Severance Agreement and General Release - Seabulk International Inc. and Andy Brauninger
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (hereafter, the
"Agreement") is made by SEABULK INTERNATIONAL INC, its affiliated companies, and
each of its officers, directors, managers, employees, agents, and successors
(hereafter referred to collectively as "SEABULK") and Andy Brauninger and all of
his agents, heirs, and successors (hereafter referred to as "EMPLOYEE").
On the occasion of EMPLOYEE's separation from employment with SEABULK,
March 31, 2003, (Effective Date) the parties to this Agreement desire to resolve
all matters and potential differences between them arising out of the EMPLOYEE's
employment with SEABULK, and the termination of that employment. Therefore, in
order to achieve this result, SEABULK and the EMPLOYEE agree to the following:
1. Severance: Following the eighth calendar day after the
Effective Date SEABULK will pay to the EMPLOYEE a severance payment in the gross
amount of $145,384. This payment is based on three weeks of compensation for
each year of service (14 yrs.). The EMPLOYEE understands and agrees that the
gross amount written above will be reduced by amounts withheld for taxes as
required by law. The EMPLOYEE acknowledges and further agrees that he is not
already entitled to this severance payment.
2. Vacation & Medical Insurance: SEABULK will also pay all
eligible unused vacation days pro-rated for the present year. SEABULK will
provide medical insurance for the EMPLOYEE and his wife through COBRA insurance
at a monthly cost to EMPLOYEE of $150.00 for a period of six months or until you
go to work for another employer. Following the initial six month period, COBRA
insurance will be provided at the 2003 prevailing rate ($1,226.72/month). You
will be notified of the 2004 rates in December 2003.
3. Vehicle: SEABULK agrees to transfer to the EMPLOYEE title to
and ownership of the Employer-owned 1997 Chevrolet Suburban he is now using at
no cost to the Employee.
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4. Stock Options: SEABULK agrees to vest your stock options upon
the Effective Date and the exercise period will be extended to one year from the
Effective Date if you obtain other employment and three years if you retire.
5. Ongoing Cooperation and Consulting Services.
a. During the initial six month period immediately
following the Effective Date, you will remain available to the Company to
provide general advice, cooperation, assistance, as the Company may request from
time to time, regarding projects you were involved in prior to your retirement.
b. To the extent that the Company requests that you
perform work on any projects, conduct any study, or prepare a written report in
connection with such matters, the Company will retain you as an independent
contractor/consultant at a daily rate of $700. The Company also will reimburse
you for reasonable out-of-pocket expenses, including any travel expenses that
you may incur in connection with consulting services that you may provide to the
Company.
c. You will cooperate with the Company in providing
information in connection with any investigation by the board of directors or
governmental authorities concerning the operations and activities of the Company
during the period of your employment.
6. Return of Property. You agree to return to the Company on or
before the Effective Date, property of the Company such as credit cards, keys,
computer disks, computer programs, files, and any documents in any format
prepared or received by you or the Company that you have in your possession or
control relating in any way to the Company's business operations. Any other
property of the Company currently in your possession shall be returned to the
Company or purchased by you at its depreciated value in accordance with Company
policy.
7. Confidentiality/Non-Competition/Non-Solicitation.
a. Confidentiality. You will keep confidential the fact
of and the terms of this Agreement, as well as any confidential or proprietary
information that you acquired during your employment by the Company. This is
intended to cover any information of a nature not normally disclosed by the
Company to the general public, including, but not limited to, financial
information, business plans, strategic plans, marketing strategies, and other
information about the present or proposed operations of
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the Company. You shall not disclose any such information to any person or entity
outside the Company at any time in the future, and you shall not use any such
information for the benefit of anyone other than the Company. This provision
shall not be deemed to limit your disclosure of the terms of this Agreement to
legal or financial advisors that have a reasonable need to know of such terms in
connection with providing professional advise to you.
b. Non-Competition. During the six month period
immediately following the Effective Date, you acknowledge and agree that you
will not, without the prior written consent of the Company, directly or
indirectly participate in any capacity in the ownership, management, operation,
financing or control of, or permit your name to be used in connection with, any
business or enterprise that competes with the Company. Notwithstanding the
foregoing, you will not be prohibited from owning not more than 2% of any class
of outstanding securities of any such publicly held enterprise. If these
restrictions should ever be adjudicated to exceed the time, geographic, product,
services, or other limitations permitted by applicable law in any jurisdiction,
then such provisions will be deemed reformed in such jurisdiction to such
limitations permitted by law.
c. Non-Solicitation. During the period that you receive
severance payments from the Company, you acknowledge and agree that you will not
solicit, urge or induce any employee of the Company to terminate his or her
employment with the Company or otherwise interfere with or disrupt the Company's
relationships with its employees. In addition, you acknowledge and agree that
you will not solicit, urge or induce any client of the Company not to do
business with, or otherwise contract with, another person or entity for the
types of products or services that are offered by the Company, or otherwise
solicit, urge or induce any such client to terminate or adversely modify any
business relationship with the Company.
8. Non-Disparagement. In any announcements or public statements
concerning your departure, you and the Company will state only that you decided
to take early retirement. You agree that you will not communicate to anyone any
adverse, disparaging or derogatory statements or information concerning the
Company or any current or former director, officer or employee of the Company.
In return, the Company will not make any adverse, disparaging or derogatory
statements about you. In response to any request for information about you from
any prospective employer, the Company
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will confirm the dates of your employment and the position that you held.
Nothing in this Agreement shall restrict you or the Company from making truthful
disclosures as required by law.
9. Release. In exchange for the severance payment referred to in
Paragraph 1, the EMPLOYEE hereby releases and forever discharges SEABULK from
any and all claims, actions, demands, and causes of action in law or in equity
which EMPLOYEE may have had, or may now have, which are based on or in any way
related to his employment with SEABULK or the termination of that employment.
The EMPLOYEE's release of claims and actions includes, but is not limited to,
claims of age discrimination arising under the Age Discrimination in Employment
Act, as amended, claims under Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act, the Fair Labor Standards Act, the
Employee Retirement Income Security Act, the Consolidated Omnibus Budget
Reconciliation Act, the Family and Medical Leave Act, the Florida Civil Rights
Act of 1992, as amended, claims under Florida Statutes Chapter 448.101 et seq.,
commonly known as the Florida Private Whistleblower Act, and related or similar
Texas statutes, and any and all actions EMPLOYEE may have in tort, contract or
under statutory or the common law.
10. Binding Agreement. The obligations of the Company under this
letter Agreement shall be binding on the Company and its successors and assigns.
11. Offer Period/Revocation. Please read this Agreement carefully
and feel free to consult with your own legal advisors if you so desire. Pursuant
to the Older Workers' Benefit Protection Act, you may have up to 21 days to
consider this Agreement before signing it. In addition, once you sign this
Agreement, you will have seven days within which to revoke this Agreement. Any
revocation must be in writing and delivered to the Company's Chairman of the
Board, President, and Chief Executive Officer within seven days after you sign
this Agreement. This Agreement will not become effective until the seven-day
revocation period has expired, and you therefore will not receive any
consideration under this Agreement until after the revocation period has
expired. Of course, if you revoke this Agreement, you will not receive any of
the severance benefits or any other special consideration provided for under
this Agreement.
If the foregoing terms are acceptable to you, please confirm
your Agreement by signing your name below. Your signature below will indicate
that you are
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entering into this Agreement freely and with a full understanding of its terms
and effect. No changes to this Agreement will be valid unless in writing and
signed by both you and the Company's Chief Executive Officer.
12. The EMPLOYEE understands and agrees that by accepting the
severance payment and signing this Agreement, he is giving up the right to sue
SEABULK for any claims arising out of his employment with SEABULK, and the
termination of that employment.
13. The EMPLOYEE further promises and agrees not to file, cause to
be filed, or join in the filing in any federal, state or local court or agency,
of any grievance, charge, claim or action, as an individual or as a member of a
class, relating to his employment or the termination of his employment with
SEABULK, and he waives any right to legal or equitable relief which might be
claimed on his behalf by any class representative or government agency with
respect to his employment with SEABULK.
14. The EMPLOYEE understands and agrees that this Agreement is
confidential. EMPLOYEE agrees not to disclose the terms of this Agreement or the
fact of its execution to any person, including but not limited to, current
employees, the media, prospective employers, private or public entities, or
other individuals or entities without the advanced written consent of SEABULK.
This confidentiality provision does not apply to the EMPLOYEE's immediate
family, attorney or tax advisor, so long as these excepted individuals are
notified of this provision and agree to not further disclose the terms of the
Agreement in accordance with the terms of this provision. This Agreement does
not apply to Seabulk to the extent that in its reasonable judgement it is
required to disclose the contents of this Agreement under SEC public Company
requirements.
15. The EMPLOYEE acknowledges that SEABULK has made no
representations regarding the tax consequences of this Agreement. The EMPLOYEE
understands that SEABULK will deduct from the payment referenced in Paragraph 1
applicable federal income tax withholding and ordinary employment taxes, and
will report the payment referenced in Paragraph 1 to the Internal Revenue
Service on Form W-2.
16. In the event that any party to this Agreement is forced to
institute legal proceedings for breach of the terms of this Agreement, it is
agreed that any trial shall be without a jury, venue shall be in Broward County,
Florida, this Agreement shall be
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interpreted in accordance with the laws of the State of Florida, and the
prevailing party in any such action shall be entitled to its costs, including
reasonable attorney's fees.
17. EMPLOYEE acknowledges that he has been advised to consult with
an attorney of his own choice prior to and in connection with the execution of
this Agreement.
18. This Agreement shall not be construed as or deemed to be
evidence of an admission of any liability whatsoever on the part of SEABULK or
any of its officers, directors, employees or agents.
19. This Agreement contains the entire Agreement and complete
understanding of the parties, and no other statements, promises or
understandings of any party may alter the plain meaning of the terms of this
Agreement.
Intending to be legally bound, the parties execute this Severance
Agreement and General Release by their signatures below.
/s/ ANDREW W. BRAUNINGER ______________ 3/20/03 _________________
EMPLOYEE Andrew W. Brauninger DATE
/s/ AIMEE DUBUISSON ____________________ 3/20/03 _________________
WITNESS DATE
SEABULK INTERNATIONAL, INC.
By: /s/ GERHARD E. KURZ__________________ 3/21/03 _________________
DATE