exv10w5



 





Exhibit 10.5




EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (“Agreement”) is made by and between Superior Offshore
International, Inc., a Delaware corporation (“Company”), and John F. Guarisco (“Executive”).



W I T N E S S E T H:




     WHEREAS, Executive is currently employed by the Company; and



     WHEREAS, Company is desirous of employing Executive in an executive capacity on the terms and
conditions, and for the consideration, hereinafter set forth and Executive is desirous of being so
employed by Company on such terms and conditions and for such consideration;



     WHEREAS, Company and Executive expect to enter into a Restricted Stock Agreement (the
“Restricted Stock Agreement”) pursuant to the Superior Offshore International, Inc. 2007 Stock
Incentive Plan prior to the consummation of an underwritten public offering of the Company’s common
stock (the “Initial Public Offering”);



     NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations
contained herein, Company and Executive agree as follows:



ARTICLE 1: EMPLOYMENT AND DUTIES




     1.1 Employment; Effective Date. Effective as of April 1, 2007 (the “Effective Date”), and
continuing for the period of time set forth in Article 2 of this Agreement, Company agrees to
employ Executive and Executive agrees to be employed by Company, subject to the terms and
conditions of this Agreement.



     1.2 Positions. From and after the Effective Date, Company shall employ Executive in the
position of Treasurer of Company, or in such other positions as the parties mutually may agree.



     1.3 Duties and Services. Executive agrees to serve in the position referred to in paragraph
1.2 and to perform diligently and to the best of his abilities the duties and services appertaining
to such offices, as well as such additional duties and services appropriate to such offices which
the parties mutually may agree upon from time to time. Executive’s employment shall also be
subject to the policies maintained and established by Company that are of general applicability to
Company’s executive employees, as such policies may be amended from time to time.



     1.4 Other Interests. Executive agrees, during the period of his employment by Company, to
devote his primary business time, energy and best efforts to the business and affairs of Company
and its affiliates and not to engage, directly or indirectly, in any other business or



 









 




businesses, whether or not similar to that of Company, except with the prior consent of the
Board of Directors of Company (the “Board of Directors”). The foregoing notwithstanding, the
parties recognize and agree that Executive may engage in other business activities that do not
conflict with the business and affairs of Company or interfere with Executive’s performance of his
duties hereunder, which shall be at the sole determination of the Company’s Chief Executive Officer
(collectively, the “Other Permitted Business Activities”). The Company agrees that serving or
engaging in Other Permitted Business Activities shall not constitute Cause for purposes of
paragraph 2.2(iii).




     1.5 Duty of Loyalty. Executive acknowledges and agrees that Executive owes a fiduciary duty
of loyalty to act at all times in the best interests of Company. In keeping with such duty,
Executive shall make full disclosure to Company of all business opportunities pertaining to
Company’s business and shall not appropriate for Executive’s own benefit business opportunities
concerning Company’s business.



     1.6 Place of Employment. Executive’s performance of services under this Agreement shall be
rendered in Lafayette, Louisiana and Houston, Texas, subject to necessary travel requirements of
Executive’s position and duties hereunder. Executive shall not be required to relocate to a
location that is more than 50 miles from Lafayette, Louisiana or Houston, Texas without Executive’s
consent to such relocation.



ARTICLE 2: TERM AND TERMINATION OF EMPLOYMENT




     2.1 Term. Unless sooner terminated pursuant to other provisions hereof, Company agrees to
employ Executive for the period beginning on the Effective Date and ending on April 30, 2009 (the
“Initial Expiration Date”); provided, however, that beginning on the Initial Expiration Date, and
on each anniversary of the Initial Expiration Date thereafter, if this Agreement has not been
terminated pursuant to paragraph 2.2 or 2.3, then said term of employment shall automatically be
extended for an additional one-year period unless on or before the date that is 90 days prior to
the first day of any such extension period either party shall give written notice to the other that
no such automatic extension shall occur.



     2.2 Company’s Right to Terminate. Notwithstanding the provisions of paragraph 2.1, Company
shall have the right to terminate Executive’s employment under this Agreement at any time for any
of the following reasons:




     (i) upon Executive’s death;




     (ii) upon Executive’s becoming incapacitated by accident, sickness or other
circumstance which, in the opinion of a physician selected by Company, renders him mentally
or physically incapable of performing the duties and services required of him hereunder
(“Disability”);




     (iii) for cause, which for purposes of this Agreement shall mean Executive (A) has
willfully breached any of his duties and obligations hereunder resulting in materially
adverse consequences to Company or any of its affiliates, (B) has misappropriated funds or
property of Company or any of its affiliates, or (C) has engaged in conduct that is



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materially adverse to the interests of Company or any of its affiliates (each referred
to hereinafter as “Cause”); or




     (iv) for any other reason whatsoever, in the sole discretion of the Board of Directors.



     2.3 Executive’s Right to Terminate. Notwithstanding the provisions of paragraph 2.1,
Executive shall have the right to terminate his employment under this Agreement for any of the
following reasons:




     (i) within 60 days of and in connection with or based upon (A) a material breach by
Company of any material provision of this Agreement, (B) a material reduction in title of
the Executive set forth in paragraph 1.2 without Executive’s consent to such reduction or
(C) any requirement that Executive relocate in violation of paragraph 1.6 (each referred to
hereinafter as “Good Reason”); provided, however, that, prior to Executive’s termination of
employment under this paragraph 2.3(i), Executive must give written notice to Company of any
such breach, reduction or requirement and such breach, reduction or requirement must remain
uncorrected for 20 days following such written notice;




     (ii) at any time after there is a Change in Control (as such term is defined in
paragraph 6.1); or




     (iii) at any time for any other reason whatsoever, in the sole discretion of Executive.



     2.4 Notice of Termination. If Company or Executive desires to terminate Executive’s
employment hereunder at any time prior to expiration of the term of employment as provided in
paragraph 2.1, it or he shall do so by giving written notice to the other party that it or he has
elected to terminate Executive’s employment hereunder and stating the effective date and reason for
such termination, provided that no such action shall alter or amend any other provisions hereof or
rights arising hereunder.



ARTICLE 3: COMPENSATION AND BENEFITS




     3.1 Base Salary. During the period of this Agreement, Executive shall receive a minimum
annual base salary of $200,000. Executive’s annual base salary shall be reviewed by the Board of
Directors (or a committee thereof) on an annual basis, and, in the sole discretion of the Board of
Directors (or such committee), such annual base salary may be increased, but not decreased,
effective as of January 1 of each year. Executive’s annual base salary shall be paid in equal
installments in accordance with the Company’s standard policy regarding payment of compensation to
executives but no less frequently than monthly.



     3.2 Incentive Compensation. Executive shall be eligible to receive incentive compensation in
such amounts and on such terms as shall be determined in the sole discretion of the Board of
Directors (or a committee thereof).



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     3.3 Other Perquisites. During his employment hereunder, Executive shall be afforded the
following benefits as incidences of his employment:




     (i) Business and Entertainment Expenses — Subject to Company’s standard policies and
procedures with respect to expense reimbursement as applied to its executive employees
generally, Company shall reimburse Executive for, or pay on behalf of Executive, reasonable
and appropriate expenses incurred by Executive for business related purposes, including dues
and fees to industry and professional organizations and costs of entertainment and business
development.




     (ii) Car Allowance — Company shall provide to Executive an automobile or automobile
allowance as approved by the Chief Executive Officer or the Board of Directors (or a
committee thereof). Notwithstanding anything in this Agreement to the contrary, any such
reimbursement shall be made no later than March 15 of the calendar year following the
calendar year in which such reimbursable expenses were incurred.




     (iii) Life Insurance — Company shall provide and pay the premiums for a term life
insurance, convertible, and renewable, on the life of Executive at a face amount not less
than twice the amount of Executive’s annual base salary. Executive shall have the right to
designate the beneficiary or beneficiaries of such term life insurance policy. Company
shall provide Executive with additional cash compensation at the end of each calendar year
to fully offset taxes attributable to Executive as a result of payment of the life insurance
premiums by the Company.




     (iv) Tax and Estate Planning Advice — Company shall pay for or reimburse the costs of
tax and estate planning advice for Executive, including the costs of preparing estate
planning and wealth preservation documents for Executive and his spouse, up to a maximum of
$25,000 in any calendar year. Company shall provide Executive with additional cash
compensation at the end of each calendar year to fully offset taxes attributable to
Executive as a result of payment of such tax and estate planning advice by the Company.
Notwithstanding anything in this Agreement to the contrary, any such reimbursement shall be
made no later than March 15 of the calendar year following the calendar year in which such
reimbursable expenses were incurred.




     (v) Other Company Benefits — Executive and, to the extent applicable, Executive’s
spouse, dependents and beneficiaries, shall be allowed to participate in all benefits, plans
and programs, including improvements or modifications of the same, which are now, or may
hereafter be, available to other executive employees of Company. Such benefits, plans and
programs shall include, without limitation, any profit sharing plan, thrift plan, health
insurance or health care plan, life insurance, disability insurance, pension plan,
supplemental retirement plan, vacation and sick leave plan, and the like which may be
maintained by Company. Company shall not, however, by reason of this paragraph be obligated
to institute, maintain, or refrain from changing, amending, or discontinuing, any such
benefit plan or program, so long as such changes are similarly applicable to executive
employees generally.



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ARTICLE 4: PROTECTION OF INFORMATION




     4.1 Disclosure to Executive. Company shall disclose to Executive, or place Executive in a
position to have access to or develop, trade secrets or confidential information of Company or its
affiliates; and/or shall entrust Executive with business opportunities of Company or its
affiliates; and/or shall place Executive in a position to develop business good will on behalf of
Company or its affiliates.



     4.2 Property of Company. All documents, drawings, memoranda, notes, records, files,
correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic
databases, maps, and all other writings or materials of any type embodying any information relating
to Company or its business are and shall be the sole and exclusive property of Company. Upon
termination of Executive’s employment by Company, for any reason, Executive promptly shall deliver
the same, and all copies thereof, to Company; provided, however, that Executive may retain any
Company supplied cellular telephones in his possession at the time of such termination but Company
shall be entitled to immediately discontinue the cellular service for such telephones upon such
termination of employment.



     4.3 No Unauthorized Use or Disclosure. Executive will not, at any time during or after
Executive’s employment by Company, make any unauthorized disclosure of any confidential business
information or trade secrets of Company or its affiliates, or make any use thereof, except in the
carrying out of Executive’s employment responsibilities hereunder. Affiliates of the Company shall
be third party beneficiaries of Executive’s obligations under this paragraph. As a result of
Executive’s employment by Company, Executive may also from time to time have access to, or
knowledge of, confidential business information or trade secrets of third parties, such as
customers, suppliers, partners, joint venturers, and the like, of Company and its affiliates.
Executive also agrees to preserve and protect the confidentiality of such third party confidential
information and trade secrets to the same extent, and on the same basis, as Company’s confidential
business information and trade secrets.



     4.4 Remedies. Executive acknowledges that money damages would not be sufficient remedy for
any breach of this Article by Executive, and Company shall be entitled to specific performance and
injunctive relief as remedies for such breach or any threatened breach. Such remedies shall not be
deemed the exclusive remedies for a breach of this Article, but shall be in addition to all
remedies available at law or in equity to Company, including the recovery of damages from
Executive.



ARTICLE
5: NONCOMPETITION OBLIGATIONS




     5.1 In General. As part of the consideration for the compensation and benefits to be paid to
Executive hereunder; to protect the trade secrets and confidential information of Company and its
affiliates that have been and will in the future be disclosed or entrusted to Executive, the
business good will of Company and its affiliates that has been and will in the future be developed
in Executive, or the business opportunities that have been and will in the future be disclosed or
entrusted to Executive by Company and its affiliates; and as an additional incentive for Company to
enter into this Agreement, Company and Executive agree to the noncompetition obligations hereunder.
Executive shall not, directly or indirectly for Executive



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or for others, in the State of Texas and in all parishes of the State of Louisiana and in the
U.S. Gulf of Mexico:





     (i) engage in any business competitive with the business conducted by Company during
the term of employment of Executive in such states; or




     (ii) render advice or services to, be employed by, acquire an ownership interest in, or
otherwise assist, any other person, association, or entity who is engaged, directly or
indirectly, in any business competitive with the business conducted by Company during the
term of employment of Executive in such states with respect to such competitive business,
except that Executive may hold up to 2% of the outstanding shares of any publicly held
company engaged in such competitive activities.


The noncompetition obligations set forth above shall apply only during the period that Executive is
employed by Company and for one year thereafter.




     5.2 Enforcement and Remedies. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article by Executive, and Company shall be entitled to
specific performance and injunctive relief as remedies for such breach or any threatened breach.
Such remedies shall not be deemed the exclusive remedies for a breach of this Article, but shall be
in addition to all remedies available at law or in equity to Company, including, without
limitation, the recovery of damages from Executive.



     5.3 Reformation. It is expressly understood and agreed that Company and Executive consider
the restrictions contained in this Article to be reasonable and necessary to protect the
proprietary information of Company. Nevertheless, if any of the aforesaid restrictions are found
by a court having jurisdiction to be unreasonable, or overly broad as to geographic area or time,
or otherwise unenforceable, the parties intend for the restrictions therein set forth to be
modified by such court so as to be reasonable and enforceable and, as so modified by the court, to
be fully enforced.



ARTICLE
6: EFFECT OF TERMINATION ON COMPENSATION;




ADDITIONAL PAYMENTS




     6.1 Defined Terms. For purposes of this Article 6, the following terms shall have the
meanings indicated:




     “Change in Control” means (i) a merger of Company with another entity, a consolidation
involving Company, or the sale of all or substantially all of the assets of Company to
another entity if, in any such case, (A) the holders of equity securities of Company
immediately prior to such transaction or event do not beneficially own immediately after
such transaction or event equity securities of the resulting entity entitled to 60% or more
of the votes then eligible to be cast in the election of directors generally (or comparable
governing body) of the resulting entity in substantially the same proportions that they
owned the equity securities of Company immediately prior to such transaction or event or (B)
the persons who were members of the Board of Directors immediately prior to such transaction
or event shall not constitute at least a majority of the board of directors of the resulting
entity immediately after such transaction or event,



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(ii) the dissolution or liquidation of Company, (iii) when any person or entity (other
than Louis E. Schaefer, Jr. or Schaefer Holdings, LP or their affiliates), including a
“group” as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, acquires or gains ownership or control (including, without limitation, power to
vote) of more than 50% of the combined voting power of the outstanding securities of, (A) if
Company has not engaged in a merger or consolidation, Company, or (B) if Company has engaged
in a merger or consolidation, the resulting entity, or (iv) as a result of or in connection
with a contested election of directors, the persons who were members of the Board of
Directors immediately before such election shall cease to constitute a majority of the Board
of Directors. For purposes of the preceding sentence, (1) “resulting entity” in the context
of a transaction or event that is a merger, consolidation or sale of all or substantially
all assets shall mean the surviving entity (or acquiring entity in the case of an asset
sale) unless the surviving entity (or acquiring entity in the case of an asset sale) is a
subsidiary of another entity and the holders of common stock of Company receive capital
stock of such other entity in such transaction or event, in which event the resulting entity
shall be such other entity, and (2) subsequent to the consummation of a merger or
consolidation that does not constitute a Change in Control, the term “Company” shall refer
to the resulting entity and the term “Board of Directors” shall refer to the board of
directors (or comparable governing body) of the resulting entity.




     “Termination Benefits” means (i) a lump sum cash payment equal to 100% of the sum of
(A) Executive’s annual base salary at the rate in effect under paragraph 3.1 on the date of
termination of Executive’s employment and (B) the highest annual incentive compensation
payment paid to Executive by Company (pursuant to paragraph 3.2 or otherwise) during the
three years prior to the date of termination of Executive’s employment, and (ii) all of the
outstanding stock options, restricted stock or unit awards and other equity based awards
granted by Company to Executive shall become fully vested and immediately exercisable in
full on the date of termination of Executive’s employment; provided, however, that if a
Change in Control occurs prior to the earlier of the consummation of an Initial Public
Offering and June 30, 2007 and the Executive’s employment is terminated prior to the
consummation of such Change in Control, then the percentage used in clause (i) of this
definition shall be zero.



     6.2 By Expiration. If Executive’s employment hereunder shall terminate upon expiration of the
term provided in paragraph 2.1 hereof because Executive has provided the notice contemplated in
such paragraph to Company, then all compensation and all benefits to Executive hereunder shall
continue to be provided until the expiration of such term and such compensation and benefits shall
terminate contemporaneously with termination of his employment. If Executive’s employment
hereunder shall terminate upon expiration of the term provided in paragraph 2.1 hereof because
Company has provided the notice contemplated in such paragraph to Executive, then (i) all
compensation and all benefits to Executive hereunder shall continue to be provided until the
expiration of such term, (ii) such compensation and benefits shall terminate contemporaneously with
termination of his employment, and (iii) Company shall provide Executive with the Termination
Benefits. Any lump sum cash payment due to Executive pursuant to clause (iii) of the preceding
sentence shall be paid to Executive within ten business days of the date of Executive’s termination
of employment with Company; provided, however, if Section 409A of the Internal Revenue Code on
1986, as amended (“Code”), is applicable and



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Executive is a “specified employee” under Section 409A(a)(2)(B)(i) of the Code, then on or
after the six-month anniversary of the date of termination. The Executive agrees to execute a
mutual release and waiver of claims against Employer in the form attached as Exhibit A on
the date that any such lump-sum payment is paid to the Executive.




     6.3 By Company. If Executive’s employment hereunder shall be terminated by Company prior to
expiration of the term provided in paragraph 2.1, then, upon such termination, regardless of the
reason therefor, all compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment; provided, however, if Executive complies
fully with his obligations under Article 5 hereof, that:




     (i) if such termination shall be for a reason encompassed by paragraph 2.2(i), then,
for a period of 6 months beginning on the date of such termination, Company shall pay to
Executive’s designated beneficiary (or his estate if Executive does not have a beneficiary
designation on file with Company for this purpose) his base salary at the rate in effect
under paragraph 3.1 on the date of such termination;




     (ii) if such termination shall be for a reason encompassed by paragraph 2.2(ii), then,
for a period of 6 months beginning on the date of such termination, Company shall pay to
Executive (or, in the event of Executive’s death, his designated beneficiary (or his estate
if Executive does not have a beneficiary designation on file with Company for this purpose))
his base salary at the rate in effect under paragraph 3.1 on the date of such termination;




     (iii) if such termination shall be for a reason encompassed by paragraphs 2.2(i) or
(ii), all of the outstanding stock options, restricted stock or unit awards and other equity
based awards granted by Company to Executive shall become fully vested and immediately
exercisable in full on the date of termination of Executive’s employment; and




     (iv) if such termination shall be for any reason other than those encompassed by
paragraphs 2.2(i), (ii), or (iii), then Company shall provide Executive with the Termination
Benefits. Any lump sum cash payment due to Executive pursuant to the preceding sentence
shall be paid to Executive within ten business days of the date of Executive’s termination
of employment with Company; provided that, if Section 409A of the Code is applicable and
Executive is a “specified employee” under Section 409A(a)(2)(B)(i) of the Code, then on or
after the six-month anniversary of the date of termination. The Executive agrees to execute
a mutual release and waiver of claims against Employer in the form attached as Exhibit
A on the date that any such lump-sum payment is paid to the Executive.



     6.4 By Executive. If Executive’s employment hereunder shall be terminated by Executive prior
to expiration of the term provided in paragraph 2.1, then, upon such termination, regardless of the
reason therefor, all compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment; provided, however, if Executive complies
fully with his obligations under Article 5 hereof, that:



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     (i) if such termination occurs for a reason encompassed by paragraph 2.3(i), then
Company shall provide Executive with the Termination Benefits; and




     (ii) if such termination shall occur within the 180-day period beginning on the date
upon which a Change in Control occurs, then Company shall provide Executive with the
Termination Benefits.


If Executive is entitled to Termination Benefits under either clause (i) or clause (ii) of the
preceding sentence, then Executive shall not also be entitled to additional Termination Benefits
under the other clause. Any lump sum cash payment due to Executive pursuant to this paragraph
shall be paid to Executive within ten business days of the date of Executive’s termination of
employment with Company; provided, however, if Section 409A of the Code is applicable and Executive
is a “specified employee” under Section 409A(a)(2)(B)(i) of the Code, then on or after the
six-month anniversary of the date of termination. The Executive agrees to execute a mutual release
and waiver of claims against Employer in the form attached as Exhibit A on the date that
any such lump-sum payment is paid to the Executive.




     6.5 Additional Payments by Company. Notwithstanding anything to the contrary in this
Agreement, in the event that any payment or distribution by Company to or for the benefit of
Executive, whether paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest or penalties, are hereinafter
collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment
(a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on
any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax
imposed upon the Payments. Company and Executive shall make an initial determination as to whether
a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify
Company in writing of any claim by the Internal Revenue Service which, if successful, would require
Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially
determined by Company and Executive) within 10 days of the receipt of such claim. Company shall
notify Executive in writing at least 10 days prior to the due date of any response required with
respect to such claim if it plans to contest the claim. If Company decides to contest such claim,
Executive shall cooperate fully with Company in such action; provided, however, Company shall bear
and pay directly or indirectly all costs and expenses (including additional interest and penalties)
incurred in connection with such action and shall indemnify and hold 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 Company’s action. If, as a result of Company’s action with respect
to a claim, Executive receives a refund of any amount paid by Company with respect to such claim,
Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive
whether it will contest such claim or Company determines not to contest such claim, then Company
shall immediately pay to Executive the portion of such claim, if any, which it has not previously
paid to Executive.



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     6.6 No Duty to Mitigate Losses. Executive shall have no duty to find new employment following
the termination of his employment under circumstances which require Company to pay any amount to
Executive pursuant to this Article 6. Any salary or remuneration received by Executive from a
third party for the providing of personal services (whether by employment or by functioning as an
independent contractor) following the termination of his employment under circumstances pursuant to
which this Article 6 apply shall not reduce Company’s obligation to make a payment to Executive (or
the amount of such payment) pursuant to the terms of this Article 6.



     6.7 Liquidated Damages. In light of the difficulties in estimating the damages for an early
termination of this Agreement, Company and Executive hereby agree that the payments, if any, to be
received by Executive pursuant to this Article 6 shall be received by Executive as liquidated
damages.



     6.8 Other Benefits. This Agreement governs the rights and obligations of Executive and
Company with respect to Executive’s base salary and certain perquisites of employment. Except as
expressly provided herein, Executive’s rights and obligations both during the term of his
employment and thereafter with respect to stock options, restricted units or stock, incentive and
deferred compensation, life insurance policies insuring the life of Executive, and other benefits
under the plans and programs maintained by Company shall be governed by the separate agreements,
plans and other documents and instruments governing such matters.



ARTICLE 7: MISCELLANEOUS




     7.1 Notices. For purposes of this Agreement, notices and all other communications provided
for herein shall be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:



	 	 	 	 	 	 	 
	 

	 	If to Company to:
	 	Superior Offshore International, Inc.	 	 
	 

	 	 	 	900 S. College Road, Suite 301	 	 
	 

	 	 	 	Lafayette, Louisiana 70503	 	 
	 

	 	 	 	Attention: Chairman of the Board	 	 
	 
	 

	 	 	 	with a copy to (which copy shall not constitute notice):	 	 
	 
	 

	 	 	 	Bracewell & Giuliani LLP	 	 
	 

	 	 	 	711 Louisiana Street, Suite 2300	 	 
	 

	 	 	 	Houston, Texas 77002	 	 
	 

	 	 	 	Attention: William S. Anderson	 	 
	 

	 	 	 	Telephone: (713) 221-1122	 	 
	 

	 	 	 	Facsimile: (713) 437-5370	 	 
	 
	 	 	 	 	 	 
	 

	 	If to Executive to:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 






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or to such other address as either party may furnish to the other in writing in accordance
herewith, except that notices or changes of address shall be effective only upon receipt.




     7.2 Applicable Law. This Agreement is entered into under, and shall be governed for all
purposes by, the laws of the State of Texas. Any cause of action arising between the parties
regarding this Agreement shall be brought only in a court having jurisdiction over the Company in
Houston, Harris County, Texas. Executive consents to personal jurisdiction in any State or Federal
court of competent jurisdiction over the Company in Houston, Harris County, Texas and waives any
entitlement he might otherwise have to a transfer of venue under the preferred venue requirements
of State or Federal rules of civil procedure rules.



     7.3 No Waiver. No failure by either party hereto at any time to give notice of any breach by
the other party of, or to require compliance with, any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.



     7.4 Severability. If a court of competent jurisdiction determines that any provision of this
Agreement is invalid or unenforceable, then the invalidity or unenforceability of that provision
shall not affect the validity or enforceability of any other provision of this Agreement, and all
other provisions shall remain in full force and effect.



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



     7.6 Withholding of Taxes and Other Employee Deductions. Company may withhold from any
benefits and payments made pursuant to this Agreement all federal, state, city and other taxes as
may be required pursuant to any law or governmental regulation or ruling and all other normal
employee deductions made with respect to Company’s employees generally.



     7.7 Headings. The paragraph headings have been inserted for purposes of convenience and shall
not be used for interpretive purposes.



     7.8 Gender and Plurals. Wherever the context so requires, the masculine gender includes the
feminine or neuter, and the singular number includes the plural and conversely.



     7.9 Affiliate. As used in this Agreement, the term “affiliate” shall mean any entity which
owns or controls, is owned or controlled by, or is under common ownership or control with, Company.



     7.10 Assignment. This Agreement shall be binding upon and inure to the benefit of Company and
any successor of Company, by merger or otherwise. Except as provided in the preceding sentence,
this Agreement, and the rights and obligations of the parties hereunder, are personal and neither
this Agreement, nor any right, benefit, or obligation of either party hereto, shall be subject to
voluntary or involuntary assignment, alienation or transfer, whether by operation of law or
otherwise, without the prior written consent of the other party.



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     7.11 Term. This Agreement has a term co-extensive with the term of employment provided in
paragraph 2.1. Termination shall not affect any right or obligation of any party which is accrued
or vested prior to such termination.



     7.12 Release. The Executive hereby irrevocably releases the Company and its predecessors
(including Superior Offshore International, L.L.C.) and each and every affiliate, officer, member,
shareholder, manager, director and employee of the Company and its predecessors (including Superior
Offshore International, L.L.C.) (the “Releasees”) from any claims, liabilities, costs, expenses,
actions, suits or demands however arising, whether at law or in equity, contingent, known or
unknown, which the Executive or his heirs, successors or assigns may have or assert against the
Releasees as of the date of the Effective Date in respect of any ownership interest in the
Releasees or in connection with or arising out of any employment relationship with the Releasees
prior to the Effective Date (including claims for breach of any contract relating to employment or
compensation, or for discrimination based upon race, color, ethnicity, sex, age, national origin,
religion, disability, sexual orientation, or any other unlawful criterion or circumstance);
provided, however, that this release shall not apply to the Executive’s rights to accrued but
unpaid salary, accrued but unpaid vacation and unpaid reimbursable expenses, in each case to the
extent accrued prior to the Effective Date; provided, further, that this release shall not apply to
any rights, benefits, obligations or restrictions arising under this Agreement or the Restricted
Stock Agreement on or after the Effective Date.



     7.13 Entire Agreement. This Agreement and the Restricted Stock Agreement constitute the
entire agreement of the parties with regard to the subject matter hereof and thereof and supersede
all prior agreements and understandings, oral or written, between the parties with respect to the
subject matter hereof and thereof, and contain all the covenants, promises, representations,
warranties and agreements between the parties with respect to employment of Executive by Company or
any of its predecessors (including Superior Offshore International, L.L.C.). Without limiting the
scope of the preceding sentence, all understandings and agreements between the Executive, on the
one hand, and the Company or any of its predecessors or their respective shareholders, members,
managers or officers, on the other hand, preceding the date of execution of this Agreement and the
Restricted Stock Agreement and relating to the subject matter hereof or thereof are hereby null and
void and of no further force and effect. For the avoidance of doubt, Executive and Company hereby
agree that this Agreement and the Restricted Stock Agreement supersede the letter agreement, dated
January 10, 2007, between Executive, Company and Superior Offshore International, L.L.C., which
letter agreement the parties hereby agree is terminated and of no further force and effect and no
party thereto shall have any liability or further obligation pursuant thereto except for Section
4(c) thereof, which shall survive termination indefinitely. Any modification of this Agreement
will be effective only if it is in writing and signed by the party to be charged.



[Signatures Appear on Next Page]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the                      day of April,
2007, to be effective as of the Effective Date.



	 	 	 	 	 	 	 
	 	 	SUPERIOR OFFSHORE INTERNATIONAL, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Louis E. Schaefer, Jr.
	 	 
	 

	 	 	 	Title: Chairman of the Board of Directors	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	John F. Guarisco	 	 






[Signatures Page to Employment Agreement]





 









 








EXHIBIT A




GENERAL RELEASE




     THIS GENERAL RELEASE is entered into among Superior Offshore International, Inc., a Delaware
corporation (“Employer”), and                      (the “Employee”) as of the                      day of
                    . The Employer and the Employee agree as follows:



          1. Employment Status. The Employee’s employment with the Employer shall terminate
effective as of                     ,                     .




          2. Payment and Benefits. Upon the effectiveness of this Release as set forth in
Paragraphs 12 and 13 hereof, Employer shall provide the Employee with the payments and benefits set
forth in Paragraph [6.2, 6.3 or 6.4] of the Employment Agreement among the Employer and the
Employee, dated as of                     , 2007 (as amended from time to time, the “Employment
Agreement”).




          3. No Liability. This Release does not constitute an admission by the Employer, or
any of its subsidiaries, affiliates, divisions, trustees, officers, directors, partners, agents, or
employees, or by the Employee, of any unlawful acts or of any violation of federal, state or local
laws.




          4. Employee Release. In consideration of the payments and benefits set forth in
Paragraph [6.2, 6.3 or 6.4] of the Employment Agreement, the Employee for himself, his heirs,
administrators, representatives, executors, successors and assigns (collectively, “Employee
Releasors”) does hereby irrevocably and unconditionally release, acquit and forever discharge
the Employer and each of its subsidiaries, affiliates, divisions, successors, assigns, trustees,
officers, directors, partners, agents, and former and current employees, including without
limitation all persons acting by, through, under or in concert with any of them (collectively,
“Employer Releasees”), and each of them from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, remedies, actions, causes
of action, suits, rights, demands, costs, losses, debts and expenses (including attorneys’ fees and
costs) of any nature whatsoever, known or unknown, whether pursuant to contract or in law or equity
or otherwise and whether arising under any and all federal, state, local, county and/or municipal
statutes, regulations, rules, and/or ordinances, including, without limitation, Title VII of the
Civil Rights Act of 1964; the Age Discrimination in Employment Act, the Americans with Disabilities
Act, the Older Workers Benefit Protection Act, the Equal Pay Act of 1962, Chapter 21 of the Texas
Labor Code and Section 451 of the Texas Labor Code and/or claims under the Constitutions of the
United States and/or the State of Texas or any other unlawful criterion or circumstance, which
Employee Releasors had, now have, or may have or claim to have in the future against each or any of
the Employer Releasees by reason of any matter, cause or thing occurring, done or omitted to be
done from the beginning of the world until the date of the execution of this Release (the
“Employee Released Claims”); provided, however, that nothing herein shall
release Employer from any right of indemnification or to director and officer liability insurance
coverage under any Employer organizational documents or at law under any plan or agreement and
applicable to the Employee.




 









 





     Nothing in this Release is intended to interfere with the Employee’s right to make a complaint
or claim with a federal or state administrative agency including, for example, the National Labor
Relations Board, the Equal Employment Opportunity Commission or the Texas Workforce Commission.
However, by executing this Release, the Employee hereby waives the right to recover in any
proceeding that the Employee may bring before the Equal Employment Opportunity Commission or any
federal or state administrative agency or in any proceeding brought by the Equal Employment
Opportunity Commission or any state human rights commission on the Employee’s behalf. In addition,
this release is not intended to interfere with the Employee’s right to challenge that his waiver of
any and all ADEA claims pursuant to this Release is a knowing and voluntary waiver, notwithstanding
the Employee’s specific representation to the Employer Group that he has entered into this
Agreement knowingly and voluntarily and that he has been advised by the Employer Group to consult
with an attorney of his choice regarding same.



          5. Employer Release. The Employer on behalf of itself and its subsidiaries,
affiliates, divisions, successors, assigns, officers, directors, agents, partners and current and
former employees (collectively, the “Employer Releasors” and together with the Employee
Releasors, the “Releasing Parties”) agrees to and does hereby irrevocably and
unconditionally release, acquit and forever discharge the Employee, and his heirs, executors,
administrators, representatives, successors and assigns (hereinafter collectively referred to as
the “Employee Releasees”), with respect to and from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages, remedies, causes of
action, suits, rights, demands, costs, losses, debts, and expenses (including attorneys’ fees and
costs) of any kind whatsoever, known or unknown, whether in law or equity and whether arising under
federal, state or local law, which the Releasors had, now have, or may have or claim to have in the
future against each or any of the Employee Releasees by reason of any matter, course or thing
whatsoever from the beginning of the world until the date of execution of this Release (the
“Employer Released Claims” and, together with the Employee Released Claims, the
“Released Claims”); provided, however, that nothing herein shall release
the Employee from (i) obligations or restrictions arising under or referred to or described in the
Employment Agreement and nothing herein shall impair the right or ability of Employer to enforce
such provisions in accordance with the terms of the Employment Agreement or (ii) any claims arising
out of the Employee’s fraud or willful misconduct in connection with the conduct of the business of
the Employer Group.




          6. No Additional Facts; Bar. Each of the Releasing Parties hereby expressly waives
any rights such Releasing Party may have under the statutes of any jurisdiction or common law
principles of similar effect, to preserve Released Claims that such Releasing Party does not know
or suspect to exist in such Releasing Party’s favor at the time of executing this Release. Each of
the Releasing Parties understands and acknowledges that it may discover facts different from, or in
addition to, those which it knows or believes to be true with respect to the claims released
herein, and agrees that this release shall be and remain effective in all respects notwithstanding
any subsequent discovery of different and/or additional facts. Should any Releasing Party discover
that any fact relied upon in entering into this release was untrue, or that any fact was concealed,
or that an understanding of the facts or law was incorrect, no Releasing Party shall be entitled to
any relief as a result thereof, and the undersigned surrenders any rights it might have to rescind
this release on any ground. This release is intended to be and

 









 








is final and binding regardless of any claim of misrepresentation, promise made with the
intention of performing, concealment of fact, mistake of law, or any other circumstances
whatsoever. The Employee acknowledges and agrees that if he should hereafter make any claim or
demand or commence or threaten to commence any action, claim or proceeding against the Employer
Releasees with respect to any cause, matter or thing which is the subject of the release under
Paragraph 4 of this Release, this Release may be raised as a complete bar to any such action, claim
or proceeding, and the applicable Employer Releasee may recover from the Employee all costs
incurred in connection with such action, claim or proceeding, including attorneys’ fees. The
Employer Group acknowledges and agrees that if it should hereafter make any claim or demand or
commence or threaten to commence any action, claim or proceeding against any of the Employee
Releasees with respect to any cause, matter or thing which is the subject of the release under
Paragraph 5 of this Release, this Release may be raised as a complete bar to any such action, claim
or proceeding, and the applicable Employee Releasee may recover from Employer all costs incurred in
connection with such action, claim or proceeding, including attorneys’ fees.




          7. Restrictive Covenants. The Employee acknowledges that the provisions of Article 4
and Article 5 of the Employment Agreement shall continue to apply pursuant to their terms
notwithstanding the termination of the Employment Agreement.




          8. No Assignment of Released Claims. Each Releasing Party represents and warrants to
the Released Parties that there has been no assignment or other transfer of any interest in any
Released Claim.




          9. Severability. If any provision of this Release is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Release will remain in full force
and effect. Any provision of this Release held invalid or unenforceable only in part of degree
will remain in full force and effect to the extent not held invalid or unenforceable.




          10. Amendment. This Release may not be amended, modified or waived except in a
writing signed by the party against whom any such amendment, modification or waiver is sought to be
enforced.




          11. Governing Law. This Release shall be governed by and construed in accordance with
the laws of the State of Texas, without regard to conflicts of laws principles.




          12. Acknowledgment. The parties hereto have read this Release, understand it, and
voluntarily accept its terms, and the Employee acknowledges that he has been advised by Employer to
seek the advice of legal counsel before entering into this Release, and has been provided with a
period of twenty-one (21) days in which to consider entering into this Release.




          13. Revocation. The Employee has a period of seven (7) days following the execution
of this Release during which the Employee may revoke this Release, and this Release shall not
become effective or enforceable until such revocation period has expired. If, within the ten (10)
day period following such expiration, Employer fails to execute this Release, then this Release
shall become null and void and have no force or effect.




 









 








          14. Counterparts. This Release may be executed by the parties hereto in counterparts,
which taken together shall be deemed one original.




     IN WITNESS WHEREOF, the parties have executed this Release on the date first set forth above.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Executive	 	 
	 
	 	 	 	 	 	 
	 	 	Superior Offshore International, Inc.	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title: