PRIDE INTERNATIONAL,
INC.
AMENDED AND RESTATED
EMPLOYMENT/
NON-COMPETITION/
CONFIDENTIALITY AGREEMENT
AMENDED AND RESTATED EMPLOYMENT/
NON-COMPETITION/CONFIDENTIALITY AGREEMENT
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The date of
execution set forth below.
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Pride
International, Inc.,
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a Delaware
corporation
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5847 San
Felipe, Suite 3300
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Houston, Texas
77057
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Ron
Toufeeq
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This
Amended and Restated Employment/Non-Competition/Confidentiality
Agreement by and between Pride International, Inc. (the
“Company” and as further defined below) and Ron Toufeeq
(“Employee”) (together the “Parties”),
effective as of the date set forth in Section 2.04 below (the
“Agreement”), is made on the terms as herein
provided.
WHEREAS,
the Parties previously entered into an employment agreement
effective as of March 15, 2004 (the “Prior
Agreement”) and wish to hereby supersede the Prior Agreement
and amend and restate the rights and obligations of the Parties
with regard to Employee’s employment with the Company in this
Agreement; and
WHEREAS,
Employee is willing to enter into this Agreement upon the terms and
conditions and for the consideration set forth herein.
NOW,
THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, the Parties agree as
follows:
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I.
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PRIOR
AGREEMENTS/CONTRACTS
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As
of the Effective Date, the Prior Agreement is hereby amended,
modified and superseded by this Agreement insofar as future
employment, compensation, non-competition, confidentiality, accrual
of payments or any form of compensation or benefits from the
Company are concerned. This Agreement does not release or relieve
the Company from its liability or obligation with respect to any
compensation, payments or benefits already accrued to Employee for
service prior to the Effective Date, nor to any vesting of benefits
or other rights which are attributable to length of employment,
seniority or other such matters. This Agreement does not relieve
Employee of any prior non-competition or confidentiality
obligations and agreements and the same are hereby modified and
amended as to future matters and future confidentiality even as to
matters accruing prior to the Effective Date hereof.
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II.
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DEFINITION OF TERMS
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Words used in the Agreement in the
singular shall include the plural and in the plural the singular,
and the gender of words used shall be construed to include
whichever may be appropriate under any particular circumstances of
the masculine, feminine or neuter genders.
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2.01
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COMPANY. Company means Pride
International, Inc., a Delaware corporation, as the same presently
exists, as well as any and all successors and assigns, regardless
of the nature of the entity or the state or nation of organization,
whether by reorganization, merger, consolidation, absorption or
dissolution. For the purpose of the Agreement, Company includes all
subsidiaries and affiliates of the Company to the extent such
subsidiary and/or affiliate is carrying on any portion of the
business of the Company or a business similar to that being
conducted by the Company.
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2.02
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EXECUTIVE/OFFICER/EMPLOYEE.
Executive/Officer/Employee means Ron Toufeeq.
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2.03
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OFFICE/POSITION/TITLE. The Office,
Position and Title for which Employee is employed is that of Senior
Vice President, Asset Management and Engineering of the Company and
carries with it such duties, responsibilities, rights, benefits and
privileges as may reasonably be assigned to Employee as are
customary and usual for such position. Employee and the Company
agree that the Company may re-assign Employee to another office,
position and/or title, subject to Employee’s rights if such a
re-assignment and subsequent termination of employment by Employee
constitutes a Termination, including a Constructive Termination,
under Section 2.08 of this Agreement.
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2.04
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EFFECTIVE DATE. The Agreement
becomes effective and binding as of December 31,
2008.
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2.05
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CHANGE IN CONTROL. The term
“Change in Control” of the Company shall mean, and
shall be deemed to have occurred on the date of the first to occur
of any of the following:
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a.
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there occurs a change in control of
the Company of the nature that would be required to be reported in
response to item 6(e) of Schedule 14A of Regulation 14A
or Item 5.01 of Form 8-K promulgated under the Securities
Exchange Act of 1934 as in effect on the date of the Agreement, or
if neither item remains in effect, any regulations issued by the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 which serve similar purposes;
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b.
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any
“person” (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) is or becomes a
beneficial owner, directly or indirectly, of securities of the
Company representing twenty
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percent (20%) or more of the total
voting power of the Company’s then outstanding
securities;
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c.
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individuals who, as of the date
hereof, constitute the members of the Board of Directors of the
Company (the “Incumbent Directors”) cease for any
reason other than due to death or disability to constitute at least
a majority of the members of the Board of Directors of the Company
(the “Board”), provided that any director who was
nominated for election or was elected with the approval of at least
a majority of the members of the Board who are at the time
Incumbent Directors shall be considered an Incumbent Director
unless such individual’s 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;
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d.
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the
Company shall have merged into or consolidated with another
corporation, or merged another corporation into the Company, on a
basis whereby less than fifty percent (50%) of the total voting
power of the surviving corporation is represented by shares held by
former stockholders of the Company prior to such merger or
consolidation;
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e.
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the
Company shall have sold, transferred or exchanged all, or
substantially all, of its assets to another corporation or other
entity or person; or
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f.
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a
Merger Protection Change in Control (as hereinafter defined) shall
have occurred.
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2.06
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MERGER PROTECTION CHANGE IN CONTROL.
The term “Merger Protection Change in Control” shall
mean, and shall be deemed to have occurred on, the date the Company
shall have merged into or consolidated with another corporation, or
merged another corporation into the Company, on a basis whereby at
least fifty percent (50%) but not more than sixty-six percent (66%)
of the total voting power of the surviving corporation is
represented by shares held by former stockholders of the Company
immediately prior to such merger or consolidation.
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2.07
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CHANGE IN CONTROL TERMINATION. The
term “Change in Control Termination” shall mean a
Termination (i) within two (2) years following the date
of a Change in Control which occurs for any reason other than a
Merger Protection Change in Control or (ii) within one
(1) year following the date of a Merger Protection Change in
Control.
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2.08
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TERMINATION. The term
“Termination” shall mean termination of the employment
of Employee with the Company (including Disability) for any reason
other than (i) Cause, (ii) Voluntary Resignation, or
(iii) death. Termination includes “Constructive
Termination” as described below. Termination includes
termination at the end of any “Employment Period” due
to non-renewal or failure
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to
extend this Agreement for any reason except for Cause or because
Employee has reached age 65 prior to the end of the Employment
Period. Notwithstanding any provision hereof to the contrary, the
Company shall have the right to terminate Employee’s
employment at any time during the Employment Period (including any
extended term) and the Company has no obligation to deliver advance
notice of termination of employment, except such notice as is
otherwise required for a termination for Cause.
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a.
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The
term “Disability” means physical or mental incapacity
qualifying Employee for a long-term disability under the
Company’s long-term disability plan. If no such plan exists
on the date on which a relevant determination is being made, the
term “Disability” means physical or mental incapacity
as determined by a doctor jointly selected by Employee and the
Board qualifying Employee for long-term disability under reasonable
employment standards.
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b.
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The
term “Cause” means: (i) the willful and continued
failure of Employee substantially to perform his duties with the
Company (other than any failure due to physical or mental
incapacity) after a written demand for substantial performance is
delivered to him by the Board which specifically identifies the
manner in which the Board believes he has not substantially
performed his duties, (ii) willful misconduct materially and
demonstrably injurious to the Company, (iii) intentional
action, materially and demonstrably injurious to Company, which
Employee knows would not comply with the laws of the United States
or any other jurisdiction applicable to Employee’s actions on
behalf of the Company, and/or any of its subsidiaries or
affiliates, including specifically, without limitation, the United
States Foreign Corrupt Practices Act, generally codified in 15 USC
78 (the “FCPA”), as the FCPA may hereafter be amended,
and/or its successor statutes, or (iv) material violation of
one or more of the covenants in Article V (except violation of
the covenant not to compete after termination of employment after
Change in Control as discussed herein). No act or failure to act by
Employee shall be considered “willful” unless done or
omitted to be done by him not in good faith and without reasonable
belief that his action or omission was in the best interest of the
Company. The unwillingness of Employee to accept any or all of a
change in the nature or scope of his position, authorities or
duties, a reduction in his total compensation or benefits, or other
action by or at request of the Company in respect of his position,
authority, or responsibility that is contrary to this Agreement,
may not be considered by the Board to be a failure to perform or
misconduct by Employee. Notwithstanding the foregoing, Employee
shall not be deemed to have been terminated for Cause for purposes
of the Agreement unless and until there shall have been delivered
to him a copy of a resolution, duly adopted by a vote of
three-fourths of the entire Board at a meeting of the Board called
and held (after a notice to Employee identifying in reasonable
detail the manner in which Company believes
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Cause exists and an opportunity for
Employee and his counsel to prepare for and to be heard before the
Board) for the purpose of considering whether Employee has been
guilty of such a willful failure to perform or such willful
misconduct as justifies termination for Cause hereunder, finding
that, in the good faith opinion of the Board, Employee has been
guilty thereof, and specifying the particulars thereof.
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c.
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The
term “Constructive Termination” means any circumstance
by which the actions of the Company either reduce or change
Employee’s title, position, duties, responsibilities or
authority to such an extent or in such a manner as to relegate
Employee to a position not substantially similar to that which he
held prior to such reduction or change and which would degrade,
embarrass or otherwise make it unreasonable for Employee to remain
in the employment of the Company; and includes a violation by the
Company of the employment provisions and conditions of this
Agreement.
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d.
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The
term “Voluntary Resignation” shall mean any termination
of employment by Employee for any reason other than one or more of
the following:
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(i)
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Employee’s resignation or
retirement is requested by the Company other than for
Cause;
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(ii)
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Any
significant adverse change in the nature or scope of
Employee’s position, authorities or duties from those
described in this Agreement;
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(iii)
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Any
(a) reduction in Employee’s total base salary,
(b) reduction in Employee’s bonus target award level
specified in Section 3.04(b), or (c) material reduction
in Employee’s benefits other than equity or long-term
incentive awards or actual bonus award payouts, in all cases from
the levels then in effect immediately prior to such
reduction;
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(iv)
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The
material breach by the Company of any other provision of this
Agreement;
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(v)
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Any
requirement of the Company that Employee relocate more than 50
miles from downtown Houston, Texas;
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(vi)
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Any
action by the Company which would constitute Constructive
Termination; or
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(vii)
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Notice by the Company of non-renewal
of the Agreement contrary to the wishes of Employee, if such
non-renewal would be effective prior to the expiration of the
Employment Period during which Employee attains age 65.
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2.09
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CUSTOMER. The term
“Customer” includes all persons, firms or entities that
are purchasers or end-users of services or products offered,
provided, developed, designed, sold or leased by the Company during
the relevant time periods, and all persons, firms or entities which
control, or which are controlled by, the same person, firm or
entity which controls such purchase.
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2.10
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MAXIMUM BONUS. The term
“Maximum Bonus” shall mean the maximum amount of
compensation Employee may earn under the Company’s annual
bonus incentive plan for the fiscal year in which the Termination
occurs, or if the Company has not specified a maximum amount for
such year, for the last year in which the Company had specified
such a maximum amount; provided, however, that in no event shall
“Maximum Bonus” mean an amount less than two
(2) times Target Bonus.
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2.11
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TARGET BONUS. The term “Target
Bonus” shall mean Employee’s target bonus under the
Company’s annual bonus incentive plan for the fiscal year in
which Termination occurs or, if the Company has not specified a
target bonus for such year, for the last year in which the Company
had specified such a target bonus.
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3.01
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EMPLOYMENT. Except as otherwise
provided in the Agreement, the Company hereby agrees to continue
Employee in its employ, and Employee hereby agrees to remain in the
employ of the Company for the Employment Period. During the
Employment Period, Employee shall exercise such position and
authority and perform such responsibilities as are commensurate
with the position to which he is assigned and as directed by his
supervisor.
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3.02
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BEST EFFORTS AND OTHER EMPLOYMENT
OBLIGATIONS OF EMPLOYEE; BUSINESS EXPENSES AND OFFICE AND OTHER
SERVICES.
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a.
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During the Employment Period,
Employee agrees that he will at all times faithfully, industriously
and to the best of his ability, experience and talents, perform all
of the duties that may be required of and from him pursuant to the
express and implicit terms hereof, to the reasonable satisfaction
of the Company. Said duties shall be rendered at Houston, Texas,
and such other place or places within or without the State of Texas
as the Company and Employee shall agree.
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b.
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During the Employment Period,
Employee shall devote his normal and regular business time,
attention and skill to the business and interests of the Company,
and the Company shall be entitled to all of the benefits, profits
or other issue arising from or incident to all work, services and
advice of Employee performed for the Company. Such employment shall
be considered “full time” employment. Employee shall
also have the right
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to
devote such incidental and immaterial amounts of his time which are
not required for the full and faithful performance of his duties
hereunder to any outside activities and businesses which are not
being engaged in by the Company and which shall not otherwise
interfere with the performance of his duties hereunder.
Notwithstanding the foregoing, it shall not be a violation of the
Agreement for Employee to (i) serve on corporate, civic or
charitable boards or committees, (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions
and (iii) manage personal investments, so long as such
activities do not significantly interfere with the performance of
Employee’s responsibilities hereunder. Employee shall have
the right to make investments in any business provided such
investment does not result in a violation of Article V of the
Agreement.
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c.
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Employee acknowledges and agrees
that, in connection with his employment relationship with the
Company, Employee owes a fiduciary duty to the Company. In keeping
with these duties, Employee shall make full disclosure to the
Company of all business opportunities pertaining to the
Company’s business and shall not appropriate for
Employee’s own benefit business opportunities concerning the
subject matter of the fiduciary relationship.
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d.
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During and after the Employment
Period, Employee agrees not to make any disparaging comments about
the Company, any affiliates, or any current or former officer,
director or employee of the Company or any affiliate or to take any
action (or assist any person in taking any other action), in each
case, that is materially adverse to the interests of the Company or
any affiliate or inconsistent with fostering the goodwill of the
Company and its affiliates; provided, however, that nothing in the
Agreement shall apply to or restrict in any way the communication
of information by Employee to any state or federal law enforcement
agency or require notice to the Company thereof, and Employee will
not be in breach of the covenant contained above solely by reason
of his testimony which is compelled by process of law. During and
after the Employment Period, the Company and its affiliates,
officers and directors agree to refrain from any disparaging
comments about Employee; provided, however, that nothing in the
Agreement shall apply to or restrict in any way the communication
of information by the Company and its affiliates, officers and
directors to any state or federal law enforcement agency or require
notice to Employee thereof, and the Company and its affiliates,
officers and directors will not be in breach of the covenant
contained above solely by reason of testimony which is compelled by
process of law. Nothing in this Section, express or implied, is
intended to or shall confer upon any person other than Employee,
the Company or any subsidiary or affiliate of the Company any right
benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
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e.
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During the Employment Period,
Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Employee in accordance with the
most favorable policies, practices and procedures of the Company as
in effect from time to time. Such reimbursement shall be made
subject to the terms and conditions of the Company’s policy
on the earlier of (i) the date specified in the
Company’s policy or (ii) to the extent the reimbursement
is taxable and subject to Section 409A (as defined in Section
6.04), no later than December 31 of the calendar year next
following the calendar year in which the expense was
incurred.
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