CHANGE IN CONTROL
AGREEMENT
THIS AGREEMENT
is made as of the 1st day of April, 2009 by and between McDermott
International, Inc., a corporation duly organized under the laws of
the Republic of Panama (the “Company”) and Stephen M.
Johnson (“Executive”.)
In
consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
|
|
Obligations of
the Company Upon Termination of Executive After Change In
Control.
|
Following the
Effective Date of a Change In Control, in the event
Executive’s employment by the Company is terminated before
the one-year anniversary of the Effective Date of a Change In
Control either (i) by the Company for any reason other than Cause,
or (ii) by the Executive for Good Reason, then subject to the
provisions of paragraph (b) below, the Company shall:
|
|
Pay to the
Executive within thirty days after the date of termination of
Executive’s employment (or such earlier time as may be
required by law) the Accrued Benefits;
|
|
|
In the event
that a bonus is paid after the date of Executive’s
termination of employment under the Company’s Executive
Incentive Compensation Plan (“EICP”) for the year prior
to the year in which the termination takes place (the
“Measurement Period”), pay to the Executive in a lump
sum, at the same time such bonus is paid to other EICP
participants, a cash bonus equal to the product of the multiplier
used for Executive’s position during the Measurement
Period and Executive’s annual base salary for the
Measurement Period.
|
|
|
Pay to
Executive in a lump sum in cash within thirty days after the date
of termination of Executive’s employment a payment equal to
the product of Executive’s target bonus under EICP as in
effect immediately prior to the date of termination and a fraction,
the numerator of which is the number of days that have elapsed in
the year in which the termination takes place through the date of
termination of Executive’s employment and the denominator of
which is 365.
|
|
|
Pay to
Executive in a lump sum in cash as soon as administratively
practicable after the date of termination of Executive’s
employment 200% of the sum of (1) Executive’s annual base
salary as in effect immediately prior to the date of termination of
Executive’s employment, and (2) Executive’s target
bonus under EICP as in effect immediately prior to the date of
termination.
|
|
|
Pay to
Executive in a lump sum in cash within thirty days after the date
of termination of Executive’s employment a payment equal to
two times the full annual cost of coverage for medical, dental and
vision benefits provided to Executive and Executive’s covered
dependents by Company for the year in which Executive’s
termination takes place.
|
|
|
Participation
In Other Company Programs.
|
Nothing in this
Agreement shall prevent or limit Executive’s continuing or
future participation in any plan, program, policy or practice
provided by the Company for which Executive may qualify, nor,
subject to paragraph (d) of Section X, shall anything herein limit
or otherwise affect such rights as Executive may have under any
contract or agreement with the Company. Amounts which
are vested benefits or which Executive is otherwise entitled to
receive under any plan, policy, practice or program of or any
contract or agreement with the Company at or subsequent to the date
of termination of Executive’s employment shall be payable in
accordance with such plan, policy, practice or program or contract
or agreement except as explicitly modified by this
Agreement. Notwithstanding the foregoing, it is
expressly understood and acknowledged by Executive that any payment
by the Company under Section I hereof shall be in lieu of any
obligation on the part of the Company for payment of severance
benefits under the Severance Plan for Employees of McDermott
Incorporated and Participating Subsidiary and Affiliated Companies
or any successor thereto or any other plan, policy or agreement of
the Company in the event of termination of Executive’s
employment as provided in Section I hereof with the Company during
the one-year period following the Effective Date of a Change In
Control.
|
|
Confidential
and Proprietary Information.
|
Executive
acknowledges and agrees that any and all non-public information
regarding the Company, any of its Subsidiaries and its or their
customers (including but not limited to any and all information
relating to its or their business practices, products, services,
finances, management, strategy, profits and overhead) is
confidential and the unauthorized disclosure of such confidential
information will result in irreparable harm to the
Company. Executive shall not, during his employment by
the Company or any of its Subsidiaries and for a period of five
years after termination of such employment (or such shorter period
as may be required by law), disclose or permit the disclosure of
any such confidential information to any person other than an
employee or director of the Company or its Subsidiaries or any
successor thereto or an individual engaged by the Company or its
Subsidiaries or any successor thereto to render professional
services to the Company or its Subsidiaries under circumstances
that require such person to maintain the confidentiality of such
information, except as such disclosure may be required by
law. The provisions of this Section III shall survive
any termination of this Agreement. For purposes of this
Section III, the term “confidential information” shall
not include information that was or becomes generally available to
the public other than as a result of disclosure by
Executive. Executive acknowledges that the execution of
this Agreement and the payments described in Section I herein
constitute consideration for the limitations on activities set
forth in this Section III, the adequacy of which is hereby
expressly acknowledged by Executive. Executive
understands and agrees that the Company shall suffer irreparable
harm if Executive breaches Section III hereof, and that monetary
damages shall be inadequate to address any such
breach. Accordingly, Executive agrees that the Company
shall have the right, to the extent permitted by applicable law,
and in addition to any other rights or remedies it may have, to
obtain from any court of competent jurisdiction, injunctive relief
to restrain any breach or threatened breach hereof or otherwise to
specifically enforce the provisions hereof.
All notices and
other communications provided for by this Agreement shall be in
writing and shall be deemed to have been duly given when (a)
delivered by hand, (b) sent by facsimile or email to the facsimile
number or email address given below, provided that a copy is also
sent by a nationally recognized overnight delivery service, (c) the
day after being sent by a nationally recognized overnight delivery
service, or (d) three days after being mailed by United States
Certified Mail, return receipt requested, postage prepaid,
addressed as follows:
If to
Executive: Stephen
M. Johnson
15200 Memorial,
Apartment 1806
Email: smjohnson@mcdermott.com
If to the
Company: McDermott
International, Inc.
Senior Vice President, Human
Resources
Email: pjohnsonjr@mcdermott.com
or to such
other address as any party may have furnished to the other in
writing in accordance with this Agreement.
The provisions
of this Agreement shall be interpreted and construed in accordance
with, and enforcement may be made under, the law of the State of
Texas without reference to principles of conflict of
laws.
|
|
This Agreement
is personal to Executive and, without the prior written consent of
the Company, shall not be assignable by Executive otherwise than by
will or the laws of descent and distribution.
|
|
|
This Agreement
shall be binding upon and shall inure to the benefit of the Company
and its successors and assigns.
|
|
|
The Company
will require that any successor to all or substantially all of its
business and/or assets (whether such successor acquires such
business and/or assets directly or indirectly, and whether by
purchase, merger, consolidation or otherwise) expressly assume and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement,
“Company” shall mean the Company as herein defined and
any successor to its business and/or assets.
|
|
|
Employment by
Subsidiaries.
|
If Executive is
not employed by McDermott International, Inc., but is only employed
by one or more Subsidiaries of McDermott International, Inc., then
(a) the “Company” as defined herein shall be deemed to
include such Subsidiary or Subsidiaries, and (b) termination of
employment shall be determined with reference to Executive’s
employment by all such Subsidiaries. Further, the
Company agrees that it will perform its obligations hereunder
without regard to whether Executive is employed by the Company or
by a Subsidiary or Subsidiaries of the Company.
If any
provision or portion of this Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining provisions
of this Agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by applicable
law.
|
|
Entire
Agreement; Amendment.
|
This Agreement
sets forth the entire Agreement of the parties hereto and
supersedes all prior agreements, understandings and covenants
between the parties with respect to the subject matter
hereof. Except as provided in Section X, paragraphs (d)
and (f) or Section XI, this Agreement may be amended or terminated
only by mutual agreement of the parties in writing.
|
|
The captions
and headings of this Agreement are not part of the provisions
hereof and shall have no force or effect.
|
|
|
The Company
shall be entitled to withhold from any amounts payable under this
Agreement such Federal, state, local, foreign or excise taxes as
shall be required or permitted to be withheld pursuant to any
applicable law or regulation.
|
|
|
Executive’s or the Company’s failure
to insist upon strict compliance with any provision of this
Agreement or the failure to assert any right Execu
|
|
