Form of
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is entered
into effective as of the 14th day of October, 2009 (the
“Effective Date”) by and between GulfMark Americas,
Inc., a Delaware corporation (the “Company”), and
Quintin V. Kneen (the “Executive”).
WHEREAS ,
the Company wishes to assure itself of the continued services of
the Executive for the period provided in this Agreement, and the
Executive wishes to serve in the employ of the Company on the terms
and conditions hereinafter provided; and
WHEREAS,
it is in the best interests of the Company and its shareholders to
assure that the Company will have the continued attention and
dedication of the Executive to his assigned duties without
distraction in potentially disturbing circumstances arising from
the possibility of a Change of Control (as defined in
Section 1 below) of GulfMark Offshore, Inc., a Delaware
corporation (“Parent”), which is the sole shareholder
of the Company; and
WHEREAS,
it is imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created
by a pending or threatened Change of Control and to encourage the
Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of
Control; and
WHEREAS,
it is imperative to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that
the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other
corporations.
NOW,
THEREFORE, in order to accomplish these objectives, and in
consideration of the mutual covenants and agreements set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
1.
Certain Definitions . For the purposes of this
Agreement, the following terms shall have the meanings indicated
below:
“Accrued
Obligation” shall mean the sum of (1) the
Executive’s Annual Base Salary earned through the Date of
Termination for periods through but not following his Separation
From Service and (2) any accrued vacation pay earned by the
Executive, in both cases, to the extent not theretofore
paid.
“Benefit
Obligation” shall mean all vested benefits to which the
Executive is entitled under the terms of the Company’s
employee benefit plans and compensation arrangements in which the
Executive is a participant as of the Date of
Termination.
“Board”
shall mean the Board of Directors of Parent.
“Change of
Control” shall mean the occurrence of any one or more of the
following:
(a)
Change in Board Composition . Individuals who constitute the
members of the Board as of the date hereof (the “Incumbent
Directors”), cease for any reason to constitute at least a
majority of members of the Board; provided that any individual
becoming a director of the Parent subsequent to the date hereof
shall be considered an Incumbent Director if such
individual’s appointment, election or nomination was approved
by a vote of at least 50% of the Incumbent Directors; provided
further that any such individual whose initial assumption of office
is in connection with an actual or threatened election contest
relating to the election of members of the Board or other actual or
threatened solicitation of proxies or contests by or on behalf of a
“person” (within the meaning of Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) other than the Board, including by
reason of agreement intended to avoid or settle any such actual or
threatened contest or solicitation, shall not be considered an
Incumbent Director;
(b)
Business Combination . Consummation of (i) a
reorganization, merger, consolidation, share exchange or other
business combination involving the Parent or any of its
subsidiaries or the disposition of all or substantially all the
assets of the Parent, whether in one or a series of related
transactions, or (ii) the acquisition of assets or stock of
another entity by the Parent (either, a “Business
Combination”), excluding, however, any Business Combination
pursuant to which: (A) individuals who were the
“beneficial owners” (as such term is defined in
Rule 13d-3 under the Exchange Act), respectively, of the then
outstanding shares of common stock of the Parent (the
“Outstanding Stock”) and the combined voting power of
the then outstanding securities entitled to vote generally in the
election of directors of the Parent (the “Outstanding Parent
Voting Securities”) immediately prior to such Business
Combination beneficially own, upon consummation of such Business
Combination, directly or indirectly, more than 50% of the then
outstanding shares of common stock (or similar securities or
interests in the case of an entity other than a corporation) and
more than 50% of the combined voting power of the then outstanding
securities (or interests) entitled to vote generally in the
election of directors (or in the selection of any other similar
governing body in the case of an entity other than a corporation)
of the Surviving Corporation (as defined below) in substantially
the same proportions as their ownership of the Outstanding Stock
and Outstanding Parent Voting Securities, immediately prior to the
consummation of such Business Combination (that is, excluding any
outstanding voting securities of the Surviving Corporation that
such beneficial owners hold immediately following the consummation
of the Business Combination as a result of their ownership prior to
such consummation of voting securities of any company or other
entity involved in or forming part of such Business Combination
other than the Parent); (B) no person (other than the Parent,
any subsidiary of the Parent, any employee benefit plan of the
Parent or any of its subsidiaries or any trustee or other fiduciary
holding securities under an employee benefit plan of the Parent or
any subsidiary of the Parent) or group (as such term is defined in
Rule 13d-3 under the Exchange Act) becomes the beneficial
owner of 20% or more of either (x) the then outstanding shares
of common stock (or similar securities or interests in the case of
entity other than a corporation) of the Surviving Corporation, or
(y) the combined voting power of the then outstanding
securities (or interests) entitled to vote generally in the
election of directors (or in the selection of any other similar
governing body in the case of an entity other than a corporation);
and (C) individuals who were Incumbent Directors at the time
of the execution of the initial agreement or of the action of the
Board providing for such Business Combination constitute at least a
majority of the members of the board of directors (or of any
similar governing body in the case of an entity other than a
corporation) of the Surviving
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Corporation;
where for purposes of this subsection (b), the term
“Surviving Corporation” means the entity resulting from
a Business Combination or, if such entity is a direct or indirect
subsidiary of another entity, the entity that is the ultimate
parent of the entity resulting from such Business
Combination;
(c) Stock
Acquisition . Any person (other than the Parent, any subsidiary
of the Parent, any employee benefit plan of the Parent or any of
its subsidiaries or any trustee or other fiduciary holding
securities under an employee benefit plan of the Parent or any
subsidiary of the Parent) or group becomes the beneficial owner of
20% or more of either (x) the Outstanding Stock or
(y) the Outstanding Parent Voting Securities; provided,
however, that for purposes of this subsection (c), no Change of
Control shall be deemed to have occurred as a result of any
acquisition directly from the Parent; or
(d)
Liquidation . Approval by the stockholders of the Parent of
a complete liquidation or dissolution of the Parent (or, if no such
approval is required, the consummation of such a liquidation or
dissolution).
“Code”
shall mean the Internal Revenue Code of 1986, as
amended.
“Company
401(k) Plan” means the GulfMark Offshore, Inc. 401(k) Plan or
any successor plan established by the Company.
“Executive
Deferred Compensation Plan” means the Nonqualified Excess
Plan of GM Offshore, Inc. or any successor plan established by the
Company.
“Section 409A”
shall mean section 409A of the Code and the final Department of
Treasury regulations issued thereunder.
“Separation
From Service” shall have the meaning ascribed to such term in
Section 409A.
“Specified
Employee” shall have the meaning ascribed to such term in
Section 409A taking into account any elections made and
procedures established in resolutions adopted by the Compensation
Committee of the Board of Directors of the Company.
2.
Employment Period . The Company hereby agrees to continue
the Executive in its employ, and the Executive hereby agrees to
remain in the employ of the Company, in accordance with the terms
and provisions of this Agreement, for the period commencing on the
Effective Date and ending on December 31, 2010 (the
“Term”); provided, however, that on such ending date
and on each anniversary thereafter, the Term of this Agreement
shall automatically be extended for one additional year unless
either party shall have given notice at least 120 days prior
thereto that such party does not wish to extend the
Term.
3. Terms
of Employment . The following terms shall govern the
Executive’s employment during the Term:
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(i) During
the Term, the Executive shall be employed as the Executive Vice
President-Finance and Chief Financial Officer of the Company with
corresponding authority, duties and responsibilities.
(ii) During
the Term, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder,
to use the Executive’s reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the Term,
it shall not be a violation of this Agreement for the Executive to
serve on corporate, civic or charitable boards or committees,
deliver lectures, fulfill speaking engagements, teach at
educational institutions, and manage personal investments, so long
as such activities do not significantly interfere with the
performance of the Executive’s responsibilities as an
employee of the Company in accordance with this Agreement. It is
expressly understood and agreed that to the extent that any such
activities have been conducted by the Executive prior to the
Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Executive’s
responsibilities to the Company.
(b) Compensation.
During the Term, and prior to the termination of the
Executive’s employment as described in Section 4 or 5
hereof, the Executive shall be entitled to the following items of
compensation:
(i) Base
Salary. During the Term, the Executive shall receive an annual base
salary (“Annual Base Salary”), which shall be paid in
equal installments on a semi-monthly basis (less applicable
withholding and salary deductions), of $285,000.00. Any
discretionary increase in Annual Base Salary during the Term shall
not serve to limit or reduce any other obligation to the Executive
under this Agreement. Annual Base Salary shall not be reduced after
any such increase, and the term “Annual Base Salary” as
utilized in this Agreement shall refer to Annual Base Salary as so
increased.
(ii) Annual
Bonus. During the Term, the Executive shall receive, for each
fiscal year of the Company ending during the Term, an annual bonus
(the “Annual Bonus”), which shall be paid in cash
within 2 1
/ 2 months
after the end of each fiscal year for which the Annual Bonus is
awarded, in an amount to be determined in accordance with the
GulfMark Offshore, Inc. Incentive Compensation Plan (or any
applicable successor plan). Any discretionary increase in the
Annual Bonus during the Term shall not serve to limit or reduce any
other obligation to the Executive under this Agreement.
(iii) Incentive,
Savings and Retirement Plans. During the Term, the Executive shall
be entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated companies.
As used in this Agreement, the term “affiliated
companies” shall include any company controlled by,
controlling or under common control with the Company.
(iv) Welfare
Benefit Plans. During the Term, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and welfare benefit programs
provided
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by the Company
and its affiliated companies (including, without limitation,
medical, supplemental health, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) in accordance with
such welfare benefit plans and welfare benefit programs to the
extent applicable generally to other peer executives of the Company
and its affiliated companies.
(v) Expenses.
During the Term, the Executive shall be entitled to receive prompt
reimbursement for all reasonable out-of-pocket employment expenses
incurred by the Executive in accordance with the policies,
practices and procedures of the Company and its affiliated
companies in effect with respect to other peer executives of the
Company and its affiliated companies. The amount of such expenses
eligible for reimbursement during the Executive’s taxable
year shall not affect such expenses eligible for reimbursement in
any other taxable year of the Executive. The Executive’s
right to such reimbursement shall not be subject to liquidation or
exchange for another benefit.
(vi) Vacation.
During the Term, and subject to the following provisions of this
paragraph, the Executive shall be entitled to four (4) weeks
paid vacation at the beginning of each fiscal year of the Company.
Such vacations shall be taken at such times as are consistent with
the reasonable business needs of the Company.
(vii) Club
Membership. During the Term, the Company will pay all reasonable
periodic dues for membership in a club to be selected by the
Executive. The amount of club membership expenses eligible for
reimbursement under this Section 3(b)(vii), or to be paid
directly to the club, during the Executive’s taxable year
shall not affect such expenses eligible for reimbursement, or
direct payments to the club to be provided, in any other taxable
year of the Executive. The Executive’s right to reimbursement
or direct payments to the club pursuant to this
Section 3(b)(vii) shall not be subject to liquidation or
exchange for another benefit.
(viii) Office
and Support Staff. During the Term, the Executive shall be entitled
to an office or offices of a size and with furnishings and other
appointments, and to secretarial and other assistance, at least
equal to the most favorable of the foregoing provided to other peer
executives of the Company and its affiliated companies.
(ix) Benefits
Not in Lieu of Compensation. No benefit or perquisite provided to
the Executive shall be deemed to be in lieu of the
Executive’s Annual Base Salary, Annual Bonus or other
compensation.
4.
Termination of Employment .
(a) Death
or Disability . The Executive’s employment shall
terminate automatically upon the Executive’s death during the
Term. If the Company determines in good faith that the Disability
of the Executive has occurred during the Term (pursuant to the
definition of Disability set forth below), it may give to the
Executive written notice in accordance with Section 17(b) hereof of
its intention to terminate the Executive’s employment. In
such event, the Executive’s employment with the Company shall
terminate effective on the 30th day after receipt of such notice by
the Executive (the “Disability Date”), provided that,
within the 30 days after such receipt, the Executive shall not
have returned to full-time performance of the Executive’s
duties. For purposes of this Agreement, “Disability”
shall mean the absence of the Executive from the
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Executive’s duties with the Company on a
full-time basis for 180 consecutive days as a result of incapacity
due to mental or physical illness which is determined to be total
and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive’s
legal representative (such agreement as to acceptability not to be
withheld unreasonably).
(b)
Termination by the Company for Cause . The Company may
terminate the Executive’s employment during the Term for
Cause. For purposes of this Agreement, “Cause” shall
mean (i) the willful and continued failure by the Executive to
substantially perform his duties as an employee of the Company
(other than any such failure resulting from incapacity due to
physical or mental illness), which failure is not cured to the
Board’s satisfaction within a reasonable period after written
notice thereof to Executive, (ii) the Executive being
convicted of or a plea of nolo contendere to the charge of a felony
(other than a felony involving a traffic violation or as a result
of vicarious liability), (iii) the commission by the Executive
of a material act of dishonesty or breach of trust resulting or
intending to result in personal benefit or enrichment to the
Executive at the expense of the Company, or (iv) an
unauthorized absence from employment that is not cured to the
Board’s satisfaction within five (5) days after written
notice thereof to Executive. For purposes of this paragraph, no
act, or failure to act, on the Executive’s part shall be
considered “willful” unless done, or omitted to be
done, by him not in good faith and without reasonable belief that
his action or omission was not in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for Cause unless and until there shall have
been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire
authorized membership of the Board at a meeting of the Board (after
reasonable notice and an opportunity for the Executive, together
with counsel, to be heard before the Board) finding that in the
good faith opinion of the Board the Executive was guilty of conduct
set forth in clauses (i), (ii), (iii) or (iv) of the
second sentence of this paragraph and specifying the particulars
thereof in detail.
(c)
Voluntary Termination by Executive for Good Reason . The
Executive’s employment may be terminated during the Term by
the Executive for Good Reason. For purposes of this Agreement,
“Good Reason” shall mean:
(i) the
assignment to the Executive of any position, authority, duties or
responsibilities inconsistent in any respect with the
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 3(a) or any removal of the Executive from
or failure to re-elect the Executive to any of such positions or
any other actions by the Company which results in a diminution in
such position, authority, duties or responsibilities (except in
connection with the termination of the Executive’s employment
for Cause, Disability or retirement or as a result of the
Executive’s death or by the Executive other than for Good
Reason), excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
(ii) a
material breach of this Agreement by the Company, provided the
Executive gives the Company written notice of the occurrence of the
breach which specifically identifies the manner in which the
Executive believes that the breach has occurred and which is
delivered to the Company within a reasonable period (but in no
event more than 30 days) after
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the Executive
has knowledge of the events asserted to give rise to the breach,
and the Company fails to correct such breach within a reasonable
period (but in no event more than 30 days) after receipt of
such notice;
(iii) relocation
of the Executive’s primary work location, without the
Executive’s consent, to a location more than 75 miles from
the Executive’s primary work location as of the Effective
Date;
(iv) in
connection with, as a result of, or within one year following, a
Change of Control, the assignment to the Executive of any duties or
responsibilities which are substantially diminished as compared to
the Executive’s duties and responsibilities immediately prior
to a Change of Control or a material change in the
Executive’s reporting responsibilities, titles or offices as
an executive and as in effect immediately prior to the Change of
Control; or
(v) in
connection with, as a result of, or within one year following, a
Change of Control, the giving of notice to the Executive that the
Term shall not be extended.
For purposes of
this Section 4(c), any good faith determination of “Good
Reason” made by the Executive shall be conclusive.
(d)
Termination during a Change in Control Termination Period .
For purposes of this Agreement, “Change in Control
Termination Period” means the period beginning on the six
(6) month anniversary of a Change of Control and ending on the
twelve (12) month anniversary of such Change of Control. If
the Executive’s employment terminates during a Change in
Control Termination Period due to death or Disability, such
termination of employment shall be treated as a termination under
paragraph (a) next above.
(e)
Retirement . The Executive may voluntarily terminate his
employment for Retirement. For purposes of this Agreement,
“Retirement” means the Executive’s voluntary
termination of employment with the Company or any affiliated
company, other than for Good Reason, on or after the
Executive’s attainment of age 62 and not becoming employed by
any person or entity that is engaged in the same or similar line of
business as that of the Company or an affiliated company as
determined in the sole and absolute discretion of the Board of
Directors of the Company.
(f)
Notice of Termination . Any termination by the Company for
Cause, or by the Executive for Good Reason or during a Change in
Control Termination Period, shall be communicated by Notice of
Termination to the other party hereto given in accordance with
Section 17(b). For purposes of this Agreement, a “
Notice of Termination ” means a written notice which
(i) indicates the specific termination provision in this Agreement
relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the
provision so indicated, and (iii) if the Date of
Termination(as defined below) is other than the date of receipt of
such notice, specifies the termination date (which date shall be
not more than 15 days after the giving of such notice). The
failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the
Executive or the Company hereunder or preclude the Executive or
the
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Company from
asserting such fact or circumstance in enforcing the
Executive’s or the Company’s rights
hereunder.
(g) Date
of Termination . “ Date of Termination ”
means (i) if the Executive’s employment is terminated by
the Company for Cause, or by the Executive for Good Reason, or for
Retirement, the date of receipt of the Notice of Termination or any
later date specified therein, as the case may be, (ii) if the
Executive’s employment is terminated by the Company other
than for Cause or Disability, the Date of Termination shall be the
date on which the Company notifies the Executive of such
termination, and (iii) if the Executive’s employment is
terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the
Disability Date, as the case may be.
5.
Obligations of the Company upon Terminat
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