<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 - For the Quarterly Period Ended December 31, 1999
-----------------
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 - For the Transition Period From
_____________________________________ to _________________________________
Commission file number 1-6311
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TIDEWATER INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 72-0487776
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
601 Poydras Street, Suite 1900, New Orleans, Louisiana 70130
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (604) 568-1010
------------------------
NOT APPLICABLE
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Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or of such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES X NO __________
-------
55,638,153 shares of Tidewater Inc. common stock $.10 par value per share
were outstanding on January 17, 2000. Excluded from the calculation of
shares outstanding at January 17, 2000 are 4,926,741 shares held by the
Registrant's Grantor Stock Ownership Trust. Registrant has no other class
of common stock outstanding.
-1-
<PAGE>
PART I. FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Item 1. Financial Statements
--------------------
TIDEWATER INC.
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
- --------------------------------------------------------------------------------------
December 31, March 31,
ASSETS 1999 1999
- --------------------------------------------------------------------------------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 159,129 10,422
Trade and other receivables 166,347 238,002
Marine operating supplies 24,702 27,971
Other current assets 2,614 4,483
- --------------------------------------------------------------------------------------
Total current assets 352,792 280,878
- --------------------------------------------------------------------------------------
Investments in, at equity, and advances to
unconsolidated companies 17,859 17,307
Properties and equipment:
Vessels and related equipment 1,377,897 1,505,441
Other properties and equipment 42,580 42,744
- --------------------------------------------------------------------------------------
1,420,477 1,548,185
Less accumulated depreciation 845,883 910,005
- --------------------------------------------------------------------------------------
Net properties and equipment 574,594 638,180
- --------------------------------------------------------------------------------------
Goodwill, net 340,298 347,176
Other assets 119,007 110,917
- --------------------------------------------------------------------------------------
$1,404,550 1,394,458
======================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
- --------------------------------------------------------------------------------------
Current liabilities:
Accounts payable and accrued expenses 57,000 71,256
Accrued property and liability losses 4,474 6,605
Income taxes 1,446 4,485
- --------------------------------------------------------------------------------------
Total current liabilities 62,920 82,346
- --------------------------------------------------------------------------------------
Deferred income taxes 133,979 128,826
Accrued property and liability losses 51,312 66,052
Other liabilities and deferred credits 52,635 49,527
Stockholders' equity:
Common stock of $.10 par value, 125,000,000 shares
authorized, issued 60,564,894 shares at
December and 60,566,857 shares at March 6,056 6,057
Other stockholders' equity 1,097,648 1,061,650
- --------------------------------------------------------------------------------------
Total stockholders' equity 1,103,704 1,067,707
- --------------------------------------------------------------------------------------
$1,404,550 1,394,458
======================================================================================
</TABLE>
See Notes to Unaudited Condensed Consolidated Financial Statements.
-2-
<PAGE>
<TABLE>
<CAPTION>
TIDEWATER INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(In thousands, except share and per share data)
- -------------------------------------------------------------------------------------------------------------
Quarter Ended Nine Months Ended
December 31, December 31,
------------------------- -------------------------
1999 1998 1999 1998
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues:
Vessel revenues $ 128,655 217,393 406,667 727,938
Other marine revenues 13,115 15,591 28,579 44,158
- -------------------------------------------------------------------------------------------------------------
141,770 232,984 435,246 772,096
- -------------------------------------------------------------------------------------------------------------
Costs and expenses:
Vessel operating costs 77,743 123,598 247,066 383,559
Costs of other marine revenues 11,821 12,023 23,610 34,350
Depreciation and amortization 19,780 23,635 63,057 71,434
General and administrative 14,934 20,019 48,527 57,211
- -------------------------------------------------------------------------------------------------------------
124,278 179,275 382,260 546,554
- -------------------------------------------------------------------------------------------------------------
17,492 53,709 52,986 225,542
Other income (expenses):
Foreign exchange gain (loss) (87) (141) 116 228
Gain on sales of assets 2,074 5,108 11,038 7,748
Equity in net earnings of unconsolidated companies 2,583 1,748 6,469 5,277
Minority interests (189) (268) (480) (1,236)
Interest and miscellaneous income 3,630 691 7,644 2,718
Interest and other debt costs (160) (575) (449) (2,050)
- -------------------------------------------------------------------------------------------------------------
7,851 6,563 24,338 12,685
- -------------------------------------------------------------------------------------------------------------
Earnings before income taxes 25,343 60,272 77,324 238,227
Income taxes 3,110 20,492 19,744 78,997
- -------------------------------------------------------------------------------------------------------------
Net earnings $ 22,233 39,780 57,580 159,230
=============================================================================================================
Earnings per common share $ .40 .71 1.04 2.76
=============================================================================================================
Diluted earnings per common share $ .40 .71 1.03 2.75
=============================================================================================================
Weighted average common shares outstanding 55,538,001 56,200,393 55,518,963 57,748,891
Incremental common shares from stock options 275,781 46,233 249,401 94,008
- -------------------------------------------------------------------------------------------------------------
Adjusted weighted average common shares 55,813,782 56,246,626 55,768,364 57,842,899
=============================================================================================================
Cash dividends declared per common share $ .15 .15 .45 .45
=============================================================================================================
</TABLE>
See Notes to Unaudited Condensed Consolidated Financial Statements.
-3-
<PAGE>
TIDEWATER INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
December 31, December 31,
------------------ -----------------
1999 1998 1999 1998
------------------- -----------------
<S> <C> <C> <C> <C>
Net cash provided by operating activities 32,235 71,234 164,081 250,629
- --------------------------------------------------------------------------------------------
Cash flows from investing activities:
Proceeds from sales of assets 7,088 11,268 60,414 17,603
Additions to properties and equipment (8,710) (21,581) (51,149) (38,399)
Income tax payments related to sale of
compression operations --- (236) --- (68,347)
Other 80 135 142 195
- --------------------------------------------------------------------------------------------
Net cash provided by (used in) investing
activities (1,542) (10,178) 9,407 (20,601)
- --------------------------------------------------------------------------------------------
Cash flows from financing activities:
Principal payments on long-term debt --- (25,000) --- (108,172)
Credit facility borrowings --- --- --- 80,000
Proceeds from issuance of common stock 55 59 243 496
Common stock purchased --- (36,364) --- (109,312)
Dividends paid (8,344) (8,436) (25,024) (26,059)
- --------------------------------------------------------------------------------------------
Net cash used in financing activities (8,289) (69,741) (24,781) (163,047)
- --------------------------------------------------------------------------------------------
Net change in cash and cash equivalents 22,404 (8,921) 148,707 (1,366)
Cash and cash equivalents at beginning of period 136,725 32,532 10,422 24,977
- --------------------------------------------------------------------------------------------
Cash and cash equivalents at end of period $159,129 23,611 159,129 23,611
============================================================================================
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest $ 2 673 328 2,026
Income taxes $ 2,428 22,368 19,776 148,492
============================================================================================
</TABLE>
See Notes to Unaudited Condensed Consolidated Financial Statements.
-4-
<PAGE>
TIDEWATER INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------
(1) Interim Financial Statements
The consolidated financial information for the interim periods presented herein
has not been audited by independent accountants, but in the opinion of
management, all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of the condensed consolidated balance sheets
and the condensed consolidated statements of earnings and cash flows at the
dates and for the periods indicated have been made. Results of operations for
interim periods are not necessarily indicative of results of operations for the
respective full years.
(2) Stockholders' Equity
At December 31, 1999 and March 31, 1999, 4,928,583 and 4,985,860 shares,
respectively, of common stock were held in a grantor stock ownership plan trust
for the benefit of stock-based employee benefits programs. These shares are not
included in common shares outstanding for earnings per share calculations and
transactions between the company and the trust, including dividends paid on the
company's common stock, are eliminated in consolidating the accounts of the
trust and the company.
(3) Income Taxes
Income tax expense for interim periods is based on estimates of the effective
tax rate for the entire fiscal year. The effective tax rate was 32% for the
quarter and nine-month periods ended December 31, 1999, excluding a $5 million
(or $.09 per share) reduction in previously provided taxes resulting from the
company's settlement in the current quarter of open income tax audits which had
the effect of reducing the effective tax rate for the quarter and nine-month
periods ended December 31, 1999 to 12.3% and 25.5%, respectively. The effective
tax rate was 34% for the quarter and nine-month periods ended December 31, 1998,
excluding a $2 million (or $.03 per share) second quarter reduction in deferred
taxes resulting from the lowering of United Kingdom corporate income tax rates
which had the effect of reducing the effective tax rate for the nine-month
period ended December 31, 1998 to 33.2%.
-5-
<PAGE>
INDEPENDENT ACCOUNTANTS' REVIEW REPORT
--------------------------------------
The Board of Directors and Shareholders
Tidewater Inc.
We have reviewed the accompanying condensed consolidated balance sheet of
Tidewater Inc. as of December 31, 1999, and the related condensed consolidated
statements of earnings and cash flows for the three-month and nine-month periods
ended December 31, 1999 and 1998. These financial statements are the
responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, which will be performed
for the full year with the objective of expressing an opinion regarding the
financial statements taken as a whole. Accordingly, we do not express such an
opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to the accompanying condensed consolidated financial statements referred
to above for them to be in conformity with generally accepted accounting
principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Tidewater Inc. as of
March 31, 1999, and the related consolidated statements of earnings,
stockholders' equity and cash flows for the year then ended, not presented
herein, and in our report dated April 27, 1999, we expressed an unqualified
opinion on those consolidated financial statements. In our opinion, the
information set forth in the accompanying condensed consolidated balance sheet
as of March 31, 1999, is fairly stated, in all material respects, in relation to
the consolidated balance sheet from which it has been derived.
Ernst & Young LLP
New Orleans, Louisiana
January 17, 2000
-6-
<PAGE>
Item 2. Management's Discussion and Analysis
------------------------------------
The company provides services to the international offshore energy industry
through the operation of a diversified fleet of marine service vessels.
Revenues, net earnings and cash flows from operations are dependent upon the
activity level of the vessel fleet which is ultimately dependent upon oil and
natural gas prices which, in turn, are determined by the supply/demand
relationship for oil and natural gas. The following discussion should be read in
conjunction with the unaudited condensed consolidated financial statements and
related disclosures.
In accordance with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, the company notes that certain statements set
forth in this Quarterly Report on Form 10-Q which provide other than historical
information and which are forward looking, involve risks and uncertainties that
may impact the company's actual results of operations. The company faces many
risks and uncertainties, many of which are beyond the control of the company,
including: fluctuations in oil and gas prices; changes in capital spending by
customers in the energy industry for exploration, development and production;
unsettled political conditions, civil unrest and governmental actions,
especially in higher risk countries of operations; foreign currency controls;
and environmental and labor laws. Readers should consider all of these risk
factors as well as other information contained in this report.
MARINE OPERATIONS
- -----------------
Offshore service vessels provide a diverse range of services to the energy
industry. Fleet size, utilization and vessel day rates primarily determine the
amount of revenues and operating profit because operating costs and depreciation
do not change proportionally when revenue changes. Operating costs principally
consist of crew costs, repair and maintenance, insurance, fuel, lube oil and
supplies. Fleet size and utilization are the major factors which affect crew
costs. The timing and amount of repair and maintenance costs are influenced by
vessel age and scheduled drydockings to satisfy safety and inspection
requirements mandated by regulatory agencies. Whenever possible, vessel
drydockings are done during seasonally slow periods to minimize the impact on
vessel operations and are only done if economically justified, given the
vessel's age and physical condition.
-7-
<PAGE>
The following table compares revenues and operating costs (excluding general and
administrative expense and depreciation expense) for the quarters and nine-month
periods ended December 31 and for the quarter ended September 30, 1999. Vessel
revenues and operating costs relate to vessels owned and operated by the company
while other marine services relate to third-party activities of the company's
shipyards, brokered vessels and other miscellaneous marine-related activities.
<TABLE>
<CAPTION>
Quarter
Quarter Ended Nine Months Ended Ended
December 31, December 31, Sept 30,
----------------- ----------------- --------
(In thousands) 1999 1998 1999 1998 1999
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues:
Vessel revenues:
United States $ 36,444 61,440 104,120 252,530 34,918
International 92,211 155,953 302,547 475,408 94,817
- ---------------------------------------------------------------------------------
128,655 217,393 406,667 727,938 129,735
Other marine revenues 13,115 15,591 28,579 44,158 9,211
- ---------------------------------------------------------------------------------
$141,770 232,984 435,246 772,096 138,946
=================================================================================
Operating costs:
Vessel operating costs:
Crew costs $ 45,103 67,594 142,647 201,932 44,135
Repair and maintenance 13,819 30,339 47,215 106,338 16,334
Insurance 5,168 6,478 14,729 18,538 4,264
Fuel, lube and supplies 6,174 8,974 18,666 27,868 5,508
Other 7,479 10,213 23,809 28,883 7,190
- ---------------------------------------------------------------------------------
77,743 123,598 247,066 383,559 77,431
Costs of other marine revenues 11,821 12,023 23,610 34,350 7,434
- ---------------------------------------------------------------------------------
$ 89,564 135,621 270,676 417,909 84,865
=================================================================================
</TABLE>
Marine support services are conducted worldwide with assets that are highly
mobile. Revenues are principally derived from offshore service vessels, which
regularly and routinely move from one operating area to another, often to and
from offshore operating areas in different continents. Because of this asset
mobility, revenues and long-lived assets attributable to the company's
international marine operations in any one country are not "material" as that
term is defined by SFAS No. 131.
As a result of the uncertainty of certain customers to make payment of vessel
charter hire, the company has deferred the recognition of approximately $11.5
million of billings as of December 31, 1999 ($9.7 million of billings as of
March 31, 1999), which would otherwise have been recognized as revenue. The
company will recognize the amounts as revenue when the uncertainty has been
reduced.
-8-
<PAGE>
Marine operating profit and other components of earnings before income taxes for
the quarters and nine-month periods ended December 31 and for the quarter ended
September 30, 1999 consist of the following:
<TABLE>
<CAPTION>
Quarter
Quarter Ended Nine Months Ended Ended
December 31, December 31, Sept 30,
----------------- ------------------- --------
(In thousands) 1999 1998 1999 1998 1999
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Vessel activity:
United States $ 379 13,043 381 95,411 399
International 18,617 41,270 58,297 132,188 18,633
- ----------------------------------------------------------------------------------------
18,996 54,313 58,678 227,599 19,032
Gain on sales of assets 2,074 5,108 11,029 7,748 6,598
Other marine services 1,162 3,346 4,487 9,205 1,661
- ----------------------------------------------------------------------------------------
Operating profit 22,232 62,767 74,194 244,552 27,291
- ----------------------------------------------------------------------------------------
Equity in net earnings of
unconsolidated companies 2,583 1,748 6,469 5,277 1,900
Interest and other debt costs (160) (575) (449) (2,050) (163)
Corporate general and administrative (2,481) (3,685) (8,546) (10,192) (3,120)
Other income 3,169 17 5,656 640 1,864
- ----------------------------------------------------------------------------------------
Earnings from continuing operations
before income taxes $25,343 60,272 77,324 238,227 27,772
========================================================================================
</TABLE>
Operating profit for the quarter and nine-month periods ended December 31, 1999
decreased from the comparative periods in fiscal 1999 due to declines in
utilization, average day rates and the number of active vessels for the
worldwide fleet. Declines in utilization and average day rates are directly
related to the current oil industry downturn. This downturn in activity and
spending in the oil industry commenced with the drop in the price of oil in the
fall of 1997 due primarily to worldwide oil surpluses. Cutbacks in customer
drilling programs resulted, thus, negatively affecting the U.S. Gulf of Mexico
vessel market first as the duration of vessel contracts in this region normally
range from one to three months. Significant increases in the pricing of oil over
the past nine months combined with a tightening of crude oil inventory levels
have increased the demand for working drilling rigs and services. Despite the
significant improvement in the price of oil and active rig count, the oil
industry has not yet rebounded in full from the sharp decline experienced during
fiscal year 1999.
In response to the oil industry downturn the following actions have been taken.
During the last quarter of fiscal 1999 the company began stacking those vessels
that cannot find gainful employment. Drydockings associated with the stacked
vessels have been deferred thus substantially reducing repair and maintenance
costs for the current quarter and nine-month period versus the same periods in
fiscal 1999. Reductions in crew personnel have also been made. The personnel
reductions lowered crew costs for the quarter and nine-month periods ended
December 31, 1999 versus these same periods in fiscal year 1999. During the
current quarter 32 older, little-used vessels were withdrawn from active service
at which time they were removed from the utilization statistics. Thirteen of the
vessels were withdrawn from the domestic market and 19 were withdrawn from the
international market. Vessel utilization rates are a function of vessel days
worked and vessel days available for active vessels only.
U.S.-based vessel revenues for the quarter and nine-month periods ended December
31, 1999 have decreased by approximately 41% and 59%, respectively, as compared
to the same periods in fiscal 1999 resulting in a marginal operating profit for
the current quarter and nine-month period. Average day rates for the towing
supply/supply vessels, the company's major income producing assets in the
domestic market, decreased by approximately 20% and 42% for the current quarter
and nine-month periods, respectively, as compared to the same periods in fiscal
1999. The upward trend in the number of working drilling rigs in the U.S. Gulf
of Mexico continues as oil prices increase; however, vessel demand is expected
to increase moderately until further improvements in rig utilization occurs.
-9-
<PAGE>
In addition, the delivery of several newly-constructed supply vessels to various
industry competitors has negatively affected the supply and demand balance in
the Gulf of Mexico supply vessel market, thereby putting continued downward
pressure on vessel utilization and day rates.
Current quarter operating profit for the U.S.-based vessels was consistent with
the prior quarter. A modest increase in U.S.-based vessel utilization combined
with a slight increase in the average day rates resulted in an increase in
revenue that was offset by higher operating costs, primarily wages. Increases in
domestic oil prices and demand for working drilling rigs are gradually reversing
the declining vessel demand in the U.S. Gulf of Mexico.
International-based vessel operating profit for the quarter and nine-month
periods ended December 31, 1999 decreased by approximately 41% and 36%,
respectively, as compared to the same periods in fiscal 1999. International-
based average day rates continued their decline, which began in the first
quarter of fiscal 2000, while vessel utilization rates have increased slightly
in the current quarter due to a decrease in the number of vessel days available.
Vessel utilization rates are a function of vessel days worked and vessel days
available for active vessels only. The removal of several vessels from active
service during the quarter decreased the vessel days available count which
consequently increased the vessel utilization rates. Up until nine-months ago,
international activity had not been as dramatically affected by the oil industry
downturn as the U.S. Gulf of Mexico due primarily to the longer-term nature of
international vessel contracts. Depressed oil prices up until the beginning of
this fiscal year have resulted in curtailments of customer projects, thus
lowering international vessel demand. Lower international vessel demand will
likely continue for the remainder of fiscal year 2000.
Current quarter international-based vessel operating profit was also consistent
with the prior quarter. Average day rates continued to decline during the
quarter as international activity continues to be negatively affected by the
depressed oil prices experienced throughout calendar year 1998.
Gains on sales of assets decreased in the current quarter due to fewer vessel
sales. Interest and other debt costs were negligible as the company had no
outstanding debt during the current nine-month period. Other income increased
during the current nine-month period as the result of interest earned on an
increased cash balance.
Vessel utilization is determined primarily by market conditions and to a lesser
extent by drydocking requirements. Vessel day rates are determined by the demand
created through the level of offshore exploration, development and production
spending by energy companies relative to the supply of offshore service vessels.
Suitability of equipment and the degree of service provided also influence
vessel day rates. The following two tables compare day-based utilization
percentages and average day rates by vessel class and in total for the quarters
and nine-month periods ended December 31 and for the quarter ended
September 30, 1999:
-10-
<PAGE>
<TABLE>
<CAPTION>
Quarter
Quarter Ended Nine Months Ended Ended
December 31, December 31, Sept 30,
--------------- -------------------- ---------
1999 1998 1999 1998 1999
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
UTILIZATION:
- -----------
Domestic-based fleet
--------------------
Towing-supply/supply 58.7% 74.1 52.7 77.6 52.3
Crew/utility 77.1 79.8 76.2 85.2 74.1
Offshore tugs 42.8 50.7 42.8 56.0 46.8
Other 44.7 49.7 55.7 47.9 76.8
Total 57.8% 69.6 54.1 73.6 55.2
International-based fleet
-------------------------
Towing-supply/supply 74.0% 81.0 70.9 83.7 67.0
Crew/utility 83.3 89.3 87.7 85.9 90.4
Offshore tugs 66.3 74.9 60.7 74.2 51.2
Safety/standby --- 78.6 77.5 81.3 ---
Other 48.5 69.2 49.7 68.9 48.3
Total 71.9% 80.2 70.1 81.4 66.3
Worldwide fleet
---------------
Towing-supply/supply 68.1% 78.4 64.0 81.4 61.6
Crew/utility 81.2 85.9 83.8 85.7 84.9
Offshore tugs 56.3 64.8 53.1 66.5 49.4
Safety/standby --- 78.6 77.5 81.3 ---
Other 47.7 64.6 51.0 63.9 54.4
Total 66.6% 76.5 64.3 78.6 62.3
================================================================================
AVERAGE VESSEL DAY RATES:
- ------------------------
Domestic-based fleet
--------------------
Towing-supply/supply $3,646 4,545 3,619 6,284 3,484
Crew/utility 1,871 2,021 1,823 2,150 1,790
Offshore tugs 5,751 7,643 5,901 7,614 5,922
Other 1,188 2,073 1,262 2,835 1,250
Total $3,512 4,450 3,501 5,646 3,427
International-based fleet
-------------------------
Towing-supply/supply $5,189 6,562 5,472 6,576 5,522
Crew/utility 2,188 2,428 2,204 2,426 2,172
Offshore tugs 3,827 4,303 3,905 4,240 3,818
Safety/standby --- 6,201 6,087 6,366 ---
Other 1,358 891 1,333 877 1,383
Total $4,247 5,225 4,452 5,285 4,401
Worldwide fleet
----------------
Towing-supply/supply $4,677 5,860 4,897 6,472 4,878
Crew/utility 2,084 2,293 2,086 2,323 2,059
Offshore tugs 4,456 5,396 4,584 5,434 4,638
Safety/standby --- 6,201 6,087 6,366 ---
Other 1,322 1,104 1,316 1,222 1,343
Total $4,009 4,980 4,162 5,405 4,088
================================================================================
</TABLE>
-11-
<PAGE>
The following table compares the average number of vessels by class and
geographic distribution for the quarters and nine-month periods ended
December 31 and for the quarter ended September 30, 1999:
<TABLE>
<CAPTION>
Quarter
Actual Vessel Quarter Ended Nine Months Ended Ended
Count At December 31, December 31, Sept 30,
------------- -----------------
Dec. 31, 1999 1999 1998 1999 1998 1999
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Domestic-based fleet:
- --------------------
Towing-supply/supply 124 127 136 129 139 129
Crew/utility 24 26 31 26 33 26
Offshore tugs 32 33 38 36 39 36
Other 9 9 10 9 10 9
- ------------------------------------------------------------------------------------------
Total 189 195 215 200 221 200
- ------------------------------------------------------------------------------------------
International-based fleet:
- -------------------------
Towing-supply/supply 202 203 233 213 232 219
Crew/utility 50 49 56 50 55 50
Offshore tugs 43 44 54 49 54 52
Safety/standby --- --- 29 8 29 ---
Other 32 32 33 33 33 33
- ------------------------------------------------------------------------------------------
Total 327 328 405 353 403 354
- ------------------------------------------------------------------------------------------
Owned or chartered vessels
included in marine revenues 516 523 620 553 624 554
Vessels withdrawn from active
service 64 62 27 52 26 43
Joint-venture and other: 44 44 49 44 49 44
- ------------------------------------------------------------------------------------------
Total 624 629 696 649 699 641
==========================================================================================
</TABLE>
The average count of both the domestic and international-based fleet decreased
from the prior quarter due primarily to withdrawing vessels from active service
as mentioned previously and to vessel sales.
During the previous quarter the company acquired six new-build vessels for an
aggregate price of approximately $22 million. The package of vessels included
one supply vessel, two offshore tugs and three crew boats. Two of the vessels
were delivered in the previous quarter. The remaining four vessels were still
under construction and not included in the quarter ended September 30, 1999
vessel count, but were completed and delivered in the current quarter. The
company sold all of its safety/standby vessels for approximately $40 million in
an all cash transaction during the second quarter of fiscal year 2000. This
specialized fleet was sold because it did not conform to the company's long-
range strategies.
-12-
<PAGE>
General and administrative expenses for the quarters and nine-month periods
ended December 31 and for the quarter ended September 30, 1999:
Quarter
Quarter Ended Nine Months Ended Ended
December 31, December 31, Sept 30,
--------------- -----------------
(In thousands) 1999 1998 1999 1998 1999
- ---------------------------------------------------------------------
Personnel $ 9,396 11,916 28,763 34,151 9,916
Office and property 2,576 3,196 8,227 9,832 2,752
Sales and marketing 997 1,430 3,165 4,110 1,058
Professional services 1,416 1,346 4,001 4,054 1,353
Other 549 2,131 4,371 5,064 1,568
- ---------------------------------------------------------------------
$14,934 20,019 48,527 57,211 16,647
=====================================================================
General and administrative expenses for the quarter and nine-month periods ended
December 31, 1999 decreased approximately 25% and 15%, respectively, as compared
to the same periods in fiscal 1999 due primarily to personnel reductions
resulting from the sale of the safety/standby vessel fleet and the declining
business environment.
LIQUIDITY, CAPITAL RESOURCES AND OTHER MATTERS
- ----------------------------------------------
The company's current ratio, level of working capital and amount of cash flows
from continuing operations for any year are directly related to fleet activity
and vessel day rates. Fleet activity and vessel day rates are ultimately
determined by the supply/demand relationship for oil and natural gas. Variations
from year-to-year in these items are primarily the result of market conditions.
Cash from ongoing operations in combination with available lines of credit
provide the company, in management's opinion, with adequate resources to satisfy
present financing requirements. At December 31, 1999, all of the company's $200
million revolving line of credit was available to satisfy financing needs.
Continued payment of dividends, currently $.15 per quarter per common share, is
subject to declaration by the Board of Directors.
Investing activities for the nine months ended December 31, 1999 provided $9.4
million of cash which included $60.4 million from proceeds from sales of assets,
primarily the safety/standby fleet for approximately $40 million during the
second quarter. Sale proceeds were offset by additions to properties and
equipment totaling $51.1 million comprised of approximately $6.3 million in
capitalized repairs and maintenance and approximately $42.6 million in new
construction. The new construction includes approximately $22 million for the
purchase of six new-build vessels as previously discussed. Financing activities
include quarterly cash dividends of $.15 per share.
INFLATION AND CURRENCY FLUCTUATIONS
- -----------------------------------
Because of its significant international operations, the company is exposed to
currency fluctuations and exchange risks. To minimize the financial impact of
these items the company attempts to contract a majority of its services in
United States dollars.
Day-to-day operating costs are generally affected by inflation. However, because
the energy services industry requires specialized goods and services, general
economic inflationary trends may not affect the company's operating costs. The
major impact on operating costs is the level of offshore exploration,
development and production spending by energy exploration and production
companies. As this spending increases, prices of goods and services used by the
energy industry and the energy services industry will increase. Future increases
in vessel day rates may mitigate the effects on the company from the
inflationary effects on operating costs.
-13-
<PAGE>
ENVIRONMENTAL MATTERS
- ---------------------
During the ordinary course of business the company's operations are subject to a
wide variety of environmental laws and regulations. The company attempts to
comply with these laws and regulations in order to avoid costly accidents and
related environmental damage. Compliance with existing governmental regulations
which have been enacted or adopted regulating the discharge of materials into
the environment, or otherwise relating to the protection of the environment, has
not had, nor is expected to have, a material effect on the company. The company
is proactive in establishing policies and operating procedures for safeguarding
the environment against any environmentally hazardous material aboard its
vessels and at shore base locations. Whenever possible, hazardous materials are
maintained or transferred in confined areas to ensure containment if accidents
occur. In addition the company has established operating policies that are
intended to increase awareness of actions that may harm the environment.
Item 3. Quantitative and Qualitative Disclosure About Market Risk
---------------------------------------------------------
No change from 1999 annual report disclosure.
-14-
<PAGE>
PART II. OTHER INFORMATION
Item 4. Exhibits and Reports on Form 8-K
--------------------------------
A. At page 17 of this report is the index for those exhibits required to be
filed as a part of this report.
B. The company did not file any reports during the quarter for which this
report is filed.
-15-
<PAGE>
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: January 19, 2000 /s/ William C. O'Malley
______________________________________________________
William C. O'Malley
Chairman of the Board, President and
Chief Executive Officer
Date: January 19, 2000 /s/ Ken C. Tamblyn
______________________________________________________
Ken C. Tamblyn
Executive Vice President and
Chief Financial Officer (Principal Accounting Officer)
-16-
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- ------
10(a) Amendment No. 1 to Employment Agreement dated October 1, 1999 between
Tidewater Inc. and William C. O'Malley.
10(b) Amended and Restated Change of Control Agreement dated October 1, 1999
between Tidewater and William C. O'Malley.
10(c) Form of Amended and Restated Change of Control Agreement dated October
1, 1999 with three executive officers of Tidewater Inc.
10(d) Second Amended and Restated Employees' Supplemental Savings Plan of
Tidewater Inc. dated October 1, 1999.
10(e) Restated Non-Qualified Deferred Compensation Plan and Trust Agreement
as Restated October 1, 1999 between Tidewater Inc. and Merrill Lynch
Trust Company of America.
10(f) Tidewater Inc. Second Amended and Restated Supplemental Executive
Retirement Plan dated October 1, 1999.
10(g) Restated Tidewater Inc. 1997 Stock Incentive Plan, effective October
1, 1999.
10(h) Restated Non-Qualified Pension Plan for Outside Directors of Tidewater
Inc., effective October 1, 1999.
10(i) Amended and Restated Deferred Compensation Plan for Outside Directors
of Tidewater Inc., effective October 1, 1999.
10(j) Seconded Restated Executives Supplemental Retirement Trust as Restated
October 1, 1999 between Tidewater Inc. and Hibernia National Bank.
15 Letter re Unaudited Interim Financial Information
27 Financial Data Schedule
-17-
<PAGE>
EXHIBIT 10(a)
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
The Employment Agreement between Tidewater Inc., a Delaware corporation
("Company") and William C. O'Malley ("Employee") effective as of September 19,
1997 ("Agreement") is hereby amended, effective as of October 1, 1999, as
follows:
1. Both sentences of Section 2 of the Agreement are amended by the
insertion of the following phrase at the beginning of each sentence: "Subject
to Section 7A hereof,".
2. The first sentence of Section 4(e) of the Agreement is amended by the
addition of the following phrase at the end thereof: "assuming that Employee's
employment by his immediate prior employer had terminated on the Retirement
Date".
3. The last two paragraphs of Section 7(a) and all of Section 7(e) of the
Agreement are deleted; they are replaced by the following new Section 7A:
"7A. OBLIGATIONS OF THE COMPANY AND THE EMPLOYEE IN THE EVENT OF A
CHANGE OF CONTROL
"(a) Upon and following a Change of Control of the Company (as
defined in Section 7A(b) hereof), the rights and obligations of the
Employee and the Company shall not be governed by this Agreement, but shall
be as provided in the Change of Control Agreement between the Employee and
the Company dated effective October 1, 1999 and any amendments thereto or
any subsequent change of control agreement between the Employee and the
Company (including any rights or obligations in this Agreement which are
specifically incorporated by reference therein). Upon the occurrence of a
Change of Control, the term of the Agreement shall end, and the provisions
of the Agreement (including, without limitation, the Employee's covenant
not to compete) shall be null and void, and of no further force and effect,
except that compensation, benefit and
<PAGE>
indemnification obligations accrued by the Company with respect to the
Employee prior to the Change of Control and during the term of the
Agreement shall remain valid and enforceable.
"(b) Change of Control. As used in this Section 7A, 'Change of
Control' shall mean:
(i) the acquisition by any 'Person' (as defined in Section 7A(c)
hereof) of 'Beneficial Ownership' (as defined in Section 7A(c) hereof)
of 30% or more of the outstanding Shares of the Company's Common
Stock, $0.10 par value per share (the 'Common Stock') or 30% or more
of the combined voting power of the Company's then outstanding
securities; provided, however, that for purposes of this subsection
7A(b)(i), the following shall not constitute a Change of Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 7A(b)(iii) hereof) which constitutes a Change
of Control under Section 7A(b)(iii) hereof) of Common Stock
directly from the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a
Change of Control under Section 7A(b)(iii) hereof; or
(ii) individuals who, as of the effective date of this amendment
to the Agreement, constitute the Board (the 'Incumbent Board') cease
for any reason to constitute at least a majority of the Board;
2
<PAGE>
provided, however, that any individual becoming a director subsequent
to the effective date of this amendment whose election, or nomination
for election by the Company's shareholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent
Board shall be considered a member of the Incumbent Board, unless such
individual's initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Incumbent Board; or
(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of
all or substantially all of the assets of the Company (a 'Business
Combination'), in each case, unless, immediately following such
Business Combination,
(A) the individuals and entities who were the Beneficial
Owners of the Company's outstanding Common Stock and the
Company's voting securities entitled to vote generally in the
election of directors immediately prior to such Business
Combination have direct or indirect Beneficial Ownership,
respectively, of more than 50% of the then outstanding shares of
common stock, and more than 50% of the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, of the Post-Transaction Corporation
(as defined in Section 7A(c) hereof), and
(B) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-
Transaction Corporation and any employee benefit plan or related
trust of either the Company, the Post-Transaction Corporation or
any subsidiary of either corporation) Beneficially Owns, directly
or indirectly, 30% or more of the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or 30% or more of the combined voting power of the
then outstanding voting securities of such corporation, and
3
<PAGE>
(C) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
"(c) Other Definitions. As used in Section 7A(b) hereof, the
following words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a
Person that controls, or is controlled by, or is under common control
with, another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants
thereof), with respect to a security, shall mean a Person who,
directly or indirectly (through any contract, understanding,
relationship or otherwise), has or shares (i) the power to vote, or
direct the voting of, the security, and/or (ii) the power to dispose
of, or to direct the disposition of, the security.
(iii) Person: 'Person' shall mean a natural person or company,
and shall also mean the group or syndicate created when two or more
Persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership)
4
<PAGE>
for the purpose of acquiring, holding, or disposing of a security,
except that 'Person' shall not include an underwriter temporarily
holding a security pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 7A(b)(iii)
hereof), 'Post-Transaction Corporation' shall mean the Company after
the Change of Control. If a Change of Control includes a Business
Combination, 'Post-Transaction Corporation' shall mean the corporation
resulting from the Business Combination unless, as a result of such
Business Combination, an ultimate parent corporation controls the
Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, 'Post-Transaction Corporation'
shall mean such ultimate parent corporation."
Tidewater Inc.
Date of Execution: 10/1/99 By: /s/ Robert H. Boh
-----------------------------
Robert H. Boh
Director and Chairman of the
Compensation Committee of the
Board of Directors
Employee:
Date of Execution: 10/1/99 Name: /s/ William C. O'Malley
---------------------------
William C. O'Malley
5
<PAGE>
EXHIBIT 10(b)
CHANGE OF CONTROL AGREEMENT
This is an amendment and restatement dated effective as of October 1, 1999
(the "Restatement Date"), of the Change of Control Agreement ("the Prior
Agreement") between Tidewater Inc., a Delaware corporation (the "Company"), and
William C. O'Malley (the "Employee") dated effective as of September 30, 1996,
as now amended and restated, the "Agreement".
ARTICLE I
CERTAIN DEFINITIONS
1.1 AFFILIATE DEFINED. "Affiliate" (and variants thereof) shall mean
a Person that controls, or is controlled by, or is under common control with,
another specified Person, either directly or indirectly.
1.2 BENEFICIAL OWNER DEFINED. "Beneficial Owner" (and variants
thereof), with respect to a security, shall mean a Person who, directly or
indirectly (through any contract, understanding, relationship or otherwise), has
or shares (i) the power to vote, or direct the voting of, the security, and/or
(ii) the power to dispose of, or to direct the disposition of, the security.
1.3 CAUSE DEFINED. "Cause" shall mean:
(a) the willful and continued failure of the Employee to perform
substantially the Employee's duties with the Company or its Affiliates (other
than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Employee by the board of directors of the Company (the "Board") which
specifically identifies the manner in which the Board believes that the Employee
has not substantially performed the Employee's duties, or
(b) the willful engaging by the Employee in conduct which is
demonstrably and materially injurious to the Company or its subsidiaries,
monetarily or otherwise.
For purposes of this provision, no act or failure to act, on the part of the
Employee, shall be considered "willful" unless it is done, or omitted to be
done, by the Employee in bad faith or without reasonable belief that the
Employee's action or
<PAGE>
omission was in the best interests of the Company or its Affiliates. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or upon the instructions of a senior officer of the Company or
based upon the advice of counsel for the Company or its Affiliates shall be
conclusively presumed to be done, or omitted to be done, by the Employee in good
faith and in the best interests of the Company or its Affiliates. The cessation
of employment of the Employee shall not be deemed to be for Cause unless his
action or inaction meets the foregoing standard and until there shall have been
delivered to the Employee a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after reasonable notice
is provided to the Employee and the Employee is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the good faith
opinion of the Board, the Employee is guilty of the conduct described in
subparagraph (a) or (b) above, and specifying the particulars thereof in detail.
1.4 CHANGE OF CONTROL DEFINED. "Change of Control" shall mean:
(a) the acquisition by any Person of Beneficial Ownership of 30%
or more of the outstanding shares of the Company's Common Stock, $0.10 par value
per share (the "Common Stock") or 30% or more of the combined voting power of
the Company's then outstanding securities; provided, however, that for purposes
of this subsection (a), the following shall not constitute a Change of Control:
(i) any acquisition (other than a Business Combination which
constitutes a Change of Control under Section 1.4(c) hereof) of Common
Stock directly from the Company,
(ii) any acquisition of Common Stock by the Company or its
subsidiaries,
(iii) any acquisition of Common Stock by any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
(iv) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a Change of
Control under Section 1.4(c) hereof; or
2
<PAGE>
(b) individuals who, as of the Restatement Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the Restatement Date whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered a member of the Incumbent Board, unless such individual's initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board; or
(c) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company), or sale or other disposition of all or
substantially all of the assets of the Company (a "Business Combination"), in
each case, unless, immediately following such Business Combination,
(i) the individuals and entities who were the Beneficial
Owners of the Company's outstanding common stock and the Company's voting
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination have direct or indirect
Beneficial Ownership, respectively, of more than 50% of the then
outstanding shares of common stock, and more than 50% of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, of the Post-Transaction Corporation
(as defined in Section 1.11 hereof), and
(ii) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-Transaction
Corporation and any employee benefit plan or related trust of either the
Company, the Post-Transaction Corporation or any subsidiary of either
corporation) Beneficially Owns, directly or indirectly, 30% or more of the
then outstanding shares of common stock of the corporation resulting from
such Business Combination or 30% or more of the combined voting power of
the then outstanding voting securities of such corporation, and
(iii) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members
3
<PAGE>
of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
1.5 CODE DEFINED. "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
1.6 COMPANY DEFINED. "Company" shall mean Tidewater Inc. (as
heretofore defined), and shall include any successor to or assignee of (whether
direct or indirect, by purchase, merger, consolidation or otherwise) all or
substantially all of the assets and/or business of the Company which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
1.7 DISABILITY DEFINED. "Disability" shall mean a condition that
would entitle the Employee to receive benefits under the Company's long-term
disability insurance policy in effect at the time either because he is totally
disabled or partially disabled, as such terms are defined in the Company's
policy in effect as of the Restatement Date or as similar terms are defined in
any successor policy. If the Company has no long-term disability plan in
effect, "Disability" shall occur if (a) the Employee is rendered incapable
because of physical or mental illness of satisfactorily discharging his duties
and responsibilities to the Company for a period of 90 consecutive days, (b) a
duly qualified physician chosen by the Company and acceptable to the Employee or
his legal representatives so certifies in writing, and (c) the Board determines
that the Employee has become disabled.
1.8 EMPLOYMENT AGREEMENT. "Employment Agreement" shall mean the
Employment Agreement between the Company and the Employee effective as of
September 19, 1997, as amended from time to time.
1.9 GOOD REASON DEFINED. Any act or failure to act by the Company or
its Affiliates specified in this Section 1.9 shall constitute "Good Reason"
unless the Employee shall otherwise agree in writing:
(a) Any failure of the Company or its Affiliates to provide the
Employee with the position, authority, duties and responsibilities at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding
4
<PAGE>
the Change of Control. The Employee's position, authority, duties and
responsibilities after a Change of Control shall be considered commensurate in
all material respects with Employee's position, authority, duties and
responsibilities prior to a Change of Control if after the Change of Control
Employee holds an equivalent position in the Post-Transaction Corporation.
(b) The assignment to the Employee of any duties inconsistent in
any material respect with Employee's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 3.1(b) of this Agreement, or any other action that
results in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith that is remedied within 10 days after receipt of written
notice thereof from the Employee to the Company;
(c) Any failure by the Company or its Affiliates to comply with
any of the provisions of this Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith that is remedied within 10
days after receipt of written notice thereof from the Employee to the Company;
(d) The Company or its Affiliates requiring the Employee to be
based at any office or location other than as provided in Section 3.1(b)(ii)
hereof or requiring the Employee to travel on business to a substantially
greater extent than required immediately prior to the Change of Control;
(e) Any purported termination of the Employee's employment
otherwise than as expressly permitted by this Agreement; or
(f) Any failure by the Company to comply with and satisfy
Sections 4.1 (c) and (d) of this Agreement.
1.10 PERSON DEFINED. "Person" shall mean a natural person or company,
and shall also mean the group or syndicate created when two or more Persons act
as a syndicate or other group (including, without limitation, a partnership or
limited partnership) for the purpose of acquiring, holding, or disposing of a
security, except that "Person" shall not include an underwriter temporarily
holding a security pursuant to an offering of the security.
5
<PAGE>
1.11 POST-TRANSACTION CORPORATION DEFINED. Unless a Change of Control
includes a Business Combination (as defined in Section 1.4(c) hereof), "Post-
Transaction Corporation" shall mean the Company after the Change of Control. If
a Change of Control includes a Business Combination, "Post-Transaction
Corporation" shall mean the corporation resulting from the Business Combination
unless, as a result of such Business Combination, an ultimate parent corporation
controls the Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, "Post-Transaction Corporation" shall mean
such ultimate parent corporation.
ARTICLE II
STATUS OF EMPLOYMENT AGREEMENTS
Notwithstanding any provisions thereof, this Agreement supersedes the
agreement dated as of June 13, 1994 between the Company and the Employee or any
subsequent employment agreement between Employee and the Company that so
provides, except with respect to those provisions of any such employment
agreement that are made a part of and specifically incorporated by reference
herein. Upon a Change of Control of the Company, as defined herein, or upon a
Change of Control of the company, as defined in such an employment agreement,
the Employee shall be entitled to the benefits and have the obligations provided
herein and not the benefits and obligations provided therein (except as provided
in provisions therein which are specifically incorporated herein).
ARTICLE III
CHANGE OF CONTROL BENEFIT
3.1 EMPLOYMENT TERM AND CAPACITY AFTER CHANGE OF CONTROL.
(a) This Agreement shall commence on the Restatement Date and
continue in effect through December 31, 2000; provided, however, that commencing
on January 1, 2001 and each January 1 thereafter, the term of this Agreement
shall automatically be extended for one additional year unless, not later than
March 31 of the preceding year, the Company shall have given notice that it does
not wish to extend this Agreement; provided, further, that notwithstanding any
such notice by the Company not to extend, if a Change of Control of the Company
shall have occurred during the original or extended term of this Agreement, this
Agreement shall continue in effect through the second anniversary of the Change
of Control (such period following a Change of Control being referred to herein
as the
6
<PAGE>
"Employment Term"), subject to any earlier termination of Employee's
status as an employee pursuant to this Agreement.
(b) After a Change of Control and during the Employment Term, (i)
the Employee's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding the Change of Control and (ii) the Employee's service shall be
performed during normal business hours at the Company's principal executive
office, at its location at the time of the Change of Control, or the location
where the Employee was employed immediately preceding the Change of Control or
any relocation of the Company's principal executive office to a location that is
not more than 35 miles from such current location. Employee's position,
authority, duties and responsibilities after a Change of Control shall not be
considered commensurate in all material respects with Employee's position,
authority, duties and responsibilities prior to a Change of Control unless after
the Change of Control Employee holds an equivalent position in the Post-
Transaction Corporation.
3.2 COMPENSATION AND BENEFITS. During the Employment Term, Employee
shall be entitled to the following compensation and benefits:
(a) Base Salary. The Employee shall receive an annual base salary
("Base Salary"), which shall be paid in at least monthly installments. The Base
Salary shall initially be equal to 12 times the highest monthly base salary that
was paid or is payable to the Employee, including any base salary which has been
earned but deferred by the Employee, by the Company and its Affiliates with
respect to any month in the 12-month period ending with the month that
immediately precedes the month in which the Change of Control occurs. During the
Employment Term, the Base Salary shall be reviewed at such time as the Company
undertakes a salary review of executive officers (but at least annually), and,
to the extent that salary increases are granted to other executive officers (or
have been granted during the immediately preceding 12-month period to the
executive officers of any Affiliate of the Company), the Employee shall be
granted a salary increase commensurate with any increase granted to other
executive officers of the Company and its Affiliates. Any increase in Base
Salary shall not serve to limit or reduce any other obligation to the Employee
under this Agreement. Base Salary shall not be reduced during the Employment
Term (whether or not any increase in Base Salary occurs) and, if any increase in
Base Salary occurs, the term Base Salary as utilized in this Agreement shall
refer to Base Salary as so increased from time to time.
7
<PAGE>
(b) Annual Bonus. In addition to Base Salary, the Employee shall
be awarded, for each fiscal year ending during the Employment Term, an annual
bonus (the "Bonus") in cash in an amount at least equal to the average of the
annual bonuses paid to the Employee with respect to the three fiscal years that
immediately precede the year in which the Change of Control occurs under the
Company's annual bonus plan, or any comparable bonus under a successor plan.
Each such Bonus shall be paid no later than the end of the third month of the
fiscal year next following the fiscal year for which the Bonus is awarded,
unless the Employee shall elect to defer the receipt of such Bonus.
(c) Fringe Benefits. The Employee shall be entitled to fringe
benefits (including, but not limited to, automobile allowance, reimbursement for
membership dues, and air travel) commensurate with those provided to other
executive officers of the Company and its Affiliates.
(d) Expenses. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in accordance
with the most favorable agreements, policies, practices and procedures of the
Company and its Affiliates in effect for the Employee at any time during the
120-day period immediately preceding the Change of Control or, if more favorable
to the Employee, as in effect generally at any time thereafter with respect to
other executive officers of the Company and its Affiliates.
(e) Incentive, Savings and Retirement Plans. The Employee shall
be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other executive
officers of the Company and its Affiliates, but in no event shall such plans,
practices, policies and programs provide the Employee with incentive
opportunities (measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less
favorable than the most favorable of those provided by the Company and its
Affiliates for the Employee under any agreements, plans, practices, policies and
programs as in effect at any time during the 120-day period immediately
preceding the Change of Control, including any agreement by the Company to
provide retirement benefits not less in amount than the retirement benefits to
which the Employee would have been entitled under the terms of any qualified
defined benefit pension plans of his immediate prior employer, or, if more
favorable to the Employee, those provided generally at any time after the Change
of Control to other executive officers of the Company and its Affiliates.
8
<PAGE>
(f) Welfare Benefit Plans. The Employee and/or the Employee's
family, as the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its Affiliates (including, without
limitation, medical, prescription drug, dental, disability, employee life, group
life, accidental death and travel accident insurance plans and programs) to the
extent applicable generally to other executive officers of the Company and its
Affiliates, but in no event shall such plans, practices, policies and programs
provide the Employee with benefits, in each case, less favorable than the most
favorable of any agreements, plans, practices, policies and programs in effect
for the Employee at any time during the 120-day period immediately preceding the
Change of Control or, if more favorable to the Employee, those provided
generally at any time after the Change of Control to his peer executives of the
Company and its Affiliates.
(g) Office and Support Staff. The Employee shall be entitled to
an office or offices of a size and with furnishings and other appointments, and
to secretarial and other assistance, commensurate with those provided to other
executive officers of the Company and its Affiliates.
(h) Vacation. The Employee shall be entitled to paid vacation in
accordance with the most favorable agreements, plans, policies, programs and
practices of the Company and its Affiliates as in effect for the Employee at any
time during the 120-day period immediately preceding the Change of Control or,
if more favorable to the Employee, as in effect generally at any time thereafter
with respect to other executive officers of the Company and its Affiliates.
(i) Indemnification. If in connection with any agreement related
to a transaction that will result in a Change of Control of the Company, an
undertaking is made to provide the Board of Directors with rights to
indemnification from the Company (or from any other party to such agreement),
the Employee shall, by virtue of this Agreement, be entitled to the same rights
to indemnification as are provided to the Board of Directors pursuant to such
agreement. Otherwise, the Employee shall be entitled to indemnification rights
on terms no less favorable to Employee than those available under the
Certificate of Incorporation, bylaws or resolutions of the Company at any time
after the Change of Control to other executive officers of the Company. Such
indemnification rights shall be with respect to all claims, actions, suits or
proceedings to which the Employee is or is threatened to be made a party that
arise out of or are connected to his services at any time prior to the
termination of his employment, without regard to whether such claims, actions,
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suits or proceedings are made, asserted or arise during or after the Employment
Term.
(j) Directors and Officers Insurance. If in connection with any
agreement related to a transaction that will result in a Change of Control of
the Company, an undertaking is made to provide the Board of Directors of the
Company with continued coverage following the Change of Control under one or
more directors and officers liability insurance policies, then the Employee
shall, by virtue of this Agreement, be entitled to the same rights to continued
coverage under such directors and officers liability insurance policies as are
provided to the Board of Directors. Otherwise, the Company shall agree to cover
Employee under any directors and officers liability insurance policies as are
provided generally at any time after the Change of Control to other executive
officers of the Company.
3.3 OBLIGATIONS UPON TERMINATION AFTER A CHANGE OF CONTROL.
(a) Termination by Company for Reasons other than Death,
Disability or Cause or by Employee for Good Reason. If, after a Change of
Control and during the Employment Term, the Company terminates the Employee's
employment other than for Cause, death or Disability, or the Employee terminates
employment for Good Reason,
(i) the Company shall pay to the Employee in a lump sum in
cash within five business days of the date of termination an amount equal
to three times the sum of (i) the amount of Base Salary in effect pursuant
to Section 3.2(a) hereof at the date of termination, plus (ii) the greater
of (x) the average of the annual bonuses paid or to be paid to the Employee
with respect to the immediately preceding three fiscal years or (y) the
target Bonus for which the Employee is eligible for the fiscal year in
which the date of termination occurs, as such target bonus has been
established by the Company for such year; provided, however, that, if the
Employee has in effect a deferral election with respect to any percentage
of the annual bonus which would otherwise become payable with respect to
the fiscal year in which termination occurs, such lump sum payment shall be
reduced by an amount equal to such percentage times the bonus component of
the lump sum payment (which reduction amount shall be deferred in
accordance with such election);
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(ii) the Company shall pay to the Employee in a lump sum in
cash within five business days of the date of termination an amount
calculated by multiplying the annual bonus that the Employee would have
earned with respect to the entire fiscal year in which termination occurs,
assuming the achievement at the target level of the objective performance
goals established with respect to such bonus and the elimination of any
subjective performance goals or evaluations otherwise applicable with
respect to such bonus, by the fraction obtained by dividing the number of
days in such year through the date of termination by 365; provided,
however, that, if the Employee has in effect a deferral election with
respect to any percentage of the annual bonus which would otherwise become
payable with respect to the fiscal year in which termination occurs, such
lump sum payment shall be reduced by an amount equal to such percentage
times the lump sum payment (which reduction amount shall be deferred in
accordance with such election);
(iii) if, at the date of termination, the Company shall not
yet have paid to the Employee (or deferred in accordance with any effective
deferral election by the Employee) an annual bonus with respect to a
completed fiscal year, the Company shall pay to the Employee in a lump sum
in cash within five business days of the date of termination an amount
determined as follows: (i) if the Compensation Committee of the Board shall
have already determined the amount of such annual bonus, the greater of
such amount or the amount provided under Section 3.2(b) hereof shall be
paid, and (ii) if the Compensation Committee shall not have already
determined the amount of such annual bonus, the amount to be paid shall be
the greater of the amount provided under Section 3.2(b) hereof or the
annual bonus that the Employee would have earned with respect to such
completed fiscal year, based solely upon the level of achievement of the
objective performance goals established with respect to such bonus and the
elimination of any subjective performance goals or evaluations otherwise
applicable with respect to such bonus; provided, however, that, if the
Employee has in effect a deferral election with respect to any percentage
of the annual bonus which would otherwise become payable with respect to
such completed fiscal year, such lump sum payment shall be reduced by an
amount equal to such percentage times the lump sum payment (which reduction
amount shall be deferred in accordance with such election);
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(iv) for a period of thirty-six (36) months following the
date of termination of employment (the "Continuation Period"), the Company
shall at its expense continue on behalf of the Employee and his dependents
and beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits (including any benefit under any individual
benefit arrangement that covers medical, dental or hospitalization expenses
not otherwise covered under any general Company plan) provided (x) to the
Employee at any time during the 120-day period prior to the Change in
Control or at any time thereafter or (y) to other similarly situated
executives who continue in the employ of the Company during the
Continuation Period. The coverage and benefits (including deductibles and
costs) provided in this Section 3.3(a)(iv) during the Continuation Period
shall be no less favorable to the Employee and his dependents and
beneficiaries, than the most favorable of such coverages and benefits
during any of the periods referred to in clauses (x) or (y) above;
provided, however, in the event of the disability of the Employee during
the Continuation Period, disability benefits shall not be paid for the
Continuation Period but shall instead commence immediately following the
end of the Continuation Period. In addition, if Employee has reached age 52
and has completed seven years of service at the time of a Change of
Control, Employee shall automatically become vested in the post-retirement
benefits provided under the Tidewater Group Welfare Benefits Plan (the "GWB
Plan") and be entitled to receive, following termination of employment with
the Company, all benefits that would be payable to Employee under the GWB
Plan or any successor plan of the Company or its Affiliates had the
Employee retired from employment with the Company or one of its Affiliates
on the later of the third anniversary of the Change of Control or the
Employee's date of retirement (as defined in the GWB Plan) from employment
with the Company. The Company's obligation hereunder with respect to the
foregoing benefits shall be limited to the extent that the Employee obtains
any such benefits pursuant to a subsequent employer's benefit plans, in
which case the Company may reduce the coverage of any benefits it is
required to provide the Employee hereunder as long as the aggregate
coverages and benefits of the combined benefit plans is no less favorable
to the Employee than the coverages and benefits required to be provided
hereunder. The Employee will be eligible for coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") at the
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end of the Continuation Period or earlier cessation of the Company's
obligation under the foregoing provisions of this Section 3.3(a)(iv) (or,
if the Employee shall not be so eligible for any reason, the Company will
provide equivalent coverage). Exhibit A hereto provides an informational
overview of COBRA-required coverage as it exists immediately prior to the
execution of the Agreement and is not to be considered part of the
Agreement; the actual coverage to be provided pursuant to this Section
3.3(a)(iv) will be the COBRA-required coverage at the time this provision
becomes effective;
(v) the Employee shall immediately become fully (100%) vested
in his benefit (as such benefit may be increased pursuant to Sections
3.3(a)(vii) and 3.3(a)(viii) hereof) under each supplemental or excess
retirement plan of the Company in which the Employee was a participant,
including, but not limited to the Tidewater Inc. Supplemental Executive
Retirement Plan (the "SERP"), the Supplemental Savings Plan and any
successor plans (collectively, the "Supplemental Plans");
(vi) if, prior to the Change of Control, in a form and manner
reasonably satisfactory to the Company, the Employee shall have elected
that his benefits under the Supplemental Plans be paid in a lump sum in
cash within five business days of the date of any termination of his
employment described in this Section 3.3(a), such benefits (as such
benefits may be increased pursuant to Sections 3.3(a) (vii) and
3.3(a)(viii) hereof) shall be so paid, notwithstanding the payment
provisions of the Supplemental Plans and any payment or distribution
elections made by the Employee prior to such lump sum election;
(vii) the Company shall contribute to the Tidewater Inc.
Executives' Supplemental Retirement Trust between the Company and Hibernia
National Bank, as amended and restated effective January 1, 1993, and
subsequently amended, for the Employee's account in cash within five
business days of the date of termination of employment an amount equal to
the then present value of the actuarial equivalent of the additional
benefits, if any, to which the Employee would be entitled under the
Tidewater Inc. Pension Plan, the SERP and any other qualified or non-
qualified defined benefit plan maintained by the Company and covering the
Employee, regardless of the vesting requirements thereof, or any agreement
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between the Company and the Employee with respect to retirement benefits
that is otherwise provided for in the Employment Agreement (such retirement
benefit agreement being made a part hereof and specifically incorporated by
reference herein), after giving the Employee, for purposes of calculating
the benefits due Employee under such plans, (a) full service credit for a
three-year period following the Change of Control and (b) compensation
credit for each of such three years, with the compensation for each year
being calculated by dividing the amount that the Employee will be entitled
to receive under Section 3.3(a)(i) hereof by three; notwithstanding any
SERP provision regarding accrual of benefits, such additional benefits
shall be treated for all purposes as increasing the benefit of the Employee
under the SERP and payment of the increased benefit shall be governed by
the terms of the SERP, unless the Employee has made an effective election
for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an
effective payment election at the time of execution of the Prior Agreement
with respect to such additional benefits;
(viii) the Company shall contribute to the trust under the
Merrill Lynch Non-Qualified Deferred Compensation Plan Trust Agreement
between the Company and Merrill Lynch Trust Company of America made June
26, 1997, as subsequently amended, for the Employee's account in cash
within five business days of the date of termination of employment an
amount equal to the amount of employer contributions that would have been
made on the Employee's behalf if the Employee had continued to participate
in the Company's Savings Plan, the Company's Supplemental Savings Plan and
any other qualified or non-qualified defined contribution plan maintained
by the Company until the third anniversary of the Change of Control. Such
contribution shall, in the case of a qualified plan, be calculated as if
the Employee were fully vested and participating to the maximum extent
permitted by such plan and, in the case of a non-qualified plan, be
calculated on the same basis as the Employee was participating in such
plans and, in all cases, be calculated on the basis of the Employee's Base
Salary (determined in accordance with Section 3.2(a) hereof) at the time of
the Change of Control or at the date of termination, whichever is greater;
notwithstanding any Supplemental Savings Plan provision regarding accrual
of benefits, such contribution shall be treated for all purposes as
increasing the
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benefit of the Employee under the Supplemental Savings Plan
and payment of the increased benefit shall be governed by the terms of the
Supplemental Savings Plan, unless the Employee has made an effective
election for a lump sum payment in accordance with Section 3.3(a)(vi)
hereof or an effective payment election at the time of execution of the
Prior Agreement with respect to such contribution; and
(ix) to the extent that Employee is not fully vested in his
accrued benefits under the Pension Plan, the Savings Plan or any other
qualified plan maintained by the Company, at the time of termination of
employment, the Company shall contribute to the trust for the Supplemental
Plan that supplements the respective qualified plan, within five business
days of the date of termination of employment, an amount in cash equal to
the unvested but accrued benefits under such plans (calculated as the
present value of the actuarial equivalents thereof in the case of any
qualified defined benefit plan) as of the date of termination of
employment; notwithstanding the provisions of any qualified plan or
Supplemental Plan regarding accrual of benefits, such contribution shall be
treated for all purposes as increasing the benefit of the Employee under
the Supplemental Plan which supplements the respective qualified plan, and
payment of the increased benefit shall be governed by the terms of such
Supplemental Plan, unless the Employee has made an effective election for a
lump sum payment in accordance with Section 3.3(a)(vi) hereof or an
effective payment election at the time of execution of the Prior Agreement
with respect to such contribution.
The payments and benefits provided in this Section 3.3(a) and under all of the
Company's employee benefit and compensation plans shall be without regard to any
amendment made after any Change of Control to any such plan, which amendment
adversely affects in any manner the computation of payments and benefits due the
Employee under such plan or the time or manner of payment of such payments and
benefits. After a Change of Control no discretionary power of the Board or any
committee thereof shall be used in a way (and no ambiguity in any such plan
shall be construed in a way) which adversely affects in any manner any right or
benefit of the Employee under any such plan.
(b) Death. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by reason of
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the Employee's death, this Agreement shall terminate without further obligation
to the Employee's legal representatives (other than those already accrued to the
Employee), other than the obligation to make any payments due pursuant to
employee benefit or compensation plans maintained by the Company or its
Affiliates and any death benefits to which the Employee is entitled under any
Employment Agreement in effect immediately prior to the Change of Control (the
death benefits provided by such Employment Agreement being made a part hereof
and specifically incorporated by reference herein).
(c) Disability. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by reason of
Employee's Disability, this Agreement shall terminate without further obligation
to the Employee (other than those already accrued to the Employee), other than
the obligation to make any payments due pursuant to employee benefit or
compensation plans maintained by the Company or its Affiliates and any
disability benefits to which Employee is entitled under any Employment Agreement
in effect immediately prior to the Change of Control (the disability provisions
of such Employment Agreement being made a part hereof and specifically
incorporated by reference herein).
(d) Cause. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by the
Company for Cause, this Agreement shall terminate without further obligation to
the Employee other than for obligations imposed by law and obligations imposed
pursuant to any employee benefit or compensation plan maintained by the Company
or its Affiliates.
(e) Voluntary Termination. If, after a Change of Control and
during the Employment Term, the Employee voluntarily terminates his employment
with the Company other than for Good Reason, this Agreement shall terminate
without further obligation to the Employee other than for obligations imposed by
law and obligations imposed pursuant to any employee benefit or compensation
plan maintained by the Company or its Affiliates.
3.4 ACCRUED OBLIGATIONS AND OTHER BENEFITS. It is the intent of this
Agreement that upon termination of employment for any reason following a Change
of Control the Employee be entitled to receive promptly, and in addition to any
other benefits specifically provided, (a) the Employee's Base Salary through the
date of termination to the extent not theretofore paid, (b) any accrued vacation
pay, to the extent not theretofore paid, and (c) any other amounts or benefits
required to be
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paid or provided or which the Employee is entitled to receive
under any plan, program, policy, practice or agreement of the Company.
3.5 STOCK OPTIONS AND RESTRICTED STOCK. The foregoing benefits are
intended to be in addition to the value of any options to acquire Common Stock
of the Company or restricted stock the exercisability or vesting of which is
accelerated pursuant to the terms of any stock option, incentive or other
similar plan or agreement heretofore or hereafter adopted by the Company.
3.6 EXCISE TAX PROVISION.
(a) The "Gross-Up Payment" (as defined in Section 3.6(b) hereof
and reduced or increased pursuant to Section 3.6 (d) hereof) is provided in lieu
of any payment which would otherwise be made to the Employee pursuant to the
provisions of Section 7(e) of the Employment Agreement.
(b) Notwithstanding any other provisions of this Agreement, if a
Change of Control occurs during the original or extended term of this Agreement,
in the event that any of the payments or benefits received or to be received by
the Employee in connection with the Change of Control or the Employee's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company, any Person whose
actions result in a Change of Control or any Person Affiliated with the Company
or such Person) (all such payments and benefits, including the payments and
benefits under Section 3.3(a) hereof, but excluding any payment to be made
pursuant to this Section 3.6 (the "Gross-Up Payment"), being hereinafter
referred to as the "Initial Payments") will be subject (in whole or in part) to
an excise tax imposed by section 4999 of the Code (the "Excise Tax"), the
Company shall pay to the Employee an additional amount (the "Gross-Up Payment")
such that the net amount retained by the Employee, after deduction of (i) any
Excise Tax on the Initial Payments and (ii) any federal, state and local income
and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to
the Initial Payments.
(c) For purposes of determining whether any of the Initial
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(i) all of the Initial Payments shall be treated as "parachute payments" (within
the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax
counsel ("Tax Counsel") reasonably acceptable to the Employee and selected by
the accounting firm which was, immediately prior to the Change of Control, the
Company's
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independent auditor (the "Auditor"), such payments or benefits (in
whole or in part) do not constitute parachute payments, including by reason of
section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within
the meaning of section 280G(b)(l) of the Code shall be treated as subject to the
Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of
the "Base Amount" (within the meaning set forth in section 280G(b)(3) of the
Code) allocable to such reasonable compensation, or are otherwise not subject to
the Excise Tax, and (iii) the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Auditor in accordance with the
principles of sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Employee shall be deemed to
pay federal income tax at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Employee's residence on the date of termination of the
Employee's employment (or if there is no date of termination, then the date on
which the Gross-Up Payment is calculated for purposes of this Section), net of
the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
(d) In the event that the Excise Tax is finally determined to be
less than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Employee shall repay to the Company, within five business days
following the time that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income and employment taxes imposed on the
Gross-Up Payment being repaid by the Employee, to the extent that such repayment
results in a reduction in the Excise Tax and a dollar-for-dollar reduction in
the Employee's taxable income and wages for purposes of federal, state and local
income and employment taxes, plus interest on the amount of such repayment at
120% of the rate provided in section 1274(b)(2)(B) of the Code). In the event
that the Excise Tax is determined to exceed the amount taken into account
hereunder in calculating the Gross-Up Payment (including by reason of any
payment the existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest, penalties or additions payable by the
Employee with respect to such excess) within five business days following the
time that the amount of such excess is finally
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determined. The Employee and the Company shall each reasonably cooperate with
the other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with respect to
the Initial Payments.
(e) The Gross-Up Payment provided in Section 3.6(b) hereof shall
be made not later than the "Payment Day". The Payment Day shall be the fifth
business day following the date of termination, or, if the Employee becomes
entitled, before the Employee's employment is terminated, to a Gross-Up Payment
under Section 3.6(b) hereof, then not later than the fifth business day
following the date as of which the present value of the Initial Payments is
calculated for purposes of determining the amount of such Gross-Up Payment.
Notwithstanding the preceding provisions of this Section 3.6(e), if the amount
of the Gross-Up Payment cannot be finally determined on or before the Payment
Day, the Company shall pay to the Employee on the Payment Day an estimate, as
determined in accordance with Section 3.6(c) hereof, of the minimum amount of
the Gross-Up Payment to which the Employee is clearly entitled and shall pay the
remainder of the Gross-Up Payment (together with interest on the unpaid
remainder at 120% of the rate provided in section 1274(b)(2)(B) of the Code) as
soon as the amount thereof can be determined but in no event later than the
thirtieth day after the Payment Day. In the event that the amount of the
estimated Gross-Up Payment so made exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan by the Company to the
Employee, payable on the fifth business day after demand by the Company
(together with interest at 120% of the rate provided in section 1274(b)(2)(B) of
the Code). At the time that any Gross-Up Payment is made pursuant to Section
3.6(b) hereof (and at the time that any additional Gross-Up Payment is made
pursuant to Section 3.5(d) hereof), the Company shall provide the Employee with
a written statement setting forth the manner in which any such payment was
calculated and the basis for such calculations including, without limitation,
any opinions or other advice the Company has received from Tax Counsel, the
Auditor or other advisors or consultants (and any such opinion or advice which
is in writing shall be attached to the statement).
3.7 LEGAL FEES. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the Employee may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Employee or others of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Employee about the amount or timing of any payment pursuant to
this Agreement) or
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which the Employee may reasonably incur in connection with
any tax audit or proceeding to the extent attributable to the application of
section 4999 of the Code to any payment or benefit provided under this
Agreement.
3.8 SET-OFF; MITIGATION. After a Change of Control, the Company's
and its Affiliates' obligations to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company or its Affiliates may have against the Employee or
others; except that to the extent the Employee accepts other employment in
connection with which he is provided health insurance benefits, the Company
shall only be required to provide health insurance benefits to the extent the
benefits provided by the Employee's employer are less favorable than the
benefits to which he would otherwise be entitled hereunder. It is the intent of
this Agreement that in no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Employee under any of the provisions of this Agreement.
3.9 OUTPLACEMENT ASSISTANCE. Upon any termination of employment of
the Employee other than for Cause within three years following a Change of
Control, the Company shall provide to the Employee outplacement assistance by a
reputable firm specializing in such services for the period beginning with the
termination of employment and ending three years following the Change of
Control.
3.10 CERTAIN PRE-CHANGE-OF-CONTROL TERMINATIONS. Notwithstanding any
other provision of this Agreement, the Employee's employment shall be deemed to
have been terminated following a Change of Control by the Company without Cause
or by the Employee with Good Reason, if (i) the Employee's employment is
terminated by the Company without Cause prior to a Change of Control (whether or
not a Change of Control actually occurs) and such termination was at the request
or direction of a Person who has entered into an agreement with the Company the
consummation of which would constitute a Change of Control, (ii) the Employee
terminates his employment for Good Reason prior to a Change of Control (whether
or not a Change of Control actually occurs) and the act, circumstance or event
which constitutes Good Reason occurs at the request or direction of such Person,
or (iii) the Employee's employment is terminated by the Company without Cause or
by the Employee for Good Reason and such termination or the act, circumstance or
event which constitutes Good Reason is otherwise in connection with or in
anticipation of a Change of Control and occurred after
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discussions with such Person regarding a possible Change-of-Control transaction
commenced and such discussions produced (whether before or after such
termination) either a letter of intent with respect to such a transaction or a
public announcement of the pending transaction (whether or not a Change of
Control actually occurs). For purposes of any determination regarding the
applicability of the immediately preceding sentence, if the Employee takes the
position that such sentence applies and the Company disagrees, the Company shall
have the burden of proof in any such dispute.
ARTICLE IV
MISCELLANEOUS
4.1 BINDING EFFECT; SUCCESSORS.
(a) This Agreement shall be binding upon and inure to the benefit
of the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being no
obligation to give such consent) other than such rights or benefits as are
transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
all or substantially all of the assets or businesses of the Company (i) to
assume unconditionally and expressly this Agreement and (ii) to agree to perform
or to cause to be performed all of the obligations under this Agreement in the
same manner and to the same extent as would have been required of the Company
had no assignment or succession occurred, such assumption to be set forth in a
writing reasonably satisfactory to the Employee.
(d) The Company shall also require all entities that control or
that after the transaction will control (directly or indirectly) the Company or
any such successor or assignee to agree to cause to be performed all of the
obligations under this Agreement, such agreement to be set forth in a writing
reasonably satisfactory to the Employee.
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(e) The obligations of the Company and the Employee which by
their nature may require either partial or total performance after the
expiration of the term of the Agreement shall survive such expiration.
4.2 NOTICES. All notices hereunder must be in writing and shall be
deemed to have been given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid, return
receipt requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) telecopy transmission with confirmation of
receipt. All such notices must be addressed as follows:
If to the Company, to:
Tidewater Inc.
Pan-American Life Center
601 Poydras Street, Suite 1900
New Orleans, Louisiana 70130
Attn: Cliffe F. Laborde
If to the Employee, to:
William C. O'Malley
Tidewater Inc.
Pan-American Life Center
601 Poydras Street, Suite 1900
New Orleans, Louisiana 70130
or such other address as to which any party hereto may have notified the other
in writing.
4.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws.
4.4 WITHHOLDING. The Employee agrees that the Company has the right
to withhold, from the amounts payable pursuant to this Agreement, all amounts
required to be withheld under applicable income and/or employment tax laws, or
as otherwise stated in documents granting rights that are affected by this
Agreement.
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4.5 AMENDMENT, WAIVER. No provision of this Agreement may be
modified, amended or waived except by an instrument in writing signed by both
parties.
4.6 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall at any time or to any
extent be invalid, illegal or unenforceable in any respect as written, Employee
and the Company intend for any court construing this Agreement to modify or
limit such provision so as to render it valid and enforceable to the fullest
extent allowed by law. Any such provision that is not susceptible of such
reformation shall be ignored so as to not affect any other term or provision
hereof, and the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid, illegal or unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
4.7 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
4.8 REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to all
of the rights and remedies provided for in this Agreement, the parties shall
have all other rights and remedies provided to them by applicable law, rule or
regulation.
4.9 COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the Board and that the
Company has the right at any time to terminate Employee's status as an employee
of the Company, or to change or diminish his status during the Employment Term,
subject to the rights of the Employee to claim the benefits conferred by this
Agreement.
4.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Employee have caused this Agreement
to be executed as of the Restatement Date.
TIDEWATER INC.
By: /s/ Robert H. Boh,
-----------------------------
Robert H. Boh, Director and
Chairman of the Compensation
Committee of the
Board of Directors
EMPLOYEE:
/s/ William C. O'Malley
---------------------------------
William C. O'Malley
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EXHIBIT 10(c)
EXECUTIVE OFFICERS
[FORM OF]
CHANGE OF CONTROL AGREEMENT
This is an amendment and restatement dated effective as of October 1, 1999
(the "Restatement Date"), of the Change of Control Agreement ("the Prior
Agreement") between Tidewater Inc., a Delaware corporation (the "Company"), and
[ ] (the "Employee") dated effective as of September 30, 1996,
as now amended and restated, the "Agreement".
ARTICLE I
CERTAIN DEFINITIONS
1.1 AFFILIATE DEFINED. "Affiliate" (and variants thereof) shall mean
a Person that controls, or is controlled by, or is under common control with,
another specified Person, either directly or indirectly.
1.2 BENEFICIAL OWNER DEFINED. "Beneficial Owner" (and variants
thereof), with respect to a security, shall mean a Person who, directly or
indirectly (through any contract, understanding, relationship or otherwise), has
or shares (i) the power to vote, or direct the voting of, the security, and/or
(ii) the power to dispose of, or to direct the disposition of, the security.
1.3 CAUSE DEFINED. "Cause" shall mean:
(a) the willful and continued failure of the Employee to perform
substantially the Employee's duties with the Company or its Affiliates (other
than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Employee by the board of directors of the Company (the "Board") which
specifically identifies the manner in which the Board believes that the Employee
has not substantially performed the Employee's duties, or
(b) the willful engaging by the Employee in conduct which is
demonstrably and materially injurious to the Company or its subsidiaries,
monetarily or otherwise.
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For purposes of this provision, no act or failure to act, on the part of the
Employee, shall be considered "willful" unless it is done, or omitted to be
done, by the Employee in bad faith or without reasonable belief that the
Employee's action or omission was in the best interests of the Company or its
Affiliates. Any act, or failure to act, based upon authority given pursuant to
a resolution duly adopted by the Board or upon the instructions of a senior
officer of the Company or based upon the advice of counsel for the Company or
its Affiliates shall be conclusively presumed to be done, or omitted to be done,
by the Employee in good faith and in the best interests of the Company or its
Affiliates. The cessation of employment of the Employee shall not be deemed to
be for Cause unless his action or inaction meets the foregoing standard and
until there shall have been delivered to the Employee a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Employee and the
Employee is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Employee is
guilty of the conduct described in subparagraph (a) or (b) above, and specifying
the particulars thereof in detail.
1.4 CHANGE OF CONTROL DEFINED. "Change of Control" shall mean:
(a) the acquisition by any Person of Beneficial Ownership of 30%
or more of the outstanding shares of the Company's Common Stock, $0.10 par value
per share (the "Common Stock") or 30% or more of the combined voting power of
the Company's then outstanding securities; provided, however, that for purposes
of this subsection (a), the following shall not constitute a Change of Control:
(i) any acquisition (other than a Business Combination which
constitutes a Change of Control under Section 1.4(c) hereof) of Common
Stock directly from the Company,
(ii) any acquisition of Common Stock by the Company or its
subsidiaries,
(iii) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or
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(iv) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a Change of
Control under Section 1.4(c) hereof; or
(b) individuals who, as of the Restatement Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the Restatement Date whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered a member of the Incumbent Board, unless such individual's initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board; or
(c) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company), or sale or other disposition of all or substantially
all of the assets of the Company (a "Business Combination"), in each case,
unless, immediately following such Business Combination,
(i) the individuals and entities who were the Beneficial
Owners of the Company's outstanding common stock and the Company's voting
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination have direct or indirect
Beneficial Ownership, respectively, of more than 50% of the then
outstanding shares of common stock, and more than 50% of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, of the Post-Transaction Corporation
(as defined in Section 1.10 hereof), and
(ii) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-Transaction
Corporation and any employee benefit plan or related trust of either the
Company, the Post-Transaction Corporation or any subsidiary of either
corporation) Beneficially Owns, directly or indirectly, 30% or more of the
then outstanding shares of common stock of the corporation resulting from
such Business Combination or 30% or more of the combined voting power of
the then outstanding voting securities of such corporation, and
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(iii) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
1.5 CODE DEFINED. "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
1.6 COMPANY DEFINED. "Company" shall mean Tidewater Inc. (as
heretofore defined), and shall include any successor to or assignee of (whether
direct or indirect, by purchase, merger, consolidation or otherwise) all or
substantially all of the assets and/or business of the Company which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
1.7 DISABILITY DEFINED. "Disability" shall mean a condition that
would entitle the Employee to receive benefits under the Company's long-term
disability insurance policy in effect at the time either because he is totally
disabled or partially disabled, as such terms are defined in the Company's
policy in effect as of the Restatement Date or as similar terms are defined in
any successor policy. If the Company has no long-term disability plan in
effect, "Disability" shall occur if (a) the Employee is rendered incapable
because of physical or mental illness of satisfactorily discharging his duties
and responsibilities to the Company for a period of 90 consecutive days, (b) a
duly qualified physician chosen by the Company and acceptable to the Employee or
his legal representatives so certifies in writing, and (c) the Board determines
that the Employee has become disabled.
1.8 GOOD REASON DEFINED. Any act or failure to act by the Company or
its Affiliates specified in this Section 1.8 shall constitute "Good Reason"
unless the Employee shall otherwise agree in writing:
(a) Any failure of the Company or its Affiliates to provide the
Employee with the position, authority, duties and responsibilities at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding the Change of Control. The Employee's position, authority, duties and
responsibilities after a Change of Control shall be considered commensurate in
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all material respects with Employee's position, authority, duties and
responsibilities prior to a Change of Control if after the Change of Control
Employee holds an equivalent position in the Post-Transaction Corporation.
(b) The assignment to the Employee of any duties inconsistent in
any material respect with Employee's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 3.1(b) of this Agreement, or any other action that
results in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith that is remedied within 10 days after receipt of written
notice thereof from the Employee to the Company;
(c) Any failure by the Company or its Affiliates to comply with
any of the provisions of this Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith that is remedied within 10
days after receipt of written notice thereof from the Employee to the Company;
(d) The Company or its Affiliates requiring the Employee to be
based at any office or location other than as provided in Section 3.1(b)(ii)
hereof or requiring the Employee to travel on business to a substantially
greater extent than required immediately prior to the Change of Control;
(e) Any purported termination of the Employee's employment
otherwise than as expressly permitted by this Agreement; or
(f) Any failure by the Company to comply with and satisfy
Sections 4.1 (c) and (d) of this Agreement.
1.9 PERSON DEFINED. "Person" shall mean a natural person or company,
and shall also mean the group or syndicate created when two or more Persons act
as a syndicate or other group (including, without limitation, a partnership or
limited partnership) for the purpose of acquiring, holding, or disposing of a
security, except that "Person" shall not include an underwriter temporarily
holding a security pursuant to an offering of the security.
1.1 POST-TRANSACTION CORPORATION DEFINED. Unless a Change of Control
includes a Business Combination (as defined in Section 1.4(c) hereof), "Post-
Transaction Corporation" shall mean the Company after the Change of Control. If
a Change of Control includes a Business Combination, "Post-Transaction
Corporation" shall mean the corporation resulting from the Business Combination
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unless, as a result of such Business Combination, an ultimate parent corporation
controls the Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, "Post-Transaction Corporation" shall mean
such ultimate parent corporation.
ARTICLE II
STATUS OF CHANGE OF CONTROL AGREEMENTS
Notwithstanding any provisions thereof, this Agreement supersedes any and
all prior agreements between the Company and the Employee that provide for
severance benefits in the event of a Change of Control of the Company, as
defined therein, and is effective as of the Restatement Date as a complete
amendment and restatement of the Prior Agreement.
ARTICLE III
CHANGE OF CONTROL BENEFIT
3.1 EMPLOYMENT TERM AND CAPACITY AFTER CHANGE OF CONTROL. (a) This
Agreement shall commence on the Restatement Date and continue in effect through
December 31, 2000; provided, however, that commencing on January 1, 2001 and
each January 1 thereafter, the term of this Agreement shall automatically be
extended for one additional year unless, not later than March 31 of the
preceding year, the Company shall have given notice that it does not wish to
extend this Agreement; provided, further, that notwithstanding any such notice
by the Company not to extend, if a Change of Control of the Company shall have
occurred during the original or extended term of this Agreement, this Agreement
shall continue in effect through the second anniversary of the Change of Control
(such period following a Change of Control being referred to herein as the
"Employment Term"), subject to any earlier termination of Employee's status as
an employee pursuant to this Agreement.
(b) After a Change of Control and during the Employment Term, (i)
the Employee's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding the Change of Control and (ii) the Employee's service shall be
performed during normal business hours at the Company's principal executive
office, at its location at the time of the Change of Control, or the location
where the Employee was employed immediately preceding the Change of Control or
any relocation of the Company's principal executive office to a location that is
not more than 35 miles from such current location. Employee's position,
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authority, duties and responsibilities after a Change of Control shall not be
considered commensurate in all material respects with Employee's position,
authority, duties and responsibilities prior to a Change of Control unless after
the Change of Control Employee holds an equivalent position in the Post-
Transaction Corporation.
3.2 COMPENSATION AND BENEFITS. During the Employment Term, Employee
shall be entitled to the following compensation and benefits:
(a) Base Salary. The Employee shall receive an annual base salary
("Base Salary"), which shall be paid in at least monthly installments. The Base
Salary shall initially be equal to 12 times the highest monthly base salary that
was paid or is payable to the Employee, including any base salary which has been
earned but deferred by the Employee, by the Company and its Affiliates with
respect to any month in the 12-month period ending with the month that
immediately precedes the month in which the Change of Control occurs. During the
Employment Term, the Base Salary shall be reviewed at such time as the Company
undertakes a salary review of his peer executives (but at least annually), and,
to the extent that salary increases are granted to his peer executives of the
Company (or have been granted during the immediately preceding 12-month period
to his peer executives of any Affiliate of the Company), the Employee shall be
granted a salary increase commensurate with any increase granted to his peer
executives of the Company and its Affiliates. Any increase in Base Salary shall
not serve to limit or reduce any other obligation to the Employee under this
Agreement. Base Salary shall not be reduced during the Employment Term (whether
or not any increase in Base Salary occurs) and, if any increase in Base Salary
occurs, the term Base Salary as utilized in this Agreement shall refer to Base
Salary as so increased from time to time.
(b) Annual Bonus. In addition to Base Salary, the Employee shall
be awarded, for each fiscal year ending during the Employment Term, an annual
bonus (the "Bonus") in cash in an amount at least equal to the average of the
annual bonuses paid to the Employee with respect to the three fiscal years that
immediately precede the year in which the Change of Control occurs under the
Company's annual bonus plan, or any comparable bonus under a successor plan.
Each such Bonus shall be paid no later than the end of the third month of the
fiscal year next following the fiscal year for which the Bonus is awarded,
unless the Employee shall elect to defer the receipt of such Bonus.
(c) Fringe Benefits. The Employee shall be entitled to fringe
benefits (including, but not limited to, automobile allowance, reimbursement
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for membership dues, and air travel) commensurate with those provided to his
peer executives of the Company and its Affiliates.
(d) Expenses. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in accordance
with the most favorable agreements, policies, practices and procedures of the
Company and its Affiliates in effect for the Employee at any time during the
120-day period immediately preceding the Change of Control or, if more favorable
to the Employee, as in effect generally at any time thereafter with respect to
his peer executives of the Company and its Affiliates.
(e) Incentive, Savings and Retirement Plans. The Employee shall
be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to his peer executives of
the Company and its Affiliates, but in no event shall such plans, practices,
policies and programs provide the Employee with incentive opportunities
(measured with respect to both regular and special incentive opportunities, to
the extent, if any, that such distinction is applicable), savings opportunities
and retirement benefit opportunities, in each case, less favorable than the most
favorable of those provided by the Company and its Affiliates for the Employee
under any agreements, plans, practices, policies and programs as in effect at
any time during the 120-day period immediately preceding the Change of Control
or, if more favorable to the Employee, those provided generally at any time
after the Change of Control to his peer executives of the Company and its
Affiliates.
(f) Welfare Benefit Plans. The Employee and/or the Employee's
family, as the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its Affiliates (including, without
limitation, medical, prescription drug, dental, disability, employee life, group
life, accidental death and travel accident insurance plans and programs) to the
extent applicable generally to his peer executives of the Company and its
Affiliates, but in no event shall such plans, practices, policies and programs
provide the Employee with benefits, in each case, less favorable than the most
favorable of any agreements, plans, practices, policies and programs in effect
for the Employee at any time during the 120-day period immediately preceding the
Change of Control or, if more favorable to the Employee, those provided
generally at any time after the Change of Control to his peer executives of the
Company and its Affiliates.
(g) Office and Support Staff. The Employee shall be entitled to
an office or offices of a size and with furnishings and other appointments,
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and to secretarial and other assistance, commensurate with those provided to his
peer executives of the Company and its Affiliates.
(h) Vacation. The Employee shall be entitled to paid vacation in
accordance with the most favorable agreements, plans, policies, programs and
practices of the Company and its Affiliates as in effect for the Employee at any
time during the 120-day period immediately preceding the Change of Control or,
if more favorable to the Employee, as in effect generally at any time thereafter
with respect to his peer executives of the Company and its Affiliates.
(i) Indemnification. If in connection with any agreement related
to a transaction that will result in a Change of Control of the Company, an
undertaking is made to provide the Board of Directors with rights to
indemnification from the Company (or from any other party to such agreement),
the Employee shall, by virtue of this Agreement, be entitled to the same rights
to indemnification as are provided to the Board of Directors pursuant to such
agreement. Otherwise, the Employee shall be entitled to indemnification rights
on terms no less favorable to Employee than those available under the
Certificate of Incorporation, bylaws or resolutions of the Company at any time
after the Change of Control to his peer executives of the Company. Such
indemnification rights shall be with respect to all claims, actions, suits or
proceedings to which the Employee is or is threatened to be made a party that
arise out of or are connected to his services at any time prior to the
termination of his employment, without regard to whether such claims, actions,
suits or proceedings are made, asserted or arise during or after the Employment
Term.
(j) Directors and Officers Insurance. If in connection with any
agreement related to a transaction that will result in a Change of Control of
the Company, an undertaking is made to provide the Board of Directors of the
Company with continued coverage following the Change of Control under one or
more directors and officers liability insurance policies, then the Employee
shall, by virtue of this Agreement, be entitled to the same rights to continued
coverage under such directors and officers liability insurance policies as are
provided to the Board of Directors. Otherwise, the Company shall agree to cover
Employee under any directors and officers liability insurance policies as are
provided generally at any time after the Change of Control to his peer
executives of the Company.
3.3 OBLIGATIONS UPON TERMINATION AFTER A CHANGE OF CONTROL.
(a) Termination by Company for Reasons other than Death,
Disability or Cause or by Employee for Good Reason. If, after a Change of
Control and during the Employment Term, the Company terminates the Employee's
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employment other than for Cause, death or Disability, or the Employee terminates
employment for Good Reason, subject to Section 3.6,
(i) the Company shall pay to the Employee in a lump sum in
cash within five business days of the date of termination an amount equal
to three times the sum of (i) the amount of Base Salary in effect pursuant
to Section 3.2(a) hereof at the date of termination, plus (ii) the greater
of (x) the average of the annual bonuses paid or to be paid to the Employee
with respect to the immediately preceding three fiscal years or (y) the
target Bonus for which the Employee is eligible for the fiscal year in
which the date of termination occurs, as such target bonus has been
established by the Company for such year; provided, however, that, if the
Employee has in effect a deferral election with respect to any percentage
of the annual bonus which would otherwise become payable with respect to
the fiscal year in which termination occurs, such lump sum payment shall be
reduced by an amount equal to such percentage times the bonus component of
the lump sum payment (which reduction amount shall be deferred in
accordance with such election);
(ii) the Company shall pay to the Employee in a lump sum in
cash within five business days of the date of termination an amount
calculated by multiplying the annual bonus that the Employee would have
earned with respect to the entire fiscal year in which termination occurs,
assuming the achievement at the target level of the objective performance
goals established with respect to such bonus and the elimination of any
subjective performance goals or evaluations otherwise applicable with
respect to such bonus, by the fraction obtained by dividing the number of
days in such year through the date of termination by 365; provided,
however, that, if the Employee has in effect a deferral election with
respect to any percentage of the annual bonus which would otherwise become
payable with respect to the fiscal year in which termination occurs, such
lump sum payment shall be reduced by an amount equal to such percentage
times the lump sum payment (which reduction amount shall be deferred in
accordance with such election);
(iii) if, at the date of termination, the Company shall not
yet have paid to the Employee (or deferred in accordance with any effective
deferral election by the Employee) an annual bonus with respect to a
completed fiscal year, the Company shall pay
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to the Employee in a lump sum in cash within five business days of the date
of termination an amount determined as follows: (i) if the Compensation
Committee of the Board shall have already determined the amount of such
annual bonus, the greater of such amount or the amount provided under
Section 3.2(b) hereof shall be paid, and (ii) if the Compensation Committee
shall not have already determined the amount of such annual bonus, the
amount to be paid shall be the greater of the amount provided under Section
3.2(b) hereof or the annual bonus that the Employee would have earned with
respect to such completed fiscal year, based solely upon the level of
achievement of the objective performance goals established with respect to
such bonus and the elimination of any subjective performance goals or
evaluations otherwise applicable with respect to such bonus; provided,
however, that, if the Employee has in effect a deferral election with
respect to any percentage of the annual bonus which would otherwise become
payable with respect to such completed fiscal year, such lump sum payment
shall be reduced by an amount equal to such percentage times the lump sum
payment (which reduction amount shall be deferred in accordance with such
election);
(iv) for a period of thirty-six (36) months following the
date of termination of employment (the "Continuation Period"), the Company
shall at its expense continue on behalf of the Employee and his dependents
and beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits (including any benefit under any individual
benefit arrangement that covers medical, dental or hospitalization expenses
not otherwise covered under any general Company plan) provided (x) to the
Employee at any time during the 120-day period prior to the Change in
Control or at any time thereafter or (y) to other similarly situated
executives who continue in the employ of the Company during the
Continuation Period. The coverage and benefits (including deductibles and
costs) provided in this Section 3.3(a)(iv) during the Continuation Period
shall be no less favorable to the Employee and his dependents and
beneficiaries, than the most favorable of such coverages and benefits
during any of the periods referred to in clauses (x) or (y) above ;
provided, however, in the event of the disability of the Employee during
the Continuation Period, disability benefits shall not be paid for the
Continuation Period but shall instead commence immediately following the
end of the Continuation Period. In addition, if Employee has reached age 52
and has completed seven years of
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service at the time of a Change of Control, Employee shall automatically
become vested in the post-retirement benefits provided under the Tidewater
Group Welfare Benefits Plan (the "GWB Plan") and be entitled to receive,
following termination of employment with the Company, all benefits that
would be payable to Employee under the GWB Plan or any successor plan of
the Company or its Affiliates had the Employee retired from employment with
the Company or one of its Affiliates on the later of the third anniversary
of the Change of Control or the Employee's date of retirement (as defined
in the GWB Plan) from employment with the Company. The Company's obligation
hereunder with respect to the foregoing benefits shall be limited to the
extent that the Employee obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Company may reduce the coverage
of any benefits it is required to provide the Employee hereunder as long as
the aggregate coverages and benefits of the combined benefit plans is no
less favorable to the Employee than the coverages and benefits required to
be provided hereunder. The Employee will be eligible for coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") at the end of the
Continuation Period or earlier cessation of the Company's obligation under
the foregoing provisions of this Section 3.3(a)(iv) (or, if the Employee
shall not be so eligible for any reason, the Company will provide
equivalent coverage). Exhibit A hereto provides an informational overview
of COBRA-required coverage as it exists immediately prior to the execution
of the Agreement and is not to be considered part of the Agreement; the
actual coverage to be provided pursuant to this Section 3.3(a)(iv) will be
the COBRA-required coverage at the time this provision becomes effective;
(v) the Employee shall immediately become fully (100%) vested
in his benefit (as such benefit may be increased pursuant to Sections
3.3(a) (vii) and 3.3(a)(viii) hereof) under each supplemental or excess
retirement plan of the Company in which the Employee was a participant,
including, but not limited to the Tidewater Inc. Supplemental Executive
Retirement Plan (the "SERP") , the Supplemental Savings Plan and any
successor plans (collectively, the "Supplemental Plans");
(vi) if, prior to the Change of Control, in a form and manner
reasonably satisfactory to the Company, the Employee shall have elected
that his benefits under the Supplemental Plans
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be paid in a lump sum in cash within five business days of the date of any
termination of his employment described in this Section 3.3(a), such
benefits (as such benefits may be increased pursuant to Sections 3.3(a)
(vii) and 3.3(a)(viii) hereof) shall be so paid, notwithstanding the
payment provisions of the Supplemental Plans and any payment or
distribution elections made by the Employee prior to such lump sum
election;
(vii) the Company shall contribute to the Tidewater Inc.
Executives' Supplemental Retirement Trust between the Company and Hibernia
National Bank, as amended and restated effective January 1, 1993, and
subsequently amended, for the Employee's account in cash within five
business days of the date of termination of employment an amount equal to
the then present value of the actuarial equivalent of the additional
benefits, if any, to which the Employee would be entitled under the
Tidewater Inc. Pension Plan, the SERP and any other qualified or non-
qualified defined benefit plan maintained by the Company and covering the
Employee, regardless of the vesting requirements thereof, after giving the
Employee, for purposes of calculating the benefits due Employee under such
plans, (a) full service credit for a three-year period following the Change
of Control and (b) compensation credit for each of such three years, with
the compensation for each year being calculated by dividing the amount that
the Employee will be entitled to receive under Section 3.3(a)(i) hereof by
three; notwithstanding any SERP provision regarding accrual of benefits,
such additional benefits shall be treated for all purposes as increasing
the benefit of the Employee under the SERP and payment of the increased
benefit shall be governed by the terms of the SERP, unless the Employee has
made an effective election for a lump sum payment in accordance with
Section 3.3(a)(vi) hereof or an effective payment election at the time of
execution of the Prior Agreement with respect to such additional benefits;
(vii) the Company shall contribute to the trust under the
Merrill Lynch Non-Qualified Deferred Compensation Plan Trust Agreement
between the Company and Merrill Lynch Trust Company of America made June
26, 1997, as subsequently amended, for the Employee's account in cash
within five business days of the date of termination of employment an
amount equal to the amount of employer contributions that would have been
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made on the Employee's behalf if the Employee had continued to participate
in the Company's Savings Plan, the Company's Supplemental Savings Plan and
any other qualified or non-qualified defined contribution plan maintained
by the Company until the third anniversary of the Change of Control. Such
contribution shall, in the case of a qualified plan, be calculated as if
the Employee were fully vested and participating to the maximum extent
permitted by such plan and, in the case of a non-qualified plan, be
calculated on the same basis as the Employee was participating in such
plans and, in all cases, be calculated on the basis of the Employee's Base
Salary (determined in accordance with Section 3.2(a) hereof) at the time of
the Change of Control or at the date of termination, whichever is greater;
notwithstanding any Supplemental Savings Plan provision regarding accrual
of benefits, such contribution shall be treated for all purposes as
increasing the benefit of the Employee under the Supplemental Savings Plan
and payment of the increased benefit shall be governed by the terms of the
Supplemental Savings Plan, unless the Employee has made an effective
election for a lump sum payment in accordance with Section 3.3(a)(vi)
hereof or an effective payment election at the time of execution of the
Prior Agreement with respect to such contribution; and
(ix) to the extent that Employee is not fully vested in his
accrued benefits under the Pension Plan, the Savings Plan or any other
qualified plan maintained by the Company, at the time of termination of
employment, the Company shall contribute to the trust for the Supplemental
Plan that supplements the respective qualified plan, within five business
days of the date of termination of employment, an amount in cash equal to
the unvested but accrued benefits under such plans (calculated as the
present value of the actuarial equivalent thereof in the case of any
qualified defined benefit plan) as of the date of termination of
employment; notwithstanding the provisions of any qualified plan or
Supplemental Plan regarding accrual of benefits, such contribution shall be
treated for all purposes as increasing the benefit of the Employee under
the Supplemental Plan which supplements the respective qualified plan, and
payment of the increased benefit shall be governed by the terms of such
Supplemental Plan, unless the Employee has made an effective election for a
lump sum payment in accordance with Section 3.3(a)(vi) hereof or an
effective payment election at the time of execution of the Prior Agreement
with respect to such contribution.
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The payments and benefits provided in this Section 3.3(a) and under all of the
Company's employee benefit and compensation plans shall be without regard to any
amendment made after any Change of Control to any such plan, which amendment
adversely affects in any manner the computation of payments and benefits due the
Employee under such plan or the time or manner of payment of such payments and
benefits . After a Change of Control no discretionary power of the Board or any
committee thereof shall be used in a way (and no ambiguity in any such plan
shall be construed in a way) which adversely affects in any manner any right or
benefit of the Employee under any such plan.
(b) Death. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by reason of
the Employee's death, this Agreement shall terminate without further obligation
to the Employee's legal representatives (other than those already accrued to the
Employee), other than the obligation to make any payments due pursuant to
employee benefit or compensation plans maintained by the Company or its
Affiliates.
(c) Disability. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by reason of
Employee's Disability, this Agreement shall terminate without further obligation
to the Employee (other than those already accrued to the Employee), other than
the obligation to make any payments due pursuant to employee benefit or
compensation plans maintained by the Company or its Affiliates.
(d) Cause. If, after a Change of Control and during the
Employment Term, the Employee's status as an employee is terminated by the
Company for Cause, this Agreement shall terminate without further obligation to
the Employee other than for obligations imposed by law and obligations imposed
pursuant to any employee benefit or compensation plan maintained by the Company
or its Affiliates.
(e) Voluntary Termination. If, after a Change of Control and
during the Employment Term, the Employee voluntarily terminates his employment
with the Company other than for Good Reason, this Agreement shall terminate
without further obligation to the Employee other than for obligations imposed by
law and obligations imposed pursuant to any employee benefit or compensation
plan maintained by the Company or its Affiliates.
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3.4 ACCRUED OBLIGATIONS AND OTHER BENEFITS. It is the intent of this
Agreement that upon termination of employment for any reason following a Change
of Control the Employee be entitled to receive promptly, and in addition to any
other benefits specifically provided, (a) the Employee's Base Salary through the
date of termination to the extent not theretofore paid, (b) any accrued vacation
pay, to the extent not theretofore paid, and (c) any other amounts or benefits
required to be paid or provided or which the Employee is entitled to receive
under any plan, program, policy, practice or agreement of the Company.
3.5 STOCK OPTIONS AND RESTRICTED STOCK. The foregoing benefits are
intended to be in addition to the value of any options to acquire Common Stock
of the Company or restricted stock the exercisability or vesting of which is
accelerated pursuant to the terms of any stock option, incentive or other
similar plan heretofore or hereafter adopted by the Company.
3.6 EXCISE TAX PROVISION. (a) Notwithstanding any other provisions
of this Agreement, if a Change of Control occurs during the original or extended
term of this Agreement, in the event that any payment or benefit received or to
be received by the Employee in connection with the Change of Control or the
termination of the Employee's employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company, any
Person whose actions result in the Change of Control or any Person Affiliated
with the Company or such Person) (all such payments and benefits, including the
payments and benefits under Section 3.3(a) hereof, being hereinafter called
"Total Payments") would be subject (in whole or in part), to an excise tax
imposed by section 4999 of the Code (the "Excise Tax"), then, after taking into
account any reduction in the Total Payments provided by reason of section 280G
of the Code in such other plan, arrangement or agreement, the cash payments
under Section 3.3(a) hereof shall first be reduced, and the noncash payments and
benefits under Sections 3.3(a) and 3.9 hereof shall thereafter be reduced, to
the extent necessary so that no portion of the Total Payments is subject to the
Excise Tax but only if (A) the net amount of such Total Payments, as so reduced
(and after subtracting the net amount of federal, state and local income and
employment taxes on such reduced Total Payments) is greater than or equal to (B)
the net amount of such Total Payments without such reduction (but after
subtracting the net amount of federal, state and local income and employment
taxes on such Total Payments and the amount of Excise Tax to which the Employee
would be subject in respect of such unreduced Total Payments); provided,
however, that the Employee may elect to have the noncash payments and benefits
under Sections 3.3(a) and 3.9 hereof reduced (or eliminated) prior to any
reduction of the cash payments under Section 3.3(a) hereof.
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<PAGE>
(b) For purposes of determining whether and the extent to which
the Total Payments will be subject to the Excise Tax, (i) no portion of the
Total Payments the receipt or enjoyment of which the Employee shall have waived
at such time and in such manner as not to constitute a "payment" within the
meaning of section 280G(b) of the Code shall be taken into account, (ii) no
portion of the Total Payments shall be taken into account which, in the opinion
of tax counsel ("Tax Counsel") reasonably acceptable to the Employee and
selected by the accounting firm (the "Auditor") which was, immediately prior to
the Change of Control, the Company's independent auditor, does not constitute a
"parachute payment" within the meaning of section 280G(b)(2) of the Code
(including by reason of section 280G(b)(4)(A) of the Code) and, in calculating
the Excise Tax, no portion of such Total Payments shall be taken into account
which, in the opinion of Tax Counsel, constitutes reasonable compensation for
services actually rendered, within the meaning of section 280G(b)(4)(B) of the
Code, in excess of the "Base Amount" (within the meaning set forth in section
280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the
value of any non-cash benefit or any deferred payment or benefit included in the
Total Payments shall be determined by the Auditor in accordance with the
principles of sections 280G(d)(3) and (4) of the Code.
(c) At the time that payments are made under this Agreement, the
Company shall provide the Employee with a written statement setting forth the
manner in which such payments were calculated and the basis for such
calculations including, without limitation, any opinions or other advice the
Company has received from Tax Counsel, the Auditor or other advisors or
consultants (and any such opinions or advice which are in writing shall be
attached to the statement).
3.7 LEGAL FEES. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the Employee may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Employee or others of the validity or enforceability of, or
liability under, any provision of this Agreement (including as a result of any
contest by the Employee about the amount or timing of any payment pursuant to
this Agreement) or which the Employee may reasonably incur in connection with
any tax audit or proceeding to the extent attributable to the application of
section 4999 of the Code to any payment or benefit provided under this
Agreement.
17
<PAGE>
3.8 SET-OFF; MITIGATION. After a Change of Control, the Company's
and its Affiliates' obligations to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company or its Affiliates may have against the Employee or
others; except that to the extent the Employee accepts other employment in
connection with which he is provided health insurance benefits, the Company
shall only be required to provide health insurance benefits to the extent the
benefits provided by the Employee's employer are less favorable than the
benefits to which he would otherwise be entitled hereunder. It is the intent of
this Agreement that in no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Employee under any of the provisions of this Agreement.
3.9 OUTPLACEMENT ASSISTANCE. Upon any termination of employment of
the Employee other than for Cause within three years following a Change of
Control, the Company shall provide to the Employee outplacement assistance by a
reputable firm specializing in such services for the period beginning with the
termination of employment and ending three years following the Change of
Control.
3.10 CERTAIN PRE-CHANGE-OF-CONTROL TERMINATIONS. Notwithstanding any
other provision of this Agreement, the Employee's employment shall be deemed to
have been terminated following a Change of Control by the Company without Cause
or by the Employee with Good Reason, if (i) the Employee's employment is
terminated by the Company without Cause prior to a Change of Control (whether or
not a Change of Control actually occurs) and such termination was at the request
or direction of a Person who has entered into an agreement with the Company the
consummation of which would constitute a Change of Control, (ii) the Employee
terminates his employment for Good Reason prior to a Change of Control (whether
or not a Change of Control actually occurs) and the act, circumstance or event
which constitutes Good Reason occurs at the request or direction of such Person,
or (iii) the Employee's employment is terminated by the Company without Cause or
by the Employee for Good Reason and such termination or the act, circumstance or
event which constitutes Good Reason is otherwise in connection with or in
anticipation of a Change of Control and occurred after discussions with such
Person regarding a possible Change-of-Control transaction commenced and such
discussions produced (whether before or after such termination) either a letter
of intent with respect to such a transaction or a public announcement of the
pending transaction (whether or not a Change of Control actually occurs). For
purposes of any determination regarding the applicability of the immediately
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<PAGE>
preceding sentence, if the Employee takes the position that such sentence
applies and the Company disagrees, the Company shall have the burden of proof in
any such dispute.
ARTICLE IV
MISCELLANEOUS
4.1 BINDING EFFECT; SUCCESSORS.
(a) This Agreement shall be binding upon and inure to the benefit
of the Company and any of its successors or assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being no
obligation to give such consent) other than such rights or benefits as are
transferred by will or the laws of descent and distribution.
(c) The Company shall require any successor to or assignee of
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
all or substantially all of the assets or businesses of the Company (i) to
assume unconditionally and expressly this Agreement and (ii) to agree to perform
or to cause to be performed all of the obligations under this Agreement in the
same manner and to the same extent as would have been required of the Company
had no assignment or succession occurred, such assumption to be set forth in a
writing reasonably satisfactory to the Employee.
(d) The Company shall also require all entities that control or
that after the transaction will control (directly or indirectly) the Company or
any such successor or assignee to agree to cause to be performed all of the
obligations under this Agreement, such agreement to be set forth in a writing
reasonably satisfactory to the Employee.
(e) The obligations of the Company and the Employee which by
their nature may require either partial or total performance after the
expiration of the term of the Agreement shall survive such expiration.
4.2 NOTICES. All notices hereunder must be in writing and shall be
deemed to have been given upon receipt of delivery by: (a) hand (against a
receipt therefor), (b) certified or registered mail, postage prepaid, return
receipt requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or
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(d) telecopy transmission with confirmation of receipt. All such notices must be
addressed as follows:
If to the Company, to:
Tidewater Inc.
Pan-American Life Center
601 Poydras Street, Suite 1900
New Orleans, Louisiana 70130
Attn: Cliffe F. Laborde
If to the Employee, to:
[ ]
Tidewater Inc.
Pan-American Life Center
601 Poydras Street, Suite 1900
New Orleans, Louisiana 70130
or such other address as to which any party hereto may have notified the other
in writing.
4.3 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Louisiana
without regard to principles of conflict of laws.
4.4 WITHHOLDING. The Employee agrees that the Company has the right
to withhold, from the amounts payable pursuant to this Agreement, all amounts
required to be withheld under applicable income and/or employment tax laws, or
as otherwise stated in documents granting rights that are affected by this
Agreement.
4.5 AMENDMENT, WAIVER. No provision of this Agreement may be
modified, amended or waived except by an instrument in writing signed by both
parties.
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4.6 SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, shall at any time or to any
extent be invalid, illegal or unenforceable in any respect as written, Employee
and the Company intend for any court construing this Agreement to modify or
limit such provision so as to render it valid and enforceable to the fullest
extent allowed by law. Any such provision that is not susceptible of such
reformation shall be ignored so as to not affect any other term or provision
hereof, and the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid, illegal or unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
4.7 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
4.8 REMEDIES NOT EXCLUSIVE. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to all
of the rights and remedies provided for in this Agreement, the parties shall
have all other rights and remedies provided to them by applicable law, rule or
regulation.
4.9 COMPANY'S RESERVATION OF RIGHTS. Employee acknowledges and
understands that the Employee serves at the pleasure of the Board and that the
Company has the right at any time to terminate Employee's status as an employee
of the Company, or to change or diminish his status during the Employment Term,
subject to the rights of the Employee to claim the benefits conferred by this
Agreement.
4.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Employee have caused this Agreement
to be executed as of the Restatement Date.
TIDEWATER INC.
By:____________________________
William C. O'Malley
Chairman of the Board,
President and Chief Executive Officer
EMPLOYEE:
-----------------------------------
[ ]
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EXHIBIT 10(d)
TIDEWATER
SECOND AMENDED AND RESTATED
EMPLOYEES' SUPPLEMENTAL SAVINGS PLAN
Effective October 1, 1999
<PAGE>
TIDEWATER INC.
SECOND AMENDED AND RESTATED
EMPLOYEES' SUPPLEMENTAL SAVINGS PLAN
TABLE OF CONTENTS
PREAMBLE .......................................................... 1
ARTICLE 1: PURPOSE AND DEFINITIONS ............................... 1
ARTICLE 2: ELIGIBILITY ........................................... 3
ARTICLE 3: DEFERRED COMPENSATION AMOUNTS ......................... 3
ARTICLE 4: ACCOUNTING ............................................ 4
ARTICLE 5: PLAN ADMINISTRATION ................................... 5
ARTICLE 6: DISTRIBUTIONS ......................................... 5
ARTICLE 7: VESTING ............................................... 7
ARTICLE 8: NATURE OF AGREEMENT ................................... 7
ARTICLE 9: RESTRICTIONS ON ASSIGNMENT ............................ 7
ARTICLE 10: DEMAND FOR BENEFITS .................................. 8
ARTICLE 11: AMENDMENT AND TERMINATION ............................ 8
ARTICLE 12: MISCELLANEOUS ........................................ 9
ARTICLE 13: CHANGE OF CONTROL .................................... 10
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TIDEWATER INC.
SECOND AMENDED AND RESTATED
EMPLOYEES' SUPPLEMENTAL SAVINGS PLAN
PREAMBLE
WHEREAS, Tidewater Inc., a Delaware corporation (the "Company") maintains
the Tidewater Employees' Supplemental Savings Plan (the "Plan"), the provisions
of which are at present expressed in a plan document effective October 30, 1987,
and amendments thereto effective January 1, 1993, January 1, 1995, October 1,
1997 and October 1, 1999; and
WHEREAS, the Board of Directors has authorized the restatement of the Plan,
as amended;
NOW THEREFORE, the Plan is hereby restated to read in its entirety as
follows:
ARTICLE 1: PURPOSE AND DEFINITIONS
a. Definitions
i. The term "Savings Plan" refers to the Tidewater 401(k)
Savings Plan.
ii. The term "Salary Deferral Contributions" refers to
contributions made pursuant to the Savings Plan by reduction of employees'
Compensation.
iii The term "Employer Contributions" refers to contributions
under the Savings Plan made by the Company to match employees' Salary Deferral
Contributions.
iv. The term "Compensation" shall have the same meaning as it
has in the Savings Plan except that the limitations imposed by Section
401(a)(17) of the Code shall not be applicable.
v. All terms used in this Plan shall have the meanings assigned
to them under the provisions of the Savings Plan, unless otherwise defined
herein or qualified by the context.
vi. The term "Valuation Date" shall mean the close of each
Business Day. For this purpose, the term Business Day shall mean any day during
which the New York Stock Exchange is open to engage in stock transactions.
<PAGE>
vii The term "Distribution Date" shall mean the date on which a
lump sum distribution is made or the date that installment payments of a
distribution begin, which shall be as soon as administratively possible (but in
no case more than 60 days) following the Selected Date, or if no Selected Date
is chosen or in the case of death, the Termination Date.
viii The term "Termination Date" shall mean the date the
Participant terminates employment.
ix. The term "Selected Date" shall mean the date selected in a
Salary Deferral Agreement, or an amendment thereto, for a distribution under the
Plan to begin; provided that in the event of the death of the Participant,
commencement of a distribution shall be accelerated to the date of death and
made as provided in the Participant's Designation of Beneficiary form.
x. The term "Death Beneficiary" shall mean the recipient of any
proceeds under the Plan in conjunction with the death of a Participant and shall
be (i) the person or persons designated by the Participant on a form provided by
the Committee, or (ii) in the absence of a designated Death Beneficiary, the
Participant's estate.
b. Because of the limitations contained in Sections 401(a)(17),
401(k), 401(m) and 402(g) of the Code (the "Limitations"), some Company
employees participating in the Savings Plan can make only a portion of the
Salary Deferral Contributions that the Savings Plan would allow but for such
Limitations.
c. The Company also desires to provide for a mechanism for certain
employees of the Company to defer all or a portion of their annual incentive
bonus ("Annual Bonus").
d. The purposes of this Plan are (i) to provide a mechanism for
certain employees of the Company to defer the portion of their Compensation
which cannot be deferred because of the Limitations, (ii) to provide for an
employer contribution matching such supplemental deferrals under the Plan, (iii)
to provide a mechanism to defer a portion of such employees' Annual Bonus and
(iv) to establish a non-qualified trust (the "Trust") to provide a means for
funding the benefits of the Participants under the Plan, under which Company and
its creditors retain such rights as to defer the taxation of all benefits until
actually received by the Participants and\or their Death Beneficiaries.
e. The Plan as amended and restated shall be effective October 1,
1999.
f. Since the Plan (other than the Annual Bonus deferral) is intended
to supplement the Savings Plan, any ambiguities or gaps in this Plan shall be
resolved by reference to the Savings Plan document, as amended, but only if
consistent with the purposes set forth in Paragraph 1.d.
g. The Plan shall cover employees of the Company meeting the
eligibility criteria set forth in Article 2.
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ARTICLE 2: ELIGIBILITY
Every Member in the Savings Plan who is the Chief Executive Officer,
President, Chief Financial Officer, a Vice President or the Corporate Controller
of the Company or who is otherwise designated as eligible to participate by the
Compensation Committee of the Board of Directors of the Company shall be
eligible to participate in this Plan at such time as, and only so long as, his
projected Compensation for the calendar year when multiplied by the Deferral
Percentage exceeds the limitation under Section 402(g) of the Code for the year
or all or a portion of such Member's Salary Deferral Contribution or Employer
Contribution is returned from the Savings Plan or forfeited as a result of
Section 401(k)(8) of the Code or Section 401(m) of the Code (an "Eligible
Employee"). Participation can commence as of any Entry Date following that
determination. The "Deferral Percentage" is the percentage of Compensation an
Eligible Employee elects to defer in his Supplemental Salary Deferral Agreement.
ARTICLE 3: DEFERRED COMPENSATION AMOUNTS
a. Supplemental Deferrals. An Eligible Employee can enter into a
Supplemental Salary Deferral Agreement with the Company under which the Eligible
Employee elects to reduce his Compensation by an amount ("Supplemental Salary
Deferral") that is retained by the Company in a "Supplemental Salary Deferral
Account" for the Eligible Employee. An Eligible Employee who enters into such
an agreement is referred to as a "Participant." Supplemental Salary Deferrals
shall be effective only for calendar years in which such Participant's Salary
Deferral Contributions reach the limitation set by Internal Revenue Code Section
402(g) or for years in which all or a portion of a Participant's Salary Deferral
Contribution or Employer Contribution is returned from the Savings Plan or
forfeited as a result of Section 401(k)(8) of the Code or Section 401(m) of the
Code. The Deferral Percentage for a Supplemental Salary Deferral can be any
whole percentage of Compensation between 2 percent and 15 percent.
The Supplemental Salary Deferral Agreement may also contain an
election to defer an amount of Compensation equal to (i) such Participant's
Salary Deferral Contribution to the Savings Plan which is returned pursuant to
Section 401(k)(8) of the Code and (ii) such Participant's Employer Contribution
to the Savings Plan which is to be distributed to Participant as a result of
Section 401(k)(8) or Section 401(m) of the Code. The amount referred to in (i)
shall be credited to Participant's Supplemental Salary Deferral Account. The
amount referred to in (ii) shall be credited to Participant's Matching
Contribution Account.
Deferrals (other than those described in Paragraph 3(c)) under the
Supplemental Salary Deferral Agreement shall first be applied to the Savings
Plan to the extent of the Limitations.
b. Matching Contributions. For each dollar of Supplemental Salary
Deferral contributed under the Plan pursuant to the Participant's Supplemental
Salary Deferral Agreement, the Company shall deem set aside an amount ("Matching
Contribution") equal to the amount of Employer Contribution that would have been
made
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under the Savings Plan if the Supplemental Salary Deferral had been a
Salary Deferral Contribution. The Matching Contribution when combined with the
matching contribution provided in Section 4.04 of the Savings Plan shall not
exceed three percent of Compensation. If an Employer Contribution to the
Savings Plan on behalf of a Participant is forfeited pursuant to Section
401(k)(8) or Section 401(m) of the Code, such amount shall be deemed a Matching
Contribution under the Plan to the extent such Participant has so provided in
his Supplemental Salary Deferral Agreement. A Matching Contribution shall not
be required to the extent a returned or forfeited Employer Contribution is
otherwise deemed credited to a Participant.
c. Annual Bonus. The Supplemental Salary Deferral Agreement may
also contain an election to defer all or part of an Eligible Employee's Annual
Bonus ("Bonus Deferral"). The Bonus Deferral shall be in whole percentages of
either 25 percent, 50 percent, 75 percent or 100 percent. The portion of each
Participant's Annual Bonus deferred pursuant to a Supplemental Salary Deferral
Agreement shall be credited to such Participant's Supplemental Salary Deferral
Account.
d. Execution of Supplemental Salary Deferral Agreement. A
Supplemental Salary Deferral Agreement shall be executed prior to the beginning
of the calendar year to which the agreement relates (except that with respect to
the first year an employee becomes an Eligible Employee he may enter into a
Supplemental Salary Deferral Agreement within 30 days of becoming an Eligible
Employee for Compensation for services performed subsequent to execution of such
Agreement) and shall be effective only for the calendar year to which it
relates. Once executed and delivered to the Company, the deferrals and
elections set forth in the Supplemental Salary Deferral Agreement can be changed
or modified only as provided in Article 6(a).
Supplemental Salary Deferral Agreements shall be automatically revoked as
of any date on which their implementation would disqualify the Savings Plan.
No Supplemental Salary Deferrals shall occur after a Participant is no
longer an Eligible Employee.
ARTICLE 4: ACCOUNTING
a. Establishment of Accounts. The Committee shall establish and
maintain a separate Supplemental Salary Deferral Account and Matching
Contribution Account for each Participant. A Participant's Supplemental Salary
Deferral Account shall be credited with the Participant's Supplemental Salary
Deferrals, Bonus Deferrals and earnings thereon, and a Participant's Matching
Contribution Account shall be credited with the Participant's Matching
Contribution and the earnings thereon. The accounts shall be bookkeeping
entries only and the Participant shall have no secured or vested interest in any
specified assets. A Participant's interest in the two accounts shall be
referred to in the aggregate as his "Deferred Compensation Account."
b. Adjusting of Accounts. The Committee shall provide to each
Participant a list of investments from which a Participant can choose as a
deemed
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<PAGE>
investment for such Participant's Deferred Compensation Account. A
Participant's Deferred Compensation Account shall be deemed invested in the
investments selected by such Participant (provided that if no investment is
selected, the Deferred Compensation Accounts shall be deemed invested in the
money market option). The Deferred Compensation Accounts shall be adjusted as
of each Valuation Date to reflect increases or decreases in the value of such
deemed investments. A Participant shall have the right to change the deemed
investment of his Deferred Compensation Accounts and the allocation of future
Supplemental Salary Deferrals, Matching Contributions and Bonus Deferrals by
notice to the Committee in such form as required by the Committee. Such changes
in deemed investments shall be made on the Valuation Date next following the
date upon which said change was requested, or as soon thereafter as may be
administratively practicable. To the greatest extent practicable, the same
valuation and accounting methods shall be used as are used to recalculate the
Members' account balances under the Tidewater 401(k) Savings Plan. A
participant shall have no right to compel investment of any amounts credited to
Participant's Deferred Compensation Account.
ARTICLE 5: PLAN ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the
Company's Board of Directors, the Employee Benefits Committee of the Company
(the "Committee"), and the Board of Directors of the Company, and their
respective powers and obligations are the same as those set forth in the Savings
Plan document, but modified to take into account that this Plan is an unfunded
plan for highly-compensated employees. Each governing body shall have full
power and authority to interpret, construe and administer this Plan, and such
governing body's interpretations and constructions hereof and actions hereunder,
including the timing, form, amount or recipient of any payment to be made
hereunder, within the scope of its authority, shall be binding and conclusive on
all persons for all purposes. No member of a governing body shall be liable to
any person for any action taken or omitted in connection with the interpretation
and administration of this Plan, unless attributable to his own willful
misconduct or lack of good faith. Each administrator shall be fully indemnified
as provided in the Savings Plan. A member of a governing body shall not
participate in any action or determination regarding his own benefits hereunder.
ARTICLE 6: DISTRIBUTIONS
a. Participant's Benefit and Distribution Elections. A Participant
shall be entitled to a distribution from his Deferred Compensation Account on a
Distribution Date. If a Participant becomes entitled to a distribution because
of termination of employment, the Participant shall be entitled to payment of an
amount equal to his entire vested Deferred Compensation Account. If a
Participant becomes entitled to a distribution because a Selected Date has been
reached, the Participant shall be entitled to payment of an amount equal to the
portion of his vested Deferred Compensation Account related to the Supplemental
Salary Deferral Agreement in which the Selected Date was selected. For the
purpose of determining the amount to be distributed to a Participant, the vested
Deferred Compensation Account balance shall be that as determined on the
Distribution Date. In the case of installment payments, the amount of each
installment payment shall
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<PAGE>
be the numerator (equal to 1) divided by the denominator (this being the total
number of remaining installment payments) multiplied by the vested Deferred
Compensation Account balance on the date of the installment payment.
Distributions shall be made in cash. A distribution upon either a Selected
Date or a Termination Date may be in either a single lump sum or installments,
as elected by the Participant. A Selected Date shall be no sooner than two
years following the date the Compensation would be paid, if it were not
deferred. If an installment payment election is made, payments will be made
annually over the period selected by the Participant, which period shall not
exceed ten (10) years. If the Participant makes no election regarding the form
of a benefit, the benefit shall be paid in a single lump sum. Prior to October
1, 1999, an election to receive a benefit in installments could be made only in
the Participant's Salary Deferral Agreement. After October 1, 1999, an election
as to the form of a benefit can be made on a form provided by the Committee at
any time, but the election cannot take effect for a period of 13 months, except
in the case of a Change of Control as provided below. A change to a Selected
Date or form of benefit (lump sum or installment) election hereunder will be
permitted, but no change will be effective for a period of at least 13 months
following the date that the Committee is notified of such change, except in the
case of a Change of Control as provided below.
b. Distribution Election in Anticipation of a Change of Control. A
Participant can also elect at any time prior to a Change of Control, in a form
and manner reasonably satisfactory to the Company, to have the value of his
Deferred Compensation Account paid in a lump sum in cash within five business
days of the Change of Control, without regard to any other provision of the Plan
or any payment or distribution elections applicable to the payment of the
Participant's Deferred Compensation Account in the absence of a Change of
Control.
c. Death Benefit. If the Participant's employment terminates by
reason of death, or if the Participant dies prior to receipt of all the benefits
provided under Paragraph 6 (a), an amount equal to the remaining value of the
Participant's vested Deferred Compensation Account shall be distributed to the
Death Beneficiary in a lump sum or installments, as elected by the Participant
on the Designation of Beneficiary form. A lump sum distribution shall be made
within 60 days after the Participant's death and shall be in the amount of the
Participant's vested Deferred Compensation Account as of the Distribution Date.
A distribution in installments shall begin within 60 days after the
Participant's death and be calculated as provided in Article 6a.
d. Hardships. A benefit is payable under this Plan to a Participant
prior to a Distribution Date only if the Participant establishes to the
satisfaction of the Compensation Committee of the Board of Directors that the
Participant has an unforeseeable emergency. An unforeseeable emergency is a
severe financial hardship of the Participant resulting from a sudden and
unexpected illness or accident of the Participant or a dependent of the
Participant, loss of the Participant's property due to uninsured casualty, or
other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant. The amount distributed in the
case of an unforeseeable emergency shall be limited to what is needed to
reasonably
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<PAGE>
satisfy the emergency and is not reasonably available from other sources. The
amount of the hardship distribution cannot exceed the balance credited to the
Participant's Supplemental Salary Deferral Account and is charged against such
accounts.
e. Withholding. All distributions shall be subject to applicable
state and federal withholding taxes.
ARTICLE 7: VESTING
A Participant's interest in his Supplemental Salary Deferral Account and
Bonus Deferral Account shall be 100 percent vested at all times, and, subject to
Article 13 hereof, a Participant's interest in his Matching Contribution Account
shall vest at the same rate as his Employer Contribution Account under the
Savings Plan. If a Participant terminates employment without full vesting in
his Matching Contribution Account, the unvested portion shall be forfeited and
shall reduce the Company's obligations under this Plan. The forfeiture is not
added to the other Participants' accounts.
ARTICLE 8: NATURE OF AGREEMENT
Participants and their Death Beneficiaries by virtue of participating under
this Plan have only an unsecured right to receive benefits from the Company as a
general creditor of the Company. The Plan constitutes a mere promise to make
payments in the future. The adoption of this Plan and any setting aside of
amounts by the Company with which to discharge its obligations hereunder shall
not be deemed to create a trust for the benefit of Participants or their Death
Beneficiaries; legal and equitable title to any funds so set aside shall remain
in the Company, and any recipient of benefits hereunder shall have no security
or other interest in such funds. Any and all funds so set aside shall remain
subject to the claims of the general creditors of the Company, present and
future, and no payment shall be made under this Plan unless the Company is then
solvent. This provision shall not require the Company to set aside any funds,
but the Company may set aside such funds if it chooses to do so.
Notwithstanding the foregoing provisions of this Article 8 and any other
provision of the Plan, an amount equal to all Supplemental Salary Deferral
Contributions, Matching Contributions and Bonus Deferrals may be deposited into
a trust (any such trust, and any successor thereto, being hereinafter called the
"Trust") established by the Company for the purpose of assuring payment of the
Company's obligations under the Plan. The Trust shall be subject to the claims
of the general creditors of the Company in the event of the Company's bankruptcy
or insolvency. Notwithstanding any establishment of the Trust, the Company
shall remain responsible for the payment of any amounts so payable which are not
so paid by the Trust.
ARTICLE 9: RESTRICTIONS ON ASSIGNMENT
The interest of Participant or his Death Beneficiary may not be sold,
transferred, assigned, or encumbered in any manner, either voluntarily or
involuntarily, and any attempt so to anticipate, alienate, sell, transfer,
assign, pledge, encumber, or charge the same shall be null and void; neither
shall the benefits hereunder be liable for or subject to the debts, contracts,
liabilities, engagement, or torts of any person to whom such benefits or funds
are payable, nor shall they be subject to garnishment, attachment, or other
legal or
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equitable process nor shall they be an asset in bankruptcy, except that
no amount shall be payable hereunder until and unless any and all amounts
representing debts or other obligations owed to the Company or any affiliate of
the Company by the Employee with respect to whom such amount would otherwise be
payable shall have been fully paid and satisfied. The interest of any
Participant or Death Beneficiary shall be held subject to the maximum restraint
on alienation permitted or required by applicable Louisiana law.
ARTICLE 10: DEMAND FOR BENEFITS
Benefits upon termination of employment shall ordinarily be paid to a
Participant without the need for demand, and to a Death Beneficiary upon receipt
of the Death Beneficiary's address and Social Security number. Nevertheless, a
Participant or a person claiming to be a death beneficiary who claims
entitlement to a benefit under Paragraph 6.a. or 6.b. can file a claim for
benefits with the Committee. If the claim is for a benefit resulting from a
termination of employment or death, the Committee shall accept or reject the
claim within 30 days of its receipt. If the claim is denied, the Committee
shall give the reason for denial in a written notice calculated to be understood
by the claimant, referring to the plan provisions that form the basis of the
denial. If any additional information or material is necessary to perfect the
claim, the Committee will identify these items and explain why such additional
material is necessary. If the Committee neither accepts nor rejects the claim
within 30 days, the claim shall be deemed to be denied. Upon the denial of a
claim, the claimant may file a written appeal of the denied claim to the
Compensation Committee of the Board of Directors of the Company within 60 days
of the denial. The claimant shall have the opportunity to be represented by
counsel and to be heard at a hearing. The claimant shall have the opportunity
to review pertinent documents and the opportunity to submit issues and argue
against the denial in writing. The decision upon the appeal must be made no
later than the later of (a) 60 days after receipt of the request for review of
(b) 30 days after the hearing. The Compensation Committee must set a date for
such a hearing within 30 days after receipt of the appeal. In no event shall
the date of the hearing be set later than 60 days after receipt of the notice.
If the appeal is denied, the denial shall be in writing. If an initial claim is
denied, all subsequent reasonable attorney's fees and costs of the successful
claimant, including the filing of the appeal with the Compensation Committee,
and any subsequent litigation, shall be paid by the Company unless the failure
of the Company to pay is caused by reasons beyond its control, such as
insolvency or bankruptcy.
ARTICLE 11: AMENDMENT AND TERMINATION
a. Amendment. The provisions of this Plan may be amended by the
Board of Directors of the Company from time to time and at any time in whole or
in part, even if such amendment results in the termination or modification of
any Supplemental Salary Deferral Agreements, provided that no amendment shall
operate to deprive any Participant or Death Beneficiary of any vested rights in
their Deferred Compensation Accounts accrued to them under the Plan and Trust
prior to such amendment.
b. Termination. While it is the Company's intention to continue the
Plan in operation indefinitely, the right is nevertheless expressly reserved to
terminate the Plan in whole or in part. Upon a termination all Matching
Contribution Accounts shall be 100 percent vested, and amounts equal to the full
balance in each Participant's Deferred
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<PAGE>
Compensation Account shall be distributed (and taxable) to the Participant (or
his Death Beneficiary), and the Company shall have no further obligations under
the Plan.
c. Early Payments. Notwithstanding any provision of this Plan to
the contrary, the Committee may direct the trustee of any trust established
pursuant to Article 8, hereof, to distribute to any Participant (or Beneficiary)
in the form of an immediate single-sum payment all or any portion of the amount
then credited to a Participant's affected Deferred Compensation Account or
Accounts, as the case may be, if an adverse determination is made with respect
to such Participant. For this purpose, the term adverse determination shall
mean that, based upon Federal tax or revenue law, a published or private ruling
or similar announcement issued by the Internal Revenue Service, a regulation
issued by the Secretary of the Treasury, a decision by a court of competent
jurisdiction, a closing agreement made under Section 7121 of the Code that is
approved by the Internal Revenue Service and involves such Participant or a
determination of counsel, a Participant has or will recognize income for Federal
income tax purposes with respect to any amount that is or will be payable under
this Plan before it is otherwise to be paid hereunder.
Further, notwithstanding any provision of the Plan to the contrary,
the Committee may direct the trustee of any trust established pursuant to
Article 8 hereof to distribute to any Participant in the form of an immediate
single-sum payment all or any portion of the amount then credited to a
Participant's affected Deferred Compensation Account or Accounts as the case may
be, based upon a change in ERISA, a published advisory opinion or similar
announcement issued by the Department of Labor, a regulation issued by the
Secretary of Labor, a decision by a court of competent jurisdiction, an
agreement between such Participant and the Department of Labor or similar agency
or an opinion of counsel, such Participant is not a "management" or "highly
compensated" employee or this Plan is not an "unfunded" plan within the meaning
of ERISA.
ARTICLE 12: MISCELLANEOUS
a. Governing Law. The Plan and Trust shall be construed,
administrated and applied under the laws of the State of Louisiana. It is the
Company's intent that the Plan shall be exempt from ERISA's provisions, to the
maximum extent permitted by law. The Plan is intended to be unfunded for federal
income tax purposes and for purposes of Title I of ERISA and intended to provide
deferred compensation only for a select group of management or highly
compensated employees and shall be exempt from Parts 2, 3 and 4 of ERISA,
pursuant to Sections 201(2), 301(a)(3) and 401(a)(1).
b. Pronouns. The use of masculine pronouns shall be extended to
include the feminine gender wherever appropriate.
c. Continued Employment. Nothing contained herein shall be
construed as conferring upon any Participant the right to continue in the employ
of the Company or any subsidiary of the Company in any capacity.
d. Recovery of Payments Made By Mistake. Notwithstanding anything
to the contrary, a Participant or other Person receiving amounts from the Plan
is entitled only to those benefits provided by the Plan and promptly shall
return any payment, or portion thereof, made by mistake of fact or law. The
Committee may offset the future
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<PAGE>
benefits of any recipient who refuses to return an erroneous payment, in
addition to pursuing any other remedies provided by law.
ARTICLE 13: CHANGE OF CONTROL
a. Effect of Change of Control. Upon a Change of Control (as
defined in Section 13(b) hereof) a Participant's interest in his Matching
Contribution Account shall immediately become fully vested.
b. Definition of Change of Control. As used in this Section 13,
'Change of Control' shall mean:
i. the acquisition by any 'Person' (as defined in Section 13(c)
hereof) of 'Beneficial Ownership' (as defined in Section 13(c) hereof)
of 30% or more of the outstanding Shares of the Company's Common
Stock, $0.10 par value per share (the 'Common Stock') or 30% or more
of the combined voting power of the Company's then outstanding
securities; provided, however, that for purposes of this subsection
13(b)(i), the following shall not constitute a Change of Control:
A. any acquisition (other than a 'Business Combination' (as
defined in Section 13(b)(iii) hereof) which constitutes a Change
of Control under Section 13(b)(iii) hereof) of Common Stock
directly from the Company,
B. any acquisition of Common Stock by the Company or its
subsidiaries,
C. any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
D. any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a
Change of Control under Section 13(b)(iii) hereof; or
ii. individuals who, as of the effective date of Amendment
Number Two to the Plan, constitute the Board (the 'Incumbent Board')
cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent
to the effective date of Amendment Number Two to the Plan whose
election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered a member of the
Incumbent Board, unless such individual's initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Incumbent Board; or
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<PAGE>
iii. consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of
all or substantially all of the assets of the Company (a 'Business
Combination'), in each case, unless, immediately following such
Business Combination,
A. the individuals and entities who were the Beneficial
Owners of the Company's outstanding Common Stock and the
Company's voting securities entitled to vote generally in the
election of directors immediately prior to such Business
Combination have direct or indirect Beneficial Ownership,
respectively, of more than 50% of the then outstanding shares of
common stock, and more than 50% of the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, of the Post-Transaction Corporation
(as defined in Section 13(c) hereof), and
B. except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-
Transaction Corporation and any employee benefit plan or related
trust of either the Company, the Post-Transaction Corporation or
any subsidiary of either corporation) Beneficially Owns, directly
or indirectly, 30% or more of the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or 30% or more of the combined voting power of the
then outstanding voting securities of such corporation, and
C. at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
iv. approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
c. Other Definitions. As used in Section 13(b) hereof, the following
words or terms shall have the meanings indicated:
i. Affiliate: 'Affiliate' (and variants thereof) shall mean a
Person that controls, or is controlled by, or is under common control
with, another specified Person, either directly or indirectly.
ii. Beneficial Owner: 'Beneficial Owner' (and variants
thereof), with respect to a security, shall mean a Person who,
directly or indirectly (through any contract, understanding,
relationship or otherwise), has or shares (i) the power to vote, or
direct the voting of, the security, and/or (ii) the power to dispose
of, or to direct the disposition of, the security.
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<PAGE>
iii. Person: 'Person' shall mean a natural person or company,
and shall also mean the group or syndicate created when two or more
Persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership) for the purpose of
acquiring, holding, or disposing of a security, except that 'Person'
shall not include an underwriter temporarily holding a security
pursuant to an offering of the security.
iv. Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 13(b)(iii)
hereof), 'Post-Transaction Corporation' shall mean the Company after
the Change of Control. If a Change of Control includes a Business
Combination, 'Post-Transaction Corporation' shall mean the corporation
resulting from the Business Combination unless, as a result of such
Business Combination, an ultimate parent corporation controls the
Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, 'Post-Transaction Corporation'
shall mean such ultimate parent corporation."
Thus done and signed effective the 1st day of October, 1999.
TIDEWATER INC.
By: /s/ Ken C. Tamblyn
-------------------------------
Ken C. Tamblyn
Executive Vice President and
Chief Financial Officer
Attest:
/s/ Michael L. Goldblatt
- ----------------------------
Michael L. Goldblatt
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<PAGE>
EXHIBIT 10(e)
Restated
Merrill Lynch Non-Qualified Deferred
Compensation Plan Trust Agreement
TRUST UNDER:
TIDEWATER INC. SECOND RESTATED EMPLOYEES' SUPPLEMENTAL SAVINGS PLAN
This Agreement made effective this 1st day of October, 1999 by and between
Tidewater Inc. (Company) and Merrill Lynch Trust Company of America, an Illinois
corporation (Trustee);
WHEREAS, Company has adopted the non-qualified deferred compensation
Plan(s) identified above and such other plan(s) as are listed in Appendix A;
WHEREAS, Company has incurred or expects to incur liability under the terms
of such Plan(s) with respect to the individuals participating in such Plan(s);
WHEREAS, Company wishes to establish a trust (the "Trust") and to
contribute to the Trust assets that shall be held therein, subject to the claims
of Company's Insolvency, as herein defined, until paid to the Plan participants
and their beneficiaries in such manner and at such times as specified in the
Plan(s);
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Plan(s) as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purpose of Title I of the Employee Retirement Income Security Act of 1974;
WHEREAS, it is the intention of Company to make contributions to the Trust
to provide itself with a source of funds to assist it in meeting of its
liabilities under the Plan(s);
WHEREAS, the provisions of the Trust are at present expressed in a
document effective June 26, 1997 and amendment thereto effective October 1,
1999; and
WHEREAS, the Board of Directors has authorized the restatement of the
Agreement, as amended and restated;
NOW, THEREFORE, the Agreement is hereby restated to read in its entirety as
follows:
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Section 1. Establishment of Trust.
----------------------------------
(a) Company hereby deposits with Trustee in trust such cash and/or
marketable securities, if any, listed in Appendix B, which shall become the
principal of the Trust to be held, administered and disposed of by Trustee as
provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, Part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of Plan participants and general creditors as herein set
forth. Plan participants and their beneficiaries shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the Trust. Any rights
created under the Plan(s) and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against Company.
Any assets held by the Trust will be subject to the claims of Company's general
creditors under federal and state law in the event of Insolvency, as defined in
Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to time,
make additional deposits of cash or other property in trust with Trustee to
augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional deposits.
(f) Trustee shall not be obligated to receive any cash and/or property
pursuant to this Section 1 unless prior thereto Trustee has agreed that such
cash and/or property is acceptable to Trustee and Trustee has received such
reconciliation, allocation, investment or other information concerning, or
representation with respect to, the cash and/or property as Trustee may require.
Trustee shall have no duty or authority to (a) require any deposits to be made
under the Plan or to Trustee, (b) compute any amount to be deposited under the
Plan to Trustee, or (c) determine whether amounts received by Trustee comply
with the Plan. Assets of the Trust may, in Trustee's discretion, be held in an
account with an affiliate of Trustee.
(g) (1) Upon a Potential Change of Control (as defined in Section 14
hereof), the Company shall make, as soon as possible, but in no event later than
fifteen (15) business days following the Potential Change of Control, a
contribution (which contribution shall be, except as otherwise provided in
Sections 1(g)(2), 3, and 13 hereof, an irrevocable contribution) to the Trust in
an amount which (when aggregated with the assets then held by the Trust, valued
at their then fair market value) is equal to (i) the present value of the
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<PAGE>
maximum benefits in which all Plan participants (or their beneficiaries) would
be vested pursuant to the terms of the Plan(s) as of the date on which the
Potential Change of Control occurred (calculated as if such Potential Change of
Control were also a "Change of Control" as defined in the relevant Plan and as
if any vesting of benefits which the relevant Plan requires upon a Change of
Control had already occurred), plus (ii) a reasonable estimated amount for the
Trust's expenses during its term (such estimate not to exceed one percent (1%)
of such present value). The sum of the amounts described in items (i) and (ii)
of the immediately preceding sentence is hereinafter called the "Required
Funding Amount." The Company hereby authorizes and directs its chief executive
officer, and its chief financial officer, or either of them acting alone, to
contribute the Required Funding Amount without the further approval of the board
of directors of the Company (the "Board"). Immediately after the Company makes
such contribution, the Company shall provide the Trustee with copies of all
Plans, to the extent not previously provided, and other information used in the
Company's calculation of the Required Funding Amount, as well as its worksheets
for such calculation.
(2) In the event that, prior to any delivery pursuant to Section
1(g)(1) hereof, the Trust was only nominally funded and that the Company
delivers an amount to the Trustee upon a Potential Change of Control pursuant to
Section 1(g)(1) hereof, the Trustee will, if directed by the Company and if
provided with a written certification from the Company that a Change of Control
has not occurred, return substantially all the Trust assets (retaining a nominal
portion of such assets as corpus for the continuing Trust) to the Company on the
last day of the eighteenth month following the month in which the Potential
Change of Control occurred, unless a Change of Control shall have occurred
during such eighteen-month period. In the event that, prior to any delivery
pursuant to Section 1(g)(1), the Trust had been more than nominally funded by
discretionary contributions from the Company which were calculated with
reference to the present value of Plan benefits from time to time and that the
Company delivers an amount to the Trustee upon a Potential Change of Control
pursuant to Section 1(g)(1) hereof, the Trustee will, if directed by the Company
and if provided with a written certification from the Company that a Change of
Control has not occurred, return the portion of such Section 1(g)(1) delivery
which is equal to the sum of (i) Plan benefits attributable solely to Change-of-
Control vesting and (ii) the estimate of the Trust's expenses (retaining the
balance of the Trust assets as corpus for the continuing Trust) to the Company
on the last day of the eighteenth month following the month in which the
Potential Change of Control occurred, unless a Change of Control shall have
occurred during such eighteen-month period. Such eighteen-month period shall be
begun anew (thus postponing any such discretionary return of Trust assets) in
the event of any subsequent Potential Change of Control occurring during such
initial period or any subsequent period.
(3) Following the end of each calendar year which ends after a
Potential Change of Control has occurred, unless the assets delivered to the
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Trustee pursuant to Section 1(g)(1) in connection with such Potential Change of
Control (or a portion of such assets) shall have previously been returned to the
Company pursuant to Section 1(g)(2) hereof or the Trust shall have previously
terminated pursuant to Section 13 hereof, the Company shall recalculate the
Required Funding Amount as if such Potential Change of Control had occurred at
the end of such calendar year. Not later than sixty (60) days after each such
calendar year-end, the Trustee shall give notice to the Company as to the fair
market value of assets held in the Trust as of such calendar year-end. If such
recalculated Required Funding Amount exceeds the fair market value of the assets
then held in the Trust, the Company shall within five days after receipt of
information from the Trustee pursuant to the immediately preceding sentence pay
(or cause the respective Employers to pay) to the Trustee an amount in cash (or
marketable securities or any combination thereof) equal to such excess;
provided, however, that if no such information has been received by the Company
before the ninetieth (90th) day following the respective calendar year-end, then
on or before the ninety-fifth (95th) day the Company shall pay (or cause the
respective Employers to pay) to the Trustee an amount in cash (or marketable
securities or any combination thereof) equal to the amount so paid the
immediately preceding year. The Company hereby authorizes and directs its Chief
Executive Officer, and its Chief Financial Officer, or either of them acting
alone, to make such additional contributions (or to cause such additional
contributions to be made) without the further approval of the Board.
(4) The Trustee shall have no obligation to perform any of the
calculations provided for herein or to review any such calculations for
accuracy.
Section 2. Payments to Plan Participants and Their Beneficiaries.
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(a) With respect to each Plan participant, Company shall deliver to Trustee
a schedule (the "Payment Schedule") that indicates the amounts payable in
respect of the participant (and his or her beneficiaries), that provides a
formula or other instructions acceptable to Trustee for determining the amounts
so payable, the form in which such amount is to be paid (as provided for or
available under the Plan(s)), and the time of commencement for payment of such
amounts. The Payment Schedule shall be delivered to Trustee not more than (30)
business days nor fewer than (15) business days prior to the first date on which
a payment is to be made to the Plan participant. Any change to a Payment
Schedule shall be delivered to Trustee not more than (30) days nor fewer than
(15) days prior to the date on which the first payment is to be made in
accordance with the changed Payment Schedule. Except as otherwise provided
herein, Trustee shall make payments to Plan participants and their beneficiaries
in accordance with such Payment Schedule. The Trustee shall make provisions for
the reporting and withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits pursuant to the
terms of the Plan(s) and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been reported, withheld and paid
by Company, it being understood among the
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<PAGE>
parties hereto that (1) Company shall on a timely basis provide Trustee specific
information as to the amount of taxes to be withheld and (2) Company shall be
obligated to receive such withheld taxes from Trustee and properly pay and
report such amounts to the appropriate taxing authorities.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan(s) shall be determined by Company or such party as it
shall designate under the Plan(s), and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan(s).
(c) Company may make payment of benefits directly to Plan participants or
their beneficiaries as they become due under the terms of the Plan(s). Company
shall notify Trustee of its decision to make payment of benefits directly prior
to the time amounts are payable to participants or their beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the terms of the
Plan(s), Company shall make the balance of each payment as it falls due. Trustee
shall notify Company where principal and earnings are not sufficient.
(d) Trustee shall have no responsibility to determine whether the Trust is
sufficient to meet the liabilities under the Plan(s), and shall not be liable
for payments or Plan(s) liabilities in excess of the value of the Trust's
assets.
Section 3. Trustee Responsibility Regarding Payments to Trust Beneficiary
-------------------------------------------------------------------------
When Company Is Insolvent.
--------------------------
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section l(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer of Company
(or, if there is no Chief Executive Officer, the highest ranking
officer) shall have the duty to inform Trustee in writing of
Company's Insolvency. If a person claiming to be a creditor of
Company alleges in writing to Trustee that Company has become
Insolvent, Trustee shall determine whether Company is Insolvent
and, pending such determination, Trustee shall discontinue
payment of benefits to Plan participants or their beneficiaries.
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<PAGE>
(2) Unless Trustee has actual knowledge of Company's Insolvency, or
has received notice from Company or a person claiming to be a
creditor alleging that Company is Insolvent, Trustee shall have
no duty to inquire whether Company is Insolvent. Trustee may in
all events rely on such evidence concerning Company's solvency as
may be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Company's
solvency.
(3) If at any time Trustee has determined that Company is Insolvent,
Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the
benefit of Company's general creditors. Nothing in this Trust
Agreement shall in any way diminish any rights of Plan
participants or their beneficiaries to pursue their rights as
general creditors of Company with respect to benefits due under
the Plan(s) or otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Company is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan(s) for the
period of such discontinuance, less the aggregate amount of any payments made to
Plan participants provided for hereunder during any such period of
discontinuance; provided that Company has given Trustee information with respect
to such payments made during the period of discontinuance prior to resumption of
payments by the Trustee.
Section 4. Payments to Company.
-------------------------------
Except as provided in Section 1(g)(2) and Section 3 hereof, since the Trust
is irrevocable, in accordance with Section l(b) hereof, Company shall have no
right or power to direct Trustee to return to Company or to divert to others any
of the Trust assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan(s).
Section 5. Investment Authority.
--------------------------------
(a) Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by Company. All rights associated with assets of
the Trust shall be exercised by Trustee or the person designated by
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Trustee, and shall in no event be exercised by or rest with Plan participants,
except that voting rights with respect to Trust assets will be exercised by
Company, unless an investment adviser has been appointed pursuant to Section
5(c) and voting authority has been delegated to such investment adviser.
(b) Company shall have the right at anytime, and from time to time in its
sole discretion, to substitute assets of equal fair market value for any asset
held by the Trust. This right is exercised by Company in a nonfiduciary capacity
without the approval or consent of any person in a fiduciary capacity.
(c) Trustee may appoint one or more investment advisers who are registered
as investment advisers under the Investment Advisers Act of 1940, who may be
affiliates of Trustee, to provide investment advice on a discretionary or non-
discretionary basis with respect to all or a specified portion of the assets of
the Trust.
(d) Trustee, or the Trustee's designee, is authorized and empowered:
(1) To invest and reinvest Trust assets, together with the income
therefrom, in common stock, preferred stock, convertible
preferred stock, bonds, debentures, convertible debentures and
bonds, mortgages, notes, commercial paper and other evidences of
indebtedness (including those issued by the Trustee), shares of
mutual funds (which funds may be sponsored, managed or offered by
an affiliate of the Trustee), guaranteed investment contracts,
bank investment contracts, other securities, policies of life
insurance, annuity contracts, options, options to buy or sell
securities or other assets, and all other property of any type
(personal, real or mixed, and tangible or intangible);
(2) To deposit or invest all or any part of the assets of the Trust
in savings accounts or certificates of deposit or other deposits
in a bank or saving and loan association or other depository
institution, including the Trustee or any of its affiliates,
provided with respect to such deposits with Trustee or an
affiliate the deposits bear a reasonable interest rate;
(3) To hold, manage, improve, repair and control all property, real
or personal, forming part of the Trust; to sell, convey,
transfer, exchange, partition, lease for any term, even extending
beyond the duration of this Trust, and otherwise dispose of the
same from time to time;
(4) To hold in cash, without liability for interest, such portion of
the Trust as is pending investments, or payment of expenses, or
the distribution of benefits;
7
<PAGE>
(5) To take such actions as may be necessary or desirable to protect
the Trust from loss due to the default on mortgages held in the
Trust including the appointment of agents or trustees in such
other jurisdictions as may seem desirable, to transfer property
to such agents or trustees, to grant to such agents such powers
as are necessary or desirable to protect the Trust, to direct
such agent or trustee, or to delegate such power to direct, and
to remove such agent or trustee;
(6) To settle, compromise or abandon all claims and demands in favor
of or against the Trust;
(7) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally
under the laws of the state in which the Trustee is incorporated
as set forth above, so that the powers conferred upon the Trustee
herein shall not be in limitation of any authority conferred by
law, but shall be in addition thereto;
(8) To borrow money from any source and to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any
trust assets as security; and
(9) To maintain accounts at, execute transactions through, and lend
on an adequately secured basis stocks, bonds or other securities
to, any brokerage or other firm, including any firm which is an
affiliate of Trustee.
Section 6. Additional Powers of Trustee.
----------------------------------------
To the extent necessary or which it deems appropriate to implement its
powers under Section 5 or otherwise to fulfill any of its duties and
responsibilities as Trustee of the Trust, the Trustee shall have the following
additional powers and authority:
(a) to register securities, or any other property, in its name or in the
name of any nominee, including the name of any affiliate or the nominee name
designated by any affiliate, with or without indication of the capacity in which
property shall be held, or to hold securities in bearer form and to deposit any
securities or other property in a depository or clearing corporation;
(b) to designate and engage the services of, and to delegate powers and
responsibilities to, such agents, representatives, advisers, counsel and
accountants as the Trustee considers necessary or appropriate, any of whom may
be an affiliate of the Trustee or a person who renders services to such an
affiliate, and, as a part of its expenses under this Trust Agreement, to pay
their
8
<PAGE>
reasonable expenses and compensation;
(c) to make, execute and deliver, as Trustee, any and all deeds, leases,
mortgages, conveyances, waivers, releases or other instruments in writing
necessary or appropriate for the accomplishment of any of the powers listed in
this Trust Agreement; and
(d) generally to do all other acts which Trustee deems necessary or
appropriate for the protection of the Trust.
Section 7. Disposition of Income.
----------------------------------
(a) During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
Section 8. Accounting by Trustee.
----------------------------------
(a) Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 90 days following the close of each calendar year
and within 90 days after removal or resignation of Trustee, Trustee shall
deliver to Company a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be. Trustee may satisfy its obligation under this Section 8 by
rendering to Company monthly statements setting forth the information required
by this Section separately for the month covered by the statement.
Section 9. Responsibility and Indemnity of Trustee.
----------------------------------------------------
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that Trustee shall incur
no liability to any person for any action taken pursuant to a direction, request
or approval given by Company which is contemplated by, and in conformity with,
the terms of the Plan(s) and this Trust and is given in writing by Company.
Trustee shall also incur no liability to any person for any failure to act in
the absence of direction, request or approval from the Company which is
contemplated by, and in conformity with, the terms of this Trust. In the event
of a dispute between Company and a party, Trustee may apply to a court of
competent jurisdiction to resolve the dispute.
9
<PAGE>
(b) Company hereby indemnifies Trustee and each of its affiliates
(collectively, the "Indemnified Parties") against, and shall hold them harmless
from, any and all loss, claims, liability, and expense, including reasonable
attorneys' fees, imposed upon or incurred by any Indemnified Party as a result
of any acts taken, or any failure to act, in accordance with the directions from
the Company or any designee of the Company, or by reason of the Indemnified
Party's good faith execution of its duties with respect to the Trust, including,
but not limited to, its holding of assets of the Trust, unless the loss, claim,
liability or expense involved resulted from the negligence or willful misconduct
of the Trustee. The Company's obligations with respect to the foregoing are to
be satisfied promptly by Company. If Company does not pay such costs, expenses
and liabilities in a reasonably timely manner, Trustee may obtain payment from
the Trust without direction from Company.
(c) Trustee may consult with legal counsel (who may also be counsel for
Company generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisers,
financial consultants or other professionals to assist it in performing any of
its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on Trustee
by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a different
form) other than to a successor Trustee, or to loan to any person the proceeds
of any borrowing against such policy.
(f) However, notwithstanding the provisions of Section 9(e) above, Trustee
may loan to Company the proceeds of any borrowing against an insurance policy
held as an asset of the Trust.
(g) Notwithstanding any powers to Trustee pursuant to this Trust Agreement
or to applicable law, Trustee shall not have any power that could give this
Trust the objective of carrying on a business and dividing the gains therefrom,
within the meaning of Section 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the Internal Revenue Code.
Section 10. Compensation and Expenses of Trustee.
--------------------------------------------------
Trustee is authorized, unless otherwise agreed by Trustee, to withdraw from
the Trust without direction from Company the amount of its fees in accordance
with the fee schedule agreed to by the Company and Trustee. Company shall pay
all administrative expenses, but if not so paid, the expenses
10
<PAGE>
shall be paid from the Trust.
Section 11. Resignation and Removal of Trustee.
------------------------------------------------
(a) Trustee may resign at any time by written notice to Company, which
shall be effective 30 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 days notice or upon shorter
notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within 60 days after receipt of notice of
resignation, removal or transfer, unless Company extends the time limit,
provided that Trustee is provided assurance by Company satisfactory to Trustee
that all fees and expenses reasonably anticipated will be paid.
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 12 hereof, by the effective date or resignation or
removal under paragraph(s) (a) or (b) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative expenses of
the Trust.
(e) Upon settlement of the account and transfer of the Trust assets to the
successor Trustee, all rights and privileges under this Trust Agreement shall
vest in the successor Trustee and all responsibility and liability of Trustee
with respect to the Trust and assets thereof shall terminate subject only to the
requirement that Trustee execute all necessary documents to transfer the Trust
assets to the successor Trustee.
Section 12. Appointment of Successor.
--------------------------------------
(a) If Trustee resigns or is removed in accordance with Section 11(a) or
(b) hereof, Company may appoint any third party, such as a bank trust department
or other party that may be granted corporate trustee powers under state law, as
a successor to replace Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by Company or the successor Trustee to evidence the
transfer.
(b) The successor Trustee need not examine the records and act of any prior
Trustee and may retain or dispose of existing Trust assets, subject to Sections
7 and 8 hereof. The successor Trustee shall not be responsible for and
11
<PAGE>
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section 13. Amendment or Termination.
--------------------------------------
(a) This Trust Agreement may be amended by a written instrument executed by
Trustee and Company. Notwithstanding the foregoing, no such amendment shall
conflict with the terms of the Plan(s) or shall make the Trust revocable, since
the Trust is irrevocable in accordance with Section 1(b) hereof . Upon and after
the occurrence of a Potential Change of Control (as defined in Section 14
hereof), notwithstanding any other provision hereof, this Trust may be amended
only by an instrument in writing signed on behalf of the parties hereto,
together with the written consent of Plan participants (or in the event of their
deaths, their beneficiaries) who were Plan participants immediately prior to the
Potential Change of Control ("Continuing Participants") and who at the time of
such consent have unpaid Plan benefits equal to at least sixty-five percent
(65%) of all unpaid Plan benefits of Continuing Participants; provided, however,
that the signature and approval of the Trustee shall not be required for any
termination of the Trust. Notwithstanding the foregoing, any such amendment may
be made by written agreement of the parties hereto without obtaining the consent
of the Plan participants or their beneficiaries, if such amendment does not
adversely affect the rights of the Plan participants or their beneficiaries
hereunder.
(b) Except as provided in Section 13(C) hereof, the Trust shall not
terminate until the date on which Plan participants and their beneficiaries are
no longer entitled to benefits pursuant to the terms of the Plan(s). Upon
termination of the Trust any assets remaining in the Trust shall be returned to
Company.
(c) Upon written approval of Plan participants (or in the event of their
deaths, their beneficiaries) then having unpaid Plan benefits equal to at least
sixty-five percent (65%) of all amounts then held in the Trust (or, if such
approval is sought upon or after the occurrence of a Potential Change of
Control, the written approval of Plan participants (or in the event of their
deaths, their beneficiaries) who were Plan participants immediately prior to the
Potential Change of Control ("Continuing Participants") and who at the time of
such approval have unpaid Plan benefits equal to at least sixty-five percent
(65%) of all unpaid Plan benefits of Continuing Participants), Company may
terminate this Trust prior to the time all benefit payments under the Plan(s)
have been made.
Section 14. Miscellaneous.
---------------------------
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
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<PAGE>
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the state in which Trustee is incorporated as set forth above.
(d) The provisions of Sections 2(d), 3(b)(3), 9(b) and 15 of this Agreement
shall survive termination of this Agreement.
(e) The rights, duties, responsibilities, obligations and liabilities of
the Trustee are as set forth in this Trust Agreement, and no provision of the
Plan(s) or any other documents shall affect such rights, responsibilities,
obligations and liabilities. If there is a conflict between provisions of the
Plan(s) and this Trust Agreement with respect to any subject involving the
Trustee, including but not limited to the responsibility, authority or powers of
the Trustee, the provisions of this Trust Agreement shall be controlling.
(f) Potential Change of Control. For purposes of this Trust, a 'Potential
---------------------------
Change of Control' shall be deemed to have occurred if the conditions set forth
in any one of the following paragraphs (i), (ii) or (iii) shall have been
satisfied:
(i) the Company enters into an agreement, the consummation of
which would result in the occurrence of a 'Change of Control' (as
defined in Section 14(g) hereof);
(ii) the Company or any Person (as defined in Section 14(h)
hereof) publicly announces (including within a written statement made
pursuant to Section 13(d) of the Securities Exchange Act of 1934, as
amended from time to time) an intention to take or to consider taking
actions which, if consummated, would constitute a Change of Control;
or
(iii) the Board adopts a resolution to the effect that, for
purposes of this Trust, a Potential Change of Control has occurred.
The Board and the Chief Executive Officer of the Employer shall each have
the duty to inform the Trustee promptly in writing of the occurrence of any
Potential Change of Control and of any Change of Control (as defined in
Section 14(g) hereof).
(g) Change of Control. For purposes of this Trust, 'Change of Control'
-----------------
shall mean:
13
<PAGE>
(i) the acquisition by any 'Person' (as defined in Section 14(h)
hereof) of 'Beneficial Ownership' (as defined in Section 14(h) hereof)
of 30% or more of the outstanding Shares of the Company's Common
Stock, $0.10 par value per share (the 'Common Stock') or 30% or more
of the combined voting power of the Company's then outstanding
securities; provided, however, that for purposes of this subsection
14(g)(i), the following shall not constitute a Change of Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 14(g)(iii) hereof) which constitutes a Change
of Control under Section 14(g)(iii) hereof) of Common Stock
directly from the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a
Change of Control under Section 14(g)(iii) hereof; or
(ii) individuals who, as of the effective date of this amendment
to the Trust, constitute the Board (the 'Incumbent Board') cease for
any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the
effective date of this amendment whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board
shall be considered a member of the Incumbent Board, unless such
individual's initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Incumbent Board; or
(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of
all or substantially all of the assets of the Company (a 'Business
Combination'), in each case, unless, immediately following such
Business Combination,
14
<PAGE>
(A) the individuals and entities who were the Beneficial
Owners of the Company's outstanding Common Stock and the
Company's voting securities entitled to vote generally in the
election of directors immediately prior to such Business
Combination have direct or indirect Beneficial Ownership,
respectively, of more than 50% of the then outstanding shares of
common stock, and more than 50% of the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, of the Post-Transaction Corporation
(as defined in Section 14(h) hereof), and
(B) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-
Transaction Corporation and any employee benefit plan or related
trust of either the Company, the Post-Transaction Corporation or
any subsidiary of either corporation) Beneficially Owns, directly
or indirectly, 30% or more of the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or 30% or more of the combined voting power of the
then outstanding voting securities of such corporation, and
(C) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(h) Other Definitions. As used in Section 14(g) hereof, the following
-----------------
words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a
Person that controls, or is controlled by, or is under common control
with, another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants
thereof), with respect to a security, shall mean a Person who,
directly or indirectly (through any contract, understanding,
relationship or otherwise), has or shares (i) the power to vote, or
direct the voting of, the security, and/or (ii) the power to dispose
of, or to direct the disposition of, the security.
(iii) Person: 'Person' shall mean a natural person or
15
<PAGE>
company, and shall also mean the group or syndicate created when two
or more Persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership) for the purpose of
acquiring, holding, or disposing of a security, except that 'Person'
shall not include an underwriter temporarily holding a security
pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 14(g)(iii)
hereof), 'Post-Transaction Corporation' shall mean the Company after
the Change of Control. If a Change of Control includes a Business
Combination, 'Post-Transaction Corporation' shall mean the corporation
resulting from the Business Combination unless, as a result of such
Business Combination, an ultimate parent corporation controls the
Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, 'Post-Transaction Corporation'
shall mean such ultimate parent corporation."
Section 15. Arbitration.
-------------------------
. Arbitration is final and binding on the parties.
. The parties waiving their right to seek remedies in court, including the
right to jury trial.
. Pre-arbitration discovery is generally more limited than and different
from court proceedings.
. The arbitrators' award is not required to include factual findings or
legal reasoning and any party's right to appeal or seek modification
of rulings by the arbitrators is strictly limited.
. The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
Company agrees that all controversies which may arise between the Company
and either or both the Trustee and its affiliate Merrill Lynch, Pierce,
Fenner & Smith incorporated ("MLPF&S") in connection with the Trust,
including, but not limited to, those involving any transactions, or the
construction, performance, or breach of this or any other agreement between
Company and either or both the Trustee and MLPF&S, whether entered into
prior, on, or subsequent to the date hereof, shall be determined by
arbitration. Any arbitration under this Agreement shall be conducted only
before the New York Stock Exchange, Inc., the American Stock Exchange,
Inc., or arbitration facility provided by any other exchange of which
MLPF&S is a member, the National Association of Securities Dealers, Inc.,
or the Municipal Securities Rulemaking Board, and in accordance with its
arbitration rules then in force, Company may elect in the first instance
whether arbitration shall be conducted before the New York Stock Exchange,
Inc., the American Stock Exchange, Inc.,
16
<PAGE>
other exchange of which MLPF&S is a member, the National Association of
Securities Dealers, Inc., or the Municipal Securities Rulemaking Board, but
if the Company fails to make such election, by registered letter or
telegram addressed to Merrill Lynch Trust Company, Employee Benefit Trust
Operations, P.O. Box 30532, New Brunswick, New Jersey 08989-0532, before
the expiration of five days after receipt of a written request from MLPF&S
and/or the Trustee to make such election then MLPF&S and/or the Trustee may
make such election. Judgment upon the award of arbitrators may be entered
in any court, state or federal, having jurisdiction. No person shall bring
a putative or certified class action to arbitration, nor seek to enforce
any pre-dispute arbitration agreement against any person who has initiated
in court a putative class action; who is a member of putative class who has
not opted out of the class with respect to any claims encompassed by the
putative class action until:
(i) the class certification is denied;
(ii) the class is decertified; or
(iii) the customer is excluded from the class by the court. Such
forbearance to enforce an agreement to arbitrate shall not constitute
a waiver of any rights under this agreement except to the extent
stated herein.
Section 16. Effective Date.
----------------------------
The effective date of this Restated Trust Agreement shall be October 1,
1999.
By signing this Agreement, the undersigned Company acknowledges (1) that,
in accordance with Section 15 of this Agreement, the Company is agreeing in
advance to arbitrate any controversies which may arise with either or both the
Trustee or MLPF&S and (2) receipt of a copy of this Agreement.
Executed this 3rd day of January 2000.
------- ---------------
TIDEWATER INC.
By: s/ Ken C. Tamblyn
---------------------
(Signature)
Name/Title: Ken C. Tamblyn
Executive Vice President &
Chief Financial Officer
Executed this 12th day of January , 2000.
------------- ----------------
17
<PAGE>
MERRILL LYNCH TRUST COMPANY OF AMERICA
By: s/ Melanie Madeira
------------------------
(Signature)
Name/Title: Melanie Madeira
----------------------
New Accounts Trust Officer
---------------------------
18
<PAGE>
Appendix A
Name of Non-Qualified Deferred Compensation Plan(s):
Deferred Compensation Plan for Outside Directors of Tidewater Inc.
19
<PAGE>
Appendix B
----------
Deposit of cash and/or marketable securities to the Trust:
Cash: $________________________________
Marketable Securities: Hibernia Tower U.S. Government Income Fund
Hibernia Tower Total Return Bond Fund
Fidelity Advisor Income and Growth Fund
Fidelity Advisor Equity Portfolio Income
Fidelity Advisor Growth Opportunities Fund
20
<PAGE>
EXHIBIT 10(f)
TIDEWATER
SECOND AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PENSION SERP
October 1, 1999
-ii-
<PAGE>
TIDEWATER INC.
SECOND AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
PREAMBLE ................................................................ 1
ARTICLE 1: PURPOSE OF THE PLAN ......................................... 1
ARTICLE 2: THE PENSION PLAN ............................................ 1
ARTICLE 3: ADMINISTRATION .............................................. 2
ARTICLE 4: ELIGIBILITY ................................................. 2
ARTICLE 5: AMOUNT OF SUPPLEMENTAL PENSION BENEFIT ...................... 2
ARTICLE 6: PAYMENT OF SUPPLEMENTAL PENSION BENEFIT ..................... 3
ARTICLE 6A: PAYMENT ELECTION IN ANTICIPATION OF A CHANGE OF CONTROL ..... 4
ARTICLE 7: EMPLOYEES' RIGHTS ........................................... 4
ARTICLE 8: AMENDMENT AND DISCONTINUANCE ................................ 5
ARTICLE 8A: CHANGE OF CONTROL ........................................... 5
ARTICLE 9: RESTRICTIONS ON ASSIGNMENT .................................. 8
ARTICLE 10: NATURE OF AGREEMENT ......................................... 8
ARTICLE 11: CONTINUED EMPLOYMENT ........................................ 9
ARTICLE 12: BINDING ON EMPLOYER, EMPLOYEES AND THEIR SUCCESSORS ......... 9
ARTICLE 13: LAWS GOVERNING .............................................. 9
ARTICLE 14: MISCELLANEOUS .............................................. 9
14.1 Claims and Appeal Procedures ............................. 9
14.2 Recovery of Payments Made by Mistake ..................... 9
<PAGE>
TIDEWATER INC.
SECOND AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PREAMBLE
Tidewater Inc. ("Employer") is the sponsor of the Tidewater Pension Plan
("Pension Plan"), which is a plan qualified under Section 401(a) of the Internal
Revenue Code of 1986 ("Code"). Benefits under the Pension Plan are limited by
various sections of the Code, such as Sections 401(a)(17) and 415. In order to
provide benefits to a select group of management or highly compensated
employees equal to the benefits that such employees are prevented from receiving
under the Pension Plan because of those Code limitations, the Employer adopted a
nonqualified unfunded plan known as the Tidewater Inc. Supplemental Executive
Retirement Plan ("Plan"), effective as of July 1, 1991. The Plan also replaces
certain service lost under the Pension Plan due to breaks in service, and
enhances the benefit calculation formula. The Employer amended and restated the
Plan effective January 1, 1993, further amended the Plan effective January 1,
1994, adopted two amendments effective October 1, 1999, and hereby amends and
restates the Plan effective October 1, 1999, as set forth below.
ARTICLE 1: PURPOSE OF THE PLAN
The Employer intends and desires by the adoption of this Plan to recognize
the value to the Employer of past and present services of certain Eligible
Employees and to encourage and assure their continued service with the Employer
by making more adequate provision for their future retirement security. The
establishment of this Plan is made necessary by certain limitations on
contributions and benefits which are imposed on the Pension Plan by the Code.
The Employer also wishes to compensate certain members of management or highly
compensated employees who may have been disadvantaged by the break in service
rules under the Pension Plan and to enhance the benefit calculation formula.
ARTICLE 2: THE PENSION PLAN
The Pension Plan, whenever referred to in this Plan, shall mean the
Tidewater Pension Plan, as amended, as it exists as of the date any
determination is made of benefits payable under this Plan. All terms used in
this Plan shall have the meanings assigned to them under the provisions of the
Pension Plan, unless otherwise qualified by the context. Since this Plan is
intended to supplement the Pension Plan, any ambiguities or gaps in this Plan
shall be resolved by reference to the Pension Plan document.
<PAGE>
ARTICLE 3: ADMINISTRATION
This Plan shall be administered by the Compensation Committee of Employer's
Board of Directors, the Employee Benefits Committee, and the Board of Directors
of the Employer, which shall administer this Plan in a manner consistent with
their duties of administration of the Pension Plan. Each of these governing
bodies shall have full power and authority to interpret, construe and administer
this Plan in accordance with their respective duties under the Pension Plan, and
a governing body's interpretations and constructions hereof and actions
hereunder, including the timing, form, amount or recipient of any payment to be
made hereunder, within the scope of its authority, shall be binding and
conclusive on all persons for all purposes. No member of a governing body shall
be liable to any person for any action taken or omitted in connection with the
interpretation and administration of this Plan, unless attributable to his own
willful misconduct or lack of good faith. Each administrator shall be fully
indemnified as provided in the Pension Plan. A member of a governing body shall
not participate in any action or determination regarding his own benefits
hereunder.
ARTICLE 4: ELIGIBILITY
To be eligible to participate in this Plan, an Employee must satisfy the
following conditions, (a) and (b):
(a) The Employee must be a Participant in the Pension Plan;
(b) The Employee must serve as the Chief Executive Officer, the
President, a Vice President or the Corporate Controller of the Employer.
An Employee who satisfies conditions (a) and (b) is referred to as an
"Eligible Employee." An Eligible Employee who ceases to be an Eligible Employee
because of a change in his status as an officer under (b), shall have benefits
under this Plan frozen as of the date he ceases to be an officer described in
(b), and his benefits shall be paid as provided in Article 6 and 6A.
Notwithstanding anything to the contrary, the Plan may not be amended to
preclude the participation in the Plan, on the same basis as other Eligible
Employees, of the person serving on October 1, 1999 as the Chief Executive
Officer, the President, a Vice President or the Corporate Controller of the
Employer, as long as such person continues to serve in such position or in any
equivalent or higher position.
ARTICLE 5: AMOUNT OF SUPPLEMENTAL PENSION BENEFIT
The amount of supplemental pension benefit shall be:
(a) The supplemental pension benefit payable to an Eligible Employee
or his Beneficiary or Beneficiaries under this Plan shall be the actuarial
equivalent
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(based on the definition of this term in Section 1.02 of the Pension Plan) of
the excess, if any, of (i) over (ii) as described below:
(i) the benefit which would have been payable to such Eligible
Employee or on his behalf to his Beneficiary or Spouse, as the case may be,
under the Pension Plan (but not taking into account any Additional Monthly
Benefit payable under Section 5.07 of the Pension Plan), if the provisions of
Pension Plan were administered without regard to either the maximum amount of
retirement income limitations of Section 415 of the Code, or the maximum
compensation limitation of Section 401(a)(17) of the Code,
(ii) the benefit (including any Additional Monthly Benefit) which
is in fact payable to such Eligible Employee or on his behalf to his Beneficiary
or Spouse under the Pension Plan.
(b) The computation in paragraph (a) above shall be made as though the
factor, 0.85%, in Section 5.01(b)(1) of the Pension Plan were 1.35%.
(c) The computation in paragraph (i) above shall be made as though the
Employee's service under the Pension Plan included the service prior to a break
in service lost under such Plan as a result of a break in service. After an
Employee becomes an Eligible Employee, he may request the Employer to provide
him with a written statement of the number of years of service lost under the
Pension Plan. If the Eligible Employee disagrees with the Employer's
determination, he immediately shall contest it through the Plan's Appeal
Procedure referenced in Article 14, below. In the absence of the Eligible
Employee's timely request and objection, the Employer's determination shall
become fixed.
(d) Supplemental pension benefits payable under this Plan to any
recipient shall be computed in accordance with the foregoing, with the objective
that such recipient should receive under this Plan and the Pension Plan the
total amount which would have been payable to that recipient solely under the
Pension Plan (as enriched by (b) and (c)), had neither Section 415 nor Section
401(a)(17) of the Code been applicable thereto. An Eligible Employee who is not
entitled to benefits under the Pension Plan is not entitled to supplemental
pension benefits under this Plan.
ARTICLE 6: PAYMENT OF SUPPLEMENTAL PENSION BENEFIT
Except as provided in Article 8 or 8A or unless the Employee elects
otherwise under this Article 6 or Article 6A, the supplemental pension benefit
under the Plan with respect to an Employee shall commence at the same time and
be paid in the same form and to the same recipient as the benefit with respect
to the Employee that is payable under the Pension Plan. An Employee can elect,
on a form provided by the Committee, to receive a benefit commencing at an
earlier date following termination of employment and after reaching age 55, but
only if the election is made at least 13 months prior to the benefit
commencement date. The earlier benefit can be paid in any
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form permitted under the Pension Plan. The benefit paid earlier than the benefit
under the Pension Plan shall be determined as if the Pension Plan benefit were
being paid at the same time and in the same form as the benefit under the Plan.
The foregoing notwithstanding, if the total value of the benefit payable
under the Plan to the Employee or the Employee's Spouse upon the Employee's
termination of employment (by retirement, death or otherwise) is less than
$10,000, the recipient shall receive an immediate lump sum benefit.
ARTICLE 6A: PAYMENT ELECTION IN ANTICIPATION
OF A CHANGE OF CONTROL
An Employee or a former Employee who has not yet satisfied the requirements
to begin to receive payment of benefits under the Plan can also elect at any
time prior to a Change of Control, in a form and manner reasonably satisfactory
to the Company, to have the supplemental pension benefit that becomes payable
under the Plan to such Employee or former Employee following a Change of Control
paid in cash in the form of a lump sum as of the date payments to the Employee
would otherwise commence under the terms of the Plan, without regard to the form
of payment provisions otherwise provided in the Plan and any payment or
distribution elections applicable to the payment of the Employee's or former
Employee's benefit in the absence of a Change of Control. A former Employee who
has satisfied the requirements to begin to receive the payment of benefits under
the Plan, whether or not payments have commenced, can also elect at any time
prior to a Change of Control, in a form and manner reasonably satisfactory to
the Company, to have the full value of the remaining supplemental pension
benefits payable to such former Employee paid in a lump sum in cash within five
business days of the Change of Control, without regard to the form of payment
provisions otherwise provided in the Plan and any payment or distribution
elections applicable to the payment of the former Employee's benefit in the
absence of a Change of Control. The determination of the lump sum amount shall
be made using the same assumptions as are used in the Pension Plan to determine
the amount of a lump sum benefit.
ARTICLE 7: EMPLOYEES' RIGHTS
No Employee, Spouse or Beneficiary shall have greater rights under this
Plan than those of general creditors of the Employer. Benefits payable under
this Plan shall be a mere promise to pay in the future and shall be general,
unsecured obligations of the Employer, to be paid by the Employer from its own
funds. Such payments shall not (i) impose any additional obligation upon the
Employer under the Pension Plan; (ii) be paid from the Pension Plan; or (iii)
have any effect whatsoever upon the Pension Plan. No Employee or his
Beneficiary or Spouse shall have any title to or beneficial ownership in any
assets which the Employer may use to pay benefits hereunder. Notwithstanding
the foregoing provisions of this Article 7 and any other provision of the Plan
(including, without limitation, Article 10), the Employer may, in its
discretion, establish a trust to pay amounts becoming payable pursuant to the
Plan, which trust shall be subject to the
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claims of the general creditors of the Employer in the event of its bankruptcy
or insolvency. Notwithstanding any establishment of such a trust, the Company
shall remain responsible for the payment of any amounts so payable which are not
so paid by such trust.
ARTICLE 8: AMENDMENT AND DISCONTINUANCE
The Employer expects to continue this Plan indefinitely but, except as
otherwise provided, reserves the right to amend or discontinue it if, in its
sole judgment, such a change is deemed necessary or desirable. However, if the
Employer should amend or discontinue this Plan, the Employer shall continue to
be liable to pay all benefits accrued under this Plan (determined on the basis
of each Employee's presumed termination of employment as of the date of such
amendment or discontinuance), as of the date of such action. Such accrued
benefits shall be calculated pursuant to the provisions of the Plan immediately
prior to any such amendment or discontinuance. Upon a discontinuance, all
benefits shall be 100% vested, and a lump sum equal to the actuarial present
value of each Employee's unpaid accrued benefit under this Plan shall be
distributed to the Employee (or his Beneficiary or Spouse), and the Employer
shall have no further obligation under this Plan. Such lump sum distributions
shall be distributed within the thirty (30) days immediately following such
discontinuance. No amendment shall be deemed to cause a reduction in an
Employee's accrued benefit under the Plan if the reduction of the benefit under
this Plan is paired with a corresponding increase in the accrued benefit under
the Pension Plan.
ARTICLE 8A: CHANGE OF CONTROL
8A.01 Effect of Change of Control. Upon a Change of Control (as defined
in Section 8A.02 hereof) all benefits which have accrued under the Plan shall
immediately become fully vested. Upon or after a Change of Control, the Plan
shall be deemed to have been discontinued (within the meaning of Article 8
hereof) upon the first to occur of the following: (i) the date of the Change of
Control if the successor to the Employer shall have failed to assume the
obligations under the Plan prior to or upon such Change of Control, either by
express agreement or by operation of law, (ii) the date of any amendment to the
Plan which reduces or adversely affects either the benefit accrued with respect
to any Employee or the future benefit accrual of any Employee (unless paired
with a corresponding increase in the benefit paid under the Pension Plan), or
(iii) if the Employer shall have established a trust as described in the last
two sentences of Article 7 hereof, any failure of the Employer (or the successor
to the Employer) to make in a timely fashion any contribution to the trust with
respect to benefits accrued under the Plan which may be required by the terms of
such trust.
8A.02 Definition of Change of Control. As used in this Section 8A,
'Change of Control' shall mean:
(i) the acquisition by any 'Person' (as defined in Section 8A.03
hereof) of 'Beneficial Ownership' (as defined in Section 8A.03 hereof) of
30% or more of
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the outstanding Shares of the Company's Common Stock, $0.10 par value per
share (the 'Common Stock') or 30% or more of the combined voting power of
the Company's then outstanding securities; provided, however, that for
purposes of this subsection 8A.02(i), the following shall not constitute a
Change of Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 8A.02(iii) hereof) which constitutes a Change of
Control under Section 8A.02(iii) hereof) of Common Stock directly from
the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation pursuant
to a Business Combination which does not constitute a Change of
Control under Section 8A.02(iii) hereof; or
(ii) individuals who, as of the effective date of the Amendment,
constitute the Board (the 'Incumbent Board') cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the effective date of the
Amendment whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered a member
of the Incumbent Board, unless such individual's initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Incumbent Board; or
(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of all or
substantially all of the assets of the Company (a 'Business Combination'),
in each case, unless, immediately following such Business Combination,
(A) the individuals and entities who were the Beneficial Owners
of the Company's outstanding Common Stock and the Company's voting
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination have direct or indirect
Beneficial Ownership, respectively, of more than 50% of the then
outstanding shares of common stock, and more than 50% of the combined
voting power of the then outstanding voting securities entitled to
vote generally in the
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election of directors, of the Post-Transaction Corporation (as defined
in Section 8A.03 hereof), and
(B) except to the extent that such ownership existed prior to the
Business Combination, no Person (excluding the Post-Transaction
Corporation and any employee benefit plan or related trust of either
the Company, the Post-Transaction Corporation or any subsidiary of
either corporation) Beneficially Owns, directly or indirectly, 30% or
more of the then outstanding shares of common stock of the corporation
resulting from such Business Combination or 30% or more of the
combined voting power of the then outstanding voting securities of
such corporation, and
(C) at least a majority of the members of the board of directors
of the Post-Transaction Corporation were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
8A.03 Other Definitions. As used in Section 8A.02 hereof, the following
words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a Person
that controls, or is controlled by, or is under common control with,
another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants thereof),
with respect to a security, shall mean a Person who, directly or indirectly
(through any contract, understanding, relationship or otherwise), has or
shares (i) the power to vote, or direct the voting of, the security, and/or
(ii) the power to dispose of, or to direct the disposition of, the
security.
(iii) Person: 'Person' shall mean a natural person or company, and
shall also mean the group or syndicate created when two or more Persons act
as a syndicate or other group (including, without limitation, a partnership
or limited partnership) for the purpose of acquiring, holding, or disposing
of a security, except that 'Person' shall not include an underwriter
temporarily holding a security pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 8A.02(iii) hereof),
'Post-Transaction Corporation' shall mean the Company after the Change of
Control. If a Change of Control includes a Business Combination, 'Post-
Transaction Corporation' shall mean the corporation resulting from the
Business Combination unless, as a result of such Business Combination, an
ultimate parent corporation
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controls the Company or all or substantially all of the Company's assets
either directly or indirectly, in which case, 'Post-Transaction
Corporation' shall mean such ultimate parent corporation.
ARTICLE 9: RESTRICTIONS ON ASSIGNMENT
The interest of an Employee or his Beneficiary or Spouse may not be sold,
transferred, assigned, or encumbered in any manner, either voluntarily or
involuntarily, and any attempt so to anticipate, alienate, sell, transfer,
assign, pledge, encumber, or charge the same shall be null and void; neither
shall the benefits hereunder be liable for or subject to the debts, contracts,
liabilities, engagement, or torts of any person to whom such benefits or funds
are payable, nor shall they be subject to garnishment attachment, or other legal
or equitable process nor shall they be an asset in bankruptcy, except that no
amount shall be payable hereunder until and unless any and all amounts
representing debts or other obligations owed to the Employer or any affiliate of
the Employer by the Employee with respect to whom such amount would otherwise be
payable shall have been fully paid and satisfied. The interest of any Employee,
Beneficiary or Spouse shall be held subject to the maximum restraint on
alienation permitted or required by applicable Louisiana law.
ARTICLE 10: NATURE OF AGREEMENT
Eligible Employees and their Beneficiaries by virtue of participating under
this Plan have only an unsecured right to receive benefits from their Employer
as a general creditor of the Employer. The Plan constitutes a mere promise to
make payments in the future. The adoption of the Plan and any setting aside of
amounts by the Employer with which to discharge its obligations hereunder shall
not be deemed to create a trust for the benefit of Eligible Employees or their
Beneficiaries; except as provided in any trust document, legal and equitable
title to any funds so set aside shall remain in the Employer, and any recipient
of benefits hereunder shall have no security or other interest in such funds.
Any and all funds so set aside shall remain subject to the claims of the general
creditors of the Employer, present and future, and no payment shall be made
under this Plan unless the Employer is then solvent. This provision shall not
require the Employer to set aside any funds, but the Employer may set aside such
funds if it chooses to do so.
ARTICLE 11: CONTINUED EMPLOYMENT
Nothing contained herein shall be construed as conferring upon any Employee
the right to continue in the employ of the Employer in any capacity.
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ARTICLE 12: BINDING ON EMPLOYER, EMPLOYEES
AND THEIR SUCCESSORS
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This Plan shall be binding upon and inure to the benefit of the Employer,
its successors and assigns and each Eligible Employee and his heirs, executors,
administrators and legal representatives.
ARTICLE 13: LAWS GOVERNING
This Plan shall be construed in accordance with and governed by the laws of
the State of Louisiana, except to the extent that the Plan is governed by the
Employee Retirement Income Security Act of 1974 ("ERISA"). It is the Employer's
intent that the Plan shall be exempt from ERISA's provisions, to the maximum
extent permitted by law. To the extent that the Plan is an excess benefit plan
(as defined in Section 3(36) of ERISA), it shall be exempt from coverage
entirely, as provided in ERISA Section 4(b)(5). The Plan is intended to be
unfunded for federal income tax purposes and for purposes of title I of ERISA
and intended to provide deferred compensation only for a select group of
management or highly compensated employees and shall be exempt from Parts 2, 3,
and 4 of ERISA, pursuant to Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA.
ARTICLE 14: MISCELLANEOUS
14.1 Claims and Appeal Procedures. All disputes over benefits allegedly
due under this Plan shall be resolved through the procedures for making claims,
and appealing from denials of claims, that are set forth in the Summary Plan
Description of the Pension Plan.
14.2 Recovery of Payments Made by Mistake. Notwithstanding anything to the
contrary, an Eligible Employee or other person receiving amounts from the Plan
is entitled only to those benefits provided by the Plan and promptly shall
return any payment, or portion thereof, made by mistake of fact or law. The
Committee may offset the future benefits of any recipient who refuses to return
an erroneous payment, in addition to pursuing any other remedies provided by
law.
EXECUTED effective this 1st day of October, 1999.
TIDEWATER INC.
By: /s/ Ken C. Tamblyn
----------------------------------
Ken C. Tamblyn
Executive Vice President and Chief
Financial Officer
ATTEST:
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By: /s/ Michael L. Goldblatt
---------------------------
Michael L. Goldblatt
Assistant Secretary
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<PAGE>
EXHIBIT 10(g)
RESTATED
TIDEWATER INC.
1997 STOCK INCENTIVE PLAN
(EFFECTIVE OCTOBER 1, 1999)
1. PURPOSE. The purpose of the 1997 Stock Incentive Plan (the "Plan") of
Tidewater Inc. ("Tidewater") is to increase shareholder value and to advance the
interests of Tidewater and its subsidiaries (collectively, the "Company") by
furnishing stock-based economic incentives (the "Incentives") designed to
attract, retain and motivate key employees, officers and directors and to
strengthen the mutuality of interests between such employees, officers and
directors and Tidewater's shareholders. Incentives consist of opportunities to
purchase or receive shares of common stock, $.10 par value per share, of
Tidewater (the "Common Stock"), on terms determined under the Plan. As used in
the Plan, the term "subsidiary" means any corporation of which Tidewater owns
(directly or indirectly) within the meaning of Section 425(f) of the Internal
Revenue Code of 1986, as amended (the "Code"), 50% or more of the total combined
voting power of all classes of stock.
2. ADMINISTRATION.
2.1. COMPOSITION. The Plan shall be administered by the Compensation
Committee of the Board of Directors of Tidewater or by a subcommittee
thereof (the "Committee"). The Committee shall consist of not fewer than
two members of the Board of Directors, each of whom shall (a) qualify as a
"non-employee director" under rule 16b-3 under the Securities Exchange Act
of 1934 (the "1934 Act") or any successor rule, and (b) qualify as an
"outside director" under Section 162(m) of the Code.
2.2. AUTHORITY. The Committee shall have plenary authority to award
Incentives under the Plan, to interpret the Plan, to establish any rules or
regulations relating to the Plan that it determines to be appropriate, to
enter into agreements with participants as to the terms of the Incentives
(the "Incentive Agreements") and to make any other determination that it
believes necessary or advisable for the proper administration of the Plan.
Its decisions in matters relating to the Plan shall be final and conclusive
on the Company and participants. The Committee may delegate its authority
hereunder to the extent provided in Section 3 hereof. The Committee shall
not have authority to award Incentives under the Plan to directors who are
not also employees of the Company ("Outside Directors"). Outside Directors
may receive awards under the Plan only as specifically provided in Section
8 hereof.
3. ELIGIBLE PARTICIPANTS. Key employees and officers of the Company
(including officers who also serve as directors of the Company) shall become
eligible to receive Incentives under the Plan when designated by the Committee.
Employees may be designated individually or by groups or categories, as the
Committee deems appropriate. With respect to participants not subject to
Section 16 of the 1934 Act or Section 162(m) of the Code, the Committee may
delegate to appropriate personnel of the Company its authority to designate
participants, to determine the size and type of Incentives to be received by
those participants and to determine or modify performance
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objectives for those participants. Outside Directors may participate in the Plan
only as specifically provided in Section 8 hereof.
4. TYPES OF INCENTIVES. Incentives may be granted under the Plan to
eligible participants in the forms of (a) incentive stock options; (b) non-
qualified stock options; and (c) restricted stock.
5. SHARES SUBJECT TO THE PLAN.
5.1. NUMBER OF SHARES. Subject to adjustment as provided in Section
9.5, a total of 3,000,000 shares of Common Stock are authorized to be
issued under the Plan. Incentives with respect to no more than 500,000
shares of Common Stock may be granted through the Plan to a single
participant in one calendar year. In the event that a stock option granted
hereunder expires or is terminated ot cancelled prior to exercise, any
shares of Common Stock that were issuable thereunder may again be issued
under the Plan. In the event that shares of restricted stock are issued as
Incentives under the Plan and thereafter are forfeited such forfeited
shares may again be issued under the Plan. Additional rules for
determining the number of shares granted under the Plan may be made by the
Committee, as it deems necessary or appropriate.
5.2. TYPE OF COMMON STOCK. Common Stock issued under the Plan may be
authorized and unissued shares or issued shares held as treasury shares.
6. STOCK OPTIONS. A stock option is a right to purchase shares of Common
Stock from Tidewater. Stock options granted under this Plan may be incentive
stock options or non-qualified stock options. Any option that is designated as
a non-qualified stock option shall not be treated as an incentive stock option.
Each stock option granted by the Committee under this Plan shall be subject to
the following terms and conditions:
6.1. PRICE. The exercise price per share shall be determined by the
Committee, subject to adjustment under Section 9.5; provided that in no
event shall the exercise price be less than the Fair Market Value of a
share of Common Stock on the date of grant, except that in connection with
an acquisition, consolidation, merger or other extraordinary transaction,
options may be granted at less than the then Fair Market Value in order to
replace options previously granted by one or more parties to such
transaction (or their affiliates) so long as the aggregate spread on such
replacement options for any recipient of such options is equal to or less
than the aggregate spread on the options being replaced.
6.2. NUMBER. The number of shares of Common Stock subject to the
option shall be determined by the Committee, subject to Section 5.1 and
subject to adjustment as provided in Section 9.5.
6.3. DURATION AND TIME FOR EXERCISE. The term of each stock option
shall be determined by the Committee. Each stock option shall become
exercisable at such time or
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times during its term as shall be determined by the Committee.
Notwithstanding the foregoing, the Committee may accelerate the
exercisability of any stock option at any time, in addition to the
automatic acceleration of stock options under Section 9.11.
6.4. MANNER OF EXERCISE. A stock option may be exercised, in whole
or in part, by giving written notice to the Company, specifying the number
of shares of Common Stock to be purchased. The exercise notice shall be
accompanied by the full purchase price for such shares. The option price
shall be payable in United Stated dollars and may be paid by (a) cash; (b)
uncertified or certified check; (c) unless otherwise determined by the
Committee, by delivery of shares of Common Stock held by the optionee for
at least six months, which shares shall be valued for this purpose at the
Fair Market Value on the business day immediately preceding the date such
option is exercised; (d) unless otherwise determined by the Committee,
through arrangements with a brokerage firm under which such firm, on behalf
of the optionee, will pay the exercise price to the Company and the Company
will promptly deliver to such firm the number of shares of Common Stock
subject to the option so that the firm may sell such shares, or a portion
thereof, for the account of the optionee, or (e) in such other manner as
may be authorized from time to time by the Committee.
6.5. INCENTIVE STOCK OPTIONS. Notwithstanding anything in the Plan
to the contrary, the following additional provisions shall apply to the
grant of stock options that are intended to qualify as Incentive Stock
Options (as such term is defined in Section 422 of the Code):
A. Any Incentive Stock Option agreement authorized under the
Plan shall contain such other provisions as the Committee shall deem
advisable, but shall in all events be consistent with the contain or
be deemed to contain all provisions required in order to qualify the
options as Incentive Stock Options.
B. All Incentive Stock Options must be granted within ten years
from the date on which this Plan is adopted by the Board of Directors.
C. Unless sooner exercised, all Incentive Stock Options shall
expire no later than ten years after the date of grant.
D. No Incentive Stock Options shall be granted to any
participant who, at the time such option is granted, would own (within
the meaning of Section 422 of the Code) stock possessing more than 10%
of the total combined voting power of all classes of stock of the
employer corporation or of its parent or subsidiary corporation.
E. The aggregate Fair Market Value (determined with respect to
each Incentive Stock Option as of the time such Incentive Stock Option
is granted) of the Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by a participant during any
calendar year (under the Plan or any other plan
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of Tidewater or any of its subsidiaries) shall not exceed $100,000. To
the extent that such limitation is exceeded, such options shall not be
treated, for federal income tax purposes, as Incentive Stock Options.
7. RESTRICTED STOCK.
7.1. GRANT OF RESTRICTED STOCK. The Committee may award shares of
restricted stock to such officers and key employees as the Committee
determines pursuant to the terms of Section 3. An award of restricted
stock shall be subject to such restrictions on transfer and forfeitability
provision and such other terms and conditions as the Committee may
determine, subject to the provisions of the Plan. An award of restricted
stock may also be subject to the attainment of specified performance goals
or targets. To the extent restricted stock is intended to qualify as
performance-based compensation under Section 162(m) of the Code, it must be
granted subject to the attainment of performance goals as described in
Section 7.2 below and meet the additional requirements imposed by Section
162(m).
7.2. PERFORMANCE-BASED RESTRICTED STOCK. To the extent that
restricted stock granted under the Plan is intended to vest based upon the
achievement of pre-established performance goals rather than solely upon
continued employment over a period of time, the performance goals pursuant
to which the restricted stock shall vest shall be any or a combination of
the following performance measures: earnings per share, return on assets,
an economic value added measure, shareholder return,earnings, stock price,
return on equity, return on total capital, safety performance, reduction of
expenses or increase in cash flow of Tidewater, a division of Tidewater or
a subsidiary. For any performance period, such performance objectives may
be measured on an absolute basis or relative to a group of peer companies
selected by the Committee, relative to internal goals or relative to
levels attained in prior years. The Committee may not waive any of the
pre-established performance goal objectives, except that such objectives
shall be waived as provided in Section 9.11 hereof, or as may be provided
by the Committee in the event of death, disability or retirement.
7.3. THE RESTRICTED PERIOD. At the time an award of restricted stock
is made, the Committee shall establish a period of time during which the
transfer of the shares of restricted stock shall be restricted (the
"Restricted Period"). The Restricted Period shall be a minimum of three
years, except that if the vesting of the shares of restricted stock is
based upon the attainment of performance goals, a minimum Restricted Period
of one year is permitted. Each award of restricted stock may have a
different Restricted Period. The expiration of the Restricted Period shall
also occur as provided under Section 9.3 and under the conditions described
in Section 9.11 hereof.
7.4. ESCROW. The participant receiving restricted stock shall enter
into an Incentive Agreement with the Company setting forth the conditions
of the grant. Certificates representing shares of restricted stock shall
be registered in the name of the participant and deposited with the
Company, together with a stock power endorsed in blank by the participant.
Each such certificate shall bear a legend in substantially the following
form:
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The transferability of this certificate and the shares of Common Stock
represented by it are subject to the terms and conditions (including
conditions of forfeiture) contained in the Tidewater Inc. 1997 Stock
Incentive Plan (the "Plan"), and an agreement entered into between the
registered owner and Tidewater Inc. thereunder. Copies of the Plan
and the agreement are on file at the principal office of the Company.
7.5. DIVIDENDS ON RESTRICTED STOCK. Any and all cash and stock
dividends paid with respect to the shares of restricted stock shall be
subject to any restrictions on transfer, forfeitability provisions or
reinvestment requirements as the Committee may, in its discretion,
prescribe in the Incentive Agreement.
7.6. FORFEITURE. In the event of the forfeiture of any shares of
restricted stock under the terms provided in the Incentive Agreement
(including any additional shares of restricted stock that may result from
the reinvestment of cash and stock dividends, if so provided in the
Incentive Agreement), such forfeited shares shall be surrendered and the
certificates cancelled. The participants shall have the same rights and
privileges, and be subject to the same forfeiture provisions, with respect
to any additional shares receiver pursuant to Section 9.5 due to a
recapitalization, merger or other change in capitalization.
7.7. EXPIRATION OF RESTRICTED PERIOD. Upon the expiration or
termination of the Restricted Period and the satisfaction of any other
conditions prescribed by the Committee, the restrictions applicable to the
restricted stock shall lapse and a stock certificate for the number of
shares of restricted stock with respect to which the restrictions have
lapsed shall be delivered, free of all such restrictions and legends,
except any that may be imposed by law, to the participant or the
participant's estate, as the case may be.
7.8. RIGHTS AS A SHAREHOLDER. Subject to the terms and conditions of
the Plan and subject to any restrictions on the receipt of dividends that
may be imposed in the Incentive Agreement, each participant receiving
restricted stock shall have all the rights of a shareholder with respect to
shares of stock during the Restricted Period, including without limitation,
the right to vote any shares of Common Stock.
8. STOCK OPTIONS FOR OUTSIDE DIRECTORS.
8.1. GRANT OF OPTIONS. Beginning with the 1997 annual meeting of
stockholders and for as long as the Plan remains in effect and shares of
Common Stock remain available for issuance hereunder, each Outside Director
shall be automatically granted a non-qualified stock option on the day of
the annual meeting of stockholders of Tidewater, provided such Outside
Director continues to serve as a director following such annual meeting.
An option to purchase no more than 5,000 shares shall be granted to each
Outside Director each year, the exact number of which shall be set by the
Committee.
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8.2 EXERCISABILITY OF STOCK OPTIONS. The stock options granted to
Outside Directors under this Section 8 shall become exercisable six months
following the date of grant and shall expire ten years following the date
of grant.
8.3 EXERCISE PRICE. The Exercise Price of the Stock Options granted
to Outside Directors shall be equal to the Fair Market Value, as defined in
the Plan, of a share of Common Stock on the date of grant. The Exercise
Price may be paid as provided in Section 6.4 hereof.
8.4 EXERCISE AFTER TERMINATION OF BOARD SERVICE. In the event an
Outside Director ceases to serve on the Board, the stock options granted
hereunder must be exercised, to the extent otherwise exercisable at the
time of termination of Board service, within one year from termination of
Board service; provided, however, that in the event of termination of Board
service as a result of retirement on or after reaching age 65, death or
disability, the stock options must be exercised within two years from the
date of termination of Board service; and further provided, that no stock
options may be exercised later than ten years after the date of grant.
9. GENERAL.
9.1 DURATION. Subject to Section 9.10, the Plan shall remain in
effect until all Incentives granted under the Plan have either been
satisfied by the issuance of shares of Common Stock or the payment of cash
or been terminated under the terms of the Plan and all restrictions imposed
on shares of Common Stock in connection with their issuance under the Plan
have lapsed.
9.2. TRANSFERABILITY. No Incentives granted hereunder may be
transferred, pledged, assigned or otherwise encumbered by a participant
except: (a) by will; (b) by the laws of descent and distribution; (c)
pursuant to a domestic relations order, as defined in the Code, if
permitted by the Committee and so provided in the Incentive Agreement or an
amendment thereto; or (d) as to options only, if permitted by the Committee
and so provided in the Incentive Agreement of an amendment thereto, (i) to
Immediate Family Members, (ii) to a partnership in which Immediate Family
Members, or entities in which Immediate Family Members are the sole owners,
members or beneficiaries, as appropriate, are the sole partners, (iii) to a
limited liability company in which Immediate Family Members, or entities in
which Immediate Family Members are the sole owners, members or
beneficiaries, as appropriate, are the sole members, or (iv) to a trust for
the sole benefit of Immediate Family Members. "Immediate Family Members"
shall be defined as the spouse and natural or adopted children or
grandchildren of the participant and their spouses. To the extent that an
Incentive Stock Option is permitted to be transferred during the lifetime
of the participant, it shall be treated thereafter as a nonqualified stock
option. Any attempted assignment, transfer, pledge, hypothecation or other
disposition of Incentives, or levy of attachment or similar process upon
Incentives not specifically permitted herein, shall be null and void and
without effect.
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9.3. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH. Except as provided
in Section 8.1 with respect to Outside Directors, in the event that a
participant ceases to be an employee of the Company for any reason,
including death, disability, early retirement or normal retirement, any
Incentives may be exercised, shall vest or shall expire at such times as
may be determined by the Committee in the Incentive Agreement. The
Committee has complete authority to modify the treatment of an Incentive in
the event of termination of employment of a participant by means of an
amendment to the Incentive Agreement. Consent of the participant to the
modification is required only if the modification materially impairs the
rights previously provided to the participant in the Incentive Agreement.
9.4. ADDITIONAL CONDITIONS. Anything in this Plan to the contrary
notwithstanding: (a) the Company may, if it shall determine it necessary
or desirable for any reason, at the time of award of any Incentive or the
issuance of any shares of Common Stock pursuant to any Incentive, require
the recipient of the Incentive, as a condition to the receipt thereof or to
the receipt of shares of Common Stock issued pursuant thereto, to deliver
to the Company a written representation of present intention to acquire the
Incentive or the shares of Common Stock issued pursuant thereto for his own
account for investment and not for distribution; and (b) if at any time the
Company further determines, in its sole discretion, that the listing,
registration or qualification (or any updating of any such document) of any
Incentive or the shares of Common Stock issuable pursuant thereto is
necessary on any securities exchange or under any federal or state
securities or blue sky lay, or that the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of,
or in connection with the award of any Incentive, the issuance of shares of
Common Stock pursuant thereto, or the removal of any restrictions imposed
on such shares, such Incentive shall not be awarded or such shares of
Common Stock shall not be issued or such restrictions shall not be removed,
as the case may be, in whole or in part, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Company.
9.5. ADJUSTMENT. In the event of any merger, consolidation or
reorganization of the Company with any other corporation or corporations,
there shall be substituted for each of the shares of Common Stock then
subject to the Plan, including shares subject to restrictions, options or
achievement of performance objectives, the number and kind of shares of
stock or other securities to which the holders of the shares of Common
Stock will be entitled pursuant to the transaction. In the event of any
recapitalization, stock dividend, stock split, combination of shares or
other change in the Common Stock, the number of shares of Common Stock then
subject to the Plan, including shares subject to outstanding Incentives,
shall be adjusted in proportion to the change in outstanding shares of
Common Stock. In the event of any such adjustments, the purchase price of
any option, the performance objectives of any Incentive, and the shares of
Common Stock issuable pursuant to any Incentive shall be adjusted as and to
the extent appropriate, in the reasonable discretion of the committee, to
provide participants with the same relative rights before and after such
adjustment. No substitution or adjustment shall require the Company to
issue a
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fractional share under this Plan and the substitution or adjustment
shall be limited by deleting any fractional share.
9.6. INCENTIVE AGREEMENT. The terms of each Incentive shall be
stated in an agreement approved by the Committee.
9.7. WITHHOLDING.
A. The Company shall have the right to withhold from any
payments made under the Plan or to collect as a condition of payment,
any taxes required by law to be withheld. At any time that a
participant is required to pay to the Company an amount required to be
withheld under applicable income tax laws in connection with the
issuance of Common Stock, the lapse of restrictions on Common Stock or
the exercise of an option, the participant may, subject to disapproval
by the Committee, satisfy this obligation in whole or in part by
electing (the "Election") to have the Company withhold shares of
Common Stock having a value equal to the amount required to be
withheld. The value of the shares to be withheld shall be based on
the Fair Market Value of the Common Stock on the date that the amount
of tax to be withheld shall be determined ("Tax Date").
B. Each Election must be made prior to the Tax Date. The
Committee may disapprove of any election, may suspend or terminate the
right to make Elections, or may provide with respect to any Incentive
that the right to make Elections shall not apply to such Incentive.
If a participant makes an election under Section 83(b) of the Internal
Revenue Code with respect to shares of restricted stock, an Election
is not permitted to be made.
9.8. NO CONTINUED EMPLOYMENT. No participant under the Plan shall
have any right, because of his or her participation, to continue in the
employ of the Company for any period of time or to any right to continue
his or her present or any other rate of compensation.
9.9. DEFERRAL PERMITTED. Payment of cash or distribution of any
shares of Common Stock to which a participant is entitled under any
Incentive shall be made as provided in the Incentive Agreement. Payment
may be deferred at the option of the participant in provided in the
Incentive Agreement.
9.10. AMENDMENTS TO OR TERMINATION OF THE PLAN.
A. The Board may amend, suspend or terminate the Plan or any
portion thereof at any time, provided that no amendment shall be made
without stockholder approval if such approval is necessary to comply
with any tax or regulatory requirement, including any approval
necessary to qualify Incentives as "performance-
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based" compensation under Section 162(m) or any successor provision,
if such qualification is deemed necessary or advisable by the
Committee.
B. Any provision of this Plan or any Incentive Agreement to the
contrary notwithstanding, the Committee may cause any Incentive
granted hereunder to be cancelled in consideration of a cash payment
or alternative Incentive made to the holder of such cancelled
Incentive equal in value to such cancelled Incentive. The
determinations of value under this subparagraph shall be made by the
Committee in its sole discretion.
9.11. CHANGE OF CONTROL; TENDER OFFER OR EXCHANGE OFFER.
A. This Section 9.11 has been amended, effective October 1, 1999
(the "Amendment") to read as provided herein. However, to the extent
that (and only to the extent that) any right to which a grantee of
outstanding options or restricted stock under the Plan is entitled
prior to the effective date of the Amendment (whether under the Plan,
related agreements, amendments thereto, or interpretations by the
Compensation Committee) would be detrimentally affected by the
Amendment, the Amendment shall not apply.
B. Notwithstanding any other provision of the Plan (or any
provision of any agreement with respect to any grant hereunder),
immediately prior to any Change of Control of the Company (as defined
in Section 9.11(D) hereof), all stock options (whether non-qualified
or incentive and whether granted to an employee or to a nonemployee
Director) which are then outstanding hereunder shall become fully
vested and exercisable and all restrictions and limitations on
restricted shares of Common Stock then outstanding hereunder shall
automatically lapse and all performance criteria and other conditions
relating to the payment of Incentives shall automatically be deemed to
be achieved or waived by the Company. As used in the immediately
preceding sentence, 'immediately prior' to the Change of Control shall
mean sufficiently in advance of the Change of Control to permit the
grantee to take all steps reasonably necessary (i) if an optionee, to
exercise any such option fully and (ii) to deal with the shares
purchased under any such option and any formerly restricted shares on
which restrictions have lapsed so that both types of shares may be
treated in the same manner in connection with the Change of Control as
the shares of Common Stock of other shareholders. To the extent, if
any, required by section 422(d) of the Code, incentive stock options
which become exercisable immediately prior to a Change of Control
pursuant to this Section 9.11(B) shall thereby become non-qualified
stock options. Notwithstanding any other provisions of the Plan,
including, without limitation, Section 9.11(C) hereof (or any
provision of any agreement with respect to any grant hereunder), (i)
any stock option which becomes exercisable pursuant to this Section
9.11(B) shall remain exercisable until the earlier of the end of the
option term or the lapse of the option, and (ii) any lapse and deemed
waiver of restrictions and
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limitations on restricted shares pursuant to this Section 9.11(B)
shall be a permanent lapse and deemed waiver of such restrictions and
limitations.
C. If any corporation, person or other entity (other than the
Company) makes a tender offer or exchange offer for shares of the
Common Stock pursuant to which purchases are made (an "Offer"), then
from and after the date of the first purchase of the Common Stock
pursuant to the Offer (the "Acceleration Date"), all outstanding
options shall automatically become fully exercisable, all restrictions
or limitations on any Incentives shall lapse and all performance
criteria and other conditions relating to the payment of Incentives
shall be deemed to be achieved or waived by the Company, without the
necessity of any action by any person, for a period of 30 calendar
days following the Acceleration Date. Subject to the other provisions
of this Section 9.11, following the expiration of the 30-day period,
any options not exercised and any shares of Common Stock issued
hereunder not tendered or exchanged shall again be subject to the
terms and conditions applicable prior to the offer.
D. As used in this Section 9.11, 'Change of Control' shall
mean:
(i) the acquisition by any 'Person' (as defined in
Section 9.11(E) therof) of 'Beneficial Ownership' (as defined in
Section 9.11(E) hereof) of 30% or more of the outstanding Shares
of the Company's Common Stock, $0.10 par value per share (the
"Common Stock") or 30% or more of the combined voting power of
the Company's then outstanding securities; provided, however,
that for purposes of this subsection (D)(i), the following shall
not constitute a Change of Control:
(A) any acquisition (other than a 'Business
Combination' (as defined in Section 9.11(D)(iii) hereof)
which constitutes a Change of Control under Section
9.11(D)(iii) hereof) of Common Stock directly from the
Company,
(B) any acquisition of Common Stock by the Company
or its subsidiaries,
(C) any acquisition of Common Stock by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by
the Company, or
(D) any acquisition of Common Stock by any
corporation pursuant to a Business Combination which does
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not constitute a Change of Control under Section
9.11(D) (iii) hereof; or
(ii) individuals who, as of the effective date of the
Amendment, constitute the Board (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the effective date of the Amendment whose election,
or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered a member of
the Incumbent Board, unless such individual's initial assumption
of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Incumbent Board; or
(iii) consummation of a reorganization, merger or
consolidation (including a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company), or sale or
other disposition on all or substantially all of the assets of
the Company (a 'Business Combination'), in each case, unless,
immediately following such Business Combination,
(A) the individuals and entities who were the
Beneficial Owners of the Company's outstanding Common Stock
and the Company's voting securities entitled to vote
generally in the election of directors immediately prior to
such Business Combination have direct or indirect Beneficial
Ownership, respectively, of more than 50% of the then
outstanding shares of common stock, and more than 50% of the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors, of the Post-Transaction Corporation (as defined
in Section 9.11(E) hereof), and
(B) except to the extent that such ownership
existed prior to the Business Combination, no Person
(excluding the Post-Transaction Corporation and any employee
benefit plan or related trust of either the Company, the
Post-Transaction Corporation or any subsidiary of either
corporation) Beneficially Owns, directly or indirectly, 30%
or more of the then outstanding shares of common stock of
the corporation resulting from such Business Combination or
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30% or more of the combined voting power of the then
outstanding voting securities of such corporation, and
(C) at least a majority of the members of the
board of directors of the Post-Transaction Corporation were
members of the Incumbent Board at the time of the execution
of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
E. As used in Section 9.11(D) hereof, the following words or
terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof)
shall mean a Person that controls, or is controlled by, or is
under common control with, another specified Person, either
directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and
variants thereof), with respect to a security, shall mean a
Person who, directly or indirectly (through any contract,
understanding, relationship or otherwise), has or shares (i) the
power to vote, or direct the voting of, the security, and/or (ii)
the power to dispose of, or to direct the disposition of, the
security.
(iii) Person: 'Person' shall mean a natural person or
company, and shall also mean the group or syndicate created when
two or more Persons act as a syndicate or other group (including,
without limitation, a partnership or limited partnership) for the
purpose of acquiring, holding, or disposing of a security, except
that 'Person' shall not include an underwriter temporarily
holding a security pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of
Control includes a Business Combination (as defined in Section
9.11(D)(iii) hereof), 'Post-Transaction Corporation' shall mean
the Company after the Change of Control. If a Change of Control
includes a Business Combination, 'Post-Transaction Corporation'
shall mean the corporation resulting from the Business
Combination unless, as a result of such Business Combination, an
ultimate parent corporation controls the Company or all or
substantially all of the Company's assets either directly or
indirectly, in which case, 'Post-Transaction Corporation' shall
mean such ultimate parent corporation.
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9.12. DEFINITION OF FAIR MARKET VALUE. Whenever "Fair Market Value"
of Common Stock shall be determined for purposes of this Plan, it shall be
the closing sale price on the consolidated transaction reporting system for
New York Stock Exchange issues on the date of reference for a share of the
Common Stock, or if no sale of the Common Stock shall have been made on
that day, on the next preceding day on which there was a sale of the Common
Stock.
9.13 LOANS TO OPTIONEES. In the event of a Change of Control of the
Company, as defined in Section 9.11, in connection with which a
participant's employment with the Company will be terminated and the
participant is precluded for any reason from selling shares of Common
Stock, the Company shall, in connection with the exercise of an option, if
requested by the participant, extend a loan to the participant in the
maximum amount of the exercise price of the options to be exercised, plus
the maximum tax liability that may be incurred in connection with the
option exercise. Any such loan shall be unsecured, shall be on market
terms and shall be payable in full no later than thirty days after the
termination of the period during which the participant is precluded from
selling shares of Common Stock. Any participant to whom a loan is extended
hereunder shall, if requested by the Company, agree in writing not to sell
shares of Common Stock for such period as shall be requested, it being
understood that the Company's request that the participant not sell shares
of Common Stock shall only be invoked to the extent necessary to preserve
or recognize pooling-of-interests accounting treatment, tax-free
reorganization status, or comparable corporate benefits from making such a
request.
Executed effective the last day of October, 1999.
Tidewater Inc.
By: /s/ Ken C. Tamblyn
____________________________
Ken C. Tamblyn
Executive Vice President and
Chief Financial Officer
Attest:
By: /s/ Michael L. Goldblatt
____________________________
Michael L. Goldblatt
Assistant Secretary
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EXHIBIT 10(h)
RESTATED
NON-QUALIFIED PENSION PLAN
FOR
OUTSIDE DIRECTORS
OF TIDEWATER INC.
ARTICLE I - INTRODUCTION
ARTICLE II - DEFINITIONS
2.1 Definitions
ARTICLE III - PENSION BENEFITS
3.1 Eligibility
3.2 Time and Duration of Pension
3.3 Suspension of Pension Benefits
3.4 Deferred Compensation Plan
3.5 Amount of Pension
3.6 Forfeiture of Benefits
3.7 Payment of Benefits
3.8 Death of Participant
ARTICLE IV - NON-ASSIGNABILITY OF INTERESTS
4.1 Non-Assignability of Interests
ARTICLE V - ADMINISTRATION
5.1 No Funding Obligation
5.2 Applicable Law
5.3 Administration and Interpretation
5.4 Amendment
5.5 Termination
5.6 Change of Control
<PAGE>
RESTATED
NON-QUALIFIED PENSION PLAN
FOR
OUTSIDE DIRECTORS
OF
TIDEWATER INC.
__________________________________________
WHEREAS, Tidewater Inc., a Delaware corporation (the "Company") maintains
the Non-Qualified Pension Plan for Outside Directors of Tidewater Inc. (the
"Plan"), the provisions of which are at present expressed in a plan document
effective March 22, 1990 and amendment thereto effective October 1, 1999; and
WHEREAS, the Board of Directors has authorized the restatement of the Plan,
as amended;
NOW THEREFORE, the Plan is hereby restated to read in its entirety as
follows:
ARTICLE I
INTRODUCTION
This Plan is established by Tidewater Inc. as a non-qualified pension plan
for the exclusive benefit of Outside Directors who are or have been members of
the Board of Directors of the Company and who retire from (or otherwise cease to
render service for) the Board of Directors of the Company at any time on or
after April 1, 1990.
The Plan shall be maintained according to the terms of this document, as it
may be amended from time to time. The Board of Directors of the Company shall
have the sole authority to amend the Plan and to resolve any dispute with
respect to the interpretation and administration of the Plan. The Plan shall be
administered and interpreted by the Plan Administrator, as provided in Section
5.3 hereof.
ARTICLE II
DEFINITIONS
2.1 Definitions. When used in this document, the following words and
phrases shall have the meaning assigned to them, unless the context clearly
indicates otherwise:
(a) Affiliated Company means a direct or indirect subsidiary of
Tidewater Inc.
(b) The Company means Tidewater Inc., a Delaware corporation which
maintains its principal offices in New Orleans, Louisiana.
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(c) Board of Directors means the Board of Directors of Tidewater Inc.
(d) Compensation Committee means the Compensation Committee of the
Board of Directors or its delegate.
(e) Cost of Borrowed Funds means the prime rate (at the time of
reference) established by Whitney National Bank or 10% per annum,
whichever is lower.
(f) Death Benefit means the benefit provided by Section 3.8 hereof.
(g) Emeritus Director means a person who (at the time of reference) is
serving as Director Emeritus of the Company.
(h) Outside Director means a person who (at the time of reference)
served or is serving as a director on the Board of Directors and
who, at such time, was or is not an employee of the Company or any
Affiliated Company.
(i) Participant means an Outside Director who has satisfied the
eligibility requirements of Section 3.1 hereof.
(j) Pension means the benefit determined according to Article III
hereof.
(k) Plan means the Non-Qualified Pension Plan for Outside Directors of
Tidewater Inc., as set forth in this document and as amended by
the Board of Directors from time to time.
(l) Years of Service as a Director means the number of years not
including partial years, (at the time of reference) that a
Participant served on the Board of Directors, provided however,
that solely those periods of service as a non-employee director
(and not periods of service when such director was concurrently
employed by the Company or any Affiliated Company) shall be
counted for purposes of eligibility and benefit accrual under the
Plan.
ARTICLE III
PENSION BENEFITS
3.1 Eligibility. A Director shall become a Participant upon (a) having
served as an Outside Director of the Company for five or more years or (b)
having attained the age of 65. Additionally, notwithstanding any other
provision of the Plan, any Outside Director who is serving immediately prior to
a Change of Control who is not a Participant, but who would have become a
Participant had such service
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continued through the second anniversary of the Change of Control and had it
been credited under the Plan for purposes of both the service requirements and
the age requirements for participation (but not for purposes of determining the
duration of the pension), shall become a Participant upon the occurrence of the
Change of Control.
3.2 Time and Duration of Pension. A Participant shall be entitled to a
pension commencing on the first business day of the calendar quarter next
following the Participant's retirement from, or other cessation of service to,
the Board of Directors after five (or more) years of Service as an Outside
Director or after having attained the age of 65. The duration of the Pension for
a participant shall be the number of the Participant's Years of Service as an
Outside Director.
3.3 Suspension of Pension Benefits. The payment of Pension benefits under
this Plan shall not be suspended when a Participant is serving as an Emeritus
Director of the Company. The payment of Pension benefits under this Plan shall
be suspended throughout any period when the Participant is serving as an Outside
Director on the Board of Directors. Subsequent to any such period of benefit
suspension for service on the Board of Directors such Participant's Pension
benefit under this Plan shall be recalculated with reference to all service as
an Outside Director, including the directors' retainer earned and the years of
service accrued during such period of benefit suspension, and the Participant's
Pension benefit shall be paid or resumed at the newly calculated higher rate.
3.4 Deferred Compensation Plan. Nothing in this Plan shall affect
eligibility for or benefits under the Deferred Compensation Plan for Outside
Directors of Tidewater Inc.
3.5 Amount of Pension. A Participant's Pension, as defined in Section
3.2, shall be an annual amount equal to the annual director's retainer
(exclusive of meeting fees or committee chairmen's retainers) which is
prevailing at the time the Participant retires from (or otherwise ceases to
serve on) the Board of Directors. Notwithstanding the foregoing provisions of
this Section 3.5, if a Participant retires from (or otherwise ceases to serve
on) the Board of Directors upon or after the occurrence of a Change of Control
(as defined in Section 5.6 hereof), the Participant's Pension shall be an annual
amount equal to the greater of (i) the annual director's retainer (exclusive of
meeting fees or committee chairmen's retainers) which is prevailing at the time
of such retirement or cessation of service or (ii) the annual director's
retainer (exclusive of meeting fees or committee chairmen's retainers) which is
prevailing immediately prior to the occurrence of a Change of Control. Further,
notwithstanding the provisions of Section 3.3 hereof, in the event of such a
retirement or cessation which follows a period of benefit suspension described
in such Section, the rate of the Participant's Pension shall be determined in
accordance with the immediately preceding sentence, while the duration of the
Pension shall be determined in accordance with Section 3.3.
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3.6 Forfeiture of Benefits. All benefits not yet paid for which an Outside
Director would be otherwise eligible under this Plan shall be forfeited in the
event that the Board of Directors determines that any of the following
circumstances has occurred:
(a) The Outside Director has engaged in knowing and willful misconduct
in connection with his or her service as a director; or
(b) The Outside Director, without the consent of the Board of
Directors or any Operating Company Board, at any time during or
after his or her period of service as an Outside Director, is
employed by, becomes associated with, renders service (as a
director or otherwise) to, or owns an interest (other than as a
shareholder with a nonsubstantial interest) in, any business which
is competitive with, or which controls a business which is
competitive with the Company or any Affiliated Company.
3.7 Payment of Benefits. Unless an election is made for a lump sum payment
under Section 5.6 hereof, the Pension shall be paid as a series of quarterly
payments to the Participant. The quarterly payments shall commence on the date
provided in Section 3.2 (or Section 3.3, as the case may be) and shall continue
on the first business day of each calendar quarter thereafter for the duration
of the Pension as provided in Section 3.2 hereof (or Section 3.3, as the case
may be). It shall be a condition to the payment of the Pension to a Participant
that for the duration of the Pension that the Participant remain available for
consultation with the Company.
3.8 Death of Participant. If a Participant dies prior to payment of all
of the Participant's Pension, a Death Benefit shall be paid to the beneficiaries
designated by him (or, if no designation is made, then to his estate). The
amount of the Death Benefit shall be the remaining Pension benefit that would
have been paid to the Participant had he lived, discounted by the Company's then
prevailing Cost of Borrowed Funds on the date of the Participant's death. Any
beneficiary designation, or change in the beneficiary designation shall be made
in writing by completing and furnishing to the Plan Administrator a Beneficiary
Designation form in the form attached hereto as Exhibit I. The last Beneficiary
Designation Form received by the Plan Administrator shall be controlling over
any testamentary or purported disposition by the participant, provided that no
designation, or change of designation thereof shall be effective unless received
by the Plan Administrator prior the death of the Participant.
ARTICLE IV
NON-ASSIGNABILITY OF INTERESTS
4.1 Non-Assignability of Interests. The interests herein and the right to
receive benefits hereunder may not be anticipated, alienated, sold, transferred,
assigned, pledged, encumbered, or
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subjected to any charge or legal process, and if any attempt is made to do so,
or a Participant becomes bankrupt, the interests under the Plan of the person
affected may be terminated by the Board of Directors, which, in its sole
discretion, may cause the same to be held or applied for the benefit of one or
more of the dependents of such person or make any other disposition of such
interests as it deems appropriate.
ARTICLE V
ADMINISTRATION
5.1 No Funding Obligation. The obligation of the Company to pay any
benefits under this Plan shall be unfunded and unsecured and any payments under
this Plan shall be made from the Company's general assets.
5.2 Applicable Law. This Plan shall be construed and enforced in
accordance with the laws of the State of Louisiana.
5.3 Administration and Interpretation. The Company's Director of Employee
Relations (the "Plan Administrator") shall have the authority and responsibility
to administer and interpret this Plan. Benefits due and owing to an Outside
Director under the Plan shall be paid when due without any requirement that a
claim for benefits be filed. However, Outside Directors who have not received
the benefits to which they feel entitled may file a written claim with the Plan
Administrator, who shall act on the claim within thirty days. The Plan
Administrator's action on any such claim may be appealed by the claimant to the
Company's Board of Directors. Notwithstanding the immediately preceding
sentence, no amendment of the Plan made upon or after the occurrence of a Change
of Control shall affect detrimentally the rights or benefit under the Plan of
any Participant (including any Outside Director who becomes a Participant upon a
Change of Control and including any Participant who has retired from (or
otherwise ceased to serve on) the Board of Directors).
5.4 Amendment. The Board of Directors may from time to time amend this
Plan or any provision herein.
5.5 Termination. The Company has established this Plan with the intention
and expectation that the Plan will continue in force. However, the Company
reserves the right to terminate the Plan at any time for any reason.
5.6 Change of Control.
(a) Distribution following a Change of Control. Notwithstanding any
other provision of the Plan, a Participant may elect at any time prior to a
Change of Control, in a form and manner reasonably satisfactory to the
Company, to receive upon the Participant's retirement from, or other
cessation of service to, the Board of Directors following or simultaneous
with a Change of Control, the present value of any Pension accrued by a
Participant (including any Outside Director who becomes a
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Participant upon a Change of Control and including any Participant who has
retired from (or otherwise ceased to serve on) the Board of Directors)
under the Plan, but not yet paid, shall be distributed to the Participant
immediately in a lump sum, calculated by using the Company's then
prevailing Cost of Borrowed Funds for the discount rate.
(b) Definition of Change of Control. As used in this Section 5.6,
'Change of Control' shall mean:
(i) the acquisition by any 'Person' (as defined in Section 5.6(c)
hereof) of 'Beneficial Ownership' (as defined in Section
5.6(c) hereof) of 30% or more of the outstanding Shares of
the Company's Common Stock, $0.10 par value per share (the
'Common Stock') or 30% or more of the combined voting power
of the Company's then outstanding securities; provided,
however, that for purposes of this subsection 5.6(b)(i), the
following shall not constitute a Change of Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 5.6(b)(iii) hereof) which constitutes
a Change of Control under Section 5.6(b)(iii) hereof) of
Common Stock directly from the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not
constitute a Change of Control under Section 5.6(b)(iii)
hereof; or
(ii) individuals who, as of the effective date of this amendment
to the Plan, constitute the Board (the 'Incumbent Board') cease for
any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the
effective date of this amendment to the Plan whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered a member of the Incumbent Board,
unless such individual's initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board; or
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(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of
all or substantially all of the assets of the Company (a 'Business
Combination'), in each case, unless, immediately following such
Business Combination,
(A) the individuals and entities who were the Beneficial
Owners of the Company's outstanding Common Stock and the
Company's voting securities entitled to vote generally in the
election of directors immediately prior to such Business
Combination have direct or indirect Beneficial Ownership,
respectively, of more than 50% of the then outstanding shares of
common stock, and more than 50% of the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, of the Post-Transaction Corporation
(as defined in Section 5.6(c) hereof), and
(B) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-
Transaction Corporation and any employee benefit plan or related
trust of either the Company, the Post-Transaction Corporation or
any subsidiary of either corporation) Beneficially Owns, directly
or indirectly, 30% or more of the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or 30% or more of the combined voting power of the
then outstanding voting securities of such corporation, and
(C) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(c) Other Definitions. As used in Section 5.6(b) hereof, the
following words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a
Person that controls, or is controlled by, or is under common control
with, another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants
thereof), with respect to a security, shall mean a Person who,
directly or indirectly (through any contract, understanding,
relationship or otherwise), has or shares (i)
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the power to vote, or direct the voting of, the security, and/or (ii)
the power to dispose of, or to direct the disposition of, the
security.
(iii) Person: 'Person' shall mean a natural person or company,
and shall also mean the group or syndicate created when two or more
Persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership) for the purpose of
acquiring, holding, or disposing of a security, except that 'Person'
shall not include an underwriter temporarily holding a security
pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 5.6(b)(iii)
hereof), 'Post-Transaction Corporation' shall mean the Company after
the Change of Control. If a Change of Control includes a Business
Combination, 'Post-Transaction Corporation' shall mean the corporation
resulting from the Business Combination unless, as a result of such
Business Combination, an ultimate parent corporation controls the
Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, 'Post-Transaction Corporation'
shall mean such ultimate parent corporation.
Executed effective this 1st day of October, 1999.
TIDEWATER INC.
By: /s/ Ken C. Tamblyn
________________________________
Ken C. Tamblyn
Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ Michael L. Goldblatt
___________________________________
Michael L. Goldblatt
Assistant Secretary
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EXHIBIT I
RETIREMENT PLAN FOR OUTSIDE DIRECTORS
Beneficiary Designation Form
This Beneficiary Designation Form is delivered pursuant to the terms
of the Retirement Plan for Outside Directors (the "Plan").
1. Beneficiary Designation. The Outside Director requests that, in the
event of his or her death at any time prior to the date on which any benefits
are paid, or commence to be paid, under the Plan, the death benefit (if any)
under the Plan for the Outside Director shall be paid in a lump sum to the
following Beneficiary or Beneficiaries:
______________________________________________________________________________
Name of Beneficiary Percent Name of Beneficiary Percent
______________________________________________________________________________
Address Address
_______________________________________________________________________________
Relationship Relationship
(Note: Attach additional sheet of paper, if needed.)
2. Changes. The Outside Director may change the Beneficiary(ies) at any
time by executing another copy of this beneficiary designation form.
3. Terms of Plan Govern. Death benefits shall be determined in
accordance with the terms of Section 3.8 of the Plan.
IN WITNESS WHEREOF, the Outside Director has executed this beneficiary
designation on the ______ day of ________________, 19___.
_________________________ ___________________________________
Witness Name of Outside Director
___________________________________
Signature
Receipt Acknowledged: Tidewater Inc.
By:________________________
Date:______________________
<PAGE>
EXHIBIT 10(i)
AMENDED AND RESTATED
DEFERRED COMPENSATION PLAN FOR
OUTSIDE DIRECTORS OF TIDEWATER INC.
(EFFECTIVE OCTOBER 1, 1999)
ARTICLE I
PURPOSE
The purpose of the Amended and Restated Deferred Compensation Plan for
Outside Directors of Tidewater Inc. (the "Plan") is to provide for the deferral
of annual retainer fees, Board meeting attendance fees, Board Committee meeting
attendance fees (hereinafter referred to in the aggregate as "Compensation")
paid by Tidewater Inc. (the "Company") to members of the Company's Board of
Directors (the "Board").
ARTICLE II
ADMINISTRATION
The Plan will be administered by the Company's Employee Benefits Committee
(the "Committee"). The Committee will have the sole authority to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, and in general, to make all other determinations and take all actions, not
otherwise required herein to be taken by the Board or a committee thereof,
necessary or advisable for the administration of the Plan. All decisions of the
Committee concerning the administration, construction, and interpretation of the
Plan shall be final, conclusive and binding upon all parties and interests.
ARTICLE III
PARTICIPANTS
Participation in the Plan is limited to members of the Board who are not
full-time employees of the Company or a subsidiary who elect to defer
Compensation as provided herein (hereinafter referred to individually as the
"Director" and collectively as the "Directors"). Upon termination of membership
on the Board, deferral of Compensation under the Plan shall cease and
distribution of Compensation not previously commenced shall commence, as
provided in Article VIII hereof.
ARTICLE IV
COMPENSATION ELECTIONS
4.1 PAYMENT ELECTION. For each calendar year of the Company, any eligible
Director may elect to receive Compensation distributed in (i) cash payments made
in the customary manner; or (ii) deferred payments as hereinafter provided.
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4.2 TIME AND METHOD OF ELECTION. In order for an election to be effective
for any given calendar year, the Director must deliver a signed election form to
the Committee no later than December 31 of the year preceding the year for which
the election is to take effect. In the case of a person who is elected or
appointed to the Board during the calendar year in which the deferral election
is to take effect, the signed deferral election form must be delivered to the
Committee no later than the first Board meeting attended by the Director
following such election or appointment. A deferral election must be made on the
form attached hereto as Exhibit "A" available upon request from the Committee.
Executed election forms are to be forwarded to the attention of the Committee or
a person designated by the Committee to receive them (the "Representative").
4.3 IRREVOCABILITY OF ELECTION. Upon receipt of the signed election form
by the Committee or its Representative, the election to defer Compensation shall
become irrevocable as to the year for which it is effective.
4.4 FORM OF DEFERRED COMPENSATION. Each Director electing to defer
Compensation must further elect to either: (i) have the Company allocate to such
Director units in the form of hypothetical units of the Company's common stock
(the "Stock Units"); (ii) have the Company allocate to such Director units
("Investment Fund Units") in the form of hypothetical units in one or more
investment funds or investment vehicles made available to Directors from time to
time through the Plan (the "Investment Funds") or (iii) have the Company
allocate to such Director a combination of Stock Units and Investment Fund
Units. Notwithstanding the foregoing provisions of this Section 4.4 or any
other provision of the Plan, upon the occurrence of a Change of Control (as
defined in Section 8.7(b)), all Stock Units credited to a Director's account
immediately prior to the Change of Control shall be immediately and
automatically converted to a dollar amount equal to the product of the number of
such Stock Units times the higher of (i) the Fair Market Value (as defined in
Section 5.1) of the Company's common stock as of the day of the Change of
Control, and (ii) the highest per share price paid for shares of the Company's
common stock (or the equivalent value) in the transaction constituting the
Change of Control. The resulting dollar amount shall, upon the occurrence of
the Change of Control, be deemed immediately transferred out of the Director's
Stock Unit account and invested in the Investment Fund that is a money market
account or other interest-earning fund made available to Directors through the
Plan. Such dollar amount shall subsequently be administered in accordance with
the Plan's provisions as Investment Fund Units (or as additional Investment Fund
Units, as the case may be).
4.5 EFFECT OF NO ELECTION. If a written election form for a calendar year
is not received by the Committee or its Representative at the time and in the
manner provided in Section 4.2 above, Compensation to which the Director becomes
entitled for that calendar year shall be distributed in the form of customary
cash payments.
4.6 DEFERRAL AMOUNT. A Director may elect to defer payment of up to 100%
of Compensation during a year, in 25% increments, until the expiration of the
Deferral Period, as defined in Section 8.1 hereof.
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ARTICLE V
STOCK UNITS
5.1 STOCK UNITS. For each Director electing to defer Compensation in the
form of Stock Units, the Company shall credit to such Director's account as of
the date of payment (the "Crediting Date") of such Compensation that number of
Stock Units equal to the number of shares of the Company's common stock
(including fractions) that could be purchased with the amount of the
Compensation that such Director elected to defer in the form of Stock Units at
the Fair Market Value of the Company's common stock on such Crediting Date. The
term "Fair Market Value" shall mean, for purposes of determining the number of
Stock Units credited to a Director's account, the closing sale price for a share
of the Company's common stock on the consolidated reporting system for New York
Stock Exchange issues on the trading day preceding the Crediting Date and, for
purposes of determining the value of a Stock Unit for a distribution under
Section 8.3, upon termination of the Plan or in the event of a Change of Control
of the Company (as defined in Section 8.7(b)), the average of the closing
quotations for the Company's common stock based on composite transactions for
New York Stock Exchange listed issues for the ten trading days preceding the
applicable date.
5.2 DIVIDENDS. The Company shall credit to each Directors's account as of
the Crediting Date the number of Stock Units equal to the number of shares of
the Company's common stock (including fractions) that could be purchased at the
Fair Market Value of the Company's common stock on such Crediting Date, with the
dividends such Director would have received if he had been the owner of the
number of shares of the Company's common stock equal to the number of Stock
Units (excluding fractions) in his account on the date normal customary
dividends would have been paid. After a Director has terminated service on the
Board, dividends shall continue to be credited to such Director's Stock Unit
account until all Compensation deferred in the form of Stock Units has been
distributed pursuant to Article VIII hereof.
5.3 ADJUSTMENT IN STOCK UNITS. The total number of Stock Units credited
to each Director's account shall be appropriately adjusted from time to time, as
determined by the Committee, for any increase or decrease in the number of
outstanding shares of the Company's common stock resulting from a subdivision or
combination of shares of common stock, a dividend payment in common stock, a
reclassification of common stock, a merger or consolidation, or for any other
change in the capital structure or shares of common stock. The determination of
the Committee shall be final, conclusive and binding upon all parties.
5.4 TRANSFERS AND REALLOCATIONS. Transfers of amounts and reallocation of
account balances between a Stock Unit account and an Investment Fund Unit
account will not be permitted.
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ARTICLE VI
INVESTMENT FUND UNITS
6.1 INVESTMENT FUND UNITS. The Committee shall determine from time to
time the Investment Funds that will be available as hypothetical investments for
Directors and each Director may choose the Investment Fund or Funds to be used
as the deemed investments for his deferred Compensation. If no Investment Fund
is selected by the Director, deferred Compensation shall be deemed invested in
the Investment Fund that is a money market account. The Company shall credit to
such Director's account as soon after the Crediting Date as may be
administratively practicable the number of Investment Fund Units that could be
purchased with the amount of Compensation such Director elected to defer as
Investment Fund Units in accordance with Sections 4.1 and 4.2 hereof. The
Committee may change or discontinue at any time any Investment Fund available
under the Plan in its discretion; provided, however, that each affected Director
shall be given the opportunity to redirect the allocation of his account deemed
invested in discontinued Investment Fund Units among the other Investment Funds
offered, including any replacement fund.
6.2 TRANSFERS AND REALLOCATIONS. Subject to the rules established by the
Committee, a Director may transfer or reallocate amounts credited to his
Investment Fund Unit account among the various Investment Funds. A transfer or
reallocation will take effect as soon as administratively practicable following
the date on which the Committee or Representative receives notice of the change.
The Committee may, in its discretion, further restrict transfers or
reallocations by the Directors into or out of Investment Funds or specify
minimum or maximum amounts that may be transferred or reallocated by Directors.
6.3 ADJUSTMENT OF INVESTMENT UNIT ACCOUNTS. The Investment Unit accounts
shall be adjusted as of the close of each day during which the New York Stock
Exchange is open to engage in stock transactions ("Business Day") to reflect
increases or decreases in the value of such deemed investments.
ARTICLE VII
COMPANY LIABILITY AND DIRECTOR'S RIGHTS
Directors and their beneficiaries by virtue of participating in the Plan
have only an unsecured right to receive benefits from the Company as general
creditors of the Company. The Plan constitutes a mere promise to make payments
in the future. The adoption of the Plan and any setting aside of amounts by the
Company with which to discharge its obligations hereunder shall not be deemed to
create a trust for the benefit of Directors or their beneficiaries; legal and
equitable title to any funds so set aside shall remain in the Company, and any
recipient of benefits hereunder shall have no security or other interest in such
funds. Any and all funds so set aside shall remain subject to the claims of the
general creditors of the Company, present and future, and no payment shall be
made under the Plan unless the Company is then solvent. This provision shall
not require the Company to set aside any funds, but the Company may set aside
such funds if it chooses to do so. Notwithstanding the foregoing provisions of
this Article VII and any other provision of the Plan, an
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amount equal to all deferred Compensation may be deposited into a trust (any
such trust, and successor thereto, being hereinafter called the "Trust")
established by the Company for the purpose of assuring payment of the Company's
obligations under the Plan. The Trust shall be subject to the claims of the
general creditors of the Company in the event of the Company's bankruptcy or
insolvency. Notwithstanding any establishment of the Trust, the Company shall
remain responsible for the payment of any amounts so payable which are not so
paid by the Trust.
ARTICLE VIII
TIME AND METHOD OF DISTRIBUTION
8.1 ELECTION FOR DISTRIBUTION. Directors may elect to defer Compensation
until (i) termination of Board service with the Company or, with respect to
Compensation that would otherwise have been paid, if not deferred, in the
calendar year in which termination of Board service occurs, the first Business
Day of the following calendar year; or (ii) the date specified in the deferral
election form executed by the Director (the "Deferral Date"), which must be at
least two years following the date Compensation would be paid, if it were not
deferred. The period during which Compensation is deferred is referred to
herein as the "Deferral Period." If the Director specifies a Deferral Date, the
Deferral Period will end on the Deferral Date, regardless of termination of
Board service, except that the Deferral Period shall always end upon the death
of the Director.
8.2 TIMING OF DISTRIBUTION. As soon as practicable after the expiration
of the Deferral Period, all amounts credited to a Director shall be distributed
to him (or his designated beneficiary) in cash in a single lump-sum payment,
unless the Director has elected to receive the annual installment payments over
not less than two nor more than ten years. An election to receive the
distribution in installments must be made at least 13 months prior to the end of
the Deferral Period and may be made at the time of the deferral election or at a
later time on the form provided as Exhibit "B." A change to a deferral election
or form of distribution election hereunder will be permitted, but no such change
will be effective for a period of at least 13 months following the date that the
Committee is notified of such change. If payment in the form of annual
installment payments is elected, the second and remaining annual installment
payments, if any, shall be payable on the successive anniversary dates of the
first payment. If a Director who has deferred Compensation under the Plan dies
while a member of the Board, or after commencing to receive a distribution under
this Article, then any remaining payments shall be payable to the Director's
designated beneficiary as directed by the Director on Exhibit "C."
8.3 MANNER OF DISTRIBUTION - STOCK UNITS. For those Directors electing to
defer Compensation as Stock Units, distribution shall be as follows: (i) for
lump sum distributions, the amount of cash distributed shall be equal to the
number of Stock Units credited to a Director's account as of the payment date
multiplied by the Fair Market Value of the Company's common stock (determined as
described in Section 5.1 hereof) on the date on which such payment is made; or
(ii) for annual installment distributions, the amount of each installment shall
be the numerator (equal to one) divided by the denominator (this being the total
number of remaining installment payments) multiplied by the Fair Market Value of
the Company's common stock as of the date on which such installment is paid.
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8.4 MANNER OF DISTRIBUTION -- INVESTMENT FUND UNITS. For those Directors
electing to defer Compensation as Investment Fund Units, distribution shall be
as follows: (i) for lump sum distributions, the amount of cash distributed shall
be equal to the value of the Investment Fund Units credited to a Director's
account as of the Business Day preceding the payment date; or (ii) for annual
installment distributions, the amount of each installment shall be the numerator
(equal to 1) divided by the denominator (this being the total number of
remaining installment payments) multiplied by the value of the Investment Fund
Units on the Business Day preceding the date on which such installment is paid.
8.5 DISTRIBUTION DUE TO HARDSHIP. A Director may request a distribution
due to Hardship by submitting a written request to the Committee accompanied by
evidence to demonstrate that the circumstances being experienced qualify as a
Hardship. The Committee shall have the authority to require such evidence as it
deems necessary to determine if a distribution is warranted. If an application
for a distribution due to a Hardship is approved, the distribution is limited to
an amount sufficient to meet the emergency. The allowed distribution shall be
payable in a method determined by the Committee as soon as possible after
approval of such distribution. A Director who has commenced receiving
installment payments under the Plan may request acceleration of such payments in
the event of a Hardship. The Committee may permit accelerated payments to the
extent such accelerated payment does not exceed the amount necessary to meet the
emergency. An allowed Hardship distribution or an acceleration of payment of
any amount deemed invested in Stock Units must also be approved in advance by
the Compensation Committee of the Board of Directors.
"Hardship" means a severe financial hardship to the Director resulting from
a sudden and unexpected illness or accident of the Director or of a dependent of
the Director, loss of the Director's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Director. The circumstances that will constitute a
Hardship would depend upon the facts of each case, but, in any case, payment may
not be made in the event that such Hardship is or may be relieved:
(a) through reimbursement or compensation by insurance or otherwise,
(b) by liquidation of the Director's assets, to the extent that
liquidation of such assets would not itself cause severe financial
hardship; or
(c) by cessation of deferrals of Compensation under the Plan.
The need to send a Director's child to college or the desire to purchase a
home shall not be a Hardship.
8.6 DESIGNATION OF BENEFICIARY. Any Director who elects to defer any or
all of his Compensation shall have the right to designate a beneficiary, or
beneficiaries who are to receive distribution of those payments if the Director
dies before the distribution as elected under this Article is made. Any
beneficiary designation, or change in the beneficiary designation, shall be made
in writing by completing and furnishing to the Committee or its Representative
the appropriate
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form attached hereto as Exhibit "C." The last designation of beneficiary
received by the Committee or its Representative shall be controlling over any
testamentary or purported disposition by the Director, provided that no
designation, or change of designation thereof shall be effective unless received
by the Committee prior to the death of the Director. If there is no designated
beneficiary living at the time distribution of any Compensation is to be made,
or if any designation of beneficiary shall be ineffective for any reason, then
the Compensation shall be paid to the estate of the Director.
8.7 CHANGE OF CONTROL
(a) Distribution upon a Change of Control. Notwithstanding the fact
that the Deferral Period may not have ended and notwithstanding a prior
election by a Director to have deferred Compensation distributed in
installments, if, prior to a Change of Control, a Director shall have
elected in a form and manner reasonably satisfactory to the Company that
his Investment Fund Unit account (including, without limitation, deferred
Compensation, interest, dividends and earnings thereon, and any amount
attributable to Stock Units that were automatically converted upon the
occurrence of the Change of Control) shall be distributed to the Director
in a lump sum upon a Change of Control, such amount shall be so paid.
(b) Definition of Change of Control. As used in the Plan, 'Change of
Control' shall mean:
(i) the acquisition by any 'Person' (as defined in Section
8.7(c) hereof) of 'Beneficial Ownership' (as defined in Section 8.7(c)
hereof) of 30% or more of the outstanding Shares of the Company's
Common Stock, $0.10 par value per share (the 'Common Stock') or 30% or
more of the combined voting power of the Company's then outstanding
securities; provided, however, that for purposes of this subsection
8.7(b)(i), the following shall not constitute a Change of Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 8.7(b)(iii) hereof) which constitutes a Change
of Control under Section 8.7(b)(iii) hereof) of Common Stock
directly from the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation
pursuant to a Business Combination which does not constitute a
Change of Control under Section 8.7(b)(iii) hereof; or
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(ii) individuals who, as of the effective date of this amendment
to the Plan, constitute the Board (the 'Incumbent Board') cease for
any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the
effective date of this amendment to the Plan whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered a member of the Incumbent Board,
unless such individual's initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Incumbent Board; or
(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of
all or substantially all of the assets of the Company (a 'Business
Combination'), in each case, unless, immediately following such
Business Combination,
(A) the individuals and entities who were the Beneficial
Owners of the Company's outstanding Common Stock and the
Company's voting securities entitled to vote generally in the
election of directors immediately prior to such Business
Combination have direct or indirect Beneficial Ownership,
respectively, of more than 50% of the then outstanding shares of
common stock, and more than 50% of the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, of the Post-Transaction Corporation
(as defined in Section 8.7(c) hereof), and
(B) except to the extent that such ownership existed prior
to the Business Combination, no Person (excluding the Post-
Transaction Corporation and any employee benefit plan or related
trust of either the Company, the Post-Transaction Corporation or
any subsidiary of either corporation) Beneficially Owns, directly
or indirectly, 30% or more of the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or 30% or more of the combined voting power of the
then outstanding voting securities of such corporation, and
(C) at least a majority of the members of the board of
directors of the Post-Transaction Corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
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<PAGE>
(c) Other Definitions. As used in Section 8.7(b) hereof, the
following words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a
Person that controls, or is controlled by, or is under common control
with, another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants
thereof), with respect to a security, shall mean a Person who,
directly or indirectly (through any contract, understanding,
relationship or otherwise), has or shares (i) the power to vote, or
direct the voting of, the security, and/or (ii) the power to dispose
of, or to direct the disposition of, the security.
(iii) Person: 'Person' shall mean a natural person or company,
and shall also mean the group or syndicate created when two or more
Persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership) for the purpose of
acquiring, holding, or disposing of a security, except that 'Person'
shall not include an underwriter temporarily holding a security
pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 8.7(b)(iii)
hereof), 'Post-Transaction Corporation' shall mean the Company after
the Change of Control. If a Change of Control includes a Business
Combination, 'Post-Transaction Corporation' shall mean the corporation
resulting from the Business Combination unless, as a result of such
Business Combination, an ultimate parent corporation controls the
Company or all or substantially all of the Company's assets either
directly or indirectly, in which case, 'Post-Transaction Corporation'
shall mean such ultimate parent corporation."
ARTICLE IX
REQUESTS FOR DISTRIBUTION
9.1 REQUESTS UNDER THE PLAN. A Director, or any other person or entity
claiming on behalf of a Director, may present a written request to the Committee
or its Representative for distribution of any amounts due or alleged to be due
under the Plan. Within (30) days following receipt of the request, the
Committee shall advise the Director or other person or entity in writing of the
amounts payable and the method of distribution of such amounts.
9.2 REVIEW OF REQUESTS. If a request for distribution under the Plan is
not approved, the Committee shall set forth in writing in a manner calculated to
be understood by the Director or other person or entity: (i) the specific
reason or reasons for the action taken; (ii) specific reference to the pertinent
provisions of the Plan upon which the action was taken; (iii) a description of
any additional material or information necessary to have the request approved
and an explanation of why such material or information is necessary; and (iv) an
explanation of the Committee's review
-9-
<PAGE>
procedure. The Committee shall afford the Director or other person or entity a
reasonable opportunity for a full and fair review by the Committee of its action
taken if requested to do so within thirty (30) days after receipt of the written
statement of the Committee's action.
ARTICLE X
MISCELLANEOUS
10.1 EFFECTIVE DATE. This Plan, as amended and restated, shall be
effective October 1, 1999 and shall continue until amended or terminated by the
Board.
10.2 EFFECT OF THE PLAN. The establishment and continuance of the Plan by
the Company shall not constitute a contract of service between the Company and
any Director, and shall not be deemed to be consideration for, inducement to, or
a condition of service of any person. The deferral of any Compensation pursuant
to the provisions of the Plan shall not limit the rights of the shareholders or
Directors of the Company to remove a Director as permitted by the Certificate of
Incorporation, By-Laws or applicable laws. No trust or other fiduciary
relationships shall be created or deemed to arise from any deferrals under the
Plan.
10.3 PROHIBITION AGAINST ASSIGNMENT. The right of any Director (or his
designated beneficiary) to receive any payment or installment under the Plan
shall not be subject in any manner to attachment or other legal process or
proceedings for discharge of the debts of the Director or beneficiary, and any
such payment or installment shall not be subject to anticipation, alienation,
sale, transfer, assignment, pledge, mortgage or encumbrance.
10.4 AMENDMENT AND TERMINATION. (i) The Board intends to continue the Plan
indefinitely but reserves the right to modify the Plan from time to time, or to
repeal the Plan entirely, or to direct the permanent discontinuances or
temporary suspension of payments under the Plan; provided that no such
modification, repeal, discontinuance or suspension shall affect or otherwise
deprive the Directors of any payments to which they may be entitled under the
Plan at the time thereof; (ii) No amendment or termination of this Plan shall,
without the consent of the participants under the Plan or beneficiaries
thereunder change the amount of deferred Compensation owed such person under the
Plan; and (iii) Upon any termination of the Plan, each Director (or, if no
longer living, the Director's beneficiary) entitled to or receiving payments
hereunder shall be promptly paid in a cash lump sum all deferred Compensation
(together with interest and/or dividends thereon) owed to the Director and
accounted for in the Director's Stock Unit or Investment Fund Unit account.
Amounts owed and Fair Market Value shall be determined as of the effective date
of such termination.
10.5 GOVERNING LAW. Except to the extent preempted or superseded by the
federal laws of the United States of America, the laws of the State of Louisiana
will govern the Plan.
10.6 NOTICES. All notices, reports, statements, distributions or payments
given, made, delivered or transmitted to a Director or his designated
beneficiary shall be deemed to be duly given, made, delivered or transmitted
when mailed, by first class mail, postage prepaid, addressed to the
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<PAGE>
Director or beneficiary at the address appearing on the books of the Committee.
Written directions, notices, and other communciations to the Company, the
Committee or its Representative, shall be deemed to be duly given, made or
delivered when received by the Committee or its Representative at such location
as may from time to time be specified.
10.7 GENDER AND NUMBER. Whenever appropriate in the Plan, the masculine
gender shall be construed to include the feminine, and the feminine gender shall
be construed to include the masculine. Words in the singular shall be construed
to include the plural, and the plural to include the singular.
Executed effective the 1st day of October, 1999.
Tidewater Inc.
By: /s/ Ken C. Tamblyn
-------------------------------
Ken C. Tamblyn
Executive Vice President and
Chief Financial Officer
Attest:
By: /s/ Michael L. Goldblatt
---------------------------
Michael L. Goldblatt
Assistant Secretary
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<PAGE>
Exhibit A
DEFERRED COMPENSATION PLAN
FOR OUTSIDE DIRECTORS OF
TIDEWATER INC.
Annual Deferral Election
WHEREAS, Tidewater Inc. (the "Company") has established a formal deferred
compensation plan (hereinafter the "Plan") for members of its Board of Directors
who are not full-time employees of the Company ("Outside Directors") and
WHEREAS, the Plan permits Outside Directors to elect to defer annual
retainer fees, Board meeting attendance fees, and Committee meeting attendance
fees ("Compensation") in accordance with the terms of the Plan:
NOW, THEREFORE, I, _______________________, do irrevocably elect to defer
_____% (25% increments) of the Compensation I earn with respect to Board
services I shall perform for the Company during the calendar year beginning
January 1, ______, subject to the following understandings and restrictions.
1. I understand that following my death any amounts due to me under the
Plan will be distributed as directed in my Designation of Beneficiary
form.
2. I hereby elect that my Compensation otherwise be deferred until:
(a) my termination of Board service, as described in the Plan, or
(b) the following date, which is at least two years following the date
my Compensation for the year would be paid if it were not
deferred:
_______________, 20___. (If a date is selected, Compensation will be
deferred until this date, regardless of termination of Board
service.)
3. Under this election and pursuant to Section 4.2 of the Plan, I direct
the Company to:
(a) _______ allocate _____% of my deferred Compensation in the form
of hypothetical units of the Company's common stock (the
"Stock Units");
(b) _______ allocate _____% of my deferred Compensation in the form
of hypothetical Investment Fund Units of one or more of
the following Investment Funds, which are described on
the attached materials:
A-1
<PAGE>
_____% ________________________________
_____% ________________________________
_____% ________________________________
4. I understand that my deferred Compensation and all earnings thereon will
be distributed to me in a lump sum unless I elect to receive the
distribution in annual installments over not less than two nor more than
10 years. An election to receive a distribution in installments may be
made now or at any time at least 13 months in advance of the end of the
Deferral Period (as defined in the Plan). I choose to elect at this time
to receive my distribution in _______ annual installments.
5. All other terms of this Deferral Election shall be governed by the Plan
and any amendment thereto in effect at the time of this election. All of
the terms and conditions of the Plan are incorporated herein by
reference.
6. I acknowledge, by my signature below, that I have read and understand
the terms of the Plan.
IN WITNESS WHEREOF, I affix my signature to this election the _____ day of
_____________, ______.
-----------------------------------
(Signature of Participant)
Receipt Acknowledged: Tidewater Inc.
By:
-------------------------
Date:
-------------------------
A-2
<PAGE>
Exhibit B
DEFERRED COMPENSATION PLAN
FOR OUTSIDE DIRECTORS OF
TIDEWATER INC.
Election to Receive Distribution in Installments
I am a participant in the Deferred Compensation Plan for Outside Directors
of Tidewater Inc. (the "Plan"). I understand that my Compensation deferred
under the Plan will be distributed to me or to my beneficiaries in a lump sum,
unless I otherwise elect within the time period provided in the Plan to receive
my distribution in between two and ten annual installments. I hereby elect to
receive distribution of amounts to which I am entitled under the Plan in ______
annual installments. I understand that upon my death, my account balance will
be distributed to my beneficiaries in either a lump sum or such installments as
are specified by me in the Designation of Beneficiary form.
Date: ___________________ ____________________________________
(Signature of Participant)
____________________________________
(Print Name of Participant)
B-1
<PAGE>
Exhibit C
DEFERRED COMPENSATION PLAN
FOR OUTSIDE DIRECTORS OF
TIDEWATER INC.
Designation of Beneficiary
1. I am a participant in the Deferred Compensation Plan for Outside
Directors of Tidewater Inc. (the "Plan") and I hereby designate the following as
my beneficiaries under the Plan:
Name (age if under 18) Relationship
Primary
------------------------- -----------------------
Secondary
------------------------- -----------------------
------------------------- -----------------------
2. Following my death, I elect to have all undistributed amounts due to
me distributed to my beneficiaries as follows:
(check one)
[_] in _______ (between 2 and 10) annual installments; or
[_] in a lump sum.
3. This designation shall be subject to the terms of, and any amounts
which become payable hereunder shall be governed by, the Plan as from time to
time in effect.
Date: _______________________ ___________________________________
(Signature of Participant)
___________________________________
(Print Name of Participant)
C-1
<PAGE>
EXHIBIT 10(j)
TIDEWATER INC.
EXECUTIVES' SUPPLEMENTAL RETIREMENT TRUST
(As Restated Effective October 1, 1999)
WHEREAS, Tidewater Inc., a Delaware corporation (the "Company") maintains
the Executives' Supplemental Retirement Trust (the "Trust"), the provisions of
which are at present expressed in a trust restatement effective January 1, 1993
and amendments thereto effective January 20, 1994, September 30, 1996, and two
amendments effective October 1, 1999;
WHEREAS, the Board of Directors has authorized the restatement of the
Trust, as amended, Section 11(a) of the Trust authorizes such amendment, and the
Board of Directors has determined that this restatement does not deprive any
participant or beneficiary in the Plans (as defined below) of any accrued right
or benefit under the Plans;
WHEREAS, the Company has adopted the Tidewater Inc. Supplemental Executive
Pension Plan (the "Pension SERP") for the benefit of certain management or
highly compensated employees and for the benefit of employees of related
employers (the Company and each related employer hereinafter referred to as
"Employer" or collectively as "Employers") and the Company and/or its
subsidiaries have entered into and may continue to enter into Change of Control
Agreements (the "Change of Control Agreements") and certain other non-qualified
deferred compensation plans or agreements, which may be designated by the
Company's Board of Directors as plans or agreements for which the Trust may be
used ("Other Plans"), (the Pension SERP, the Change of Control Agreements and
Other Plans, collectively referred to herein as the "Plans");
WHEREAS, the Employers have incurred or expect to incur liability under the
terms of such Plans with respect to the individuals participating in such Plans;
WHEREAS, the Employers wish to restate the Trust previously established to
assist in satisfying obligations under the Plans and to contribute to the Trust
assets that shall be held therein, subject to the claims of an Employer's
creditors in the event of an Employer's Insolvency, as herein defined, until
paid to Plan participants and their beneficiaries in such manner and at such
times as specified in the Plans; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plans
as unfunded plans maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of 1974;
NOW THEREFORE, the Trust is hereby restated to read its entirety as
follows:
SECTION 1. ESTABLISHMENT OF TRUST
----------------------
(a) The Employers have previously deposited with Trustee in trust funds to
be held, administered and disposed of by Trustee as provided in this Trust
Agreement.
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(b) Except as provided in Sections 3 and 4, the Trust hereby established
shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the Employers are
the grantors, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly. The Employers are also the sole income and principal
beneficiaries of the Trust for purposes of La. R. S. 9:1805, et seq.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Employers and shall be applied for
the uses and purposes of Plan participants and general creditors as herein set
forth. Plan participants and their beneficiaries shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against the
Employers.
(e) Each Employer shall be the grantor and owner for income tax purposes of
that portion of the Trust attributable to amounts funded by such Employer. Such
amounts with respect to a particular Employer, including earnings, are
hereinafter referred to as an "Employer Trust Fund." An Employer Trust Fund is
available to such Employer's creditors in the event of Insolvency, as defined in
Section 3(a) herein, of such Employer. The Trustee shall separately account for
each Employer Trust Fund.
(f) The Employers, in their sole discretion, may at any time, or from time
to time, make additional deposits of cash or other property in trust with
Trustee to augment the principal to be held, administered and disposed of by
Trustee as provided in this Trust Agreement. Neither Trustee nor any Plan
participant or beneficiary shall have any right to compel such additional
deposits.
(g) (1) Upon a Potential Change of Control (as defined in Section 12
hereof), the Company shall make (or shall cause the respective Employers to
make), as soon as possible, but in no event later than fifteen (15) business
days following the Potential Change of Control, a contribution (which
contribution shall be, except as otherwise provided in Sections 1(g)(2), 3, 4
and 11 hereof, an irrevocable contribution) to the Trust in an amount which
(when aggregated with the assets then held by the Trust, valued at their then
fair market value) is equal to (i) the present value of the maximum benefits in
which all Plan participants (or their beneficiaries) would be vested pursuant to
the terms of the Plans as of the date on which the Potential Change of Control
occurred (calculated as if such Potential Change of Control were also a "Change
of Control" as defined in the relevant Plan and as if any vesting of benefits
which the relevant Plan requires upon a Change of Control had already occurred),
plus (ii) a reasonable estimated amount for the Trust's expenses during its term
(such estimate not to exceed one percent (1%) of such present value). The sum
of the amounts described in items (i) and (ii) of the immediately preceding
sentence is hereinafter called the "Required Funding Amount." The Company
hereby authorizes and directs its chief executive officer, and its chief
financial officer, or either of them acting alone, to contribute (or to cause
the respective Employers to contribute) the Required Funding Amount without the
further approval of the board of directors of the Company (the "Board"). The
Company shall be solely responsible for the determination of the contribution.
2
<PAGE>
The Trustee shall be entitled to rely upon the calculation of such contribution
and shall have no responsibility to determine whether the amount of such
contribution is consistent with the provisions of this Section 1(g)(1) or the
terms of the Plans.
(2) In the event that, prior to any delivery pursuant to Section
1(g)(1) hereof, the Trust was only nominally funded and the Company delivers an
amount to the Trustee upon a Potential Change of Control pursuant to Section
1(g)(1) hereof, the Trustee, when directed by the Company to do so, shall return
substantially all the Trust assets (retaining a nominal portion of such assets
as corpus for the continuing Trust) to the Company on the last day of the
eighteenth month following the month in which the Potential Change of Control
occurred, unless a Change of Control shall have occurred during such eighteen-
month period. In the event that, prior to any delivery pursuant to Section
1(g)(1), the Trust had been more than nominally funded by discretionary
contributions from the Company which were calculated with reference to the
present value of Plan benefits from time to time and the Company delivers an
amount to the Trustee upon a Potential Change of Control pursuant to Section
1(g)(1) hereof, the Trustee, when directed by the Company to do so, shall return
the portion of such Section 1(g)(1) delivery which is equal to the sum of (i)
the amount the Company certifies to be equal to the Plan benefits attributable
solely to Change-of-Control vesting and (ii) the Trustee's estimate of the
Trust's expenses (retaining the balance of the Trust assets as corpus for the
continuing Trust) to the Company on the last day of the eighteenth month
following the month in which the Potential Change of Control occurred, unless a
Change of Control shall have occurred during such eighteen-month period. Such
eighteen-month period shall begin anew (thus postponing any such discretionary
return of Trust assets) in the event of any subsequent Potential Change of
Control occurring during such initial period or any subsequent period.
(3) Following the end of each calendar year which ends after a
Potential Change of Control has occurred, unless the assets delivered to the
Trustee pursuant to Section 1(g)(1)in connection with such Potential Change of
Control (or a portion of such assets) shall have previously been returned to the
Company pursuant to Section 1(g)(2) hereof or the Trust shall have previously
terminated pursuant to Section 11 hereof, the Company shall recalculate the
Required Funding Amount as if such Potential Change of Control had occurred at
the end of such calendar year. Not later than sixty (60) days after each such
calendar year-end, the Trustee shall give notice to the Company as to the fair
market value of assets held in the Trust as of such calendar year-end. If such
recalculated Required Funding Amount exceeds the fair market value of the assets
then held in the Trust, the Company shall within five days after receipt of
information from the Trustee pursuant to the immediately preceding sentence pay
(or cause the respective Employers to pay) to the Trustee an amount in cash (or
marketable securities or any combination thereof) equal to such excess;
provided, however, that if no such information has been received by the Company
before the ninetieth (90th) day following the respective calendar year-end, then
on or before the ninety-fifth (95th) day the Company shall pay (or cause the
respective Employers to pay) to the Trustee an amount in cash (or marketable
securities or any combination thereof) equal to the amount so paid the
immediately preceding year. The Company hereby authorizes and directs its chief
executive officer, and its chief financial officer, or either of them acting
alone, to make such additional contributions (or to cause such additional
contributions to be made) without the further approval of the Board. The
Company shall calculate the amount of any contribution required hereunder in
good faith. The Trustee shall have no liability to review any such calculation
or to collect any contribution required hereunder.
3
<PAGE>
(h) All capitalized terms not defined in this Trust Agreement shall have
the same meaning as they have under the Plans or, if not defined in the Plans,
as defined in the Tidewater Pension Plan (the "Pension Plan").
(i) Any ambiguities or gaps in this Trust Agreement shall be resolved by
reference to the applicable Plan document first and then by reference to the
Tidewater Pension Plan Trust Agreement (the "Pension Trust"), if applicable, but
only if consistent with the purposes set forth in this Trust.
(j) The Trustee shall account separately for monies contributed pursuant to
the Pension SERP and earnings thereon for each Employer Trust Fund, for monies
contributed pursuant to each Change of Control Agreement and earnings thereon
for each Employer Trust Fund and for monies contributed pursuant to any Other
Plan and earnings thereon for each Employer Trust Fund and shall keep separate
bookkeeping accounts for that purpose to be known as the Pension Account, the
Change of Control Accounts, and the Other Plan Account. Additional accounts may
be established at the request of the Company. Except as otherwise provided
herein, the Trustee may collectively invest some or all of the funds credited to
the Pension Account, the Change of Control Accounts, and the Other Plan Account
so long as separate bookkeeping records are maintained. Only benefits under the
Pension SERP shall be paid from the Pension Account, only benefits under the
particular Change of Control Agreement shall be paid from the Change of Control
Account related to such Agreement and only benefits under the Other Plan Account
shall be paid from that account. In general, only benefits under a particular
Plan account shall be paid from that account.
(k) The Trustee shall accept contributions from each Employer in an amount
that is required to be deposited in the Trust with respect to the named Plan
participant or beneficiary pursuant to the terms of the applicable Change of
Control Agreement between the Employer and such participant.
SECTION 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES.
-----------------------------------------------------
(a) Company shall deliver to Trustee a schedule (the "Payment Schedule")
that indicates the amounts payable in respect of each Plan participant (and his
or her beneficiaries), that provides a formula or other instructions acceptable
to Trustee for determining the amounts so payable, the form in which such amount
is to be paid (as provided for or available under the Plans), and the time of
commencement for payment of such amounts. Except as otherwise provided herein,
Trustee shall make payments to the Plan participants and their beneficiaries in
accordance with such Payment Schedule. When requested by the Employers, and in
reliance upon information provided by the Employers, the Trustee shall make
provision for the reporting and withholding of any federal, state or local taxes
that may be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plans and shall pay amounts withheld to the
appropriate taxing authorities.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plans shall be determined by Company or such party as it
shall designate under the Plans, and
4
<PAGE>
any claim for such benefits shall be considered and reviewed under the
procedures set out in the Plans.
(c) An Employer may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plans. Company
shall notify Trustee of a decision to make payment of benefits directly prior to
the time amounts are payable to participants or their beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the terms of the
Plans, the Employer shall make the balance of each such payment as it falls due.
Trustee shall notify Company where principal and earnings are not sufficient.
(d) All distributions shall be in the form of cash.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO
--------------------------------------------
TRUST BENEFICIARY WHEN AN EMPLOYER IS INSOLVENT.
-----------------------------------------------
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries from an Employer Trust Fund if such Employer is Insolvent. An
Employer shall be considered "Insolvent" for purposes of this Trust Agreement if
(i) such Employer is unable to pay its debts as they become due, or (ii) such
Employer is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(e) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of such Employer under federal and state law as set
forth below.
(1) The Board of Directors and the Chief Executive Officer of an
Employer shall have the duty to inform Trustee in writing of such Employer's
Insolvency. If a person claiming to be a creditor of an Employer alleges in
writing to Trustee that such Employer has become Insolvent, Trustee shall
determine whether such Employer is Insolvent and, pending such determination,
Trustee shall discontinue payment of benefits to Plan participants or their
beneficiaries from such Employer's Trust Fund.
(2) Unless Trustee has actual knowledge of such Employer's Insolvency,
or has received notice from an Employer or a person claiming to be a creditor
alleging that such Employer is Insolvent, Trustee shall have no duty to inquire
whether such Employer is Insolvent. Trustee may in all events rely on such
evidence concerning such Employer's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a determination
concerning such Employer's solvency.
(3) If at any time Trustee has determined that an Employer is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries from such Employer's Trust Fund and shall hold the assets of such
Trust for the benefit of such Employer's general creditors. Nothing in this
Trust Agreement shall in any way diminish any rights of Plan participants or
their beneficiaries to pursue their rights as general creditors of an Employer
with respect to benefits due under the Plans or otherwise.
5
<PAGE>
(4) Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries from an Employer's Trust Fund in accordance with Section
2 of this Trust Agreement only after Trustee has determined that such Employer
is not Insolvent (or is no longer Insolvent).
(5) In no event shall the Employer Trust Fund of one Employer be
available to the creditors of any other Employer and to that extent shall be
held subject to the maximum restraint on involuntary alienation permitted by the
Louisiana Trust Code.
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Employer in lieu of the payments
provided for hereunder during any such period of discontinuance.
(d) Overriding Provisions. To the extent inconsistent with any other
---------------------
provision of this Trust document, the provisions of this Section 3, if they
become applicable, shall govern.
SECTION 4. PAYMENTS TO COMPANY.
-------------------
Except as provided in Section 3 hereof, an Employer shall have no right or
power to direct Trustee to return to such Employer or to divert to others any of
the Trust assets before all payment of benefits has been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan;
provided, however, that an Employer shall have the right at any time (except as
provided in the next paragraph) to revoke the Employer Trust Fund attributable
to it, in part or in whole, provided that the assets remaining in the Employer
Trust Fund after the revocation have a value that is no less than 100% of the
present value of the accrued benefits of the Participants in the Employer's
Plan, based on the provisions of the Plan in effect on the date of the
revocation, as determined by an actuary as of a date that is within 30 days of
the date of the revocation, using the same methods to determine actuarial
equivalents as are being used at that time to determine funding obligations
under the Tidewater Pension Plan. An Employer revoking the Trust under this
paragraph shall certify to the Trustee that the requirements of this paragraph
have been met, and the Trustee shall be entitled to rely upon such certification
The Company shall not have the right to revoke the Trust after the
occurrence of a Change of Control or a Potential Change of Control; provided,
however, that if no Change of Control occurs by the end of the 18-month period
following a Potential Change of Control, this limitation will be lifted at that
time. If a later Potential Change of Control occurs, even if prior to the end
of the 18-month period beginning with a prior Potential Change of Control, a new
18-month period shall run from the occurrence of the later Potential Change of
Control.
SECTION 5. INVESTMENT AUTHORITY.
--------------------
(a) All amounts corresponding to accrued supplemental pension benefits
under the Pension SERP, all amounts contributed pursuant to each Change of
Control Agreement and all
6
<PAGE>
amounts contributed pursuant to any Other Plan shall be held in the Trust in one
or more general investment funds (the "General Funds") and invested in
authorized investments under the terms of the Pension Trust (but excluding
securities issued by the Company) selected in the discretion of the Trustee. The
Compensation Committee of the Board of Directors of Company may appoint an
investment manager, in which event the provisions on the responsibilities of the
Investment Manager and the Trustee as set forth in the Pension Trust apply.
(b) The Employers shall have the right at any time, and from time to time
in its sole discretion, to substitute assets of equal fair market value for any
assets held by the Trust. This right is exercisable by the Employers in a non-
fiduciary capacity without the approval or consent of any person in a fiduciary
capacity.
SECTION 6. DISPOSITION OF INCOME.
---------------------
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 7. ACCOUNTING BY TRUSTEE.
---------------------
Within a reasonable period after the close of each calendar quarter, the
Trustee shall furnish the Employee Benefits Committee of Company with a complete
accounting showing the assets held in each of the investment funds in the Trust
as of the last day of the quarter and their fair market value. The accounting
also shall contain a statement of any purchases, sales, distributions, and
contributions during the calendar quarter. The accounting shall indicate what
proportions of each investment fund is attributable to the Pension Account, what
proportion is attributable to the Change of Control Account, and what proportion
is attributable to the Other Plan Account.
SECTION 8. RESPONSIBILITY OF TRUSTEE.
-------------------------
(a) The Trustee shall have no obligation (i) to ascertain the correctness
of any information it receives from the Company's Employee Benefits Committee,
the Board of Directors of the Company, or the Compensation Committee of the
Board of Directors, (ii) to ascertain that any instructions it receives from any
such body are consistent with the Plans; (iii) to determine whether any action
taken hereunder is consistent with the terms of the Plan or Plans; or (iv) to
resolve any ambiguity or inconsistency between the terms of this Trust and the
terms of any Plan.
(b) Trustee shall have, without exclusion, all powers conferred on Trustees
by applicable law, unless expressly provided otherwise herein, provided,
however, that if an insurance policy is held as an asset of the Trust, Trustee
shall have no power to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a different
form) other than to a successor Trustee, or to loan to any person the proceeds
of any borrowing against such policy.
(c) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of
7
<PAGE>
carrying on a business and dividing the gains therefrom, within the meaning of
section 301.7701-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
------------------------------------
Company shall pay all administrative and Trustee's fees and expenses. If
not so paid, the fees and expenses shall be paid from the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
----------------------------------
(a) Hibernia National Bank shall be the trustee of the Trust. Any party
serving as trustee of the Trust shall be referred to herein as the "Trustee."
(b) Any Trustee may resign, and the Board of Directors of the Company may
remove the Trustee, upon 30 days' written notice, one to the other. The Board
of Directors of the Company shall fill any vacancy in the office of the Trustee.
Any successor Trustee to Hibernia National Bank shall be a bank or trust company
organized under the laws of the United States or any jurisdiction thereof,
having a combined capital and surplus of at least $150,000,000, if there be such
an institution willing, able and legally qualified to perform the duties of the
Trustee hereunder.
(c) Upon resignation or removal of Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within 30 days after receipt of notice of
resignation, removal or transfer, unless Company extends the time limit.
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with this Section, by the effective date of resignation or removal
under paragraph (b) of this section. If no such appointment has been made,
Trustee may apply to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 11. AMENDMENT OR TERMINATION.
------------------------
(a) The Trust shall terminate on the date on which the Company certifies to
the Trustee that payment of all Plan benefits to Plan participants (and their
beneficiaries) has been completed and that there are no longer any Plan
participants or beneficiaries who are entitled to benefits pursuant to the terms
of the Plans which have not yet been paid. Any amendment to the Trust which
purports to terminate the Trust at any earlier date shall be effective only if
made in accordance with Section 11(b) or 11(c) hereof. Promptly upon
termination of the Trust, any Trust assets remaining after the payment of Plan
benefits and the Trustee's fees and expenses shall be paid to the Company (or to
the respective Employers, as the case may be).
(b) Prior to a Potential Change of Control, notwithstanding any other
provision hereof, the Company may amend this Trust (including making an
amendment which terminates the Trust), without the consent of the Plan
participants by written instrument executed by the
8
<PAGE>
Company and delivered to the Trustee; provided, however, that no amendment shall
operate to deprive any participant or beneficiary of any rights accrued to them
under the Trust prior to such amendment; and, provided, further, that the
approval of the Trustee is required for any amendment that materially increases
the duties of the Trustee.
(c) Upon and after the occurrence of a Potential Change of Control,
notwithstanding any other provision hereof, this Trust may be amended by the
Company (including making an amendment which terminates the Trust), if consented
to in writing by the Plan participants (or in the event of their deaths, their
beneficiaries) who were Plan participants immediately prior to the Potential
Change of Control ("Continuing Participants") and who at the time of such
consent have unpaid Plan benefits equal to at least sixty-five percent (65%) of
all unpaid Plan benefits of Continuing Participants; provided, however, that the
written consent of the Continuing Participants shall not be required for any
termination of the Trust or Trust amendment that does not adversely affect their
rights. No amendment made upon or after a Change of Control can make the Trust
revocable solely by the Company.
SECTION 12. POTENTIAL CHANGE OF CONTROL AND CHANGE OF CONTROL.
-------------------------------------------------
(a) Overriding Provisions; Duty to Inform. To the extent inconsistent with
-------------------------------------
any other provision of this Trust document, the provisions of this Section 12
shall govern, except that the provisions of Section 3 hereof shall govern, if
they become applicable. The board of directors of the Employer and the chief
executive officer of the Employer shall each have the duty to inform the Trustee
promptly in writing of the occurrence of any Potential Change of Control and of
any Change of Control. The Trustee shall have no obligation to determine the
occurrence of a Potential Change of Control or Change of Control hereunder.
(b) Potential Change of Control. For purposes of this Trust, a 'Potential
---------------------------
Change of Control' shall be deemed to have occurred if the conditions set forth
in any one of the following paragraphs (i), (ii) or (iii) shall have been
satisfied:
(i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a 'Change of Control' (as defined in
Section 12(c) hereof);
(ii) the Company or any Person (as defined in Section 12(d) hereof)
publicly announces (including within a written statement made pursuant to
Section 13(d) of the Securities Exchange Act of 1934, as amended from time
to time) an intention to take or to consider taking actions which, if
consummated, would constitute a Change of Control; or
(iii) the Board adopts a resolution to the effect that, for purposes
of this Trust, a Potential Change of Control has occurred.
(c) Change of Control. As used in this Section 12, 'Change of Control'
-----------------
shall mean:
(i) the acquisition by any 'Person' (as defined in Section 12(d)
hereof) of 'Beneficial Ownership' (as defined in Section 12(d) hereof) of
30% or more of the
9
<PAGE>
outstanding Shares of the Company's Common Stock, $0.10 par value per share
(the 'Common Stock') or 30% or more of the combined voting power of the
Company's then outstanding securities; provided, however, that for purposes
of this subsection 12(c)(i), the following shall not constitute a Change of
Control:
(A) any acquisition (other than a 'Business Combination' (as
defined in Section 12(c)(iii) hereof) which constitutes a Change of
Control under Section 12(c)(iii) hereof) of Common Stock directly from
the Company,
(B) any acquisition of Common Stock by the Company or its
subsidiaries,
(C) any acquisition of Common Stock by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or
(D) any acquisition of Common Stock by any corporation pursuant
to a Business Combination which does not constitute a Change of
Control under Section 12(c)(iii) hereof; or
(ii) individuals who, as of the effective date of this amendment to
the Trust, constitute the Board (the 'Incumbent Board') cease for any
reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the effective date of
this amendment whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered a member
of the Incumbent Board, unless such individual's initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Incumbent Board; or
(iii) consummation of a reorganization, merger or consolidation
(including a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company), or sale or other disposition of all or
substantially all of the assets of the Company (a 'Business Combination'),
in each case, unless, immediately following such Business Combination,
(A) the individuals and entities who were the Beneficial Owners
of the Company's outstanding Common Stock and the Company's voting
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination have direct or indirect
Beneficial Ownership, respectively, of more than 50% of the then
outstanding shares of common stock, and more than 50% of the combined
voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, of the Post-Transaction
Corporation (as defined in Section 12(d) hereof), and
(B) except to the extent that such ownership existed prior to the
10
<PAGE>
Business Combination, no Person (excluding the Post-Transaction
Corporation and any employee benefit plan or related trust of either
the Company, the Post-Transaction Corporation or any subsidiary of
either corporation) Beneficially Owns, directly or indirectly, 30% or
more of the then outstanding shares of common stock of the corporation
resulting from such Business Combination or 30% or more of the
combined voting power of the then outstanding voting securities of
such corporation, and
(C) at least a majority of the members of the board of directors
of the Post-Transaction Corporation were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(d) Other Definitions. As used in Section 12(c) hereof, the following
-----------------
words or terms shall have the meanings indicated:
(i) Affiliate: 'Affiliate' (and variants thereof) shall mean a Person
that controls, or is controlled by, or is under common control with,
another specified Person, either directly or indirectly.
(ii) Beneficial Owner: 'Beneficial Owner' (and variants thereof),
with respect to a security, shall mean a Person who, directly or indirectly
(through any contract, understanding, relationship or otherwise), has or
shares (i) the power to vote, or direct the voting of, the security, and/or
(ii) the power to dispose of, or to direct the disposition of, the
security.
(iii) Person: 'Person' shall mean a natural person or company, and
shall also mean the group or syndicate created when two or more Persons act
as a syndicate or other group (including, without limitation, a partnership
or limited partnership) for the purpose of acquiring, holding, or disposing
of a security, except that 'Person' shall not include an underwriter
temporarily holding a security pursuant to an offering of the security.
(iv) Post-Transaction Corporation: Unless a Change of Control
includes a Business Combination (as defined in Section 12(c)(iii) hereof),
'Post-Transaction Corporation' shall mean the Company after the Change of
Control. If a Change of Control includes a Business Combination, 'Post-
Transaction Corporation' shall mean the corporation resulting from the
Business Combination unless, as a result of such Business Combination, an
ultimate parent corporation controls the Company or all or substantially
all of the Company's assets either directly or indirectly, in which case,
'Post-Transaction Corporation' shall mean such ultimate parent
corporation."
SECTION 13. MISCELLANEOUS.
-------------
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to
11
<PAGE>
the extent of any such prohibition, without invalidating the remaining
provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of Louisiana.
(d) All taxes levied against the Trust or its income or assets shall be
paid by the Employers. Notwithstanding the foregoing, the Employers shall not
be liable for any taxes assessed against Plan participants or their
beneficiaries as a result of their coverage under or receipt of benefits from
this Trust.
SECTION 14. ACCEPTANCE BY TRUSTEE.
---------------------
Hibernia National Bank in New Orleans accepts its appointment as Trustee
under the Trust.
Executed this 3rd day of January , 2000 .
------- ------------------ -----------
TIDEWATER INC.
By: /s/ Ken C. Tamblyn
--------------------
Ken C. Tamblyn
Executive Vice President and Chief
Financial Officer
Executed this 7 day of January , 2000.
------- ------------ -----
HIBERNIA NATIONAL BANK
By: /s/ Tracy Mandart
---------------------
12
<PAGE>
A C K N O W L E D G M E N T
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, personally came and appeared Ken
C. Tamblyn, who, being by me sworn, did depose and state that he signed the
foregoing Second Restated Executives' Supplemental Retirement Trust as a free
act and deed on behalf of Tidewater Inc. for the purposes therein set forth.
/s/ Ken C. Tamblyn
----------------------------------
SWORN TO AND SUBSCRIBED BEFORE ME
THIS 3rd DAY OF January , 2000.
------ ------------------- ----
/s/ John C. Duplantier
-----------------------------------------
NOTARY PUBLIC
John C. Duplantier
Notary Public
Duly Commissioned in Orleans Parish, LA
Qualified for the State of La. at Large
My Commission is Issued for Life
13
<PAGE>
A C K N O W L E D G M E N T
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, personally came and appeared
Tracy Mandart, who, being by me sworn, did depose and state that he signed
- -------------
the foregoing Second Restated Executives' Supplemental Retirement Trust as a
free act and deed on behalf of Hibernia National Bank for the purposes therein
set forth.
/s/ Tracy Mandart
----------------------------
SWORN TO AND SUBSCRIBED BEFORE ME
THIS 7th DAY OF Jaunary, 2000.
--- ------- ----
/s/ Robert W. Clark
----------------------------------
NOTARY PUBLIC
Robert Wesley Clark
Notary Public and Attorney
Louisiana
My Commission is For Life
14
<PAGE>
EXHIBIT 15
The Board of Directors and Shareholders
Tidewater Inc.
We are aware of the incorporation by reference in the Registration Statements
(Forms S-8 No. 33-63094, No. 33-38240, No. 333-32729 and No. 333-47687) of
Tidewater Inc. of our report dated January 17, 2000 relating to the unaudited
condensed consolidated interim financial statements of Tidewater Inc. that are
included in its Form 10-Q for the quarter ended December 31, 1999.
Pursuant to Rule 436(c) of the Securities Act of 1933, our report is not a part
of the registration statements prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
Ernst & Young LLP
New Orleans, Louisiana
January 17, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEETS AND THE CONDENSED CONSOLIDATED STATEMENTS
OF EARNINGS AT THE DATE AND FOR THE PERIOD INDICATED AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. ALL AMOUNTS SHOWN ARE IN
THOUSANDS OF DOLLARS, EXCEPT PER SHARE DATA.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-START> APR-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 159,129
<SECURITIES> 0
<RECEIVABLES> 178,200
<ALLOWANCES> 11,853
<INVENTORY> 24,702
<CURRENT-ASSETS> 352,792
<PP&E> 1,420,477
<DEPRECIATION> 845,883
<TOTAL-ASSETS> 1,404,550
<CURRENT-LIABILITIES> 62,920
<BONDS> 0
0
0
<COMMON> 6,056
<OTHER-SE> 1,097,648
<TOTAL-LIABILITY-AND-EQUITY> 1,404,550
<SALES> 435,246
<TOTAL-REVENUES> 435,246
<CGS> 382,260
<TOTAL-COSTS> 382,260
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 449
<INCOME-PRETAX> 77,324
<INCOME-TAX> 19,744
<INCOME-CONTINUING> 57,580
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 57,580
<EPS-BASIC> $ 1.04
<EPS-DILUTED> $ 1.03
</TABLE>
