exv10w1






Exhibit 10.1









June 15, 2009




Mr. John A. Clerico

3132 S. Columbia Circle

Tulsa, OK 74105





			
	     Re:	 	Change-In-Control Agreement





Dear Mr. Clerico:




     Global Industries, Ltd. (the “Company”) considers it essential to the best interest of the
Company and its shareholders that its management and key employees be encouraged to remain with the
Company and to continue to devote full attention to the Company’s business in the event of a change
in control of the Company, whether through a tender offer, a negotiated merger or sale of the
Company’s business or otherwise. In this connection, the Company recognizes that the possibility
of a change in control and the uncertainty and questions which it may raise among management may
result in the departure or distraction of management personnel and key employees to the detriment
of the Company and its shareholders. Accordingly, the Company’s Board of Directors (the “Board”)
has determined that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company’s management, including yourself, to their
assigned duties without distraction in the face of the potentially disturbing circumstances arising
from the possibility of a change in control of the Company under the circumstances described below.



     In order to induce you to remain in the employ of the Company, this letter agreement
(“Agreement”) sets forth the severance benefits which the Company agrees will be provided to you in
the event your employment with the Company is terminated subsequent to a Change in Control of the
Company under the circumstances described below.



     Nothing herein shall be construed to prevent either you or the Company from terminating your
employment at any time, for cause or otherwise, subject only to the specific payment and other
provisions hereinafter provided for under certain circumstances in the event a Change in Control of
the Company shall have occurred prior to the date your termination becomes effective.



     1. CONTINUED EMPLOYMENT.



     This confirms that you have advised the Company that, in consideration of, among other things,
the Company’s entering into this Agreement with you, it is your present intention to remain in the
employ of the Company. This Agreement shall commence on the date hereof and shall continue until
December 31, 2009; provided, however, that commencing on January 1, 2010 and each January 1st
thereafter, the term of this Agreement shall automatically be extended



 









 





Mr. John A. Clerico

June 15, 2009

Page 2



for one additional year unless at least 30 days prior to such January 1st date, the Company
shall have given notice that it does not wish to extend this Agreement. Notwithstanding anything
to the contrary contained in this paragraph 1, (a) it is agreed that if a Change in Control occurs
while this Agreement is in effect, then the term of this Agreement shall be automatically extended
and shall remain in effect for two years after such Change in Control, and if within such two-year
period any termination occurs that would entitle you to the benefits hereunder, this Agreement
shall remain in effect in accordance with its terms, and (b) the Company may terminate this
Agreement at any time upon your Total Disability (as defined in paragraph 2). In the event that
your employment with the Company terminates for any reason prior to the occurrence of a Change in
Control, this Agreement shall automatically terminate as of the date of your termination, and no
benefits shall be payable to you hereunder.




     2. DEFINITIONS.



     For purposes of this Agreement, the following terms have the meanings set forth below:



     “Bonus Incentive Plan” shall mean the Company’s Management Incentive Plan or, if that
plan is no longer maintained, any cash bonus plan maintained by the Company for similarly situated
active executives of the Company.



     “Cause” shall mean only (a) if termination shall have been the result of an act or
acts of dishonesty on your part constituting a felony and resulting, or intending to result,
directly or indirectly, in gain or personal enrichment at the expense of the Company or (b) upon
the willful and continued failure by you to substantially perform your duties with the Company
(other than any such failure resulting from your incapacity due to mental or physical illness)
after a demand in writing for substantial performance is delivered to you by the Board, which
demand specifically identifies the manner in which the Board believes that you have not
substantially performed your duties, and such failure to perform your duties results in
demonstrably material injury to the Company. Your employment shall in no event be considered to
have been terminated by the Company for Cause if such termination took place as the result of
(i) bad judgment or negligence on your part, or (ii) any act or omission without intent of gaining
therefrom, directly or indirectly, a profit to which you were not legally entitled, or (iii) any
act or omission believed by you in good faith to have been in or not opposed to the interest of the
Company, or (iv) any act or omission in respect of which a determination is made that you met the
applicable standard of conduct prescribed for indemnification or reimbursement or payment of
expenses under the by-laws of the Company or the laws of the State of Louisiana or the directors
and officers liability insurance of the Company, in each case as in effect at the time of such act
or omission. You shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to you a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board at a meeting called and held for the
purpose (after reasonable notice to you and an opportunity for you, together with your counsel, to
be heard before the Board), finding that in the good faith opinion of the Board you were guilty of
conduct set forth above in clauses (a) or (b) of the first sentence of this definition and
specifying the particulars thereof in detail.



 









 





Mr. John A. Clerico

June 15, 2009

Page 3




     “Change in Control” shall mean (i) any merger, consolidation or other reorganization
in which the Company shall not be the surviving entity (or survives only as a subsidiary of an
entity other than a previously wholly-owned subsidiary of the Company), (ii) the dissolution or
liquidation of the Company; (iii) the sale, lease or exchange or agreement to sell, lease or
exchange all or substantially all of the assets of the Company to any other person or entity (other
than a wholly-owned subsidiary of the Company); (iv) the acquisition, directly or indirectly, of
the beneficial ownership of more than 50% of the issued and outstanding shares of the common stock
of the Company by any individual or entity, including a “group” as contemplated by Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended, except an underwriter or similar entity in
connection with a public offering of common stock, alone or in concert with others; or (v) as a
result of or in connection with a contested election of directors, the persons who were directors
of the Company before such election shall cease to constitute a majority of the Board.



     “Code” shall mean the Internal Revenue Code of 1996, as amended.



     “Committee” shall mean the Compensation Committee of the Board of Directors of Global
Industries, Ltd.



     “Company” shall mean Global Industries, Ltd., and, except where the context indicates
otherwise, after the occurrence of a Change in Control, “Company” shall mean any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of Global Industries, Ltd.



     “Date of Termination” shall mean the date on which you have a “separation from
service” as defined in Section 409A of the Code.



     “Good Reason” shall mean:




(a) without your express written consent, the assignment to you of any duties inconsistent
with your positions, duties, responsibilities and status with the Company immediately prior
to a Change in Control, or a change in your reporting responsibilities, titles or offices as
in effect immediately prior to a Change in Control, or any removal of you from or any
failure to re-elect you to any of such positions, except in connection with the termination
of your employment for Cause, Total Disability or as a result of your death or by you other
than for Good Reason;




(b) a reduction by the Company in your base salary or total compensation for the fiscal year
in which the Change in Control occurred from your base salary or total compensation in the
fiscal year immediately preceding the year in which the Change in Control occurred (assuming
for purposes of determining whether a reduction of total compensation has occurred that
total compensation in the year preceding the fiscal year in which the Change in Control
occurred consisted of your base salary for that year plus payment under the Bonus Incentive
Plan in an amount equal to the highest payment under the Bonus Incentive Plan you received
in any of the three years immediately preceding



 









 





Mr. John A. Clerico

June 15, 2009

Page 4





the year in which the Change in Control occurred) or the failure by the Company to increase
your total salary and payment under the Bonus Incentive Plan (based on actual salary and
payment under the Bonus Incentive Plan) each year after a Change in Control by an amount
which at least equals, on a percentage basis, the mean average percentage increase in total
compensation for all officers of the Company during the three full fiscal years immediately
preceding a Change in Control of the Company;




(c) a failure by the Company to continue the Bonus Incentive Plan substantially on the basis
in effect prior to the Change in Control, or a failure by the Company to continue you as a
participant on at least the same basis as your participation for the fiscal year immediately
preceding a Change in Control;




(d) a permanent relocation of your principal place of employment with the Company from the
city in which you were serving immediately prior to the date on which a Change in Control
occurs to a place which is more than 30 miles away from such location;




(e) the failure by the Company to continue in effect any benefit or compensation plan in
addition to the bonus or incentive compensation plan, including its retirement plans, life
insurance plan, health and accident plan or disability plan in which you are participating
at the time of a Change in Control of the Company (or plans providing you with substantially
similar benefits) and stock option and stock purchase plans providing you with substantially
similar benefits as the Company plans in existence immediately before the Change in Control,
or the taking of any action by the Company which would adversely affect your participation
in or materially reduce your benefits under any of such plans or deprive you of any material
fringe benefit enjoyed by you at the time of the Change in Control, or the failure by the
Company to provide you with the number of paid vacation days to which you are then entitled
on the basis of years of service with the Company in accordance with the Company’s normal
vacation policy in effect immediately prior to the Change in Control;




(f) the failure of the Company to obtain an assumption of this Agreement by any successor as
contemplated in paragraph 6 hereof; or




(g) any purported termination of your employment which is not effected pursuant to a Notice
of Termination satisfying the requirements set forth in the definition thereof (and, if
applicable, the requirements set forth in the definition of Cause).



     “Incentive Compensation” shall mean the greater of (i) the highest annual award earned
under the Bonus Incentive Plan during any one of the five fiscal years immediately preceding the
fiscal year which includes the Date of Termination, or (ii) the Target Award.



     “Notice of Termination” shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of your employment under the
provisions so indicated. With respect to termination by you for Good Reason, the Notice of



 









 





Mr. John A. Clerico

June 15, 2009

Page 5



Termination shall state that you have made a good faith determination that, due to a Change in
Control, you are not able effectively to discharge your duties. The Notice of Termination shall be
delivered no less than 30 days prior to the Date of Termination, or (i) such longer period required
by contract between you and the Company or (ii) such shorter period as agreed by you and the
Company by mutual consent. Any purported termination of your employment which is not effected
pursuant to a Notice of Termination shall be deemed ineffective.




     “Stock Incentive Plan” shall mean the Global Industries, Ltd. 1998 Equity Incentive
Plan, the Global Industries, Ltd. 2005 Stock Incentive Plan and/or any future plan under which the
Company awards long-term incentive compensation.



     “Target Award” shall mean the higher of the target award level under the Bonus
Incentive Plan (i) at the time of a Change in Control or (ii) on the Date of Termination; in each
case expressed as a dollar amount based on the base salary then in effect.



     “Total Disability” shall mean that, as a result of your incapacity due to physical or
mental illness, you are suffering from “total disability” as defined in any long-term disability
plan maintained by the Company, and shall be deemed to occur on the first date as of which you
would be entitled to commence receipt of benefits thereunder had you been a participant.



     3. TREATMENT OF EQUITY UPON A CHANGE IN CONTROL.



     (a) Options held by you granted under a Stock Incentive Plan shall fully vest upon the date of
a Change in Control. Unless the Committee has determined to make an equitable adjustment or
substitution of stock options pursuant to the terms of the applicable Stock Incentive Plan, all
options held by you granted under a Stock Incentive Plan shall be surrendered to the Company by you
and such options shall be canceled by the Company, in exchange for a cash payment by the Company
within ten days after the Change in Control in an amount equal to the number of shares of the
Company’s common stock subject to your option multiplied by the difference between (x) and (y)
where (x) equals the closing sale price of a share of common stock on any exchange on which such
shares are traded or quoted as of the date immediately prior to the Change in Control and (y)
equals the purchase price per share covered by the option.



     (b) In the event of a Change in Control, restricted stock held by you granted under a Stock
Incentive Plan shall immediately vest, and all forfeiture restrictions shall immediately expire, as
of the date of the Change in Control.



     (c) In the event of a Change in Control, performance units held by you granted under a Stock
Incentive Plan for which the performance period has not expired as of the date of a Change in
Control shall be deemed to be earned at the target performance level. Unless the Committee
determines otherwise, you shall have the right to receive the same form of equity or other
consideration as all other shareholders with respect to the common stock subject to the earned
performance units. The common stock or other property subject to the earned performance units
shall be delivered to you within ten days of the date of the Change in Control. Notwithstanding
the foregoing, if the performance units are non-qualified deferred compensation



 









 





Mr. John A. Clerico

June 15, 2009

Page 6



under Section 409A of the Code, the performance units shall vest only if the Change in Control
satisfies the requirements of Treasury Regulations Section 1.409A-3(i)(5).




     4. COMPENSATION UPON TERMINATION AFTER A CHANGE IN CONTROL.



     No benefits shall be payable under this Agreement unless a Change in Control shall have
occurred. If your employment by the Company is terminated within two years after a Change in
Control, then the Company will, as additional compensation for services rendered to the Company,
pay to you the following amounts (subject to any applicable payroll or other taxes required to be
withheld and employee benefit premiums):




	 	(a)	 	If the Company terminates your employment other than due to death, Total
Disability or for Cause or if you terminate your employment for Good Reason, then the
Company will pay to you in a lump sum on the Date of Termination (subject to paragraph
12 hereof and except as set forth in item (ii) below), the following amounts:






	 	(i)	 	an amount equal to your Incentive Compensation times a
fraction, the numerator of which is the number of days elapsed in the fiscal
year to and including the Date of Termination and the denominator of which is
365;
	 
	 	(ii)	 	in lieu of any further payments to you for periods subsequent
to the Date of Termination, a cash payment of $3,600,000 less any applicable
federal and state taxes; and
	 
	 	(iii)	 	the Company shall also pay all legal fees and expenses
incurred by you as a result of such termination (including all such fees and
expenses, if any, incurred in contesting or disputing any such termination or
in seeking to obtain or enforce any right or benefit provided by this
Agreement). Any reimbursement provided hereunder during one calendar year
shall not affect the amount or availability of reimbursements in another
calendar year. Any reimbursement provided hereunder shall be paid no later
than the earlier of (i) the time prescribed under the Company’s applicable
policies and procedures, or (ii) the last day of the calendar year following
the calendar year in which your Date of Termination occurs.






	 	(b)	 	Notwithstanding any contrary provisions in any plan, program or policy of the
Company, if all or any portion of the benefits payable under the Agreement, either
alone or together with other payments and benefits which you receive or are entitled to
receive from the Company, would constitute a “parachute payment” within the meaning of
Section 280G of the Code, the Company shall reduce the payments and benefits payable to
you under the Agreement to the extent necessary so that no portion thereof shall be
subject to the excise tax imposed by Section 4999 of the Code, but only if, by reason
of such reduction, the net





 









 





Mr. John A. Clerico

June 15, 2009

Page 7





after-tax benefit shall exceed the net after-tax benefit if such reduction were not
made. “Net after-tax benefit” for these purposes shall mean the sum of (i) the
total amount payable to you under the Agreement, plus (ii) all other payments and
benefits which you receive or are then entitled to receive from the Company that,
alone or in combination with the payments and benefits payable under the Agreement,
would constitute a “parachute payment” within the meaning of Section 280G of the
Code, less (iii) the amount of federal income taxes payable with respect to the
foregoing calculated at the maximum marginal income tax rate for each year in which
the foregoing shall be paid to you (based upon the rate in effect for such year as
set forth in the Code at the time of the payment under the Agreement), less (iv) the
amount of excise taxes imposed with respect to the payments and benefits described
in (i) and (ii) above by Section 4999 of the Code. Any reduction, pursuant to this
paragraph, of amounts payable to you shall be made in a manner such that you receive
the best economic benefit, and to the extent economically equivalent, such reduction
shall be made on a pro-rata basis among all amounts payable under this Agreement.



     5. PAYMENT OBLIGATION ABSOLUTE.



     The Company’s obligation to pay you the amounts and to make the arrangements provided herein
shall be absolute and unconditional and shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company
may have against you or anyone else. All amounts payable by the Company shall be paid without
notice or demand. You shall not be required to mitigate the amount of any payment or benefit
provided for you herein by seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for herein be reduced by any compensation earned by you as a result of
employment by another employer after the Date of Termination, or otherwise.



     6. SUCCESSORS, BINDING AGREEMENT.



     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 expressly assume 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.
This Agreement shall inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
If you should die while any amount would still be payable to you hereunder if you had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee, or other designee or, if there be no such
designee, to your estate.



 









 





Mr. John A. Clerico

June 15, 2009

Page 8




     7. NOTICE.



     Any termination by the Company shall be communicated by written Notice of Termination to the
other party thereto. Notices and all other communications provided for in this Agreement shall be
in writing and shall be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the respective addresses
set forth on the first page of this Agreement, provided that all notices to the Company shall be
directed to the attention of the Secretary of the Company, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.



     8. MISCELLANEOUS.



     This Agreement supersedes any and all prior agreements between you and the Company concerning
the subject matter hereof. No provisions of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing signed by you and such
officer as may be specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements
or representations, oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth expressly in this Agreement. The
validity, interpretation, construction and performance of this Agreement shall be governed by the
laws of the State of Texas. Except as contemplated in paragraph 3 hereof, the obligation to pay
amounts under this Agreement is an unfunded obligation of the Company, and no such obligation shall
create a trust or be deemed to be secured by any pledge or encumbrance on any property of the
Company.



     This Agreement shall not be deemed to constitute a contract of employment, nor shall any
provision hereof restrict the right of the Company to discharge you at will. Nothing herein shall
be construed to preclude the transfer of your employment to a subsidiary or affiliate of the
Company and such a transfer shall not be considered a termination of your employment hereunder.
For purposes of this 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.



     9. VALIDITY.



     The invalidity or unenforceability of any one or more provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement, which shall remain
in full force and effect.



 









 




Mr. John A. Clerico
June 15, 2009
Page 9


     10. COUNTERPARTS.


     This Agreement may be executed in counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same instrument.


     11. ARBITRATION.


     Any dispute or controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration in Houston, Texas in accordance with the rules of the American
Arbitration Association then in effect; provided that all arbitration expenses shall be borne by
the Company. Notwithstanding the pendency of any dispute or controversy concerning termination or
the effects thereof, the Company will continue to pay your base salary, retroactive to the Date of
Termination, if applicable, in effect immediately before any Notice of Termination giving rise to
the dispute was given and continue you as a participant in all compensation, benefit and insurance
plans in which you were then participating, until the dispute is finally resolved. Subject only to
item (b) of paragraph 4, amounts paid under this paragraph are in addition to all other amounts due
under this Agreement and shall not be offset against or reduce any other amounts due under this
Agreement. Judgment may be entered on the arbitrators’ award in any court having jurisdiction;
provided, however, that you shall be entitled to seek specific performance of your right to be paid
until the Date of Termination during the pendency of any dispute or controversy arising under or in
connection with this Agreement.


     12. SECTION 409A.


     (a) This Agreement is intended to comply with Section 409A of the Code and accompanying
Treasury regulations and guidance (“Section 409A”) and any ambiguous provision will be construed in
a manner that is compliant with or exempt from the application of Section 409A.


     (b) Notwithstanding any provision in this Agreement to the contrary, if the payment of any
compensation or benefit hereunder (including, without limitation, any severance benefit) would be
subject to additional taxes and interest under Section 409A because the timing of such payment is
not delayed as provided in Section 409A(a)(2)(B) of the Code, then any such payment or benefit that
you would otherwise be entitled to during the first six months following the Date of Termination
shall be accumulated and paid or provided, as applicable, on the date that is one day (or if such
date does not fall on a business day of the Company, the next following business day of the
Company) after the earlier of (i) the date of your death, (ii) six months after the Date of
Termination, or (iii) such earlier date upon which such amount can be paid or provided under
Section 409A without being subject to such additional taxes and interest. In the event that a
payment is delayed under this paragraph 12, the Company shall pay to you, as of the date it pays
the delayed payment, interest on the delayed payment amount at the semi-annual, short-term
applicable federal rate in effect on the Date of Termination, as provided in Section 1274(d) of the
Code, plus 2%, based on the number of days the payment was delayed beyond the Date of Termination.


 







 




Mr. John A. Clerico
June 15, 2009
Page 10


     If this letter correctly sets forth our agreement on the subject matter hereof, kindly sign
and return to the Company the enclosed copy of this letter which will then constitute our agreement
on this subject.


	 	 	 	 	 
	 	Sincerely,



Global Industries, Ltd.

 	 
	 	By:  	/s/  Dave Sheil
 	 
	 	 	Dave Sheil 	 
	 	 	Vice President, Human Resources 	 
	 



AGREED TO THIS 15th DAY OF JUNE, 2009.


     /s/ John A. Clerico                              

John A. Clerico

Chief Executive Officer and Chairman of the Board

Global Industries, Ltd.