EXHIBIT 10.4
AMENDED AND
RESTATED
CHANGE OF CONTROL
AGREEMENT
This is an amendment and restatement
dated effective as of June 1, 2008 (the “Effective
Date”) of the Change of Control Agreement (the
“Agreement”) between Tidewater Inc., a Delaware
corporation (the “Company”), and Jeffrey M. Platt (the
“Employee”) dated effective as of November 20,
2003, as previously amended effective July 7, 2006.
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 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
(b) individuals who, as of the
Effective 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 Effective 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
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(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 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
Effective 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 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 with the
Post-Transaction Corporation.
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(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.
1.10 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.
1.11 Section 409A .
“Section 409A” shall mean Section 409A of the Code
and all regulations and guidance issued thereunder.
1.12 Specified Employee .
“Specified Employee” shall mean the Employee if the
Employee is a key employee under Code Section 409A(a)(2)(B)
and Treasury Regulations Section 1.409A-1(i) because of action
taken by the Board, its Compensation Committee, or by operation of
law or such regulation.
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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 or following a Change of Control of the
Company, as defined therein, and is effective as of the Effective
Date.
ARTICLE III
CHANGE OF CONTROL
BENEFIT
3.1 Employment Term and Capacity
after Change of Control . (a) This Agreement shall
commence on the Effective Date and continue in effect through
December 31, 2008; provided, however, that commencing on
January 1, 2009 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. 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
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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 two and one half months following
the end of the fiscal year for which the Bonus is awarded, unless
the Employee shall elect to defer the receipt of such Bonus in
accordance with Section 409A.
(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 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 other than the
Tidewater Pension Plan, 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
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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, 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
