AMENDED AND RESTATED EMPLOYMENT AGREEMENT - WILLIAM E. CHILES

 

Exhibit 10.1

William E. Chiles

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

     This Amended and Restated Employment Agreement (this “Agreement”) by and between Bristow Group Inc., a Delaware corporation f/k/a Offshore Logistics, Inc. (the “Company”) and William E. Chiles, an individual (the “Executive”), is entered into this 6th day of June, 2006, but effective as of the 21st day of June, 2004 (the “Effective Date”). Except as otherwise provided herein, capitalized terms used herein shall have the meaning specified in Section 10.

     WHEREAS, the Company and the Executive entered into an Employment Agreement and a Change of Control Employment Agreement (the “Original Agreements”) both dated as of the Effective Date, providing for the Executive’s employment as the Company’s President and Chief Executive Officer, and setting forth the terms and conditions for such employment; and

     WHEREAS, the Company and the Executive desire to amend and restate the Original Agreements to provide for certain changes to the terms and conditions of the Executive’s employment by the Company, as reflected in this Agreement.

     NOWTHEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Company and the Executive agree as follows:

     1. Employment, Duties and Acceptance.

     (a) Employment Period.

     (i) The Company hereby agrees to employ the Executive for a term commencing on the Effective Date and expiring at the end of the day on July 15, 2007 (the “Initial Employment Period”).

     (ii) The Initial Employment Period shall be automatically further extended at the end of the Initial Employment Period and on each anniversary thereafter (each such date being a “Renewal Date”), so as to terminate one (1) year from such Renewal Date, unless at least ninety (90) days prior to a Renewal Date either Party gives a written notice (a “Notice of Non-Renewal”) to the other Party that the Employment Period should not be further extended after the next Renewal Date, in which event the end of the term of the Executive’s employment by the Company shall be the Renewal Date next following such Notice of Non-Renewal. As used in this Agreement, the “Employment Period” shall mean the period beginning on the Effective Date and ending on the expiration of the term of the Executive’s employment with the Company pursuant to this Section 1(a), subject to earlier termination of the Executive’s employment with the Company pursuant to Section 3 hereof.

     (iii) Notwithstanding the foregoing provisions of this Section 1(a), if a Change of Control Effective Date (as defined in Section 10(j) hereof) occurs during the

 


 

Employment Period, then the Employment Period shall extend to include and shall terminate at the end of the Change of Control Period, subject to earlier termination pursuant to Section 3 hereof, and the Employment Period shall no longer be subject to extension on the Renewal Date.

     (b) Position. From the Effective Date through July 14, 2004, the Executive shall be employed as a non-officer employee of the Company. From and after July 15, 2004 and during the remainder of the Employment Period, the Executive shall serve in the position shown on Exhibit A. Executive shall also serve in those offices and directorships of subsidiary corporations or entities of the Company to which the Executive may from time to time be appointed or elected. During the Employment Period, the Executive shall devote substantially all of the Executive’s business time, energy and talents to the Company and its Affiliated Group. During the Employment Period, it shall not be a violation of this Agreement for the Executive, subject to the requirements of Section 5, to (A) serve on corporate, civic or charitable boards or committees, provided that written approval of the Board is required for service on any corporate board, (B) deliver lectures or fulfill speaking engagements and (C) manage personal investments, so long as such activities do not interfere with the performance of the Executive’s responsibilities to the Company or violate any Company policies.

     (c) Location of Services. The Executive’s principal location of employment shall be at the Company offices shown on Exhibit A; provided, that the Executive will be required to travel frequently outside of the applicable principal location of employment in connection with the performing the Executive’s duties under this Agreement.

     (d) Duties. The Executive agrees that during the Employment Period, the Executive shall perform the duties as shown on Exhibit A. During any Change of Control Period, the Executive’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 to the Executive at any time during the 120-day period immediately preceding the Change of Control Effective Date.

     (e) Acceptance of Employment by the Executive. The Executive hereby accepts such employment and shall render the services and perform the duties described above.

     2. Compensation and Benefits.

     (a) Base Salary. During the Employment Period, the Executive shall receive an annualized base salary (“Annual Base Salary”) at the rate and Grade Level shown on Exhibit A, payable semi-monthly or such other payroll period pursuant to the Company’s normal payroll practices for its senior executives. The current Annual Base Salary shall be reviewed at such time as the salaries of other senior executives of the Company are reviewed generally, provided, that the Executive’s reviews shall occur at least annually and may be increased and decreased, but not decreased below the base level of $486,200, from and after June 6, 2006 and during the remainder of the Employment Period. All such reviews shall consider factors the Company deems material, including, but not limited to: (i) market benchmarking; (ii) increases in cost of living; (iii) Executive’s job performance; and (iv) overall Company performance. During any Change of Control Period, the Annual Base Salary shall be at least equal to 12 times the highest

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monthly base salary paid or payable, including any base salary which has been earned but deferred, to the Executive by the Company and the Affiliated Group in respect of the 12-month period immediately preceding the month in which the Change of Control Effective Date occurs. During any Change of Control Period, (x) Annual Base Salary shall not be reduced, and (y) the term “Annual Base Salary” as utilized in this Agreement shall refer to Annual Base Salary as determined pursuant to the foregoing subpart (x).

     (b) Annual Bonus. For each fiscal year completed during the Employment Period, the Executive shall be eligible to receive an annual cash bonus (“Annual Bonus”) based upon performance targets that are established by the Committee, provided that the Executive’s target Annual Bonus shall be as shown on Exhibit A as a percentage of the Executive’s Annual Base Salary (the “Target Bonus”), and the maximum Annual Bonus shall be as shown on Exhibit A as a percentage of the Executive’s Annual Base Salary. If the beginning of the Employment Period does not coincide with the beginning of the Company’s fiscal year, the Annual Bonus will be pro-rated for the first fiscal year during the Employment Period. Annual performance metrics will be set by the Committee based upon objective performance criteria of the Company, such as earnings per share and return on capital employed, as well as individual performance and, with respect to the Company’s first fiscal year ending after the Effective Date, pursuant to the provisions of the Annual Incentive Compensation Plan for such fiscal year. During any Change of Control Period, the Executive shall be awarded, for each fiscal year ending during the Change of Control Period, an Annual Bonus in cash at least equal to the Recent Annual Bonus. Each such Annual 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 Annual Bonus is awarded, unless the Executive shall elect to defer the receipt of such Annual Bonus.

     (c) Stock Option Grant. In connection with the Original Agreements, the Company granted to the Executive stock options pursuant to the Incentive Plan to purchase the number of shares of the Company’s common stock as shown on Exhibit A (the “Stock Options”). The Stock Options have a per share exercise price equal to the closing price of a share of common stock of the Company on the date of grant, have a ten-year term, and vest in three annual installments on each of the first three anniversaries of the Effective Date, with 33% of the Stock Options vesting on each of first two anniversaries of the Effective Date, and the remaining 34% vesting on the third anniversary of the Effective Date, provided in each case that the Executive remains in the employ of the Company through such date. Except as specifically provided herein, the terms and conditions of the Stock Options shall be subject to the terms of the Incentive Plan and the award agreement evidencing the grant. During the Employment Period, the Executive may receive such additional Awards (as defined in the Incentive Plan), if any, pursuant to the Incentive Plan as may be determined, from time to time, by the Committee.

     (d) Performance Accelerated Restricted Stock Unit Grant. In connection with the Original Agreements, the Company granted to the Executive pursuant to the Incentive Plan, the number of Performance Accelerated Restricted Stock Units as shown on Exhibit A (the “Restricted Shares”). The Restricted Shares will vest five years after the Effective Date, so long as Executive has been continuously employed by the Company and the Company’s annualized total shareholder return (as defined in the award agreement) is at least 3% during the entire vesting period. Vesting of the Restricted Shares will be accelerated if the Company’s annualized total shareholder returns during such vesting period reach certain thresholds provided in the

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award agreement evidencing the grant of the Restricted Shares (which thresholds shall be consistent with those provided in awards to other senior executives of the Company) and under the circumstances described in Section 3(e). Except as specifically provided herein, the terms and conditions of the Restricted Shares shall be subject to the terms of the Incentive Plan and the award agreement evidencing the grant.

     (e) Deferred Compensation. As soon as reasonably practicable after December 31 of each year during the Employment Period the Company will credit an amount equal to the percentage shown on Exhibit A of the aggregate cash paid by the Company to Executive as Annual Base Salary and Annual Bonus for the calendar year ended December 31 (less Company contributions to qualified plans) into a Company deferred compensation plan (the Offshore Logistics, Inc. Deferred Compensation Plan Effective: January 1, 2004, as amended from time to time), which will be subject to the vesting schedule set forth in such plan. In the event that legislation implemented subsequent to the date of this Agreement causes the deferrals contemplated hereby not to be respected for tax purposes, such amounts shall be paid to the Executive in the year of accrual on December 31st of each such year (conditioned on the Executive’s continued employment on such date), on a fully taxable basis, and without adjustment for tax impact.

     (f) Employee Benefits. From and after July 15, 2004 and during the Employment Period, the Executive (subject to applicable law and regulation) shall be eligible for participation in the Company health and medical, welfare, retirement (including the Offshore Logistics, Inc. Employee Savings and Retirement Plan, as amended from time to time), non-qualified deferred compensation, perquisite, fringe benefit, and other benefit plans, practices, policies and programs, as may be in effect from time to time, for executives of the Company generally; provided, that, except as otherwise provided in this Agreement, the Executive shall not be eligible for any Company severance benefit plans, practices, policies and programs. If the Executive is a new employee of the Company, the Company agrees to reimburse the Executive for all costs of coverage provided pursuant to COBRA for medical insurance for Executive and the Executive’s immediate family for the period beginning on the Effective Date and ending on the date Executive first becomes eligible for coverage under the Company health and medical plan. In addition, as soon as reasonably practicable after execution and delivery of this Agreement by the Company and the Executive, subject to the Executive becoming eligible for coverage under the Company health and medical plan, the Company shall provide to the Executive and continue during the Employment Period a Company-paid portable, 10-year term life insurance policy covering the Executive’s life in the amount of $3 million with death benefits payable to the Executive’s designated beneficiaries. The Executive shall cooperate with the Company in applying for such coverage, including submitting to a physical exam and providing all relevant health and personal data. During any Change of Control Period, in no event shall the benefits described in this Section 2(f) provide the Executive with benefits that are less favorable, in the aggregate, than the most favorable of such benefits in effect for the Executive at any time during the 120-day period immediately preceding the Change of Control Effective Date or, if more favorable to the Executive, those provided generally at any time after the Change of Control Effective Date to other peer executives of the Company and the Affiliated Group.

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     (g) Expenses. During the Employment Period, the Executive shall be eligible for prompt reimbursement for business expenses reasonably incurred by the Executive in accordance with the policies of the Company as may be in effect from time to time for Company executives generally, including, but not limited to, any club and professional dues and required continuing education and licensing fees as shown on Exhibit A.

     (h) Vacation. During the Employment Period, the Executive shall be eligible for paid vacation at the rate of the number of weeks per year shown on Exhibit A in accordance with the policies of the Company.

     (i) Company Automobile. From and after July 15, 2004 and during the Employment Period, the Company shall provide the Executive with an automobile allowance as shown on Exhibit A to be used by Executive to acquire, maintain and operate an automobile which Executive may use for business purposes during the Employment Period.

     (j) Office and Support Staff. During any Change of Control Period, the Executive shall be entitled to an office or offices of a size and with furnishings and other appointments, and to exclusive personal secretarial and other assistants, at least equal to the most favorable of the foregoing provided to the Executive by the Company and the Affiliated Group at any time during the 120-day period immediately preceding the Change of Control Effective Date or, if more favorable to the Executive, as provided generally at any time thereafter with respect to other peer executives of the Company and the Affiliated Group.

     3. Termination of Employment.

     (a) Death or Disability. The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. If the Company determines in good faith that the Disability of the Executive has occurred during the Employment Period (pursuant to the definition of Disability set forth below), it may provide the Executive with written notice in accordance with Section 9(b) of this Agreement 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 Effective Date”), provided that, within the 30-day period after such receipt, the Executive shall not have returned to full time performance of the Executive’s duties.

     (b) Cause. The Company may terminate the Executive’s employment during the Employment Period with or without Cause.

     (c) Good Reason. The Executive’s employment may be terminated by the Executive with or without Good Reason. The Executive’s employment may be terminated by the Executive for Good Reason if (x) an event or circumstance set forth in Section 10(aa) shall have occurred and the Executive provides the Company with written notice thereof within 30 days after the Executive has knowledge of the occurrence or existence of such event or circumstance, which notice shall specifically identify the event or circumstance that the Executive believes constitutes Good Reason, (y) the Company fails to correct the circumstance or event so identified within 30 days after the receipt of such notice, and (z) the Executive resigns within 90 days after the date of delivery of the notice referred to in clause (x) above.

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     (d) Notice of Termination. Any termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the other Party hereto given in accordance with Section 9(b) of this Agreement. 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, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the rights of the Executive or the Company hereunder.

     (e) Special Vesting Terms for Stock Option and Awards. All unvested Stock Options and other Awards (including, without limitation, the Restricted Shares) granted pursuant to this Agreement or the Incentive Plan will become fully vested and unrestricted (i) in the event of the Company’s termination of the Executive’s employment without Cause during the Employment Period, (ii) in the event of the Executive’s resignation during the Employment Period for Good Reason, (iii) upon termination of the Executive’s employment by the Company due to the Executive’s death or Disability, or (iv) upon the occurrence of a Change of Control. If the Executive’s employment is terminated prior to the Termination Date, the period of exercise for the Executive’s vested Stock Options shall be as follows:

     (i) Upon the Executive’s termination without Cause, resignation for Good Reason, or due to the Executive’s death or Disability, any Stock Options held by the Executive that were exercisable immediately before the Date of Termination may be exercised at any time until the earlier of (A) the third anniversary of the Date of Termination and (B) the expiration date of the Stock Options (unless such termination occurs within thirteen (13) months following a Change of Control, in which case the Executive shall have the remaining unexpired term of the Stock Options in which to exercise the Stock Options).

     (ii) Upon the Executive’s termination of employment by the Company for Cause, (A) any unvested Stock Options and Restricted Shares held by the Executive shall be forfeited, effective as of the Date of Termination, and (B) all vested Stock Options will be exercisable for 30 days after the Date of Termination.

     (iii) Upon termination of the Executive’s employment for any reason other than the Executive’s death or Disability, the Executive’s resignation for Good Reason, or termination by the Company for Cause, any Stock Options held by the Executive that were exercisable immediately before the Date of Termination may be exercised at any time until the earlier of (A) the 90th day following the Date of Termination and (B) the expiration date of such Stock Options.

     (iv) Notwithstanding the foregoing provisions of this Section 3(e), if the Executive dies after the Executive’s employment by the Company is terminated but while any of the Stock Options remain exercisable as set forth above, such Stock Options may be exercised at any time until the later of (A) the earlier of (1) the first anniversary of the date of such death and (2) the expiration date of such Stock Options and (B) the last date on which such Stock Options would have been exercisable, absent this Section 3(e)(iv).

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     (v) Notwithstanding the foregoing provisions of this Section 3(e), upon the termination of the Executive’s employment with the Company for any reason, other than termination for Cause by the Company, during the 24-month period following any Change of Control Effective Date, any Stock Options held by the Executive as of the Change of Control Effective Date that remain outstanding as of the Date of Termination may thereafter be exercised, until the later of (A) the last date on which such Stock Options would be exercisable in the absence of this Section 3(e)(v) and (B) the earlier of (1) the third anniversary of the Change of Control Effective Date and (2) the expiration date of such Stock Options.

Notwithstanding anything in this Agreement to the contrary, express or implied, except as provided in Section 4(a)(ii), the provisions of this Agreement are in addition to and not in limitation of the Executive’s rights under the Incentive Plan and any other plan, program, policy or practice provided by the Company or any of the Affiliated Group and for which the Executive may qualify.

     (f) Resignation from All Positions. Notwithstanding any other provision of this Agreement, upon the termination of the Executive’s employment for any reason, unless otherwise requested by the Board and accepted by the Executive, the Executive shall immediately resign as of the Date of Termination from all positions that the Executive holds or has ever held with the Company and any other member of the Affiliated Group (and with any other entities with respect to which the Company has requested the Executive to perform services and which has been accepted by the Executive), including, without limitation, all boards of directors of any member of the Affiliated Group. The Executive hereby agrees to execute any and all documentation to effectuate such resignations upon request by the Company, but the Executive shall be treated for all purposes as having so resigned upon termination of the Executive’s employment, regardless of when or whether the Executive executes any such documentation.

     4. Obligations upon Termination.

     (a) Good Reason; Other Than for Cause; Non-Renewal by Company; Expiration. If, during the Employment Period, (1) the Company shall terminate the Executive’s employment other than for Cause, or death, (2) the Executive shall terminate the Executive’s employment for Good Reason (including, but not limited to, the Executive’s Disability), (3) the Executive’s employment terminates voluntarily or involuntarily by reason of the Company providing to the Executive a Notice of Non-Renewal, or (4) the Executive’s employment terminates voluntarily or involuntarily upon expiration of the term of this Agreement at the end of a Change of Control Period unless the Company provides the Executive with a Comparable Offer at least ninety (90) days prior to the end of the Change of Control Period:

     (i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:

 

A.

 

the Accrued Amounts (as defined in Section 10(a) hereof); and

 

 

 

 

 

B.

 

an amount equal to:

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(1)

 

in the event such termination occurs at any time other than a Change of Control Period, the product of (x) two and (y) the sum of (i) the Executive’s Annual Base Salary at the Date of Termination and (ii) the Target Bonus; or

 

 

 

 

 

(2)

 

in the event such termination occurs during or at the end of a Change of Control Period, the product of (x) three and (y) the sum of (i) the Executive’s Annual Base Salary and (ii) the Highest Annual Bonus.

     (ii) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement (other than, in the event the Executive’s termination occurs outside of a Change of Control Period, any severance plan, program, policy or practice or contract or agreement) of the Company and its Affiliated Group (such amounts and benefits, the “Other Benefits”) in accordance with the terms and normal procedures of each such plan, program, policy or practice, based on accrued benefits through the Date of Termination.

     (iii) Until the later of (A) in the event such termination occurs during or at the end of a Change of Control Period, the expiration of thirty-six months after the Date of Termination, or (B) the earlier to occur of (1) the date on which the Executive attains the age of 65, (2) the date the Executive first becomes eligible to receive health benefits under another employer-provided plan, from and after the Executive’s Date of Termination, or (3) the death of the Executive, the Company shall continue medical and dental benefits to the Executive (and, if applicable, to the spouse and dependents of the Executive who received such benefits under the Executive’s coverage immediately prior to the Date of Termination) at least equal to those that would have been provided to the Executive (and to any such dependent) in accordance with the plans, programs, practices and policies of the Company had the Executive remained actively employed during such period, provided that Executive continues to make all required contributions.

     (iv) In the event such termination occurs during or at the end of a Change of Control Period, the Company shall, at its sole expense as incurred, provide the Executive with outplacement services, the scope and provider of which shall be selected by the Executive in the Executive’s sole discretion, but the cost of which shall not exceed $50,000.

     (v) As a condition to the Executive’s receipt of payments and benefits described under Sections 4(a)(i), 4(a)(ii), 4(a)(iii) and 4(a)(iv) in the event the Executive’s termination occurs outside of a Change of Control Period, the Executive must execute and deliver to the Company a full release of all claims that the Executive may have (and such release must become irrevocable) against the Company, its Affiliated Group, and all of their officers, employees, directors, and agents, in a form mutually and reasonably agreeable to the Parties hereunder; provided, however, that the Executive shall retain the Executive’s indemnification and related rights as a former officer and

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director under the Certificate of Incorporation and Bylaws of the Company and the Executive’s rights under the Directors and Officers Insurance Policy(ies) maintained by the Company from time to time.

     (b) Cause; Without Good Reason; Non-Renewal by Executive. If the Executive’s employment shall be terminated for Cause during the Employment Period, if the Executive shall resign without Good Reason during the Employment Period, or if the Executive’s employment terminates by reason of the Executive providing to the Company a Notice of Non-Renewal, this Agreement shall terminate without further obligations to the Executive, other than the Company’s obligation to pay or provide to the Executive an amount equal to the Accrued Amounts and the Other Benefits. For purposes of this Section 4(b) only, the Accrued Amounts shall not include the amount described in Section 10(a)(i)(2).

     (c) Death. If the Executive’s employment is terminated by reason of the Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to the Executive’s legal representatives under this Agreement, other than the Company’s obligation to pay or provide to Executive’s estate, heirs or beneficiaries: (i) the Accrued Amounts; and (ii) the Other Benefits. With respect to the provision of Other Benefits, in the event the Executive’s termination occurs during a Change of Control Period, the term “Other Benefits” as utilized in this Section 4(c) shall include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Company and the Affiliated Group to the estates and beneficiaries of peer executives of the Company and the Affiliated Group under such plans, programs, practices and policies relating to death benefits, if any, as in effect with respect to other peer executives and their beneficiaries at any time during the 120-day period immediately preceding the Change of Control Effective Date or, if more favorable to the Executive’s estate and/or the Executive’s beneficiaries, as in effect on the date of the Executive’s death with respect to other peer executives of the Company and the Affiliated Group and their beneficiaries.

     5. Covenants. The Executive recognizes that the Company’s willingness to enter into this Agreement is based in material part on the Executive’s agreement to the provisions of this Section 5, and that the Executive’s breach of the provisions of this Section 5 could materially damage the Company.

     (a) Confidential Information. The Company will provide its confidential and trade secret information to the Executive, and the Executive agrees to hold in a fiduciary capacity for the benefit of the Company and the Affiliated Group, all Confidential Information. The Executive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the Company and the Affiliated Group, except with the prior written consent of the Company, or as otherwise required by law or legal process or governmental inquiry or as such disclosure or use may be required in the course of the Executive performing the Executive’s duties and responsibilities hereunder. Notwithstanding the foregoing provisions, if the Executive is required to disclose any such confidential or proprietary information pursuant to applicable law or governmental inquiry or a subpoena or court order, the Executive shall promptly notify the Company in writing of any such requirement so that the Company or the appropriate member of the Company and the Affiliated Group may seek an appropriate protective order or other appropriate remedy. The Executive shall reasonably

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cooperate with the Company and the Affiliated Group to obtain such a protective order or other remedy. If such order or other remedy is not obtained prior to the time the Executive is required to make the disclosure, then unless the Company waives compliance with the provisions hereof, the Executive shall disclose only that portion of the confidential or proprietary information which the Executive is advised by counsel in writing (either the Executive’s or the Company’s) that the Executive is legally required to so disclose. Upon the Executive’s termination of employment with the Company and the Affiliated Group for any reason, the Executive shall promptly return to the Company all records, files, memoranda, correspondence, notebooks, notes, reports, customer lists, drawings, plans, documents, and other documents and the like relating to the business of the Company and the Affiliated Group or containing any trade secrets relating to the Company and the Affiliated Group or that the Executive uses, prepares or comes into contact with during the course of the Executive’s employment with the Company and the Affiliated Group, and all keys, credit cards and passes, and such materials shall remain the sole property of the Company and/or the Affiliated Group, as applicable. The Executive agrees to execute any standard form confidentiality agreements with the Company that the Company generally enters into or may enter into in the future with its senior executives. The Executive agrees to represent in writing to the Company upon termination of employment that the Executive has complied with the foregoing provisions of this Section 5(a).

     (b) Work Product and Inventions. The Company and/or its nominees or assigns shall own all right, title and interest in and to the Developments, whether or not patentable, reduced to practice or registrable under patent, copyright, trademark or other intellectual property law anywhere in the world, made, authored, discovered, reduced to practice, conceived, created, developed or otherwise obtained by the Executive (alone or jointly with others) during the Executive’s employment with the Company and the Affiliated Group, and arising from or relating to such employment or the business of the Company or of other member of the Affiliated Group (whether during business hours or otherwise, and whether on the premises of using the facilities or materials of the Company or of other members of the Affiliated Group or otherwise). The Executive shall promptly and fully disclose to the Company and to no one else all Developments, and hereby assigns to the Company without further compensation all right, title and interest the Executive has or may have in any Developments, and all patents, copyrights, or other intellectual property rights relating thereto, and agrees that the Executive has not acquired and shall not acquire any rights during the course of the Executive’s employment with the Affiliated Group or thereafter with respect to any Developments.

     (c) Non-Solicitation of Affiliated Group Employees. The Executive shall not, at any time during the Restricted Period, other than in the ordinary exercise of the Executive’s duties as shown on Exhibit A, without the prior written consent of the Company, directly or indirectly, solicit, recruit, or employ (whether as an employee, officer, agent, consultant or independent contractor) any person who is or was at any time during the previous 12 months, an employee, representative, officer or director of the Company or any member of the Affiliated Group. Further, during the Restricted Period, the Executive shall not take any action that could reasonably be expected to have the effect of directly encouraging or inducing any person to cease their relationship with the Company or any member of the Affiliated Group for any reason. A general employment advertisement by an entity of which the Executive is a part will not constitute solicitation or recruitment.

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     (d) Non-Competition. In consideration of the Company’s promise to provide the Executive with the confidential and trade secret information of the Company, the Executive agrees as follows:

     (i) Areas Other Than Louisiana. Except with respect to competition in the State of Louisiana, or with respect to competition in or above the waters off the State of Louisiana in the areas specified in subparagraph (B) of Section 5(d)(ii) of this Agreement, during the Restricted Period, the Executive shall not, either directly or indirectly, compete with the business of the Company anywhere in the world where the Company or any member of the Affiliated Group conducts business by (1) becoming an officer, agent, employee, partner or director of any other corporation, partnership or other entity, or otherwise render services to or assist or hold an interest (except as a less than 2-percent shareholder of a publicly traded corporation or as a less than 5-percent shareholder of a corporation that is not publicly traded) in any Competitive Business, or (2) soliciting, servicing, or accepting the business of (A) any active customer of the Company or any member of the Affiliated Group, or (B) any person or entity who is or was at any time during the previous twelve months a customer of the Company or any member of the Affiliated Group, provided that such business is competitive with any significant business of the Company or any member of the Affiliated Group.

     (ii) Louisiana. With respect to competition in the State of Louisiana, or with respect to competition in or above the waters specified in subparagraph (B) of this Section 5(d)(ii).

 

A.

 

Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group, or from soliciting customers of the business of the Company or any member of the Affiliated Group, within the Parishes of Lafayette, Vermillion, Cameron, Iberia, St. Mary, Plaquemines, Terrebonne, Lafourche, St. Bernard, Orleans, Calcasieu and Jefferson in the State of Louisiana, so long as the Company or any member of the Affiliated Group carries on a like business therein during the Restricted Period, and

 

 

 

 

 

B.

 

Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group or from soliciting customers of the business of the Company or any member of the Affiliated Group in or above the waters of the Gulf of Mexico adjacent to the Parishes of Lafayette, Vermillion, Cameron, Iberia, St. Mary, Plaquemines, Terrebonne, Lafourche, St. Bernard, Orleans, Calcasieu and Jefferson in the State of Louisiana, so long as the Company or any member of the Affiliated Group carries on a like business therein during the Restricted Period.

 

 

 

 

 

C.

 

All non-capitalized terms in subparagraphs (A) and (B) of this Section 5(d)(ii) are intended to and shall have the same meanings that those terms

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(to the extent they appear therein) have in La. R.S. 23:921.C. Subject to and only to the extent not inconsistent with the foregoing sentence, the Parties understand the following phases to have the following meanings:

 

(1)

 

The phrase “carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group” includes engaging, as principal, agent, trustee, or through the agency of any corporation, partnership, association or agent or agency, in any business that conducts an offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group or being the owner (except as a less than 2-percent shareholder of a publicly traded corporation or as a less than 5-percent shareholder of a corporation that is not publicly traded) of any interest in any corporation or other entity, or an officer, director, or employee of any corporation or other entity (other than the Company or any member of the Affiliated Group), or a member or employee or any partnership, or an owner or employee of any other business that conducts an offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group. Moreover, the term also includes (i) directly or indirectly inducing any current customers of the Company or any member of the Affiliated Group to patronize any offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group; (ii) canvassing, soliciting, or accepting any offshore oil and gas helicopter service business of the type conducted by the Company or any member of the Affiliated Group; (iii) directly or indirectly requesting or advising any current customers of the Company or any member of the Affiliated Group to withdraw, curtail or cancel such customer’s offshore oil and gas helicopter service business with the Company or any member of the Affiliated Group; or (iv) directly or indirectly disclosing to any other person, firm, corporation or entity, the names and addresses of any of the current customers of the Company or any member of the Affiliated Group. In addition, the term includes, directly or indirectly, through any person, firm, association, corporation or other entity with which Executive is now or may hereafter become associated, causing or inducing any present employee of the Company or any of its subsidiaries to leave the employ of the Company or any of its subsidiaries to accept employment with the Executive or with such person, firm association, corporation, or other entity.

 

 

 

 

 

(2)

 

The phrase “a similar business to the business of the Company or any member of the Affiliated Group” means an offshore oil and gas helicopter service business.

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(3)

 

The phrase “carries on a like business” includes, without limitation, actions taken by or through a wholly-owned subsidiary or other affiliated corporation or entity.

 

D.

 

Notwithstanding any other provision of this Agreement, Section 5(d)(ii) of this Agreement shall not apply with respect to any geographic area outside of the geographic territory expressly set forth in this Section 5(d)(ii).

     (e) Assistance. The Executive agrees that during and after the Executive’s employment by the Company, upon request by the Company, the Executive will assist the Company and the Affiliated Group in the defense of any claims, or potential claims that may be made or threatened to be made against the Company and/or any member of the Affiliated Group in any Proceeding, and will assist the Company and the Affiliated Group in the prosecution of any claims that may be made by the Company and/or any member of the Affiliated Group in any Proceeding, to the extent that such claims may relate to the Executive’s employment or the period of the Executive’s employment by the Company. The Executive agrees, unless precluded by law, to promptly inform the Company if the Executive is asked to participate (or otherwise become involved) in any Proceeding involving such claims or potential claims. The Executive also agrees, unless precluded by law, to promptly inform the Company if the Executive is asked to assist in any investigation (whether governmental or otherwise) of the Company and/or any member of the Affiliated Group (or their actions), regardless of whether a lawsuit has then been filed against the Company and/or any member of the Affiliated Group with respect to such investigation. The Executive agrees to fully and completely cooperate with any investigations conducted by or on behalf of the Company and for any member of the Affiliated Group from time to time. The Company agrees to reimburse the Executive for all of the Executive’s reasonable out-of-pocket expenses associated with such assistance, including travel expenses and any attorneys’ fees, and shall pay a reasonable per diem fee for the Executive’s service. In addition, the Executive agrees to provide such services as are reasonably requested by the Company to assist any successor to the Executive in the transition of duties and responsibilities to such successor. Any services or assistance contemplated in this Section 5(e) shall be at mutually agreed to and convenient times.

     (f) Remedies. The Executive acknowledges and agrees that the terms of this Section 5: (i) are reasonable in geographic and temporal scope, (ii) are necessary to protect legitimate proprietary and business interests of the Company in, inter alia, near permanent customer relationships and confidential information. The Executive further acknowledges and agrees that (x) the Executive’s breach of the provisions of this Section 5 will cause the Company irreparable harm, which cannot be adequately compensated by money damages, and (y) if the Company elects to prevent the Executive from breaching such provisions by obtaining an injunction against the Executive, there is a reasonable probability of the Company’s eventual success on the merits. The Executive consents and agrees that if the Executive commits any such breach or threatens to commit any breach, the Company shall be entitled to temporary and permanent injunctive relief from a court of competent jurisdiction, in addition to, and not in lieu of, such other remedies as may be available to the Company for such breach, including the recovery of money damages. If any of the provisions of this Section 5 are determined to be wholly or partially unenforceable, the Executive hereby agrees that this Agreement or any provision hereof may be reformed so that it is enforceable to the maximum extent permitted by

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law. If any of the provisions of this Section 5 are determined to be wholly or partially unenforceable in any jurisdiction, such determination shall not be a bar to or in any way diminish the Company’s right to enforce any such covenant in any other jurisdiction.

     6. Non-Exclusivity of Rights. Except as provided in Section 4(a)(ii), nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or any of the Affiliated Group and for which the Executive may qualify, nor, subject to Section 9(g), shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of the Affiliated Group. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of the Affiliated Group at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

     7. No Duty to Mitigate. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and except as specifically provided in Section 4(a)(iii), such amounts shall not be reduced whether or not the Executive obtains other employment.

     8. Assignment; Successors.

     (a) No Assignment. This Agreement is personal to the Executive and without the prior written consent of the Company shall not be assignable by the Executive other than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

     (b) Successors. The Company shall cause any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all or a substantial portion of its business and/or assets to assume expressly and agree to perform this Agreement immediately upon such succession 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.

     9. Miscellaneous.

     (a) Governing Law; Captions; Amendments. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws. The Parties hereto irrevocably agree to submit to the jurisdiction and venue of the courts of the State of Delaware in any Delaware Proceeding. In the event of a Delaware Proceeding, the Company shall pay all of the Executive’s reasonable travel expenses incurred by him for the Executive’s travel between the Executive’s principal residence and/or principal place of business at such time and Delaware in connection with such Delaware Proceeding. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the Parties hereto or their respective successors and legal representatives.

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     (b) Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other Party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to the Executive:

At the address most recently on file for the Executive at the Company at the time of such notice.

If to the Company:

Bristow Group Inc.
2000 W. Sam Houston Parkway South, Suite 1700
Houston, Texas 77042
Attention: Chief Financial Officer

With a Copy to:

Gardere Wynne Sewell LLP
1000 Louisiana, Suite 3400
Houston, Texas 77002-5011
Attention: N. L. Stevens III

or to such other address as either Party shall have furnished to the other Party in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

     (c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

     (d) Withholding. Notwithstanding any other provision of this Agreement, the Company may withhold from any amounts payable or benefits provided under this Agreement any Federal, state, local and foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

     (e) No Waiver. The 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 the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

     (f) Press Release. The Parties agree that the Company may issue a press release and may otherwise publicly disclose the Executive’s employment with the Company.

     (g) Director’s and Officer’s Insurance. The Company shall provide the Executive with Director’s and Officer’s insurance coverage, including indemnification, on terms no less favorable than the terms of the coverage provided to similarly situated current and former

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directors and officers of the Company. In the event that the validity of this Agreement is challenged (other than by the Executive or the Executive’s representatives), the Executive’s reasonable expenses incurred therewith shall be reimbursed by the Company.

     (h) Representations and Understandings. The Executive hereby represents and warrants to the Company that the Executive is not party to any contract, understanding, agreement or policy, whether or not written, with the Executive’s current employer (or any other previous employer) or otherwise, that would be breached by the Executive’s entering into, or performing services under, this Agreement, and that the Executive is fully able to assume the duties and responsibilities set forth in this Agreement without restrictions of any kind. The Executive further represents that the Executive has disclosed to the Company in writing all material threatened, pending, or actual claims that are unresolved and still outstanding as of the Effective Date, in each case, against the Executive of which the Executive is aware, if any, as a result of the Executive’s employment with the Executive’s current employer (or any other previous employer) or the Executive’s membership on any boards of directors.

     (i) Entire Agreement; Conflicts. This Agreement and the other agreements referred to herein, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understanding, both written and oral, including, without limitation, the Original Agreements. In the event of direct conflict between the provisions of this Agreement and any Company policies or practices, the provisions of this Agreement shall control.

     (j) Counterparts. This Agreement may be executed by facsimile and in multiple counterparts, each of which shall constitute an original and all of which shall constitute one and the same document.

     (k) Certain Additional Payments by the Company.

     (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9(k)) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.

     (ii) Subject to the provisions of Section 9(k)(iii), all determinations required to be made under this Section 9(k), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in

16


 

arriving at such determination, shall be made by the Company’s auditing firm used immediately prior to the Change of Control or such other certified public accounting firm as may be designated by the Executive (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9(k), shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(k)(iii) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

     (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:

 

A.

 

give the Company any information reasonably requested by the Company relating to such claim,

 

 

 

 

 

B.

 

take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company,

 

 

 

 

 

C.

 

cooperate with the Company in good faith in order effectively to contest such claim, and

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D.

 

permit the Company to participate in any proceedings relating to such claim;

provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 9(k)(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole discretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company pays such claim and directs the Executive to sue for a refund, the Company shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such payment or with respect to any imputed income in connection with such payment; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

     (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(k)(iii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 9(k)(iii)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(k)(iii), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

     (l) Section 409A Compliance. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of the Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in an effort to exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in an effort to comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory

18


 

guidance issued under such statutory provisions, without any diminution in the value of the payments or benefits to the Executive and, in the case of health and medical benefits, without any lapse in coverage. Notwithstanding the foregoing, the Company shall not be required to assume any increased economic burden.

     (m) Notwithstanding the provisions of any plan, program or arrangement provided or maintained by the Company, no amount payable or distributable to the Executive pursuant to any plan, program or arrangement provided or maintained by the Company shall be reduced as a result of being potentially nondeductible under Section 280G of the Code.

     10. Definitions. As used in this Agreement, the following terms shall have the respective meanings assigned to them below:

     (a) “Accrued Amounts” shall mean:

     (i) in the event termination of the Executive’s employment occurs at any time other than during a Change of Control Period, the sum of (1) the Executive’s Annual Base Salary through the Date of Termination, to the extent not theretofore paid, (2) the product of (x) the Target Bonus and (y) a fraction (which, for purposes of clarity, shall equal less than 1), the numerator of which is the number of days in the then-current fiscal year through the Date of Termination, and the denominator of which is 365, (3) the Executive’s business expenses that are reimbursable pursuant to this Agreement but have not been reimbursed by the Company as of the Date of Termination, (4) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued but unused vacation allowances for the year in which the Date of Termination occurs, and (5) any Annual Bonus earned prior to the Termination Date but unpaid; or

     (ii) in the event termination of the Executive’s employment occurs during a Change of Control Period, the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months or during which the Executive was employed for less than twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the “Highest Annual Bonus”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, (3) the Executive’s business expenses that are reimbursable pursuant to this Agreement but have not been reimbursed by the Company as of the Date of Termination, (4) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not therefore paid, and (5) any Annual Bonus earned prior to the Termination Date but unpaid.

     (b) “Affiliated Group” shall mean any entity controlled by, controlling or under common control with the Company.

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     (c) “Agreement” is defined in the Preamble to this Agreement.

     (d) “Annual Base Salary” is defined in Section 2(a).

     (e) “Annual Bonus” is defined in Section 2(b).

     (f) “Board” shall mean the Board of Directors of the Company.

     (g) “Cause” shall mean:

     (i) the Executive’s willful failure to substantially perform the Executive’s duties under this Agreement, or the Executive’s willful failure to perform specific directives of the Board, which directives are consistent with the scope and nature of the Executive’s duties as set forth in Section 1(d) hereof, other than any such failure resulting from incapacity due to physical or mental illness, which failure has continued for a period of at least 30 days following delivery to the Executive of a written demand for substantial performance specifying the manner in which the Executive has failed hereunder; or

     (ii) the Executive’s commission of malfeasance, fraud, or dishonesty, or the Executive’s willful and material violation of Company policies; or

     (iii) the Executive’s indictment or formal charge for, and subsequent conviction of, or plea of guilty or nolo contendere to, a felony, or a misdemeanor involving moral turpitude; or

     (iv) the Executive’s material breach of Section 5 of this Agreement.

A termination of employment of the Executive shall not be deemed to be for “Cause” unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the entire membership of the Board (not including the Executive) at a meeting of the Board called and held for such purpose, finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in one or more of the clauses in Section 10(g) above, and specifying the particulars thereof.

     (h) “Change of Control” shall mean:

     (i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of either (x) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change of Control: (A) any acquisition directly from the Company, (B) any acquisition by the Company, (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company or (D) any

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acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of this Section 10(h)(i); or

     (ii) individuals who, as of the date hereof, 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 date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board, but excluding, for this purpose, any such individual whose 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 Board; or

     (iii) consummation by the Company of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets of another corporation (a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50.1% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries ) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly 35% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination 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 stockholders of the Company of a complete liquidation or dissolution of the Company.

     (i) “Change of Control Effective Date” shall mean the first date during the Employment Period on which a Change of Control occurs. Anything in this Agreement to the contrary notwithstanding, if a Change of Control occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change of Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (1) was at the

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request of a third party who has taken steps reasonably calculated to effect a Change of Control or (2) otherwise arose in connection with or anticipation of a Change of Control, then for all purposes of this Agreement the “Change of Control Effective Date” shall mean the date immediately prior to the date of such termination of employment.

     (j) “Change of Control Period” shall mean the greater of (i) the period commencing on the Change of Control Effective Date and ending on the Termination Date in effect on the Change of Control Effective Date, and (ii) the period commencing on the Change of Control Effective Date and ending on the third anniversary of the Change of Control Effective Date.

     (k) “Code” shall mean the Internal Revenue Code of 1986, as amended.

     (l) “Committee” shall mean the Compensation Committee of the Company.

     (m) “Company” shall mean Bristow Group Inc., a Delaware corporation, and any successor to its business and/or assets that assumes and agrees to perform this Agreement by operation of law, or otherwise.

     (n) “Comparable Offer” shall mean a binding offer of employment by the Company to the Executive on terms substantially the same as the terms of this Agreement, or on terms more beneficial to the Executive, including, without limitation, terms and provisions regarding (i) the Executive’s position, title, duties, authority, and responsibilities, (ii) base salary, annual bonus, options, restricted shares, severance payments and other compensation provided to the Executive, and (iii) health and medical, welfare, retirement, deferred compensation, perquisite, fringe benefit and other benefit plans in which the Executive will be eligible for participation.

     (o) “Competitive Business” shall mean any person or entity (including any joint venture, partnership, firm, corporation, or limited liability company) that engages in any principal or significant business of the Company or any member of the Affiliated Group as of the Date of Termination (or any material or significant business being actively pursued as of the Date of Termination that the Company or any member of the Affiliated Group enters into during the Restricted Period).

     (p) “Confidential Information” shall mean any and all secret or confidential information, knowledge or data relating to the Company and the Affiliated Group and their businesses (including, without limitation, any proprietary and not publicly available information concerning any processes, methods, trade secrets, research or secret data, costs, names of users or purchasers of their respective products or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive obtains during the Executive’s employment by the Company and the Affiliated Group that is not public knowledge.

     (q) “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause or by the Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein within 30 days of such notice, as the case may be; (ii) if the Executive’s employment is terminated by the Company, other than for Cause or Disability, the date on which the Company notifies the Executive of such termination; (iii) if the Executive voluntarily resigns without Good Reason, the date on which the Executive notifies the Company of such termination; (iv) if the Executive’s employment is terminated by reason of

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death, the date of death of the Executive; (v) if the Executive’s employment is terminated by the Company due to Disability, the Disability Effective Date; or (vi) if the Executive’s employment is terminated by the Executive or the Company as a result of a Notice of Non-Renewal, the end of the applicable Employment Period.

     (r) “Delaware Proceeding” shall mean any action or proceeding brought under, with respect to or in connection with this Agreement in the courts of Delaware.

     (s) “Developments” shall mean any and all inventions, ideas, trade secrets, technology, devices, discoveries, improvements, processes, developments, designs, know how, show-how, data, computer programs, algorithms, formulae, works of authorship, works modifications, trademarks, trade names, documentation, techniques, designs, methods, trade secrets, technical specifications, technical data, concepts, expressions, patents, patent rights, copyrights, moral rights, and all other intellectual property rights or other developments whatsoever.

     (t) “Disability” shall mean the inability of the Executive to perform the Executive’s duties with the Company on a full-time basis for 150 consecutive days during the Employment Period as a result of incapacity due to mental or physical illness, which is determined to be total and permanent by a licensed physician selected by the Company or its insurers and reasonably acceptable to the Executive or the Executive’s legal representative. If the Parties cannot agree on a licensed physician, each Party shall select a licensed physician and the two physicians shall select a third who shall be the approved licensed physician for these purposes.

     (u) “Disability Effective Date” is defined in Section 3(a).

     (v) “Effective Date” is defined in the Preamble to this Agreement.

     (w) “Employment Period” is defined in Section 1(a)(ii).

     (x) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

     (y) “Executive” is defined in the Preamble to this Agreement.

     (z) “Extended Employment Period” is defined in Section 1(a)(ii).

     (aa) “Good Reason” shall mean, in the absence of the Executive’s consent, (i) a material failure by the Company to comply with any of the material provisions regarding the Executive’s position and duties set forth in Section 1 hereof or the Executive’s compensation and benefits set forth in Section 2 hereof, other than an isolated, insubstantial or inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive, (ii) the relocation of the Executive’s job to a location more than fifty (50) miles from the location shown on Exhibit A that creates an unreasonable and material burden on the Executive or the Executive’s spouse and children (if any), (iii) any action or inaction by any member of the Board in connection with the business of the Company, which (A) causes the Executive to be named as a party in a Proceeding for which the Company does not provide Director’s and Officer’s Insurance coverage for the Executive pursuant to Section 9(g) or indemnification of the Executive pursuant to the Certificate of Incorporation and Bylaws of

23


 

the Company, or (B) requires or could reasonably be expected to require the Executive to commit in connection with the discharge of the Executive’s duties to the Company (1) malfeasance, fraud, or dishonesty, or (2) a willful and material violation of Company policies or U.S. laws and regulations (including SEC rules and regulations) or accounting and auditing rules and regulations generally known as U.S. generally accepted accounting principles and U.S. generally accepted auditing standards, or (3) any conduct that could reasonably be expected to result in an indictment or formal charge under the laws of the United States or any political subdivision thereof for a felony or a misdemeanor involving moral turpitude, or (iv) the Executive’s Disability. Anything in this Agreement to the contrary notwithstanding, a termination by the Executive for any reason during the 30-day period immediately following the first anniversary of a Change of Control Effective Date shall be deemed to be a termination for Good Reason for all purposes of this Agreement.

     (bb) “Highest Annual Bonus” is defined in Section 10(a)(ii).

     (cc) “Incentive Plan” shall mean the Company’s 2004 Stock Incentive Plan and any successor plan, as each may be amended.

     (dd) “Initial Employment Period” is defined in Section 1(a)(i).

     (ee) “Notice of Non-Renewal” is defined in Section 1(a)(ii).

     (ff) “Notice of Termination” shall mean 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 is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than thirty days after the giving of such notice).

     (gg) “Other Benefits” is defined in Section 4(a)(ii) and Section 4(c).

     (hh) “Party” shall mean the Company and the Executive, individually, and “Parties” shall mean the Company and the Executive collectively.

     (ii) “Proceeding” shall mean any action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise.

     (jj) “Recent Annual Bonus” shall mean the Executive’s highest Annual Bonus for the last three fiscal years prior to the Change of Control Effective Date (annualized in the event that the Executive is not employed by the Company for the whole of such fiscal year).

     (kk) “Renewal Date” is defined in Section 1(a)(ii).

     (ll) “Restricted Period” shall mean the period from the Effective Date through the date eighteen (18) months following the Date of Termination; provided, however, that there shall be no Restricted Period in the event that the termination of the Executive’s employment occurs during a Change of Control Period.

24


 

     (mm) “Restricted Shares” is defined in Section 2(d).

     (nn) “Stock Options” is defined in Section 2(c).

     (oo) “Target Bonus” is defined in Section 2(b).

     (pp) “Termination Date” shall mean the second anniversary of the Effective Date, or such later date to which the Employment Period of this Agreement is extended in accordance with the terms of Section 1(a).

          IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, the Company has caused this Agreement to be executed in its name and on its behalf, as of the Effective Date.

 

 

 

 

 

 

 

“EXECUTIVE”

 

 

 

 

 

 

 

 

 

/s/

 

 

 

 

 

WILLIAM E. CHILES

 

 

 

 

 

 

 

“COMPANY”

 

 

 

 

 

 

 

BRISTOW GROUP INC.

 

 

 

 

 

 

 

By:

 

/s/

 

 

 

 

 

 

 

Name:

 

Perry L. Elders

 

 

Title:

 

Executive Vice President and CFO

25


 

EXHIBIT A

TERM SHEET

WILLIAM E. CHILES
Position: President and Chief Executive Officer

Compensation Package

 

 

 

Employer and Location:

 

Bristow Group Inc. located at 2000 West Sam Houston Parkway, Suite 1700, Houston, Texas 77042 (the “Company”).

 

 

 

Annual Base Salary:

 

From and after July 15, 2004, and until April 1, 2006, you shall receive an Annual Base Salary at the rate of $425,000, subject to increase at the discretion of the Company. From and after April 1, 2006, and during the remainder of the Employment Period, you shall receive an Annual Base Salary at the rate of $486,200, subject to increase at the discretion of the Company. Annual Base Salary will be payable semi-monthly or such other payroll period pursuant to the Company’s normal payroll practices for its senior executives.

 

 

 

Effective Date and Term:

 

From June 21, 2004 to July 15, 2007, automatically renewing for consecutive one year terms unless you or the Company give written notice, at least 90 days prior to the anniversary of your employment, that employment will not be renewed.

 

 

 

Bonus Percentage:

 

Participation in the Incentive Compensation Plan including cash bonuses and stock options and grants in accordance with Executive Salary Grade 16. Current annual incentive compensation at this grade is a target bonus of 75% of Annual Base Salary with a maximum of 150% of Annual Base Salary.

 

 

 

Equity Grants:

 

Initial grant of 75,000 Stock Options and 25,000 Restricted Shares as an incoming member of senior management, and continuing participation in the Company’s annual stock option plans for the Company’s senior management. The Restricted Shares will vest five years after the Effective Date of your employment, subject to your continuous employment by the Company and the Company achieving certain targeted financial goals. The granted Stock Options and Restricted Shares otherwise will vest periodically in accordance with Company polices. Participation in annual stock option grants is subject to approval of the Compensation Committee of the Board of Directors.

1


 

 

 

 

401(k) Plan and Matching:

 

Standard 3% match + an additional 3% of Annual Base Salary at the end of each calendar year based on continued employment.

 

 

 

Deferred Compensation Plan:

 

This plan will “top up” all 401K contributions made to 20%. Additionally you can elect to defer a portion of his Annual Base Salary or Annual Bonus by contribution into this plan. All investments are self directed by the employee via Vanguard Investment Group.

 

 

 

Health & Benefit Plans:

 

Standard health & benefits packages for health insurance, STD, LTD, life and options to “buy up” coverage relative to LTD and life. Additionally you will participate in the Bristow Group Inc. management life insurance plan that will provide an additional $3 million of term life coverage; paid for by the Company (this insurance will be portable). Five (5) weeks of annual vacation is allowed.

 

 

 

Company Vehicle Allowance:

 

Car allowance of $1,500 per month, which will be reassessed periodically.

 

 

 

Club Dues and Other Expenses:

 

The Company shall reimburse you for (i) all dues and assessments for one country club of your choosing, (ii) all dues in connection with your business-related professional affiliations, and (iii) the attorney’s fees and other out-of-pocket expenses incurred by you in connection with the negotiation and execution of the Original Agreements (as defined in the Amended and Restated Employment Agreement) and related documents (“Attorney’s Fees”), such reimbursement of Attorney’s Fees hereunder to be limited to a one-time payment of an amount not greater than $15,000.

 

 

 

Employment Agreement:

 

This Term Sheet is Exhibit A to and a part of the Amended and Restated Employment Agreement between the Company and you.

Duties

As the President and Chief Executive Officer of the Company, under the direction of the Board of Directors of the Company (the “Board”), you will be responsible for the following:

 

You shall serve as President and Chief Executive Officer of the Company, with such duties and responsibilities as are commensurate with such position, and shall report to the Board through the Chairman of the Board. Subject to applicable law and regulation, you shall also

2


 

 

 

be appointed to the Board effective July 15, 2004 or as soon thereafter as practicable, and you shall perform your duties as a director of the Company conscientiously and faithfully.

 

You agree that, during the Employment Period as President and Chief Executive Officer of the Company, you shall have full and direct responsibility for managing all aspects of the Company. You shall have full and direct responsibility for profit and loss and strategy development and implementation to achieve significant growth in Company share value consistent with the goals and direction provided by the Board. As President and Chief Executive Officer of the Company, you shall devote substantially all of your business time, energies and talents to serving the Affiliated Group (as defined in the Amended and Restated Employment Agreement) and, following your appointment to the Board, as a director and member of the Board. You shall perform your duties hereunder conscientiously and faithfully, subject to the lawful directions of the Board, and in accordance with the Company’s corporate governance and ethics guidelines, conflict of interests policies, and codes of conduct (collectively, the “Company Policies”). During the Employment Period, it shall not be a violation of this Agreement for you, subject to the requirements of Section 5 of the Amended and Restated Employment Agreement, to (A) serve on corporate, civic or charitable boards or committees, provided, that, without the written approval of the Board, you shall be permitted to serve on no more than one such corporate board, (B) deliver lectures or fulfill speaking engagements, and (C) manage personal investments, so long as such activities do not interfere with the performance of your responsibilities as the President and Chief Executive Officer of the Company, or as a director of the Company or violate any Company Policies. You agree to serve upon request, without additional compensation, as an officer and director for each of the Company’s subsidiaries, joint ventures, limited liability companies and other entities, which, in each case, are affiliates, as well as entities in which the Company has a significant investment, as determined by the Board.

 

 

Such other functions consistent with the foregoing as the Board may assign from time to time.

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Top of the Document

 

EX-10.1 2 ex10w1-031308.htm AMENDMENT TO EMPLOYMENT AGREEMENT BETWEEN BRISTOW GROUP & WILLIAM E. CHILES



 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This Amendment to Employment Agreement (this “Amendment”) is entered into this 10th day of March, 2008, by and between Bristow Group Inc. (the “Company”), and William E. Chiles, an individual (the “Executive”).  The Company and the Executive are sometimes hereinafter each referred to as a “Party” and collectively as the “Parties”.

 

WHEREAS, the Parties entered into that certain Amended and Restated Employment Agreement (the “Agreement”) on June 6, 2006 but effective as of June 21, 2004, setting forth the terms under which the Company would employ the Executive; and

 

WHEREAS, the Parties desire to amend the Agreement in writing as provided under Section 9(a) of the Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the Parties agree as follows:

 

1. Amendment of the Agreement.

 

The Parties agree to modify and amend the Agreement as follows:

 

1.1 The last sentence of Section 2(b) of the Agreement is hereby amended to read as follows:

 

“Each such Annual Bonus shall be paid following the end of the fiscal year for which the Annual Bonus is awarded and no later than two and one-half months after the end of the fiscal year for which awarded unless the Executive shall elect to defer the receipt of such Annual Bonus under and in accordance with the Company’s deferred compensation plan.”

 

1.2 The first clause of Section 4(a)(i) is hereby amended to read as follows:

 

“The Company shall pay to the Executive in a lump sum in cash, at the time provided in Section 4(d), the aggregate of the following amounts:”

 

1.3 A new sentence shall be added at the end of Section 4(a)(iii) to read as follows:

 

“Reimbursement of such medical and dental expenses shall be made on or before the last day of the year following the year in which such expenses were incurred.”

 

1.4 A new sentence shall be added at the end of Section 4(a)(iv) to read as follows:

 

“The provision of the Company-paid outplacement services shall not extend beyond the last day of the second year following the year in which the Executive’s termination of employment occurs.”

1


 

1.5 A new Section 4(d) shall be added at the end of Section 4 to read as follows:

 

“(d)  Time and Form of Payment.  Payment of the lump sum payment described in Section 4(a)(i) and of the Accrued Amounts under Sections 4(b) and 4(c) shall be made in a lump sum in cash within 30 days after the Date of Termination, provided that with respect to termination of employment for reasons other than death, the payment at such time can be characterized as a ‘short-term deferral’ for purposes of Code Section 409A or as otherwise exempt from the provisions of Code Section 409A, or if any portion of the payment cannot be so characterized, and the Executive is a ‘specified employee’ under Code Section 409A, such portion of the payment shall be delayed until the earlier to occur of the Executive’s death or the date that is six months and one day following the Executive’s termination of employment.”

 

1.6 The third sentence of Section 9(a) of the Agreement is hereby amended and a new sentence is added immediately thereafter to read as follows:

 

“In the event of a Delaware Proceeding, the Company shall pay all of the Executive’s reasonable travel expenses incurred by him for the Executive’s travel between the Executive’s principal residence and/or principal place of business at such time and Delaware in connection with such Delaware Proceeding, provided that such travel expenses are incurred during the course of the Delaware Proceeding.  Payment or reimbursement of such travel expenses shall be made promptly and in no event later than December 31 of the year following the year in which such expenses were incurred, and the amount of such travel expenses eligible for payment or reimbursement in any year shall not affect the amount of such expenses eligible for payment or reimbursement in any other year.”

 

1.7 The second sentence of Section 9(g) of the Agreement is hereby amended and a new sentence is added immediately thereafter to read as follows:

 

“In the event that the validity of this Agreement is challenged (other than by the Executive or the Executive’s representatives), the Executive’s reasonable expenses incurred therewith during the course of such challenge shall be reimbursed by the Company.  Reimbursement of such expenses shall be made promptly and in no event later than December 31 of the year following the year in which such expenses were incurred, and the amount of such expenses eligible for reimbursement in any year shall not affect the amount of such expenses eligible for reimbursement in any other year.”

 

1.8 A new Section 9(k)(v) shall be added at the end of Section 9(k) to read as follows:

 

“(v)  Notwithstanding anything to the contrary in the foregoing provisions of this Section 9(k), in no event shall payment of any Gross-Up Payment or any Underpayment be made later than December 31 of the year next following the year in which the Excise Tax is remitted to the taxing authority.  Reimbursement of any costs or expenses incurred by the Executive due to a tax audit or litigation described in Section 9(k)(iii) above shall be made by December 31 of the year following the year in which the taxes that are the subject of the audit or litigation are remitted  to the taxing authority, or where as a result of such audit or litigation no taxes are remitted, by December 31 of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation.”

2


 

1.9 A new second sentence of Section 9(l) shall be added to read as follows:

 

“The Parties intend that this Agreement and the benefits provided hereunder be interpreted and construed to comply with Code Section 409A to the extent applicable thereto.”

 

1.10 Section 10(a)(i)(4) of the Agreement is hereby amended to read as follows:

 

“(4) any accrued but unused vacation allowances for the year in which the Date of Termination occurs, and”

 

1.11 Section 10(a)(ii)(4) of the Agreement is hereby amended to read as follows:

 

“(4) any accrued vacation pay to the extent not theretofore paid, and”

 

1.12 Section 10(aa)(i) of the Agreement is hereby amended to read as follows:

 

“(i) a material failure by the Company to comply with any of the material provisions regarding the Executive’s position and duties set forth in Section 1 hereof or the Executive’s compensation and benefits set forth in Section 2 hereof, other than (A) an isolated, insubstantial or inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive, or (B) to the extent necessary to avoid the imposition of any additional tax under Code Section 409A,”

 

2. Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to such terms in the Agreement.

 

3. This Amendment, which may be executed in one or more counterparts, is executed as and shall constitute an amendment to the Agreement and shall be construed in connection with and as a part of the Agreement.  Except as amended by this Amendment, all the terms and provisions of the Agreement shall remain in full force and effect.

 

4. This Amendment embodies the entire agreement and understanding between the Parties related to the subject matter hereof and supersedes and replaces any other agreement or understanding between the Parties regarding the subject matter of this Amendment, whether written or oral, prior to this Amendment.  This Amendment may not be modified, amended, varied or supplemented except by an instrument in writing signed by the Company and the Executive.

 

5. This Amendment shall be interpreted and enforced in accordance with the laws of the State of Delaware, without regard to any conflict of laws rule or provision.

 

 

 

 

3


 

 

IN WITNESS WHEREOF, each Party has executed this Amendment effective as of the date first written above.

 

BRISTOW GROUP INC.

 

 

 By:

 /s/Perry L. Elders

 

 

 Name:

 Perry L. Elders

 

 Title

 Executive Vice President and

 

 

 Chief Financial Officer

 

 /s/ William E. Chiles

 

 

 

 

 

William E. Chiles

 

4

 

 

 

 

 

 

 

EX-10.1 2 d668874dex101.htm EX-10.1

EXHIBIT 10.1

RETIREMENT AND CONSULTING AGREEMENT

THIS RETIREMENT AND CONSULTING AGREEMENT (the “Agreement”) is entered into effective as of January 30, 2014 (the “Effective Date”), by and between Bristow Group Inc., a Delaware corporation (the “Company”), and William E. Chiles (“Executive”).

RECITALS

WHEREAS, the Company and Executive are party to that certain Amended and Restated Employment Agreement, dated as of June 6, 2006 and as amended on January 1, 2007 and on March 10, 2008 (the “Employment Agreement”); and

WHEREAS, Executive has expressed his desire to retire from officer positions and separate from employment with the Company and its affiliates and subsidiaries under certain terms herein set forth, and the Company desires to retain Executive’s services on a non-exclusive consulting basis though the Consulting Period (as defined below); and

WHEREAS, in consideration of the mutual promises contained herein, Executive voluntarily enters into this Agreement upon the terms and conditions herein set forth; and

WHEREAS, in consideration of the mutual promises contained herein, the Company is willing to enter into this Agreement upon the terms and conditions herein set forth.

AGREEMENT

NOW, THEREFORE, intending to be legally bound and in consideration of the mutual covenants and agreements hereinafter set forth, the Company and Executive agree to the following terms and conditions:

1. Employment as Officer. During the period beginning on the Effective Date and ending immediately upon conclusion of the annual general meeting of the stockholders of the Company occurring in calendar year 2014, which the Company and Executive anticipate will occur on or about July 31, 2014 (the “Resignation Date”) or any earlier termination of Executive’s employment with the Company and its subsidiaries and affiliates (the “Officer Employment Period”), Executive shall continue to serve as President and Chief Executive Officer of the Company. Executive’s compensation and benefits during the Officer Employment Period shall be as follows:

(a) Salary. Executive shall be paid a base salary at the rate of $950,000 per annum, commencing effective January 1, 2014, in accordance with the Company’s standard payroll practices (the “Base Salary”).

(b) Annual Bonus for Fiscal Year Ending March 31, 2014. Executive shall be eligible for an annual bonus with respect to the Company’s fiscal year ending March 31, 2014 (the “2014 Bonus”), as determined by the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”) in accordance with the Company’s FY 2014 Annual Incentive Compensation Plan effective as of June 6, 2013, but based on an annual salary of $950,000 for the entire fiscal year. The 2014 Bonus shall be paid to Executive at the same time such bonuses attributable to the Company’s fiscal year ending March 31, 2014 are paid to other executives of the Company.

 

 


(c) Long-Term Incentive Awards. Executive shall be eligible for a grant of long-term incentive awards in June 2014 in an amount as determined by the Compensation Committee in its sole discretion (the “2014 Equity Awards”). Based on values of forms of award as determined by the Compensation Committee, the 2014 Equity Awards shall be divided equally among nonqualified stock options, restricted stock units and a performance cash award, which performance cash award shall be subject to the achievement of performance criteria established by the Compensation Committee in its sole discretion for executive officers of the Company during the three performance periods, the last of which ends on March 31, 2017. The outstanding 2014 Equity Awards shall be subject to vesting as provided in Section 5(a).

(d) Annual Bonus for Fiscal Year Beginning April 1, 2014. Executive shall be eligible for an annual bonus under the Company’s annual bonus plan for the fiscal year beginning April 1, 2014 (the “2015 Bonus”). The 2015 Bonus actually paid under this Section 1(d) shall be the greater of: (i) “target” (100% of Executive’s Base Salary) or (ii) such higher amount determined in good faith by the Compensation Committee based on criteria applicable to the Company’s Chief Executive Officer, shall be pro-rated based on the number of days in the Officer Employment Period during such fiscal year, and shall be paid to Executive at the same time such bonuses are paid to active executives of the Company.

(e) Deferred Compensation Plan. Executive shall be entitled to continue to participate in the Bristow Group Inc. Deferred Compensation Plan, as amended and restated effective as of August 1, 2008 (the “Deferred Compensation Plan”), through the end of the Officer Employment Period, as contemplated by the terms of such plan and the Employment Agreement. For the avoidance of doubt, Executive shall participate in the Deferred Compensation Plan through the end of the Officer Employment Period, notwithstanding that the Officer Employment Period ends prior to December 31, 2014.

(f) 401(k) Plan and Welfare Plans. During the Officer Employment Period, Executive shall continue to be eligible to participate in the Company’s 401(k) Plan, and Executive and his spouse and dependents, as applicable, shall continue to be eligible to participate in welfare plans sponsored by the Company, in each case, to the same extent as in effect immediately prior to the Effective Date.

2. Retirement and Resignation from Officer and Director Positions. Effective immediately upon the end of the Officer Employment Period, Executive hereby resigns from his position as President and Chief Executive Officer of the Company and any and all director, manager and other officer (or equivalent) positions he holds with the Company and its subsidiaries and affiliates. Executive agrees to take any and all further acts necessary to accomplish these resignations.

3. Payments and Benefits as a Result of Resignation or Qualifying Event. Upon Executive’s resignation on the Resignation Date or upon a Qualifying Event (if it occurs prior to the Resignation Date), Executive shall be entitled to the following benefits and payments:

 

Page 2


(a) Resignation Payment. Executive shall be entitled to a single lump sum cash payment of $3,800,000 on the earlier to occur of the Resignation Date or Qualifying Event, which the parties agree is equivalent to the severance benefit specified in Section 4(a)(i)B(1) of the Employment Agreement.

(b) Restricted Stock, Restricted Stock Units and Options. All outstanding awards of restricted stock, restricted stock units and non-qualified stock options, in each case other than the 2014 Equity Awards, shall fully vest effective on the earlier to occur of the Resignation Date or Qualifying Event, with any unexercised options remaining exercisable for the full original ten-year term of the option. Appendix A hereto lists Executive’s outstanding equity awards as of the Effective Date, the projected unvested awards as of the Resignation Date and the expiration date with respect to unexercised stock options.

(c) Performance Cash Awards. Upon the earlier to occur of the Resignation Date or Qualifying Event, Executive shall be fully vested in the right to receive an amount, without pro-ration, based on the actual achievement of the performance criteria applicable to his outstanding performance cash awards, which shall be paid to Executive on the same date such awards are paid to the Company’s active employees. Appendix A hereto lists Executive’s outstanding performance cash awards as of the Effective Date, the projected unvested awards as of the Resignation Date and the amount payable upon achievement of “target” level performance criteria.

(d) Deferred Compensation Plan. As further described in Section 9(l) of this Agreement, the Resignation Date or earlier termination of Executive’s employment with the Company and its subsidiaries and affiliates shall constitute Executive’s “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) for purposes of any deferred compensation accrued by Executive as of, or attributable to Executive’s service prior to, the Resignation Date or earlier termination of Executive’s employment with the Company and its subsidiaries and affiliates, and, as a result, any such deferred compensation amounts or benefits of Executive payable upon a “separation from service” shall be paid to Executive in accordance with the terms of the relevant plans and arrangements and in compliance with Section 9(l) of this Agreement. Consistent with the foregoing, Executive’s benefit under the Deferred Compensation Plan shall be paid to Executive on the first business day occurring on or after the date that is six months after the Resignation Date or earlier termination of Executive’s employment with the Company and its subsidiaries and affiliates, pursuant to the terms of the Deferred Compensation Plan and in compliance with the six-month delay requirement under Section 409A(a)(2)(B)(i) of the Code.

(e) Life Insurance. The Company shall continue to pay the premiums through the end of the Officer Employment Period for the Pruco Life Insurance Company life insurance policy #L4219661-T referenced in Section 2(f) of the Employment Agreement, with a maximum death benefit of $3,000,000 payable to the designated beneficiary under the policy. In order for Executive to continue the life insurance coverage, he must pay any premium amounts due after the Resignation Date. The parties acknowledge that Executive is the owner of such insurance policy, and that upon Executive’s request the Company shall assign, to the extent assignable, any and all rights it may have in such insurance policy to Executive.

 

Page 3


(f) Additional Payments and Benefits upon Qualifying Event. If a Qualifying Event occurs prior to the Resignation Date, the Company shall (i) pay to Executive, in a single lump sum cash payment on the date that is thirty (30) days after the Qualifying Event, an amount equal to the difference between (A) $554,167 less (B) the total amount of salary paid to Executive during the Officer Employment Period pursuant to Section 1(a) hereof, (ii) pay to Executive the 2014 Bonus, to the extent not already paid to Executive, at the same time as bonuses for the Company’s 2014 fiscal year are paid to other executives of the Company, (iii) pay to Executive the 2015 Bonus, prorated based on a number of days in the Employment Period that is no less than the number of days in the period of April 1, 2014 through July 31, 2014, at the same time such bonuses are paid to active executives of the Company, (iv) award Executive the 2014 Equity Awards, if the Company has not already awarded Executive the 2014 Equity Awards pursuant to Section 1(c) hereof, and (v) pay Executive an amount equal to 20% of each of the amounts paid pursuant to the forgoing Sections 3(f)(i), (ii) and (iii) to the extent such amounts have not been included in Executive’s compensation for purposes of his participation in the Deferred Compensation Plan, within thirty (30) days after the later to occur of the Qualifying Event or the payment of the amount on which such additional payment is based. Nothing in this Agreement shall provide for duplication of any compensation or benefits payable hereunder, whether payable during the Officer Employment Period or the Consulting Period or as a result of termination of Executive’s employment at any time.

4. Consulting Period. During the period beginning on the Resignation Date and ending on July 31, 2016 or such earlier date as the parties may mutually agree (the “Consulting Period”), Executive shall be an employee of the Company and shall perform consulting services on behalf of the Company. During the Consulting Period, Executive will perform such duties as reasonably requested by the Company, including, without limitation, advice and consulting regarding the achievement of certain business objectives and matters of strategy during the Consulting Period, provided that Executive shall have no policy-making duties or authorities during the Consulting Period. Consulting services shall be performed primarily at the Company’s Houston, Texas headquarters. During the Consulting Period, Executive may perform consulting or other services for persons not affiliated with the Company so long as such services do not violate the provisions of Section 7 hereof or materially interfere with Executive’s performance of duties on behalf of the Company hereunder, and provided that Executive first provides timely advance notice to the Chairman of the Board of Directors of the Company (the “Board”), which timing of such advance notice shall take into account Executive’s responsibilities for ongoing projects or assignments at such time. Executive’s compensation and benefits during the Consulting Period shall be as provided below in this Section 4.

(a) Salary. Executive shall be paid a salary at the rate of $950,000 per annum, payable in installments in accordance with the Company’s standard payroll practices.

(b) Discretionary Cash Bonus. Executive shall be eligible for consideration for a cash bonus with respect to the period starting on the date the Consulting Period begins and ending on the first anniversary of such date in the sole discretion of the Compensation Committee based on its good faith assessment of Executive’s contributions to the Company’s performance during such period (the “Consulting Bonus”). If the Compensation Committee determines that a Consulting Bonus is payable to Executive pursuant to this Section 4(b), such cash bonus shall be paid to Executive in a single lump sum in August 2015.

 

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(c) 401(k) Plan and Welfare Plans. During the period beginning on the Resignation Date and ending on July 31, 2016, and notwithstanding any earlier termination of the Consulting Period by the Company without Cause, Executive shall continue to be eligible to participate in the Company’s 401(k) Plan, and Executive and his spouse and dependents, as applicable, shall continue to be eligible to participate in welfare plans sponsored by the Company, in each case, to the same extent as in effect immediately prior to the Resignation Date and provided that the terms of such plans permit such continued participation.

(d) Deferred Compensation Benefit. During the Consulting Period, Executive will not be eligible to participate in the Deferred Compensation Plan pursuant to the terms of such plan and relevant provisions of the Code, and, as a result, will not receive the Level 1 Employer Contribution Credit of 20% of Executive’s base and incentive pay as provided in Section 4.5(a)(i) of the Deferred Compensation Plan. The Company shall provide the Deferred Compensation Benefit (as defined below) to Executive in order to mitigate the impact of Executive’s ineligibility to participate in the Deferred Compensation Plan. The “Deferred Compensation Benefit” shall be an amount that is 20% of (i) the salary paid to Executive pursuant to Section 4(a) hereof during the Consulting Period, or to which Executive becomes entitled pursuant to Section 5(d) hereof, and (ii) any Consulting Bonus payable pursuant to Section 4(b) hereof.

(e) No Equity Awards. Executive and the Company understand and agree that Executive is not eligible for or entitled to receive awards or grants of equity in the Company during the Consulting Period.

(f) Office and Support; Expenses. During the Consulting Period, the Company will provide Executive with an office, computer, cell phone and other reasonable administrative support services at the Company’s Houston, Texas headquarters. During the Consulting Period, Executive shall be eligible for prompt reimbursement for business expenses reasonably incurred by Executive in the performance of his services to the Company in accordance with the policies of the Company in effect from time to time.

5. Separation Benefits. Upon a Qualifying Event (as defined below) that occurs during the Officer Employment Period or the Consulting Period (including upon the expiration of the Consulting Period), subject to timely execution by or on behalf of Executive (other than in the case of death) without revocation of the Release (as defined below) pursuant to Section 6 hereof, Executive shall be entitled to the following payments and benefits, as applicable:

(a) Equity. The 2014 Equity Awards shall become fully vested and exercisable, with any unexercised options remaining exercisable for the full original ten-year term of the option. For purposes of the 2014 Equity Awards in the form of performance cash awards, Executive shall be fully vested in the right to receive an amount, without pro-ration, based on the actual achievement of the performance criteria applicable to his outstanding performance cash awards, which shall be paid to Executive on the same date such awards are paid to the Company’s active employees.

 

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(b) Medical Payment. Executive shall be entitled to a lump sum cash payment of $250,000, payable on the date that is thirty (30) days after the Qualifying Event, which payment is intended to compensate Executive for the expense of COBRA continuation coverage and a market medical insurance policy for his spouse until his spouse attains age 65.

(c) Deferred Compensation Benefit. The Company shall pay to Executive the Deferred Compensation Benefit on the date that is thirty (30) days after the Qualifying Event.

(d) Severance Benefits. If the Qualifying Event occurs prior to July 31, 2016, the Company shall pay to Executive, in a single lump sum cash payment on the date that is thirty (30) days after the Qualifying Event, an amount equal to the difference between (A) $1,900,000 less (B) the total amount of salary paid to Executive during the Consulting Period pursuant to Section 4(a) hereof. For the avoidance of doubt, Executive shall be entitled to the payment specified in this Section 5(d) notwithstanding the occurrence of a Qualifying Event prior to commencement of the Consulting Period. Except as specified in this Agreement, Executive shall not be entitled to any severance payments or benefits under any other plan or arrangement of the Company.

(e) Benefits. As an employee of the Company, Executive shall be entitled to any benefits accrued through the date of his termination under any of the Company’s employee benefit plans, programs or arrangements which amount shall be payable in accordance with the terms and conditions of such employee benefits plans, programs or arrangements.

(f) Forfeiture of Benefits. If (i) Executive experiences a termination of employment with the Company and its subsidiaries and affiliates during the Officer Employment Period or the Consulting Period that is not a Qualifying Event or (ii) Executive experiences a Qualifying Event during the Officer Employment Period or the Consulting Period (including the expiration of the Consulting Period) but fails to return the Release (except if due to Executive’s death) or revokes the Release prior to the Release becoming irrevocable pursuant to its terms, then, immediately on the date of a termination that is not a Qualifying Event, or on the date that is thirty (30) days after the date of the Qualifying Event, as applicable, Executive shall forfeit, and the Company shall have no obligation to pay or provide to Executive, the payments and benefits specified in Sections 5(a), 5(b), 5(c) and 5(d) hereof.

(g) Definitions. The following definitions apply for purposes of this Agreement:

(i) “Qualifying Event” shall mean the cessation of Executive’s employment and consulting services on behalf of the Company and all of its subsidiaries and affiliates at any time from and after the Effective Date due to (A) the expiration of the Consulting Period, (B) termination of employment and the consulting relationship due to Disability, (C) termination of employment and the consulting relationship by the Company not for Cause or (D) Executive’s death. For purposes of clarity, a “Qualifying Event” does not include Executive’s voluntary termination of employment and consulting services on behalf of the Company and all of its subsidiaries and affiliates prior to the end of the Consulting Period or the involuntary termination of Executive’s employment and consulting services by the Company for Cause.

 

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(ii) “Cause” shall mean:

(A) Executive’s willful failure to substantially perform Executive’s duties under this Agreement, or Executive’s willful failure to perform specific directives of the Board (as opposed to unsatisfactory performance), which directives are consistent with the scope and nature of Executive’s duties, other than any such failure resulting from incapacity due to physical or mental illness, which failure has continued for a period of at least thirty (30) days following delivery to Executive of a written demand for substantial performance specifying the manner in which Executive has failed hereunder; or

(B) Executive’s commission of malfeasance, fraud, or dishonesty, or Executive’s willful and material violation of Company policies; or

(C) Executive’s indictment or formal charge for, and subsequent conviction of, or plea of guilty or nolo contendere to, a felony, or a misdemeanor involving moral turpitude; or

(D) Executive’s failure to provide advance notice of his performance of services for a third party to the Chairman of the Board as required pursuant to Section 4 hereof; or

(E) Executive’s material breach of Section 7 of this Agreement.

A termination of employment of Executive shall not be deemed to be for “Cause” unless and until there shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the entire membership of the Board (not including Executive) at a meeting of the Board called and held for such purpose, finding that, in the good faith opinion of the Board, Executive is guilty of the conduct described in one or more of the clauses in Section 5(g)(ii) above, and specifying the particulars thereof.

(iii) “Disability” shall mean the inability of Executive to perform Executive’s duties with the Company for 150 consecutive days during the period beginning on the Effective Date and ending on the termination of the Consulting Period as a result of incapacity due to mental or physical illness, which is determined to be total and permanent by a licensed physician selected by the Company or its insurers and reasonably acceptable to Executive or Executive’s legal representative. If the parties cannot agree on a licensed physician, each party shall select a licensed physician and the two physicians shall select a third who shall be the approved licensed physician for these purposes.

6. Post-Consulting Release. Executive acknowledges that this Agreement provides Executive with additional rights and privileges to which Executive would not otherwise be entitled, and, in exchange for the same, Executive agrees to take action to timely execute a full

 

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and complete release of claims against the Company, its affiliates, officers and directors in the form attached hereto as Exhibit A (“Release”) on or after the date of a Qualifying Event (other than death). Executive acknowledges that the Company retains the right to modify the required form of the Release as reasonably necessary in order to effectuate a full and complete release of claims against the Company, its affiliates, officers and directors. Notwithstanding any provision herein to the contrary, if Executive has not delivered to the Company an irrevocable Release executed by or on behalf of Executive on or before the thirtieth (30th) day after the Qualifying Event (other than death), Executive shall have no rights to the payments and benefits specified in Sections 5(a), 5(b), 5(c) and 5(d) hereof, and the Company shall have no further obligations to Executive pursuant to this Agreement.

7. Covenants. Executive recognizes that the Company’s willingness to enter into this Agreement is based in material part on Executive’s agreement to the provisions of this Section 7, and that Executive’s breach of the provisions of this Section 7 could materially damage the Company.

(a) Confidential Information. The Company will provide and has provided its confidential and trade secret information to Executive, and Executive agrees to hold in a fiduciary capacity for the benefit of the Company and any entity controlled by, controlling or under common control with the Company (the “Affiliated Group”), all Confidential Information (as defined below). Executive shall not communicate, divulge or disseminate Confidential Information at any time during or after Executive’s employment with the Company and the Affiliated Group, except with the prior written consent of the Company, or as otherwise required by law or legal process or governmental inquiry or as such disclosure or use may be required in the course of Executive performing Executive’s duties and responsibilities. Notwithstanding the foregoing provisions, if Executive is required to disclose any such confidential or proprietary information pursuant to applicable law or governmental inquiry or a subpoena or court order, Executive shall promptly notify the Company in writing of any such requirement so that the Company or the appropriate member of the Company and the Affiliated Group may seek an appropriate protective order or other appropriate remedy. Executive shall reasonably cooperate with the Company and the Affiliated Group to obtain such a protective order or other remedy. If such order or other remedy is not obtained prior to the time Executive is required to make the disclosure, then unless the Company waives compliance with the provisions hereof, Executive shall disclose only that portion of the confidential or proprietary information which Executive is advised by counsel in writing (either Executive’s or the Company’s) that Executive is legally required to so disclose. Upon Executive’s termination of employment with the Company and the Affiliated Group for any reason, Executive shall promptly return to the Company all records, files, memoranda, correspondence, notebooks, notes, reports, customer lists, drawings, plans, documents, and other documents and the like relating to the business of the Company and the Affiliated Group or containing any trade secrets relating to the Company and the Affiliated Group or that Executive uses, prepares or comes into contact with during the course of Executive’s employment with the Company and the Affiliated Group, and all keys, credit cards and passes, and such materials shall remain the sole property of the Company and/or the Affiliated Group, as applicable. Executive agrees to execute any standard form confidentiality agreements with the Company that the Company generally enters into or may enter into in the future with its senior executives. For purposes of this Agreement, “Confidential Information” shall mean any and all secret

 

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or confidential information, knowledge or data relating to the Company and the Affiliated Group and their businesses (including, without limitation, any proprietary and not publicly available information concerning any processes, methods, trade secrets, research or secret data, costs, names of users or purchasers of their respective products or services, business methods, operating procedures or programs or methods of promotion and sale) that Executive obtains during Executive’s employment by the Company and the Affiliated Group that is not public knowledge.

(b) Work Product and Inventions. The Company and/or its nominees or assigns shall own all right, title and interest in and to the Developments (as defined below), whether or not patentable, reduced to practice or registrable under patent, copyright, trademark or other intellectual property law anywhere in the world, made, authored, discovered, reduced to practice, conceived, created, developed or otherwise obtained by Executive (alone or jointly with others) during Executive’s employment with the Company and the Affiliated Group, and arising from or relating to such employment or the business of the Company or of other member of the Affiliated Group (whether during business hours or otherwise, and whether on the premises of using the facilities or materials of the Company or of other members of the Affiliated Group or otherwise). Executive shall promptly and fully disclose to the Company and to no one else all Developments, and hereby assigns to the Company without further compensation all right, title and interest Executive has or may have in any Developments, and all patents, copyrights, or other intellectual property rights relating thereto, and agrees that Executive has not acquired and shall not acquire any rights during the course of Executive’s employment with the Affiliated Group or thereafter with respect to any Developments. For purposes of this Agreement, “Developments” shall mean any and all inventions, ideas, trade secrets, technology, devices, discoveries, improvements, processes, developments, designs, know how, show-how, data, computer programs, algorithms, formulae, works of authorship, works modifications, trademarks, trade names, documentation, techniques, designs, methods, trade secrets, technical specifications, technical data, concepts, expressions, patents, patent rights, copyrights, moral rights, and all other intellectual property rights or other developments whatsoever.

(c) Non-Solicitation of Affiliated Group Employees. Executive shall not, at any time during the Restricted Period (as defined below), other than in the ordinary exercise of Executive’s duties while employed by the Company, without the prior written consent of the Company, directly or indirectly, solicit, recruit, or employ (whether as an employee, officer, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve (12) months, an employee, representative, officer or director of the Company or any member of the Affiliated Group. Further, during the Restricted Period, Executive shall not take any action that could reasonably be expected to have the effect of directly encouraging or inducing any person to cease their relationship with the Company or any member of the Affiliated Group for any reason. A general employment advertisement by an entity of which Executive is a part will not constitute solicitation or recruitment.

(d) Non-Competition. In consideration of the Company’s promise to provide Executive with the confidential and trade secret information of the Company, Executive agrees as follows:

 

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(i) Areas Other Than Louisiana. Except with respect to competition in the State of Louisiana, or with respect to competition in or above the waters off the State of Louisiana in the areas specified in subparagraph (B) of Section 7(d)(ii) of this Agreement, during the Restricted Period, Executive shall not, either directly or indirectly, compete with the business of the Company anywhere in the world where the Company or any member of the Affiliated Group conducts business by (1) becoming an officer, agent, employee, partner or director of any other corporation, partnership or other entity, or otherwise render services to or assist or hold an interest (except as a less than 2-percent shareholder of a publicly traded corporation or as a less than 5-percent shareholder of a corporation that is not publicly traded) in any Competitive Business (as defined below), or (2) soliciting, servicing, or accepting the business of (A) any active customer of the Company or any member of the Affiliated Group, or (B) any person or entity who is or was at any time during the previous twelve (12) months a customer of the Company or any member of the Affiliated Group, provided that such business is competitive with any significant business of the Company or any member of the Affiliated Group.

(ii) Louisiana. With respect to competition in the State of Louisiana, or with respect to competition in or above the waters specified in subparagraph (B) of this Section 7(d)(ii).

(A) Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group, or from soliciting customers of the business of the Company or any member of the Affiliated Group, within the Parishes of Lafayette, Vermillion, Cameron, Iberia, St. Mary, Plaquemines, Terrebonne, Lafourche, St. Bernard, Orleans, Calcasieu and Jefferson in the State of Louisiana, so long as the Company or any member of the Affiliated Group carries on a like business therein during the Restricted Period, and

(B) Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group or from soliciting customers of the business of the Company or any member of the Affiliated Group in or above the waters of the Gulf of Mexico adjacent to the Parishes of Lafayette, Vermillion, Cameron, Iberia, St. Mary, Plaquemines, Terrebonne, Lafourche, St. Bernard, Orleans, Calcasieu and Jefferson in the State of Louisiana, so long as the Company or any member of the Affiliated Group carries on a like business therein during the Restricted Period.

(C) All non-capitalized terms in subparagraphs (A) and (B) of this Section 7(d)(ii) are intended to and shall have the same meanings that those terms (to the extent they appear therein) have in La. R.S. 23:921.C. Subject to and only to the extent not inconsistent with the foregoing sentence, the parties understand the following phases to have the following meanings:

 

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(1) The phrase “carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group” includes engaging, as principal, agent, trustee, or through the agency of any corporation, partnership, association or agent or agency, in any business that conducts an offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group or being the owner (except as a less than 2-percent shareholder of a publicly traded corporation or as a less than 5-percent shareholder of a corporation that is not publicly traded) of any interest in any corporation or other entity, or an officer, director, or employee of any corporation or other entity (other than the Company or any member of the Affiliated Group), or a member or employee or any partnership, or an owner or employee of any other business that conducts an offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group. Moreover, the term also includes (i) directly or indirectly inducing any current customers of the Company or any member of the Affiliated Group to patronize any offshore oil and gas helicopter service business in competition with the Company or any member of the Affiliated Group; (ii) canvassing, soliciting, or accepting any offshore oil and gas helicopter service business of the type conducted by the Company or any member of the Affiliated Group; (iii) directly or indirectly requesting or advising any current customers of the Company or any member of the Affiliated Group to withdraw, curtail or cancel such customer’s offshore oil and gas helicopter service business with the Company or any member of the Affiliated Group; or (iv) directly or indirectly disclosing to any other person, firm, corporation or entity, the names and addresses of any of the current customers of the Company or any member of the Affiliated Group. In addition, the term includes, directly or indirectly, through any person, firm, association, corporation or other entity with which Executive is now or may hereafter become associated, causing or inducing any present employee of the Company or any of its subsidiaries to leave the employ of the Company or any of its subsidiaries to accept employment with Executive or with such person, firm association, corporation, or other entity.

(2) The phrase “a similar business to the business of the Company or any member of the Affiliated Group” means an offshore oil and gas helicopter service business.

(3) The phrase “carries on a like business” includes, without limitation, actions taken by or through a wholly-owned subsidiary or other affiliated corporation or entity.

(D) Notwithstanding any other provision of this Agreement, Section 7(d)(ii) of this Agreement shall not apply with respect to any geographic area outside of the geographic territory expressly set forth in this Section 7(d)(ii).

 

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(iii) For purposes of this Agreement, “Competitive Business” shall mean any person or entity (including any joint venture, partnership, firm, corporation, or limited liability company) that engages in any principal or significant business of the Company or any member of the Affiliated Group at any time during Executive’s employment with the Company and through the date of the termination of the Consulting Period (or any material or significant business that is or was actively pursued at any time during Executive’s employment with the Company and through the date of the termination of the Consulting Period that the Company or any member of the Affiliated Group enters into during the Restricted Period).

(e) Restricted Period. For purposes of this Agreement, “Restricted Period” shall mean the period beginning on the Effective Date and ending on the date that is eighteen (18) months following the expiration of the Consulting Period.

(f) Non-Disparagement. Executive agrees to refrain from any criticisms or disparaging comments about the Company or any of its affiliates (including any current or former officer, director or employee of the Company) and, during the Restricted Period, Executive agrees not to take any action, or assist any person in taking any action, that is inconsistent with fostering the goodwill of the Company and its affiliates. The Company agrees that it will refrain from any criticisms or disparaging comments about Executive to third parties, whether such criticisms or comments are made on behalf of the Company directly or indirectly through its affiliates or its or their respective officers, directors or employees. Nothing in this Section 7(f) shall apply to or restrict in any way the communication of information by either party to any state or federal law enforcement agency, so long as Executive uses his best efforts to the extent reasonably practicable to provide prior notice to the Company thereof, and neither party will be in breach of the covenants contained in this Section 7(f) solely by reason of testimony which is compelled by process of law.

(g) Assistance. Executive agrees that during and after Executive’s employment by the Company, upon request by the Company, Executive will assist the Company and the Affiliated Group in the defense of any claims, or potential claims that may be made or threatened to be made against the Company and/or any member of the Affiliated Group in any action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (a “Proceeding”), and will assist the Company and the Affiliated Group in the prosecution of any claims that may be made by the Company and/or any member of the Affiliated Group in any Proceeding, to the extent that such claims may relate to Executive’s employment or the period of Executive’s employment by the Company. Executive agrees, unless precluded by law, to promptly inform the Company if Executive is asked to participate (or otherwise become involved) in any Proceeding involving such claims or potential claims. Executive also agrees, unless precluded by law, to promptly inform the Company if Executive is asked to assist in any investigation (whether governmental or otherwise) of the Company and/or any member of the Affiliated Group (or their actions), regardless of whether a lawsuit has then been filed against the Company and/or any member of the Affiliated Group with respect to such investigation. Executive agrees to fully and completely cooperate with any

 

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investigations conducted by or on behalf of the Company and for any member of the Affiliated Group from time to time. The Company agrees to reimburse Executive for all of Executive’s reasonable out-of-pocket expenses associated with such assistance, including travel expenses and any attorneys’ fees, and shall pay a reasonable per diem fee for Executive’s service. In addition, Executive agrees to provide such services as are reasonably requested by the Company to assist any successor to Executive in the transition of duties and responsibilities to such successor. Any services or assistance contemplated in this Section 7(g) shall be at mutually agreed to and convenient times.

(h) Remedies. Executive acknowledges and agrees that the terms of this Section 7: (i) are reasonable in geographic and temporal scope, (ii) are necessary to protect legitimate proprietary and business interests of the Company in, inter alia, near permanent customer relationships and confidential information. Executive further acknowledges and agrees that (x) Executive’s breach of the provisions of this Section 7 will cause the Company irreparable harm, which cannot be adequately compensated by money damages, and (y) if the Company elects to prevent Executive from breaching such provisions by obtaining an injunction against Executive, there is a reasonable probability of the Company’s eventual success on the merits. Executive consents and agrees that if Executive commits any such breach or threatens to commit any breach, the Company shall be entitled to temporary and permanent injunctive relief from a court of competent jurisdiction, in addition to, and not in lieu of, such other remedies as may be available to the Company for such breach, including the recovery of money damages. If any of the provisions of this Section 7 are determined to be wholly or partially unenforceable, Executive hereby agrees that this Agreement or any provision hereof may be reformed so that it is enforceable to the maximum extent permitted by law. If any of the provisions of this Section 7 are determined to be wholly or partially unenforceable in any jurisdiction, such determination shall not be a bar to or in any way diminish the Company’s right to enforce any such covenant in any other jurisdiction.

8. Release of Claims by Executive. In exchange for the consideration offered to Executive under this Agreement, which Executive acknowledges provides consideration to which Executive would not otherwise have an undisputed right to receive, Executive, on his behalf and on behalf of his heirs, devisees, legatees, executors, administrators, personal and legal representatives, assigns and successors in interest, hereby IRREVOCABLY, UNCONDITIONALLY AND GENERALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES, to the fullest extent permitted by law, the Company, its subsidiaries and each of their directors, officers, employees, representatives, stockholders, predecessors, successors, assigns, agents, attorneys, divisions, subsidiaries and affiliates (and agents, directors, officers, employees, representatives and attorneys of such stockholders, predecessors, successors, assigns, divisions, subsidiaries and affiliates), and all persons acting by, through, under or in concert with any of them (collectively, the “Releasees” and each a “Releasee”), or any of them, from any and all charges, complaints, claims, damages, actions, causes of action, suits, rights, demands, grievances, costs, losses, debts, and expenses (including attorneys’ fees and costs incurred), of any nature whatsoever, known or unknown, that Executive now has, owns, or holds, or claims to have, own, or hold, or which Executive at any time heretofore had, owned, or held, or claimed to have, own, or hold from the beginning of time to the date that Executive signs this Agreement, including, but not limited to, those claims arising out of or relating to (i) any agreement, commitment, contract, mortgage, deed of trust, bond, indenture, lease, license, note, franchise, certificate, option, warrant, right or other instrument, document, obligation or arrangement,

 

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whether written or oral, or any other relationship, involving Executive and/or any Releasee, (ii) breach of any express or implied contract, breach of implied covenant of good faith and fair dealing, misrepresentation, interference with contractual or business relations, personal injury, slander, libel, assault, battery, negligence, negligent or intentional infliction of emotional distress or mental suffering, false imprisonment, wrongful termination, wrongful demotion, wrongful failure to promote, wrongful deprivation of a career opportunity, discrimination (including disparate treatment and disparate impact), hostile work environment, sexual harassment, retaliation, any request to submit to a drug or polygraph test, and/or whistleblowing, whether said claim(s) are brought pursuant to laws of the United States or any other jurisdiction applicable to Executive’s actions on behalf of the Company or any of its subsidiaries or affiliates, and (iii) any other matter; provided, however, that nothing contained herein shall operate to release any obligations of the Company or its successors or assigns arising under this Agreement. Notwithstanding anything in this Agreement to the contrary, it is the express intention of Executive and the Company that this Agreement shall not act as a release or waiver of (1) any rights of defense or indemnification which would be otherwise afforded to Executive under the Certificate of Incorporation, By-Laws or similar governing documents of the Company or its subsidiaries, or any indemnity agreement entered into with Executive, (2) any rights of defense or indemnification which would be otherwise afforded to Executive under any director or officer liability or other insurance policy maintained by the Company or its subsidiaries; (3) any rights of Executive to benefits accrued under any plan or arrangement referenced in Section 5(e) of this Agreement, (4) any rights under this Agreement, and (5) such rights or claims as may arise after the date of this Agreement.

9. Miscellaneous.

(a) Dispute Resolution. In the event of any dispute or controversy relating to or arising under this Agreement, including any challenges to the validity hereof, the parties hereto mutually consent to the exclusive jurisdiction of the state courts in the State of Texas and of the federal courts within Texas. In the event any of the provisions of this Agreement or the application of any such provisions to the parties hereto with respect to their obligations, shall be held by a court of competent jurisdiction to be contrary to the laws of the State of Texas or federal law, the remaining provisions of the Agreement shall remain in force and effect. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE PARTIES HERETO KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY THAT SUCH PARTY MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS AGREEMENT. Executive acknowledges that by agreeing to this provision, he knowingly and voluntarily waives any right he may have to a jury trial based on any claims he has, had, or may have against the Company, including any right to a jury trial under any local, municipal, state or federal law including, without limitation, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the Age Discrimination In Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Commission on Human Rights Act, claims of harassment, discrimination or wrongful termination, and any other statutory or common law claims.

(b) Governing Law. This Agreement is entered into under, and shall be governed, interpreted and enforced for all purposes by, the laws of the State of Texas, without regard to conflicts of laws principles thereof.

 

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(c) Entire Agreement. Except as specifically set forth herein, this Agreement contains the entire agreement and understanding between the parties hereto and supersedes the Employment Agreement (except to the extent the Employment Agreement is specifically incorporated herein by reference) and any other prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter hereof.

(d) Amendment. This Agreement may be amended only by a writing signed by Executive and by a duly authorized representative of the Company.

(e) Tax Withholding; Right of Offset. The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all federal, state, local and other taxes as may be required pursuant to any law or governmental regulation or ruling, (b) all other normal deductions made with respect to the Company’s employees generally, and (c) any advances made to Executive and owed to the Company.

(f) Assignability. The Company shall have the right to assign this Agreement and its rights hereunder, in whole or in part. Executive shall not have any right to pledge, hypothecate, anticipate, or in any way create a lien upon any amounts provided under this Agreement, and no payments or benefits due hereunder shall be assignable in anticipation of payment either by voluntary or involuntary acts or by operation of law.

(g) Severability. It is the desire of the parties hereto that this Agreement (including the provisions of the Employment Agreement and other arrangements incorporated by reference herein) be enforced to the maximum extent permitted by law, and should any provision contained herein be held unenforceable by a court of competent jurisdiction, the parties hereby agree and consent that such provision shall be reformed to create a valid and enforceable provision to the maximum extent permitted by law; provided, however, if such provision cannot be reformed, it shall be deemed ineffective and deleted herefrom without affecting any other provision of this Agreement. This Agreement should be construed by limiting and reducing it only to the minimum extent necessary to be enforceable under then applicable law.

(h) Construction. The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning and not strictly for or against the Company or Executive.

(i) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one document.

(j) Nonwaiver. No failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. All waivers by either party hereto must be contained in a written instrument signed by the party to be charged and, in the case of the Company, by an officer of the Company (other than Executive) or other person duly authorized by the Company.

 

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(k) Notices. Any notice, request, consent or approval required or permitted to be given under this Agreement or pursuant to law shall be sufficient if in writing, and if and when sent by certified or registered mail, with postage prepaid, to Executive’s residence (as noted in the Company’s records), or to the Company’s principal office, as the case may be.

(l) Section 409A.

(i) Interpretation. Each payment under this Agreement is intended to be (1) exempt from Section 409A of the Code, the regulations and other binding guidance promulgated thereunder (“Section 409A”), including, but not limited to, by compliance with the short-term deferral exemption as specified in Treas. Reg. § 1.409A-1(b)(4), or (2) compliant with Section 409A, and the provisions of this Agreement will be administered, interpreted and construed accordingly.

(ii) Separation from Service. Executive shall be considered to have incurred a “separation from service” with the Company and its affiliates within the meaning of Treas. Reg. § 1.409A-1(h)(1)(ii) as of the Resignation Date. As of the Resignation Date, the parties anticipate that the level of Executive’s services to the Company and its affiliates will permanently decrease and will be on a non-exclusive consulting basis. Furthermore, on and after the Resignation Date, Executive shall have no policy-making duties or authorities for or on behalf of the Company and its affiliates.

(iii) Specified Employee. Notwithstanding any other provision in this Agreement to the contrary, on the date of Executive’s “separation from service” within the meaning of Section 409A, if Executive is a “specified employee” (as defined in Section 409A), then payments and benefits payable under this Agreement due to a “separation from service” within the meaning of Section 409A that are deferred compensation subject to (and not otherwise exempt from) Section 409A that would otherwise be paid or provided during the six-month period commencing on the date of Executive’s “separation from service” within the meaning of Section 409A, shall be deferred until the first business day after the date that is six (6) months following Executive’s “separation from service” within the meaning of Section 409A.

(iv) Unfunded Status. Amounts payable pursuant to this Agreement are intended to be unfunded for purposes of Section 409A. Although bookkeeping accounts may be established with respect to payments due under the Agreement, any such accounts shall be used merely as a bookkeeping convenience. No provision of this Agreement shall require the Company to purchase assets, place assets in a trust or segregate assets in connection with amounts due under the Agreement. Any obligation of the Company to Executive under this Agreement shall be based solely upon any contractual obligations that may be created by this Agreement.

(v) Reimbursements. All expenses eligible for reimbursement under any plan, policy or agreement with Executive shall be paid to Executive promptly, but in any event by no later than December 31st of the calendar year following the calendar year in which such expenses were incurred. Furthermore, the expenses

 

Page 16


incurred by Executive in any calendar year that are eligible for reimbursement shall not affect the expenses incurred by Executive in any other calendar year that are eligible for reimbursement, and Executive’s right to receive any reimbursement shall not be subject to liquidation or exchange for any other benefit.

(m) Press Release. The Company and Executive shall cooperate in the preparation of a press release by the Company announcing Executive’s planned retirement from the Company, the content of which shall be subject to the review and approval of Executive, which approval shall not be unreasonably withheld, conditioned or delayed. In no event shall Executive’s rights under this Section 9(m) prevent the Company from fulfilling its obligations under applicable stock exchange rules and securities laws and regulations.

(n) No Duty to Mitigate. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

(o) Director’s and Officer’s Insurance. The Company shall provide Executive with Director’s and Officer’s insurance coverage, including indemnification, on terms no less favorable than the terms of the coverage provided to similarly situated current and former directors and officers of the Company. In the event that the validity of this Section 9(o) is challenged (other than by Executive or Executive’s representatives), Executive’s reasonable expenses incurred in connection therewith shall be reimbursed by the Company.

(p) Potential Reduction in Payments. Notwithstanding any other provision of this Agreement to the contrary, if any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), then the Payment shall be either

(i) delivered in full pursuant to the terms of this Agreement, or

(ii) reduced in accordance with this Section 9(p) to the extent necessary to avoid the Excise Tax,

based on which of (i) or (ii) would result in the greater Net After-Tax Receipt (as hereinafter defined) to Executive.

For purposes of this Section 9(p):

Payment” means any payment, distribution, or other benefit to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, that constitutes a “parachute payment” within the meaning of Section 280G of the Code;

Excise Tax” means the excise tax imposed by Section 4999 of the Code or any similar or successor provision thereto; and

 

Page 17


Net After-Tax Receipt” means the present value (as determined in accordance with Section 280G of the Code) of the Payments net of all applicable federal, state and local income, employment, and other applicable taxes and the Excise Tax.

If Payments are reduced, the reduction shall be accomplished first by reducing cash Payments under this Agreement, in the order in which such cash Payments otherwise would be paid and then by forfeiting any equity-based awards that vest in connection with the event triggering the Excise Tax, starting with the most recently granted equity-based awards, to the extent necessary to accomplish such reduction.

All determinations under this Section 9(p) shall be made by the Company’s independent accountants or compensation consultants (the “Third Party”) and all such determinations shall be conclusive, final and binding on the parties hereto. The Company and Executive shall furnish to the Third Party such information and documents as the Third Party may reasonably request in order to make a determination under this Section 9(p). The Company shall bear all reasonable fees and costs of the Third Party with respect to determinations under or contemplated by this Section 9(p).

[Execution Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date set forth below, but effective as of the Effective Date.

 

COMPANY

 

 

By:

 

/s/ Thomas C. Knudson

 

 

Date:

 

1/30/14

 

Name: Thomas C. Knudson

 

 

 

 

Title: Chairman

 

 

 

 

EXECUTIVE

 

 

/s/ William E. Chiles

 

 

    Date:

 

1/30/14

William E. Chiles

 

 

 

 

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EXHIBIT A

RELEASE

Pursuant to the terms of the Retirement and Consulting Agreement effective as of                     , 2014, between Bristow Group, Inc. (the “Company”) and me (the “Agreement”), and in consideration of the payments made to me and other benefits to be received by me pursuant thereto, I, WILLIAM E. CHILES, do freely and voluntarily enter into this RELEASE (the “Release”), which shall become effective and binding on the eighth day following my signing this Release as provided herein (the “Waiver Effective Date”). It is my intent to be legally bound, according to the terms set forth below.

In exchange for the payments and other benefits to be provided to me by the Company pursuant to Sections 5(a), 5(b), 5(c) and 5(d) of the Agreement (the “Separation Benefits”), I hereby agree and state as follows:

1. I, individually and on behalf of my heirs, personal representatives, successors, and assigns, release, waive, and discharge the Company, its predecessors, successors, parents, subsidiaries, merged entities, operating units, affiliates, divisions, insurers, administrators, trustees, and the agents, representatives, officers, directors, shareholders, employees and attorneys of each of the foregoing (hereinafter “Released Parties”), from all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs, expenses, damages, actions, and causes of action, whether in law or in equity, whether known or unknown, suspected or unsuspected, arising from my employment and termination from employment with the Company, including but not limited to any and all claims pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (42 U.S.C. § 2000e, et seq.), which prohibits discrimination in employment based on race, color, national origin, religion or sex; the Civil Rights Act of 1866 (42 U.S.C. §§1981, 1983 and 1985), which prohibits violations of civil rights; the Age Discrimination in Employment Act of 1967, as amended, and as further amended by the Older Workers Benefit Protection Act (29 U.S.C. §621, et seq.), which prohibits age discrimination in employment; the Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. § 1001, et seq. ), which protects certain employee benefits; the Americans with Disabilities Act of 1990, as amended (42 U.S.C. § 12101, et seq.), which prohibits discrimination against the disabled; the Family and Medical Leave Act of 1993 (29 U.S.C. § 2601, et seq.), which provides medical and family leave; the Fair Labor Standards Act (29 U.S.C. § 201, et seq.), including the wage and hour laws relating to payment of wages; and all other federal, state and local laws and regulations prohibiting employment discrimination. This Release also includes, but is not limited to, a release of any claims for breach of contract, mental pain, suffering and anguish, emotional upset, impairment of economic opportunities, unlawful interference with employment rights, defamation, intentional or negligent infliction of emotional distress, fraud, wrongful termination, wrongful discharge in violation of public policy, breach of any express or implied covenant of good faith and fair dealing, that the Company has dealt with me unfairly or in bad faith, and all other common law contract and tort claims.

Notwithstanding the foregoing, I am not waiving any rights or claims under the Agreement or that may arise after this Release is signed by me. Moreover, this Release does not apply to any claims or rights which, by operation of law, cannot be waived, including the right to file an administrative charge or participate in an administrative investigation or proceeding; however, by signing this Release I disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation or proceeding. Nothing in

 

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this Release shall affect in any way my rights of indemnification and directors and officers liability insurance coverage provided to me pursuant to the Company’s by-laws and/or pursuant to any other agreements or policies in effect prior to the effective date of my termination of employment or service to the Company, which shall continue in full force and effect, in accordance with their terms, following the Waiver Effective Date. Nothing in this Release shall affect my rights as a shareholder of the Company.

2. I forever waive and relinquish any right or claim to reinstatement to active employment or service with the Company, its affiliates, subsidiaries, divisions, parent, and successors. I further acknowledge that the Company has no obligation to rehire or return me to active duty or service at any time in the future.

3. I acknowledge that all agreements applicable to my employment respecting non-competition, non-solicitation, non-recruitment, and the confidential or proprietary information of the Company shall continue in full force and effect as described in the Agreement.

4. I hereby acknowledge and affirm as follows:

(a) I have been advised to consult with an attorney prior to signing this Release.

(b) I have been extended a period of 21 days in which to consider this Release.

(c) I understand that for a period of seven days following my execution of this Release, I may revoke the Release by notifying the Company, in writing, of my desire to do so. I understand that after the seven-day period has elapsed and I have not revoked this Release, it shall then become effective and enforceable.

(d) I acknowledge that I have received payment for all wages and other compensation due at the time of my employment and service termination, including any reimbursement for any and all business related expenses. I further acknowledge that the Separation Benefits are consideration to which I am not otherwise entitled under any Company plan, program, or prior agreement.

(e) I certify that I have returned all property of the Company, including but not limited to, keys, credit and fuel cards, files, lists, and documents of all kinds regardless of the medium in which they are maintained.

(f) I have carefully read the contents of this Release and I understand its contents. I am executing this Release voluntarily, knowingly, and without any duress or coercion.

5. I acknowledge that this Release shall not be construed as an admission by any of the Released Parties of any liability whatsoever, or as an admission by any of the Released Parties of any violation of my rights or of any other person, or any violation of any order, law, statute, duty or contract.

6. In the event that any provision of this Release should be held void, voidable, or unenforceable, the remaining portions shall remain in full force and effect.

 

Page 21


7. I hereby declare that this Release and the Agreement constitute the entire and final settlement between me and the Company, superseding any and all prior agreements, and that the Company has not made any promise or offered any other agreement, except those expressed in this Release and the Agreement, to induce or persuade me to enter into this Release.

8. I understand that in order to be effective this Release must be executed by me, without subsequent revocation, and delivered to the Company such that the Waiver Effective Date occurs on or before the date that is thirty (30) days after the Qualifying Event, as prescribed in the Agreement.

IN WITNESS WHEREOF, I have signed this Release on the              day of                 , 201    .

 

William E. Chiles

 

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APPENDIX A

Outstanding Equity and Cash Performance Awards

1. Options

 

Grant Date

  

Option Price

 

  

Options Remaining
Exercisable
(Projected as of July 31,
2014 assuming no
intervening

Exercise)

 

  

Unvested Options as
of Effective Date

 

  

Options Accelerating
(Projected as of the
Resignation Date)

 

  

Option Expiration

5/24/2007

  

$

46.45

  

  

 

29,000

  

  

  

 

—  

  

  

5/24/2017

6/5/2008

  

$

50.25

  

  

 

36,100

  

  

  

 

—  

  

  

6/5/2018

6/9/2010

  

$

30.16

  

  

 

23,034

  

  

  

 

—  

  

  

6/7/2020

6/8/2011

  

$

43.79

  

  

 

61,862

  

  

 

20,621

  

  

 

0

  

  

6/8/2021

5/25/2012

  

$

43.38

  

  

 

73,481

  

  

 

48,988

  

  

 

24,494

  

  

5/25/2022

6/6/2013

  

$

62.65

  

  

 

67,581

  

  

 

67,581

  

  

 

45,054

  

  

6/6/2023

 

2. Restricted stock

 

Grant Date

  

Shares
Granted

 

  

Unvested Shares as of
Effective Date

 

  

Unvested Shares
Projected as of July 31,
2014

 

  

Shares Subject to
Accelerated Vesting
As of the Resignation

Date

 

6/8/2011

  

 

25,982

  

  

 

25,982

  

  

 

0

  

  

 

0

  

3. Restricted stock units (RSUs)

 

Grant Date

  

RSUs Granted

 

  

Unvested RSUs as of
Effective Date

 

  

Unvested RSUs
Projected as of July 31,
2014

 

  

RSUs Subject to
Accelerated Vesting

As of the Resignation
Date

 

5/25/2012

  

 

26,894

  

  

 

26,894

  

  

 

26,894

  

  

 

26,894

  

6/6/2013

  

 

25,681

  

  

 

25,681

  

  

 

25,681

  

  

 

25,681

  

4. Performance cash awards

 

Grant Date

  

Target Amount
(Subject to Section 3(c) of the Agreement, Executive has vested right to
payment without pro-ration based on actual performance criteria results)

 

6/8/2011

  

$

1,137,500

  

5/25/2012

  

$

1,166,667

  

6/6/2013

  

$

1,575,000

  

 

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