exv10w38






Exhibit 10.38



SPLIT-DOLLAR INSURANCE AGREEMENT

(Collateral Assignment)



          THIS AGREEMENT is entered into this 1st day of January, 2000, effective as of January 1, 2000,
by and between GM Offshore, Inc., a Delaware corporation, hereinafter call “the Company,” and John
E. Leech, hereinafter call “Employee.”




          WHEREAS, Employee, is a valued employee of the Company and the Company wishes to retain him in
its employ, and




          WHEREAS, the Company, as an inducement to such continued employment, previously provided the
Employee with a split-dollar life insurance plan intended to assist him with his personal life
insurance, and,




          WHEREAS, the parties now desire to document and memorialize the parties’ existing split-dollar
life insurance plan and incorporate same into this Agreement, which shall supersede the prior
agreement of the parties.




          NOW THEREFORE, the Company and Employee agree as follows:




          1. The life insurance policy with which this agreement deals is Policy Number 11-604- 671,
having a policy date of November 29, 1990 (hereinafter called the “Policy”) issued by the
Northwestern Mutual Life Insurance Company (hereinafter called “Insurer”) on the life of Employee.
Employee is and shall remain sole owner of the Policy.




          2. The entire premium on the Policy has been and shall continue to be paid by the Company as
it becomes due.




          3. The Policy may, at the Company’s discretion, provide a waiver of premium for disability
benefit. If it does so provide, the cost shall be borne by the Company and the Company shall remit
that amount to the Insurer when due.




          4. Dividends payable on the Policy shall be used to purchase additional paid-up insurance
protection.




          5. To secure the premiums paid by the Employer pursuant to paragraph 2 above (including all
premiums on the Policy previously paid and all premiums to be paid pursuant to this Agreement),
Employee has executed and filed with the Insurer a collateral assignment of the Policy. Employee
agrees that the collateral assignment agreement shall remain in effect during the term of this
Agreement, failing which the Company shall have no obligation to make the premium payments on the
Policy. The Company’s interest in the Policy shall not exceed the total amount of premiums paid by
it on the Policy.






 









 








          6. In the event the Policy becomes claim by reason of Employee’s death, the Company shall have
an interest in the proceeds of the Policy equal to the total value of the premiums paid on the
Policy under paragraph 2 of this Agreement, less any policy indebtedness to the Insurer. The
balance, if any, of the proceeds of the Policy shall be paid directly by the Insurer to the
beneficiary designated by the Employee.




          7. This Agreement may be terminated, subject to the provisions of paragraphs 8, 9 and 10
below, by Employee, with or without the consent of the Company, by giving notice in writing to the
Company. This Agreement may be terminated by the Company, subject to the provisions of paragraphs
8, 9 and 10 below, at any time with the written consent of Employee or, without the consent of
Employee, for cause as hereafter defined. Termination shall be effective three (3) days following
the date of giving of notice of such termination. For purposes of tills agreement, “cause” means: a
breach by Employee of one or more of his duties to the Company, which breach is material to the
purposes of business of the Company; gross neglect by Employee of ills duties or obligations to the
Company which results in substantial damage to the business or operations of the Company; the
intentional infliction by employee of substantial damage to the business or operations of the
Company; Employee’s conviction of a federal or state felony offense or ills conviction of any other
criminal offense that would impair ills ability to perform ills duties hereunder or would impair
the Company; and Employee’s commission of a willful serious act, such as fraud, embezzlement or
theft against the Company. For purposes of tills definition of “cause,” the Company shall be deemed
to include the Company, its parent and any subsidiary or affiliate of the Company and its parent by
which employee may be employed. Notwithstanding anything herein to the contrary, in the event this
agreement is terminated by the Company for cause, the termination shall become effective upon the
giving of notice of the termination in writing by the Company to Employee specifying the cause on
which the termination is based.




          8. In the event of termination of this agreement as provided above, the Company shall no
longer be obligated to make payments of the premiums on the policy, effectively immediately upon
such termination, and Employee shall have the right and option for a period of 90 days after the
date of termination to purchase from the Company all interest of the Company in the Policy upon
payment to the Company within that time of an amount equal to the premiums paid by the Company on
the Policy under paragraph 2 of this Agreement, less any policy indebtedness to the Insurer or
other indebtedness secured by the cash value of the Policy. If Employee exercises such right and
option to purchase, the Company shall execute all necessary documents required by the Insurer to
effect a release of interest, or absolute assignment of the Policy by the Company to Employee.
Notwithstanding anything contained herein to the contrary, except for the price due upon purchase
of the Company’s interest by Employee, should Employee so elect, Employee shall not be personally
obligated to repay any portion of the premiums on the Policy paid by the Company, but the Company
shall retain in full its right to repayment of the premiums paid by it, it being understood and
agreed that Company’s repayment shall come solely out of the proceeds of the Policy as herein
provided.




          9. If Employee fails to exercise his right and option granted in paragraph 8 and to repay to
the Company, to the extent required, the amounts specified in that paragraph within 90 days of the
date of termination of the agreement pursuant to the provisions of paragraph 7 above, the




 









 




Company shall have the right, at its sole option, to exercise the rights provided in the collateral
assignment granted pursuant to paragraph 5 to cause the Policy cash value to be paid to Company or
to cancel the policy and receive the cash value thereof, up to the full amount of the premiums paid
by the Company pursuant to paragraph 2, less any policy or other indebtedness secured by the cash
value of the Policy; Employee shall execute any and all instruments that may be required to allow
the Company to exercise those rights.




          10. Any payments under the Policy to the Company in connection with the rights granted to the
Company in the collateral assignment referred to in paragraph 5 shall first be made from Policy
cash value attributable to the paid-up additional life insurance purchased by the dividends on the
Policy. Employee shall have no interest in the paid-up additional life insurance protection except
to the extent the death benefit or cash value thereof exceeds the total of the premiums on the
Policy paid by the Company.




          11. Employee shall have the right to assign any part or all of employee’s retained interest in
the Policy and this Agreement to any person, entity or trust by execution of a written assignment
delivered to the Company and to the Insurer.




          12. The Company and Employee can mutually agree to amend this agreement and such amendment
shall be in writing and signed by the Company and Employee in order to have legal effect.




          13. This agreement shall bind and inure to the benefit of the Company and its successors and
assigns; Employee and his heirs, executors, administrators and assigns; and any beneficiary of the
Policy.




          14. In the event of any conflict between a provision of this Agreement and any provision or
provisions of any employment agreement or supplemental income plan between the Company and
Employee, this agreement shall control, unless the parties expressly declare otherwise in the
employment agreement or plan.




          15. Any notice which either party mayor is required to give hereunder shall be given in
writing to the other party, each at the address set forth below, or at such other address as may be
designated in writing by the party from time to time in a notice given pursuant to this paragraph,
by (a) certified or registered mail, return receipt requested, postage prepaid, in which event
notice shall be deemed given upon deposit in the United States Mail or (b) in the case of a notice
to the Company, hand delivery to the representative of the Company designated below or such other
representative as may be designated in writing by the Company from time to time in a notice given
pursuant to this paragraph, or, in the case of a notice to Employee, hand delivery to Employee, in
either of which cases notice shall be deemed given upon delivery. Rejection or other refusal to
accept or the inability to deliver because of a changed address of which no notice was given, shall
be nevertheless effective notice for all purposes under this agreement.





(2) The claimant shall have 60 days following his receipt of the denial of the
claim to file with the Claims Manager a written request for review of the denial.



 









 






For such review, the claimant or his representative may submit pertinent documents
and written issues and comments.




(3) The Claims Manager shall decide the issue on review and furnish the claimant
with a copy within 60 days of receipt of the claimant’s request for review of his
claim. The decision on review shall be in writing and shall include specific reasons
for the decision, written in a manner calculated to be understood by the claimant,
as well as specific references to the pertinent Plan provisions on which the
decision is based. If a copy of the decision is not so furnished to the claimant
within such 60 days, the claim shall be deemed denied on review.




(4) Factual determinations and interpretations of the Plan and its terms by the
Claims Manager shall be subject to de novo review by a court of competent
jurisdiction, in accordance with applicable law, and the Claims Manager shall not be
deemed to have discretion in interpreting the Plan.






          18. This Agreement shall be governed by the laws of the United States of American, and to the
extent state law is applicable, by the laws of the State of Louisiana.




          IN WITNESS WHEREOF the parties have signed this agreement.



In the presence of




	 	 	 	 	 

	 

	 	 	 	   GM Offshore, Inc.
	 
	 	 	 	 
	 
	 	 	 	 
	
 


	 	 
	 	   /s/ Bruce
A. Streeter 
   Bruce
A. Streeter
	 
	 	 	 	 
	 
	 	 	 	 
	

 


	 	 
	 	   /s/ John
E. Leech 
   John
E. Leech