's death.
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(c) DISABILITY. If Employee's status as an employee is
terminated by reason of Employee's disability, this Agreement will terminate
without further obligation to the Employee, other than the payment of (i)
Accrued Obligations, (ii) 50% of the Non-Accrued Compensation (the "Disability
Cash Payment") and (iii) the timely payment or provision of Other Benefits.
The sum of Accrued Obligations and the Disability Cash Payment will be paid to
the Employee in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
used in this Section 7(c) shall include, and the Employee will be entitled
after the Disability Effective Date to receive, disability and other benefits
at least equal to the most favorable of those generally provided by the Company
to disabled executive officers and their families in accordance with such
plans, programs, practices and policies related to disability that are in
effect on the Disability Effective Date.
(d) CAUSE, OTHER THAN FOR GOOD REASON. If the Employee's
status as an employee shall be terminated for Cause by Employer, or voluntarily
terminated by Employee other than for Good Reason, this Agreement shall
terminate without further obligation to the Employee other than for (i) Accrued
Obligations, which shall be paid in a lump sum in cash within 30 days of the
Date of Termination, and (ii) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Employee his accrued, vested
benefits under any benefit plan or program of the Company.
(e) CHANGE OF CONTROL BENEFIT. If Employee is subjected
to an excise tax as a result of the golden parachute provisions of section 4999
of the Internal Revenue Code of 1986, as amended, the Company shall pay to
Employee such amounts as are necessary to place Employee in the same after-tax
position as he would have been had such golden parachute provisions not been
applicable to him. This tax gross-up provision shall take into account any
such applicable excise tax, any state or federal interest and penalties and any
state or federal income tax and excise tax payable with respect to the
additional payment provided by this Section 7(e).
8. TRADE SECRETS, ETC. The Employee 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 subsidiaries or
corporate affiliates and their respective businesses and operations, which
shall have been obtained by the Employee during the Employee's employment
(whether prior to or after the Commencement Date) and which shall not have
become public knowledge (other than by acts of the Employee or any of his
representatives in violation of this Agreement). At the end of the Employment
Term, the Employee agrees (i) not, without the prior written consent of the
Company or as may be otherwise required by law or legal process, to communicate
or divulge any such information, knowledge or data to any party other than the
Company and (ii) to deliver promptly to the Company any confidential
information, knowledge or data in his possession, whether produced by the
Company or any of its subsidiaries and corporate affiliates or by the Employee,
that relates to the business of the Company or any of its subsidiaries and
joint ventures or any past, current or prospective activity of the Company or
any of its subsidiaries and joint ventures. The Employee shall be
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permitted to retain copies of such data as are necessary in order to enable the
Employee to assert any rights under this Agreement, provided that such data
shall be used solely for such purpose.
9. CUSTOMER LISTS. The Employee recognizes and acknowledges that
any written list or lists of the customers of the Company or any of its
subsidiaries and joint ventures ("customer lists"), as such customer lists may
exist from time to time, are valuable, special and unique assets of the
Company. The Employee agrees that he will not use for his own personal benefit
or disclose such customer lists to any person, firm, corporation, association
or other entity for any reason or purpose whatsoever. Personal and social
contacts with past, present or future customers of the Company shall not be
prohibited hereby.
10. LIMITED COVENANT NOT TO COMPETE. For a period of two years
commencing with the expiration of the term of this Agreement, the Employee will
not, directly or indirectly, own, manage, operate, control, be employed by,
participate in, or be connected in any manner with the ownership, management,
operation or control of any company or other business enterprise engaged in a
line or lines of business similar to that of the Company or any of its
subsidiaries or joint ventures, within any parish of the State of Louisiana (as
set forth in Appendix H), or any other jurisdiction (whether within or outside
the United States), in which the business of the Company or any of its
subsidiaries or joint ventures is carried on, so long as the Company or any of
its subsidiaries or joint ventures carries on a like line of business therein;
provided, however, that nothing contained herein shall (a) prohibit the
Employee from making investments in any publicly held company which do not
exceed in the aggregate two percent of the equity interest of such company or
(b) prohibit the Employee from continuing to hold any of the director or
officer positions held by him as of the date of this Agreement that are
disclosed on Appendix I hereto.
11. CERTAIN PROPRIETARY RIGHTS. The Employee agrees to and hereby
does assign to the Company all his right, title and interest in and to all
inventions, business plans, work models or procedures, whether or not
patentable, which are made or conceived solely or jointly by him:
(a) At any time during the term of his employment by the
Company, or
(b) With the use of time or materials of the Company.
The Employee agrees to communicate to the Company or its representatives all
facts known to him concerning such matters, to sign all necessary instruments,
make all necessary oaths and generally, at the Company's expense, to do
everything reasonably practicable (without expense to the Employee) to aid the
Company in obtaining and enforcing proper legal protection for all such matters
in all countries and in vesting title to such matters in the Company. At the
Company's request (during or after the term of this Agreement) and expense, the
Employee will promptly execute a specific assignment of title to the Company,
and perform any other acts reasonably necessary to implement the foregoing
assignment.
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12. INJUNCTIVE RELIEF. In the event of a breach or threatened
breach by the Employee of the provisions of Sections 8, 9, 10 or 11 of this
Agreement during or after the term of this Agreement, the Company shall be
entitled to injunctive relief restraining the Employee from violation of such
paragraph. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedy at law or in equity it may have in the event of
breach or threatened breach of this Agreement by the Employee.
13. BINDING EFFECT.
(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 will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to 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 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. In the event of any such assignment or
succession, the term "Company" as used in this Agreement shall refer also to
such successor or assign.
14. NOTICES. Any notice or other communication required under
this Agreement shall be in writing, shall be deemed to have been given and
received when delivered in person, or, if mailed, shall be deemed to have been
given when deposited in the United States mail, first class, registered or
certified, return receipt requested, with proper postage prepaid, and shall be
deemed to have been received on the third business day thereafter, and shall be
addressed as follows:
If to the Company, addressed to:
Tidewater Inc.
1414 Canal Street
New Orleans, Louisiana 70112
Attn: Victor I. Koock
Senior Vice President and Co-General Counsel
<PAGE> 12
If to the Employee, addressed to:
William C. O'Malley
1414 Canal Street
New Orleans, Louisiana
or such other address as to which any party hereto may have notified the other
in writing.
15. GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Louisiana.
16. ENTIRE AGREEMENT. This Agreement, including Appendices A
through I, inclusive, all of which are herein incorporated by reference and
made a part hereof, and the documents referred to herein, contain or refer to
the entire arrangement or understanding between the Employee and the Company
relating to the employment of the Employee by the Company. No provision of the
Agreement, including the Appendices, may be modified or amended except by an
instrument in writing signed by or for both parties hereto.
17. 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 or unenforceable, 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 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.
18. 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.
19. 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.
20. BENEFICIARIES. Whenever this Agreement provides for any
payment to be made to the Employee or his estate, such payment may be made
instead to such beneficiary or beneficiaries as the Employee may have
designated in writing and filed with the Company. The Employee shall have the
right to revoke any such designation from time to time and to redesignate any
beneficiary or beneficiaries by written notice to the Company.
21. COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the Board of Directors
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 as the Chief
Executive Officer during the Employment Term, subject to the rights of the
Employee to claim the benefits conferred by Section 7(a) hereof if
<PAGE> 13
such action constitutes a termination by the Company without Cause or a
termination by the Employee for Good Reason.
22. 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.
TIDEWATER INC.
By: /s/ John P. Laborde
Name: John P. Laborde
Title: Chairman of the Board, President and
Chief Executive Officer
EMPLOYEE:
/s/ William C. O'Malley
Name: William C. O'Malley
