Exhibit 10.5
EMPLOYMENT AGREEMENT
This Agreement is entered into between R&B Falcon Corporation, a
Delaware corporation (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the
"Executive") on the 25th day of March, 1998.
The Company has determined that it is in its best interests and
those of its shareholders to assure that the Company will have the services
of the Executive and to provide the Executive with compensation and benefit
arrangements which are competitive with those of other corporations.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS;
1. Employment Period. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by the Company,
in accordance with the terms and provisions of this Agreement, for the
period commencing on the date hereof (the "the Effective Date") and ending
on the third anniversary of such date (the "Employment Period"). The
Employment Period shall be extended cumulatively, from time to time, one
year for each year following the Effective Date that Employee remains
employed by the Company or one of its direct or indirect subsidiaries.
2. Terms of Employment. (a) Position and Duties. (i) During
the Employment Period, (A) the Executive's position, authority, duties and
responsibilities shall be at least commensurate in all material respects
with and include status as President and Chief Executive Officer of the
Company, and (B) the Executive's services shall be performed at the
location where the Executive was employed immediately preceding the
Effective Date or any office of the Company located in Houston, Texas which
is the principal office of the Company.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote substantially full attention and time during
normal business hours to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities assigned to the
Executive hereunder, to use the Executive's best efforts to perform
faithfully and efficiently such responsibilities. During the Employment
Period it shall not be a violation of this Agreement for the Executive to
(A) serve on corporate, civic or charitable boards or committees,
(B) deliver lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such
activities do not materially interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance
with this Agreement. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the Executive prior
to the Effective Date under his prior employment with Reading & ▇▇▇▇▇
Corporation, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the performance of
the Executive's responsibilities to the Company.
(b) Compensation. (i) Base Salary. During the Employment
Period, the Executive shall receive an annual base salary of not less than
$600,000 ("Annual Base Salary"), which shall be paid on a monthly basis.
During the Employment Period, the Annual Base Salary shall be reviewed at
least annually and shall be increased at any time and from time to time as
may be determined by the Board, based on the Executive's performance of his
position and responsibilities (to be measured in a fair and objective
manner). It may also be decreased by the Board as a part of Company wide
salary reduction program applicable to all executives and employees
generally as a result of financial losses experienced by the Company. Any
increase in Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base Salary shall
not be reduced after any such increase (except as provided in this Section
2(b)(i)), and the term Annual Base Salary as utilized in this Agreement
shall refer to Annual Base Salary as so increased or decreased. As used in
this Agreement, the term "affiliated companies" shall include any company
controlled by, controlling or under common control with the Company.
(iii) Incentive, Savings and Retirement Plans. During
the Employment Period, the Executive shall be entitled to participate in
all incentive, savings and retirement plans that are tax qualified under
Section 401(a) of the Internal Revenue Code of 1986, as amended ("Code"),
applicable generally to other executives of the Company and its affiliated
companies.
(iv) Welfare Benefit Plans. During the Employment Period,
the Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and
its affiliated companies (including, without limitation, medical,
prescription, dental, vision, disability, salary continuance, group life
and supplemental group life, accidental death and travel accident insurance
plans and programs) to the extent applicable generally to other executives
of the Company and its affiliated companies.
(v) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the policies,
practices and procedures of the Company and its affiliated companies.
(vi) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company and its affiliated companies.
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 give to the Executive written notice in accordance with
Section 11(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 days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For purposes
of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive business days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement,
"Cause" shall mean:
(i) chronic alcoholism or controlled substance abuse, as
determined by a doctor mutually acceptable to the Company
and the Executive, and continuing failure by the Executive
to commence and pursue with due diligence appropriate
treatment for same in accordance with such doctor's
recommendations;
(ii) a deliberate act of proven fraud on the part of the
Executive having a material adverse impact on the business
or consolidated financial condition or results of operations
of the Company and its subsidiaries;
(iii) a deliberate and continuing failure by the Executive to
comply with the applicable laws and regulations having a
material adverse impact on the business or consolidated
financial condition or results of operations of the Company
and its subsidiaries; or
(iv) conviction of the Executive of a criminal offense
constituting a felony.
(c) Good Reason; Window Period. The Executive's employment may
be terminated during the Employment Period by the Executive for Good Reason
or during a Window Period by the Executive without any reason. For
purposes of this Agreement, "Window Period" shall mean the period
commencing with the date of any Change of Control as defined in Section 9
of this Agreement and expiring 180 days immediately following any Change of
Control as defined in Section 9 of this Agreement. For purposes of this
Agreement, "Good Reason" shall mean
(i) the assignment to the Executive of any duties
materially inconsistent in any respect with the Executive's,
authority, duties or responsibilities as contemplated by Section 2 of
this Agreement, or any other action by the Company which results in a
diminution in such authority, duties or responsibilities (excluding
for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive);
(ii) any failure by the Company to comply with any of the
provisions of Section 2(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at
any office or location other than that described in Section 2(a)(i)(B)
hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this
Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 10 of this Agreement, provided that such successor has
received, at least ten days prior to the giving of Notice of
Termination by the Executive, written notice from the Company or the
Executive of the requirements of Section 10 of the Agreement.
For purposes of this Section 3(c), any good faith determination of "Good
Reason" made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason or without any reason during a
Window Period, shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 11(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written
notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination date
(which date shall be not more than fifteen days after the giving of such
notice). The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive
or the Company hereunder or preclude the Executive or the Company from
asserting such fact or circumstance in enforcing the Executive's or the
Company's right hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive during a Window Period or for Good Reason, the date of receipt of
the Notice of Termination or any later date specified therein, as the case
may be, (ii) if the Executive's employment is terminated by the Company
other than for Cause or Disability, the Date of Termination shall be the
date on which the Company notifies the Executive of such termination and
(iii) if the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the
Executive or the Disability Effective Date, as the case may be.
4. Obligations of the Company upon Termination.
(a) Good Reason or during a Window Period; Other than for
Cause, Death or Disability. If, during the Employment Period, the Company
shall terminate the Executive's employment other than for Cause or
Disability or the Executive shall terminate employment either for Good
Reason or without any reason during a Window Period:
(i) the Company shall pay or provide to or in respect of the
Executive the aggregate of the following amounts and benefits:
A. in a lump sum in cash within 30 days after the Date of
Termination 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 highest annual bonus paid or
accrued for the benefit of Executive during the three year period
preceding the Date of Termination and (y) a fraction, the
numerator of which is the number of days since the date of the
last bonus payment through the Date of Termination, and the
denominator of which is 365 and (3) any compensation previously
deferred or earned by the Executive (together with any accrued
interest or earnings thereon), any unreimbursed expenses and any
accrued vacation pay, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2) and
(3) shall be hereinafter referred to as the "Accrued
Obligation"); and
B. in a lump sum in cash within 30 days after the Date of
Termination the product of multiplying the factor of 6 times the
sum of the highest Annual Base Salary and the highest annual
bonus which has been payable to the Executive within the past
three years (including such salary and bonus paid by a previous
employer which is a direct subsidiary of the Company as of the
date of this Agreement) for one year's service.
(ii) for the remainder of the Employment Period, or such longer
period as any plan, program, practice or policy may provide, the
Company shall continue benefits to the Executive and/or the
Executive's family at least equal to those which would have been
provided to them in accordance with the plans, programs, practices and
policies described in Section 2(b)(iii) of this Agreement if the
Executive's employment had not been terminated in accordance with the
most favorable plans, practices, programs or policies of the Company
and its affiliated companies as in effect and applicable generally to
other executives and their families on the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other executives of the Company and its
affiliated companies and their families (such continuation of such
benefits for the applicable period herein set forth shall be
hereinafter referred to as "Welfare Benefit Continuation"). [For
purposes of determining eligibility of the Executive for retiree
benefits pursuant to such plans, practices, programs and policies and
for purposes of determining Vesting Service (as defined in the Reading
& ▇▇▇▇▇ Pension Plan) under the Reading & ▇▇▇▇▇ Pension Plan and the
Reading & ▇▇▇▇▇ Benefits Replacement Plan, the Executive shall be
considered to have remained employed until the end of the Employment
Period and to have retired on the last day of such period.]
(b) Death or Disability.
If Executive's employment is terminated by reason of Executive's death
or Disability during the Employment Period such termination shall be
treated as a termination for Good Reason and the Company shall pay to
Executive, his estate or designated beneficiary (x) the lump sum amount and
the benefits set forth in Section 4(a) hereof plus (y) any death benefits
to which Executive is otherwise entitled pursuant to the terms of any
Welfare Benefit Plan described in Section 2(b)(iii) hereof.
(c) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the Executive
other than for Accrued Obligations and the timely payment of reimbursement
of expenses incurred by Executive under Section 2(b)(v). If the Executive
terminates employment during the Employment Period, excluding a termination
either for Good Reason or without any reason during a Window Period, this
Agreement shall terminate without further obligations to the Executive,
other than for Accrued Obligations and the timely payment of reimbursement
of expenses incurred by Executive under Section 2(b)(v). In such case, all
Accrued Obligations and reimbursement of expenses shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination.
5. Non-exclusivity of Rights. Except as provided in Section 4
of this Agreement, 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 its affiliated companies and
for which the Executive may qualify, nor 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 its affiliated companies. 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 its affiliated companies 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.
6. Full Settlement; Resolution of Disputes. (a) The Company's
obligation to make payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Company may have against the Executive or others. The Company agrees to
pay promptly as incurred, to the full extent permitted by law, all legal
fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the
Executive or others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the
amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the Applicable Federal Rate provided for
in Section 7872(f)(2)(A) of the Code.
(b) If there shall be any dispute between the Company and the
Executive concerning (i) in the event of any termination of the Executive's
employment by the Company, whether such termination was for Cause, or
(ii) in the event of any termination of employment by the Executive,
whether Good Reason existed or whether such termination occurred during a
Window Period, then, unless and until there is a final, nonappealable
judgment by a court of competent jurisdiction declaring that such
termination was for Cause or that the determination by the Executive of the
existence of Good Reason was not made in good faith or that the termination
by the Executive did not occur during a Window Period, the Company shall
pay all amounts, and provide all benefits, to the Executive and/or the
Executive's family or other beneficiaries, as the case may be, that the
Company would be required to pay or provide pursuant to Section 4(a) hereof
as though such termination were by the Company without Cause or by the
Executive with Good Reason or during a Window Period; provided, however,
that the Company shall not be required to pay any disputed amounts pursuant
to this paragraph except upon receipt of an undertaking by or on behalf of
the Executive to repay all such amounts to which the Executive is
ultimately adjudged by such court not to be entitled.
7. Certain Additional Payments by the Company. (a) 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 7) (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.
(b) Subject to the provisions of Section 7(c), all
determinations required to be made under this Section 7, including whether
and when Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such
determination, shall be made by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. (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 7, shall be paid by the Company to the Executive
within five days of the receipt of the Accounting Firm's determination. If
the Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Executive with a written opinion that
failure to report the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition of a negligence or
similar penalty. 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 7(c) 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.
(c) The Executive shall notify the Company in writing of any
claims 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 thirty days after
the Executive actually receives notice 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 he
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:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) 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,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) 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 7(c), the Company
shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect
of such claim and may, at its sole option, either direct the Executive to
pay the tax claimed and ▇▇▇ 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 directs the Executive to
pay such claim and ▇▇▇ for a refund, the Company shall advance the amount
of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided 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.
(d) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section (c), 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 7(c)) 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 7(c), 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.
8. Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the Company or any
of its affiliated companies, and their respective businesses, which shall
have been obtained by the Executive during the Executive's employment by
the Company or any of its affiliated companies and which shall not be or
become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may
otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and
those designated by it. In no event shall an asserted violation of the
provisions of this Section 8 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this
Agreement.
9. Change of Control. For the purpose of this Agreement, a
"Change of Control" shall be deemed to occur: (a) if any "Person", as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (other than (i) the Executive,
(ii) the Company or any of its subsidiaries or Affiliates (as that term is
defined in the Exchange Act), (iii) any Person subject, as of the date of
this Agreement or at any prior time, to the reporting or filing
requirements of Section 13(d) of the Exchange Act with respect to the
securities of the Company or any Affiliate, (iv) any trustee or other
fiduciary holding or owning securities under an employee benefit plan of
the Company, (v) any underwriter temporarily holding or owning securities
of the Company, or (vi) any corporation owned directly or indirectly by the
current stockholders of the Company in substantially the same proportion as
their then ownership of stock of the Company) becomes, after the date of
this Agreement, the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing forty percent (40%) or more of the combined voting power of
the Company's then outstanding securities; or (b) if at any time a majority
of the members of the board of directors of the Company is comprised of
other than Continuing Directors (and for this purpose "Continuing
Directors" shall mean members of the board of directors of the Company who
were directors as of the date of this Agreement, or who were nominated by a
majority of the members of the board of directors of the Company and such
majority was comprised only of Continuing Directors at the time of such
nomination).
10. Successors. (a) This Agreement is personal to the Executive
and without the prior written consent of the Company shall not be
assignable by the Executive otherwise 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.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
11. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without
reference to principles of conflict of laws. 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.
(b) All notices and other communications hereunder shall be in
writing and shall be given if by the Executive to the Company by telecopy
or facsimile transmission at the telecommunications number set forth below
and if by either the Company or the Executive either 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:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecommunications Number: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) 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) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company
may have hereunder, including, without limitation, the right of the
Executive to terminate employment for Good Reason pursuant to Section 3(c)
of this Agreement, shall not be deemed to be a waiver of such provision or
right or any other provision or right of this Agreement.
(f) This Agreement may be superseded by another written
agreement entered into between the Executive and Company on mutually
agreeable terms, provided such agreement expressly by its terms supersedes
this Agreement. However, an offer by the Company to enter into any such
agreement with the Executive shall not constitute an independent basis for
the Executive to terminate this Agreement for Good Reason.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed in its name
on its behalf, all as of the day and year first above written.
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
R&B FALCON CORPORATION
By _________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Chairman
