EXHIBIT 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Agreement is made this 15th day of February, 1999, between Cal Dive
International, Inc., a Minnesota corporation (the "Company"), and Xxxx X. Xxxxx
(Employee), an individual residing at 0000 Xxxxxxxx Xxxxxx, Xx Xxxxx, Xxxxx
00000.
WHEREAS, Employee has extensive executive management skills and experience
in the oil service industry, including valuable marketing, financial, technical
and other experience, knowledge and ability and has been acting as Chairman and
Chief Executive Officer for the Company; and
WHEREAS, the Company wishes to continue to employ Employee as Chairman and
Chief Executive Officer of the Company and Employee is willing to accept such
continued employment upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
SECTION 1. TERM OF EMPLOYMENT AND EMPLOYMENT DUTIES.
(a) Employee agrees to be employed by the Company on the terms and
conditions contained herein, for a period commencing on the date hereof until
February 28, 2001 and thereafter terminating one year after delivery to Employee
of a written notice of termination by the Company (the "Employment Term");
PROVIDED, HOWEVER, that the occurrence of any event described in Sections 7(a),
7(b) or 7(c) prior to the end of the Employment Term shall result in the
immediate termination of Employee's employment and the Employment Term, subject
to the terms of such applicable Section. Employee shall devote his time, energy
and skill to the affairs of the Company and any of its affiliated business
entities and to the promotion of their interests. Any provision of this
Agreement to the contrary notwithstanding, Employee shall immediately resign
from any offices held with the Company or its Affiliates upon written request by
the Company. Any resignation made pursuant to a written request by the Company
under this Section shall not affect Employee's rights under this Agreement for
any compensation, benefits or payments.
(b) Employee's duties shall include all the normal duties associated with
acting as Chairman and Chief Executive Officer of the Company and all other
responsibilities assigned to that office from time to time by the Board of
Directors.
(c) During the Employment Term, (i) Employee services shall be rendered on
a full time basis, (ii) Employee shall have no other employment and no
substantial outside business activities and (iii) the headquarters for the
performance of Employee's services shall be the principal executive or operating
offices of the Company, subject to travel for such reasonable lengths of time as
the performance of his duties in the business of the Company may require.
SECTION 2. COMPENSATION.
(a) SALARY. During the Employment Term, as compensation for his services
and covenants and agreements hereunder and subject to such changes therein as
the Board may make from time to time, the Company agrees to pay Employee an
initial salary for the period from the date hereof to April 30, 2001at the rate
of Two Hundred Eighty Thousand Dollars ($280,000), payable in equal semi-monthly
installments in accordance with the Company's regular payroll practices for its
principal executives, prorated for any partial employment and subject to normal
increases as approved by the Board.
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(b) INCENTIVE BONUS. During the Employment Term, in addition to the to the
annual salary payable to Employee pursuant to paragraph (a) above, Employee
shall be entitled to an annual incentive bonus (the "Incentive Bonus"), payable
not later than three months after the close of each fiscal year of the Company,
commencing with the fiscal year ending December 31, 1999, as established
annually or from time to time by the Board .
(c) REIMBURSEMENT OF EXPENSES. During the Employment Term, Employee will
be reimbursed by the Company for his reasonable business expenses incurred in
connection with the performance of his duties hereunder, including, without
limitation, a home fax line, car mileage, cell phone and business calls and
other expenses consistent with Company policy from time to time.
SECTION 3. BENEFITS.
During the Employment Term, Employee shall be entitled to participate in
any medical/dental, life insurance, accidental death, long term disability
insurance plan and 401(k) or other insurance and retirement plans which has been
or which may be adopted by the Company (as long as such plan is not
discontinued) for the general and overall benefit of executive employees of the
Company, according to the participation or eligibility requirements of each such
plan. During the Employment Term, Employee shall enjoy such vacation, holiday
and similar rights and privileges as are enjoyed generally by the Company's
principal executives.
SECTION 4. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION
(a) During the period commencing with the date of this Agreement and
ending on (i) the fifth anniversary of the date of the termination of Employee's
employment with the Company if such termination arises as a result of voluntary
termination or retirement by Employee or termination by the Company for "Cause"
(as defined in Section 7 (a) hereof) and (ii) the date which is 18 months
following the date of termination of Employee's employment with the Company if
such termination arises for any reason other than as provided in subparagraph 4
(a) (i) above, Employee covenants and agrees with the Company that Employee
shall not disclose or use any Confidential Information (as defined below) of
which Employee is or becomes aware, whether or not such information is developed
by him, except to the extent that such disclosure or use is directly related to
and required by Employee's performance of duties assigned to Employee by the
Company. Employee shall take all appropriate steps to safeguard Confidential
Information and to protect it against disclosure, misuse, espionage, loss and
theft.
(b) As used in this Agreement, the term "Confidential Information" means
information that is not generally known to the public and that is or has been
used, developed or obtained, either prior to or following the date of this
Agreement, by the Company in connection with its businesses, including but not
limited to (i) products or services, (ii) fees, costs and pricing structures,
(iii) designs, (iv) analysis, (v) drawings, photographs and reports, (vi)
computer software, including operating systems, applications and program
listings, (vii) flow charts, manuals and documentation, (viii) data bases, (ix)
accounting and business methods, (x) inventions, devices, new developments,
methods and processes, whether patentable or unpatentable and whether or not
reduced to practice, (xi) customers and clients and customer or client lists,
(xii) other copyrightable works, (xiii) all technology and trade secrets, and
(xiv) all similar and related information in whatever form. Confidential
Information shall not include any information that has been published in a form
generally available to the public prior to the date Employee proposes to
disclose or use such information other than as a result of disclosure by
Employee in violation of this Agreement. Information shall not be deemed to have
been published merely because individual portions of the information have been
separately published, but only if all material features comprising such
information have been published in combination.
SECTION 5. NON-COMPETITION AND NON-SOLICITATION.
(a) Employee acknowledges and agrees with the Company that his services to
the Company are unique in nature and that the Company would be irreparably
damaged if Employee were to provide similar services to any person or entity
competing with the Company or engaged in a similar business. Employee
accordingly covenants and agrees with the Company that during the period
commencing with the date of this Agreement and ending on the later to occur of:
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(i) April 30, 2005 and (ii) (A) the second anniversary of the date
of the termination of Employee's employment with the Company if such
termination arises as a result of voluntary termination or retirement by
Employee or termination by the Company for "Cause", or (B) the first
anniversary of the date of termination of Employee's employment with the
Company if such termination arises for any reason other than as provided
in the preceding subparagraph 5(a) (ii) (A).
Employee shall not, directly or indirectly, either for himself or for any other
individual, corporation, partnership, joint venture of other entity, participate
in any business (including without limitation any division, group or franchise
of a larger organization) which engages or which proposes to engage in the
business of providing diving services in the Gulf of Mexico or any other
business actively engaged in by the Company on the date of termination of
Employee's employment in the area or areas where the Company is conducting such
business; PROVIDED that until such time as the Company waives in writing any
rights it may have to enforce the terms of this Section 5 (the "Waiver), during
the period commencing on the date of the termination of Employee's employment
with the Company and ending on the date on which either the noncompetition
provisions contained in this Section 5 terminate or the Waiver is delivered to
Employee, whichever is earlier, the Company will pay to Employee either the
amounts due under Section 7(d), if appropriate, or an amount equal to Employee's
base salary as of the date his employment was terminated (which will be paid
over time in accordance with the salary payment schedule in effect from time to
time for senior executives of the Company) and during such time period Employee
shall be entitled to all insurance benefits received by other senior executives
of the Company. For purposes of this Agreement, the term "participate in" shall
include without limitation having any direct or indirect interest in any
corporation, partnership, joint venture or other entity, whether as a sole
proprietor, owner, stockholder, partner, joint venturer, creditor or otherwise,
or rendering any direct or indirect service or assistance to any individual,
corporation, partnership, joint venture and other business entity (whether as a
director, officer, manager, supervisor, employee, agent, consultant or
otherwise) but not ownership of 2% or less of the capital stock of a public
company.
(b) Employee covenants and agrees with the Company that during the period
commencing with the date of this Agreement and ending on the later to occur of
(i) April 30, 2003 and (ii) (A) the second anniversary of the date of
termination of Employee's employment with the Company if such termination arises
as a result of voluntary termination by the Company or for "Cause", or (B) the
date which is 18 months following the termination of Employee's employment with
the Company if such termination arises for any reason other than as provided in
the preceding subparagraph 5(b) (ii) (A) above, Employee shall not, directly or
indirectly, for himself or for any other individual, corporation, partnership,
joint venture or other entity, (x) make any offer of employment, solicit or hire
any supervisor, employee of the Company or its affiliates or induce or attempt
to induce any employee of the Company or its affiliates to leave their employ or
in any way interfere with the relationship between the Company or its affiliates
and any of their employees or (y) induce or attempt to induce any supplier,
licensee, licensor, franchisee, or other business relation of the Company or its
affiliates to cease doing business with them or in any way interfere with the
relationship between the Company or its affiliates and any customer or business
relation.
SECTION 6. COMPANY'S OWNERSHIP OF INTELLECTUAL PROPERTY.
(a) In the event that Employee as part of his activities on behalf of the
Company generates, authors or contributes to any invention, design, new
development, device, product, method or process (whether or not patentable or
reduced to practice or comprising Confidential Information), any copyrightable
work (whether or not comprising Confidential Information) or any other form of
Confidential Information relating directly or indirectly to the Company's
business as prior hereto, now or hereinafter conducted (collectively,
"Intellectual Property"), Employee acknowledges that such Intellectual Property
is the exclusive property of the Company and hereby assigns all right, title and
interest in and to such Intellectual Property to the Company. Any copyrightable
work prepared in whole or in part by Employee shall be deemed "a work made for
hire" under Section 201(b) of the 1976 Copyright Act, and the Company shall own
all of the rights comprised in the copyright therein. Employee shall promptly
and fully disclose all Intellectual Property to the Company and shall cooperate
with the Company to protect the Company's interest in and rights to such
Intellectual Property, including without limitation providing reasonable
assistance in securing patent protection and copyright registrations and
executing all documents as reasonably requested by the Company, whether such
requests occur prior to or after termination of Employee's employment with the
Company.
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(b) As requested by the Company from time to time and upon the termination
of Employee's employment with the Company for any reason, Employee shall
promptly deliver to the Company all copies and embodiments, in whatever form, of
all Confidential Information or Intellectual Property in Employee's possession
or within his control (including, but not limited to, written records, notes,
photographs, manuals, notebooks, documentation, program listings, flow charts,
magnetic media, disks, diskettes, tapes and all other materials containing any
Confidential Information or Intellectual Property) irrespective of the location
or form of such material and, if requested by the Company, shall provide the
Company with written confirmation that all such materials have been delivered to
the Company.
SECTION 7. TERMINATION OF AGREEMENT.
(a) TERMINATION FOR "CAUSE". This Agreement may be terminated by the
Company at any time during the Employment Term for "Cause", in which event
Employee shall have no further rights under this Agreement (but the Company's
rights shall survive as herein otherwise provided including, without limitation,
under Sections 4, 5 and 6 hereof). For purposes of the preceding sentence,
"Cause" shall mean: (i) any breach or threatened breach by Employee of any of
his agreements contained in Section 4, 5 or 6 hereof; (ii) repeated or willful
neglect by Employee in performing any duty or carrying out any responsibility
assigned or delegated to him pursuant to Section 1(b) hereof, which neglect
shall not have permanently ceased within ten (10) business days after written
notice to Employee thereof; or (iii) the commission by Employee of any criminal
act involving moral turpitude or a felony which results in an arrest or
indictment, or the commission by Employee, based on reasonable proof, of any act
of fraud or embezzlement involving the Company or its customers or suppliers. In
the event that the Company elects to terminate this Agreement for Cause, it will
give Employee written notice of such termination, and, at the Company's
discretion, Employee's employment will terminate sixty (60) days thereafter.
(b) TERMINATION UPON DEATH. This Agreement shall terminate automatically
upon the death of Employee during the Employment Term. In such event, the
Company shall be obligated to pay to Employee's estate, or to such person or
persons as he may designate in writing to the Company, (i) through the last day
of the fiscal year in which Employee's death shall have occurred, the salary
(payable in the same manner as described in Section 2(a) hereof) to which
Employee would have been entitled under Section 2(a) hereof had such death not
occurred, and (ii) as soon as reasonably practicable after Employee's death, any
accrued but, as of the date of such death, unpaid Incentive Bonus (or, if such
death shall have occurred after the first three (3) months of the Company's
fiscal year, any prorated portion thereof).
(c) TERMINATION UPON DISABILITY. This Agreement may be terminated by the
Company at any time during the Employment Term in the event that Employee shall
have been unable, because of "Disability" (as hereinafter defined), to perform
his principal duties for the Company for a cumulative period of six (6) months
within any eighteen (18) month period. Prior to Employee's termination for
Disability as provided herein, he shall remain eligible to receive the
compensation and benefits set forth in Section 2 and Section 3 hereof. Upon such
termination, Employee shall be entitled to receive as soon as reasonably
practicable thereafter, any accrued, but as of the date of such termination,
unpaid Incentive Bonus (or, if such termination shall have occurred after the
first three (3) months of the Company's fiscal year, any prorated portion
thereof). For purposes of this Section 7(c), "Disability" shall mean any
physical or mental condition of Employee which shall substantially impair his
ability to perform his principal duties hereunder. In the event that the Company
elects to terminate this Agreement by reason of Disability under this Section
7(c), it will give written notice of such termination, and, at the Company's
discretion, Employee's employment will terminate sixty (60) days thereafter.
(d) "TERMINATION BY THE COMPANY WITHOUT CAUSE AFTER CHANGE IN CONTROL." If
the Company terminates this Agreement for any reason other than pursuant to the
terms of Sections 7(a), 7(b), or 7(c), and such termination occurs within two
years of the occurrence of a Change in Control and a Material Change in Senior
Management (as defined in (e) 1 below), then, in addition to any amounts
otherwise due under this Agreement, the Company shall: (1) pay to Employee an
amount equal to 2 times the salary plus bonus paid to Employee for his last
complete year of employment, (2) continue Employee's participation in the
Company's medical, dental, accidental death, and life insurance plans, as
provided in Section 3 of this Agreement, for two years, subject to COBRA
required benefits thereafter, and (3) cause Employee to be fully vested in any
stock options or stock grants held by Employee. The Company shall make the
payment due in one lump sum within 10 days of the effective date of termination.
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A "CHANGE IN CONTROL"shall be deemed to have occurred at any time after
the date of this Agreement that any person (including those persons who own more
than 10% of the combined voting power of the Company's outstanding voting
securities on the date hereof) becomes the beneficial owner, directly or
indirectly, of 45% or more of the combined voting power of the Company's then
outstanding voting securities.
(e) "TERMINATION BY EMPLOYEE WITH GOOD CAUSE AFTER CHANGE IN CONTROL." If
Employee terminates this Agreement for Good Cause (defined below) and such
termination occurs within two years of the occurrence of a Change in Control,
then, in addition to any amounts otherwise due under this Agreement, the Company
shall: (1) pay to Employee an amount equal to 2 times the salary plus bonus paid
to Employee for his last complete year of employment, (2) continue Employee's
participation in the Company's medical, dental, accidental death, and life
insurance plans, as provided in Section 3 of this Agreement, for two years,
subject to COBRA required benefits thereafter, and (3) cause Employee to be
fully vested in any stock options or stock grants held by Employee. The Company
shall make the payment due in one lump sum within 10 days of the effective date
of termination.
"GOOD CAUSE" shall mean the occurrence of both of the following events:
1. a "Material Change in Senior Management" (which shall mean either
one or both of the CEO and COO cease their employment with the
Company); and
2. in addition, any of the following events occur:
(i) the assignment by the Company to Employee of duties that are
materially inconsistent with Employee's office with the Company at the
time of such assignment, or the removal by the Company from Employee of a
material portion of those duties usually appertaining to Employee's office
with the Company at the time of such removal;
(ii) a material change by the Company, without Employee's prior
written consent, in Employee's responsibilities to the Company, as such
responsibilities are ordinarily and customarily required from time to time
of a senior officer of a corporation engaged in the Company's business;
(iii) any removal of Employee from, or any failure to reelect or to
reappoint Employee to, the office stated in Section 1(b);
(iv) The Company's direction that Employee discontinue service (or
not seek reelection or reappointment) as a director, officer or member of
any corporation or association of which Employee is a director, officer,
or member at the date of this Agreement;
(v) a reduction by the Company in the amount of Employee's salary in
effect at the time of the occurrence of a Change in Control or the failure
of the Company to pay such salary to Employee at the time and in the
manner specified in this Agreement;
(vi) the discontinuance (without comparable replacement) or material
reduction by the Company of Employee's participation in any bonus or other
employee benefit arrangement (including, without limitation, any
profit-sharing, thrift, life insurance, medical, dental, hospitalization,
stock option or retirement plan or arrangement) in which Employee is a
participant under the terms of this Agreement, as in effect on the date
hereof or as may be improved from time to time hereafter;
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(vii) the moving by the Company of Employee's principal office
space, related facilities, or support personnel, from the Company's
principal operating offices, or the Company's requiring Employee to
perform a majority of his duties outside the Company's principal operating
offices for a period of more than 30 consecutive days;
(viii)the relocation, without Employee's prior written consent, of
the Company's principal Employee offices to a location outside the county
in which such offices are located at the time of the signing of this
Agreement;
(ix) in the event the Company requires Employee to reside at a
location more than 25 miles from the Company's principal Employee offices,
except for occasional travel in connection with the Company business to an
extent and in a manner which is substantially consistent with Employee's
current business travel obligations;
(x) in the event Employee consents to a relocation of the Company's
principal Employee offices, the failure of the Company to (A) pay or
reimburse Employee on an after-tax basis for all reasonable moving
expenses incurred by Employee in connection with such relocation or (B)
indemnify Employee on an after-tax basis against any loss realized by
Employee on the sale his principal residence in connection with such
relocation;
(xi) the failure of the Company to continue to provide Employee with
office space, related facilities and support personnel (including, without
limitation, administrative and secretarial assistance) that are
commensurate with Employee's responsibilities to and position with the
Company, and no less than those prior to this Agreement;
(xii) any significant change in Employee's reporting relationships
or changes in senior management of the Company
(xiii)the failure by the Company to promptly reimburse Employee for
the reasonable business expenses incurred by Employee in the performance
of his duties for the Company, in accordance with this Agreement.
(f) GROSS-UP PAYMENTS - CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(i) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the
Company or any of its affiliates (as that term is defined in the
regulations promulgated under the Securities Exchange Act of 1934, as
amended) under this Agreement to or for the benefit of Employee (any such
payments or distributions being individually referred to herein as a
"PAYMENT," and any two or more of such payments or distributions being
referred to herein as "PAYMENTS"), would be subject to the excise tax
imposed by Section 4999 of the Code (such excise tax, together with any
interest thereon, any penalties, additions to tax, or additional amounts
with respect to such excise tax, and any interest in respect of such
penalties, additions to tax or additional amounts, being collectively
referred herein to as the "EXCISE TAX"), then Employee shall be entitled
to receive an additional payment or payments (individually referred to
herein as a "GROSS-UP PAYMENT" and any two or more of such additional
payments being referred to herein as "GROSS-UP PAYMENTS") in an amount
such that after payment by Employee of all taxes (as defined in Section
7(f)(xi) imposed upon the Gross-Up Payment, Employee retains an amount of
such Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(ii) Subject to the provisions of Section 7(f)(iii) through
7(f)(ix), any determination (individually, a "DETERMINATION") required to
be made under this Section 7(f)(ii), including whether a Gross-Up Payment
is required and the amount of such Gross-Up Payment, shall initially be
made, at the Company's expense, by
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nationally recognized tax counsel mutually acceptable to the Company and
Employee ("TAX COUNSEL"). Tax Counsel shall provide detailed supporting
legal authorities, calculations, and documentation both to the Company and
Employee within 15 business days of the termination of Employee's
employment, if applicable, or such other time or times as is reasonably
requested by the Company or Employee. If Tax Counsel makes the initial
Determination that no Excise Tax is payable by Employee with respect to a
Payment or Payments, it shall furnish Employee with an opinion reasonably
acceptable to Employee that no Excise Tax will be imposed with respect to
any such Payment or Payments. Employee shall have the right to dispute any
Determination (a "DISPUTE") within 15 business days after delivery of Tax
Counsel's opinion with respect to such Determination. The Gross-Up
Payment, if any, as determined pursuant to such Determination shall, at
the Company's expense, be paid by the Company to Employee within five
business days of Employee's receipt of such Determination. The existence
of a Dispute shall not in any way affect Employee's right to receive the
Gross-Up Payment in accordance with such Determination. If there is no
Dispute, such Determination shall be binding, final and conclusive upon
the Company and Employee, subject in all respects, however, to the
provisions of Section 7(f)(iii) through 7(f)(ix) below. As a result of the
uncertainty in the application of Sections 4999 and 280G of the Code, it
is possible that Gross-Up Payments (or portions thereof) which will not
have been made by the Company should have been made ("UNDERPAYMENT"), and
if upon any reasonable written request from Employee or the Company to Tax
Counsel, or upon Tax Counsel's own initiative, Tax Counsel, at the
Company's expense, thereafter determines that Employee is required to make
a payment of any Excise Tax or any additional Excise Tax, as the case may
be, Tax Counsel shall, at the Company's expense, determine the amount of
the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to Employee.
(iii) the Company shall defend, hold harmless, and indemnify
Employee on a fully grossed-up after tax basis from and against any and
all claims, losses, liabilities, obligations, damages, impositions,
assessments, demands, judgements, settlements, costs and expenses
(including reasonable attorneys', accountants', and experts' fees and
expenses) with respect to any tax liability of Employee resulting from any
Final Determination (as defined in Section 7(f)(x) that any Payment is
subject to the Excise Tax.
(iv) If a party hereto receives any written or oral communication
with respect to any question, adjustment, assessment or pending or
threatened audit, examination, investigation or administrative, court or
other proceeding which, if pursued successfully, could result in or give
rise to a claim by Employee against the Company under this Section 7(f)
("CLAIM"), including, but not limited to, a claim for indemnification of
Employee by the Company under Section 7(f)(iii), then such party shall
promptly notify the other party hereto in writing of such Claim ("TAX
CLAIM NOTICE").
(v) If a Claim is asserted against Employee ("EMPLOYEE CLAIM"),
Employee shall take or cause to be taken such action in connection with
contesting such Employee Claim as the Company shall reasonably request in
writing from time to time, including the retention of counsel and experts
as are reasonably designated by the Company (it being understood and
agreed by the parties hereto that the terms of any such retention shall
expressly provide that the Company shall be solely responsible for the
payment of any and all fees and disbursements of such counsel and any
experts) and the execution of powers of attorney, PROVIDED that:
(1) within 30 calendar days after the Company receives or
delivers, as the case may be, the Tax Claim Notice relating to such
Employee Claim (or such earlier date that any payment of the taxes
claimed is due from Employee, but in no event sooner than five
calendar days after the Company receives or delivers such Tax Claim
Notice), the Company shall have notified Employee in writing
("ELECTION NOTICE") that the Company does not dispute its
obligations (including, but not limited to, its indemnity
obligations) under this Agreement and that the Company elects to
contest, and to control the defense or prosecution of, such Employee
Claim at the Company's sole risk and sole cost and expense; and
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(2) the Company shall have advanced to Employee on an
interest-free basis, the total amount of the tax claimed in order
for Employee, at the Company's request, to pay or cause to be paid
the tax claimed, file a claim for refund of such tax and, subject to
the provisions of the last sentence of Section 7(f)(vii), xxx for a
refund of such tax if such claim for refund is disallowed by the
appropriate taxing authority (it being understood and agreed by the
parties hereto that the Company shall only be entitled to xxx for a
refund and the Company shall not be entitled to initiate any
proceeding in, for example, United States Tax Court) and shall
indemnify and hold Employee harmless, on a fully grossed-up after
tax basis, from any tax imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and
(3) the Company shall reimburse Employee for any and all costs
and expenses resulting from any such request by the Company and
shall indemnify and hold Employee harmless, on fully grossed-up
after-tax basis, from any tax imposed as a result of such
reimbursement.
(vi) Subject to the provisions of Section 7(f)(v) hereof, the
Company shall have the right to defend or prosecute, at the sole cost,
expense and risk of the Company, such Employee Claim by all appropriate
proceedings, which proceedings shall be defended or prosecuted diligently
by the Company to a Final Determination; PROVIDED, HOWEVER, that (i) the
Company shall not, without Employee's prior written consent, enter into
any compromise or settlement of such Employee Claim that would adversely
affect Employee, (ii) any request from the Company to Employee regarding
any extension of the statute of limitations relating to assessment,
payment, or collection of taxes for the taxable year of Employee with
respect to which the contested issues involved in, and amount of, Employee
Claim relate is limited solely to such contested issues and amount, and
(iii) the Company's control of any contest or proceeding shall be limited
to issues with respect to Employee Claim and Employee shall be entitled to
settle or contest, in his sole and absolute discretion, any other issue
raised by the Internal Revenue Service or any other taxing authority. So
long as the Company is diligently defending or prosecuting such Employee
Claim, Employee shall provide or cause to be provided to the Company any
information reasonably requested by the Company that relates to such
Employee Claim, and shall otherwise cooperate with the Company and its
representatives in good faith in order to contest effectively such
Employee Claim. the Company shall keep Employee informed of all
developments and events relating to any such Employee Claim (including,
without limitation, providing to Employee copies of all written materials
pertaining to any such Employee Claim), and Employee or his authorized
representatives shall be entitled, at Employee's expense, to participate
in all conferences, meetings and proceedings relating to any such Employee
Claim.
(vii) If, after actual receipt by Employee of an amount of a tax
claimed (pursuant to an Employee Claim) that has been advanced by the
Company pursuant to Section 7(f)(v)(2) hereof, the extent of the liability
of the Company hereunder with respect to such tax claimed has been
established by a Final Determination, Employee shall promptly pay or cause
to be paid to the Company any refund actually received by, or actually
credited to, Employee with respect to such tax (together with any interest
paid or credited thereon by the taxing authority and any recovery of legal
fees from such taxing authority related thereto), except to the extent
that any amounts are then due and payable by the Company to Employee,
whether under the provisions of this Agreement or otherwise. If, after the
receipt by Employee of an amount advanced by the Company pursuant to
Section 7(f)(v)(2), a determination is made by the Internal Revenue
Service or other appropriate taxing authority that Employee shall not be
entitled to any refund with respect to such tax claimed, and the Company
does not notify Employee in writing of its intent to contest such denial
of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid
and the amount of such advance shall offset, to the extent thereof, the
amount of any Gross-Up Payments and other payments required to be paid
hereunder.
(viii)With respect to any Employee Claim, if the Company fails to
deliver an Election Notice to Employee within the period provided in
Section 7(f)(v)(1) hereof or, after delivery of such Election Notice,
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the Company fails to comply with the provisions of Section 7(f)(v)(2) and
(3) and 7(f)(vi) hereof, then Employee shall at any time thereafter have
the right (but not the obligation), at his election and in his sole and
absolute discretion, to defend or prosecute, at the sole cost, expense and
risk of the Company, such Employee Claim. Employee shall have full control
of such defense or prosecution and such proceedings, including any
settlement or compromise thereof. If requested by Employee, the Company
shall cooperate, and shall cause its Affiliates to cooperate, in good
faith with Employee and his authorized representatives in order to contest
effectively such Employee Claim. the Company may attend, but not
participate in or control, any defense, prosecution, settlement or
compromise of any Employee Claim controlled by Employee pursuant to this
Section 7(f)(viii) and shall bear its own costs and expenses with respect
thereto. In the case of any Employee Claim that is defended or prosecuted
by Employee, Employee shall, from time to time, be entitled to current
payment, on a fully grossed-up after tax basis, from the Company with
respect to costs and expenses incurred by Employee in connection with such
defense or prosecution.
(ix) In the case of any Employee Claim that is defended or
prosecuted to a Final Determination pursuant to the terms of this Section
7(f)(ix), the Company shall pay, on a fully grossed-up after tax basis, to
Employee in immediately available funds the full amount of any taxes
arising or resulting from or incurred in connection with such Employee
Claim that have not theretofore been paid by the Company to Employee,
together with the costs and expenses, on a fully grossed-up after tax
basis, incurred in connection therewith that have not theretofore been
paid by the Company to Employee, within ten calendar days after such Final
Determination. In the case of any Employee Claim not covered by the
preceding sentence, the Company shall pay, on a fully grossed-up after tax
basis, to Employee in immediately available funds the full amount of any
taxes arising or resulting from or incurred in connection with such
Employee Claim at least ten calendar days before the date payment of such
taxes is due from Employee, except where payment of such taxes is sooner
required under the provisions of this Section 7(f)(ix), in which case
payment of such taxes (and payment, on a fully grossed-up after tax basis,
of any costs and expenses required to be paid under this Section 7(f)(ix))
shall be made within the time and in the manner otherwise provided in this
Section 7(f)(ix).
(x) For purposes of this Agreement, the term "FINAL DETERMINATION"
shall mean (A) a decision, judgment, decree or other order by a court or
other tribunal with appropriate jurisdiction, which has become final and
non-appealable; (B) a final and binding settlement or compromise with an
administrative agency with appropriate jurisdiction, including, but not
limited to, a closing agreement under Section 7121 of the Code; (C) any
disallowance of a claim for refund or credit in respect to an overpayment
of tax unless a suit is filed on a timely basis; or (D) any final
disposition by reason of the expiration of all applicable statutes of
limitations.
(xi) For purposes of this Agreement, the terms "TAX" and "TAXES"
mean any and all taxes of any kind whatsoever (including, but not limited
to, any and all Excise Taxes, income taxes, and employment taxes),
together with any interest thereon, any penalties, additions to tax, or
additional amounts with respect to such taxes and any interest in respect
of such penalties, additions to tax, or additional amounts."
(g) EFFECT OF TERMINATION. In the event that the Employee is terminated
pursuant to any paragraph of this Section 7, Employee shall thereafter have no
further rights under this Agreement, except for those explicitly set forth in
the particular paragraph of this Section 7 which served as the basis for such
termination. Notwithstanding any such termination, the covenants and agreements
of Employee contained in Sections 4, 5 (a) (so long as payments under Section
5(a) are continued as therein described), 5 (b) and 6 hereof shall survive and
remain in full force and effect.
SECTION 8. NOTICES.
All notices, requests, demands and other communications hereunder must be
in writing and shall be deemed to have been duly given if delivered by hand,
sent to the recipient by reputable express courier service (charge prepaid),
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or mailed by first class, registered mail, return receipt requested, postage and
registry fees prepaid and addressed as follows:
If to Employee:
At the address set forth on page 1 hereof.
If to the Company :
Cal Dive International, Inc.
000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, General Counsel
Addresses may be changed by notice in writing signed by the addressee.
SECTION 9. GENERAL PROVISIONS.
(a) COMPANY SUBSIDIARIES. For purposes of this Agreement, the term
"Company" shall include all subsidiaries of the Company.
(b) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provisions of any other jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdictions if such invalid, illegal
or unenforceable provision had never been contained herein. The parties agree
that a court of competent jurisdiction making a determination of the invalidity
or unenforceability of any term or provision of Sections 4, 5 and 6 of this
Agreement shall have the power to reduce the scope, duration or area of any such
term or provision, to delete specific words or phrases or to replace any invalid
or unenforceable term or provision in Sections 4, 5, 6 with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.
(c) COMPLETE AGREEMENT. This Agreement, embodies the complete agreement
and understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
(d) COUNTERPARTS. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
(e) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and Employee and their respective successors and assigns; provided that
the rights and obligations of Employee under this Agreement shall not be
assignable without the prior written consent of the Company.
(f) GOVERNING LAW. All questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto shall be governed by
the internal law, and not the law of conflicts, of the State of Texas.
(g) REMEDIES. Each of the parties to this Agreement shall be entitled to
enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys fees) caused by any breach of
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any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that Employee's breach of any
term or provision of this Agreement shall materially and irreparably harm the
Company, that money damages shall accordingly not be an adequate remedy for any
breach of the provisions of this Agreement and that any party in its sole
discretion and in addition to any other remedies it may have at law or in equity
may apply to any court of law or equity of competent jurisdiction (without
posting any bond or deposit) for specific performance and/or other injunctive
relief in order to enforce or prevent any violations of the provisions of this
Agreement.
(h) AMENDMENT AND WAIVER. The provisions of this Agreement may be amended
and waived only with the prior written consent of the Company and Employee.
IN WITNESS, WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
CAL DIVE INTERNATIONAL, INC. EMPLOYEE
By:
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Operating Officer
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