POST-CLOSING EMPLOYEE MATTERS AGREEMENT
Exhibit 10.1
This Post-Closing Employee Matters Agreement (the “Agreement”), dated effective as of
February 1, 2007, is between Helix Energy Solutions Group, Inc., a Minnesota corporation
(“Helix”), and Cal Dive International, Inc., a Delaware corporation and majority-owned
subsidiary of Helix (“Cal Dive”).
RECITALS
WHEREAS, Cal Dive has made an initial public offering (“IPO”) of shares of Cal Dive
common stock pursuant to a registration statement on Form S-1 filed pursuant to the Securities Act
of 1933, as amended, which was consummated on December 19, 2006;
WHEREAS, in connection with the IPO, Helix and Cal Dive entered into an Employee Matters
Agreement dated as of December 14, 2006 to provide for the allocation between them of the
liabilities for employee benefits arising prior to, as a result of and subsequent to the IPO, and
to provide for and agree upon other personnel matters, with respect to individuals who were
employees of Cal Dive as of the IPO Closing Date (defined below); and
WHEREAS, Helix and Cal Dive now desire to enter into this Agreement to provide for the
allocation between them of the liabilities for employee benefits with respect to employees of Helix
who become Transferred Employees (defined below) after the IPO Closing Date;
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for good and
valuable consideration the sufficiency and receipt of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below. Any
capitalized term used in the Agreement that is not defined in the Agreement shall have the meaning
set forth in the Master Agreement (defined below).
1.1 “Cal Dive Entity” means Cal Dive or any subsidiary of Cal Dive.
1.2 “Cal Dive Welfare Plan” means any “employee welfare benefit plan” as defined in
Section 3(1) of ERISA (whether or not the program is subject to ERISA) that is maintained by a Cal
Dive Entity.
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1.3 “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as
codified at Part 6 of Subtitle B of Title I of ERISA and at section 4980B of the Code.
1.4 “Code” means the Internal Revenue Code of 1986, as amended.
1.5 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
1.6 “Helix Employee” means any employee of Helix or a Helix Entity, including
employees hired by Helix after the date of this Agreement.
1.7 “Helix Entity” means Helix and any subsidiary of Helix but excluding the Cal Dive
Entities.
1.8 “Helix Welfare Plan” means the Group Protection for Employees of Helix Energy
Solutions Group, Inc., the Helix Energy Solutions Group, Inc. Long Term Disability Plan, and any
other “employee welfare benefit plan” as defined in Section 3(1) of ERISA (whether or not the
program is subject to ERISA) that is maintained by a Helix Entity.
1.9 “IPO” shall have the meaning specified in the recitals to the Agreement.
1.10 “IPO Closing Date” means December 19, 2006.
1.11 “Master Agreement” means that certain Master Agreement dated December 8, 2006,
as amended from time to time, between Helix and Cal Dive.
1.12 “Plan,” when immediately preceded by “Helix,” means any “employee benefit plan”
within the meaning of Section 3(3) of ERISA and any other plan, policy, program, payroll practice,
on-going arrangement, contract, trust, insurance policy or other agreement or funding vehicle, as
amended from time to time, for which the eligible class(es) of participants include employees or
former employees of Helix or a Helix Entity, and, when immediately preceded by “Cal Dive,” means
any “employee benefit plan” within the meaning of Section 3(3) of ERISA and any other plan,
policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy or
other agreement or funding vehicle, to the extent amended from time to time, for which the
eligible class(es) of participants are limited to employees or former employees of Cal Dive or a
Cal Dive Entity, but no other Helix Entity.
1.13 “Transfer Date” means the date on which an employee of Helix becomes a
Transferred Employee.
1.14 “Transferred Employee” means an employee of a Helix Entity who after the date of
this Agreement is transferred by a Helix Entity from the Helix Entity’s payroll directly to the
payroll of a Cal Dive Entity at such individual’s request or with such individual’s consent, and
which employee thereby becomes an employee of a Cal Dive Entity.
1.15 “Trigger Date” means the first date on which Helix and/or any Helix Entity(ies) cease to
beneficially own more than fifty percent (50%) of the total voting power of the common stock of
Cal Dive.
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ARTICLE 2
GENERAL
GENERAL
2.1 Assumption/Retention of Liabilities. Except as otherwise explicitly and
specifically provided in this Agreement, effective upon a transfer of a Transferred Employee to
the employ of a Cal Dive Entity, Cal Dive shall assume, pay, perform, fulfill and discharge any
and all liabilities or obligations relating to the employment or termination of employment of any
Transferred Employee, including with respect to any employment agreement that may exist between a
Helix Entity and a Transferred Employee. No provision in this Agreement relating to Cal Dive’s
responsibility with respect to any specific liabilities or obligations described in the preceding
sentence will limit the generality of the preceding sentence with respect to, or otherwise be
construed to relieve Cal Dive from, the assumption or retention of any other liabilities or
obligations described in the preceding sentence.
2.2 No Helix Severance Event. No Transferred Employee will be entitled to receive
termination or severance payments or benefits from Helix or any other Helix Entity as a result of
becoming a Transferred Employee. Cal Dive shall be responsible for the satisfaction of any
termination or severance obligations owed with respect to Transferred Employees.
2.3 Recognition of Service. Except as otherwise provided in the Agreement, Cal Dive
will cause each Cal Dive Plan to grant full credit to each eligible Transferred Employee for the
period of such Transferred Employee’s service with the Cal Dive Entities and Helix Entities
(including, where applicable, service with a predecessor employer credited by a corresponding
Helix Plan). Helix service may be disregarded (a) under a new Cal Dive Plan adopted after the
date hereof if such Cal Dive Plan is not a successor or replacement plan, and (b) under any Cal
Dive Plan if and to the extent credit for such service would result in the duplication of
benefits.
ARTICLE 3
WELFARE PLANS
WELFARE PLANS
3.1 Welfare Plan Participation and Liabilities.
(a) Termination of Group Welfare Plan Participation. On the date a Helix
Employee becomes a Transferred Employee, such Transferred Employee (and his or her
dependents and beneficiaries) will cease to be active participants, in any Helix Welfare
Plan.
(b) Reimbursement. Cal Dive will promptly pay or reimburse Helix for any
medical or other welfare benefit expenses, premiums or other costs under the Helix Welfare
Plans relating to coverage of a Transferred Employee (and his or her dependents and
beneficiaries).
(c) Allocation of Liabilities. Except as otherwise provided in this Agreement,
(1) Cal Dive shall be responsible for the payment of welfare benefits liabilities and
expenses incurred with respect to all Transferred Employees; and (2) no Helix Entity shall
have any responsibility for the payment of welfare benefits with respect to liabilities and
expenses incurred by any such persons. Nothing contained in this subsection is
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intended to affect the rights of any Transferred Employee or any of his or her covered
dependents and beneficiaries to receive insurance benefits payable under and in accordance
with the provisions of an insurance policy maintained as part of a Helix Welfare Plan.
(d) Cal Dive Group Health Plan, COBRA. Transferred Employees will be entitled
to participate in Cal Dive’s group health plan. Cal Dive shall also have the sole
responsibility for providing COBRA group health plan continuation coverage to any
Transferred Employees (and their covered dependents) who incur qualifying events after the
date of this Agreement. Helix shall have no responsibility for, and shall be entitled to
indemnification by Cal Dive with respect to, any COBRA obligations to Transferred Employees
(and their covered dependents) for which Cal Dive is responsible, whether by operation of
law or in accordance with the terms of the Agreement (including, without limitation, this
Section 3.1(c)).
3.2 Helix Assets. Helix shall retain all claim reserves, bank accounts, trust funds
or other balances maintained as part of or in connection with the Helix Welfare Plans.
3.3 Credit for Amounts Paid. In administering the Cal Dive Welfare Plans for the
calendar year any Transferred Employee becomes an employee of a Cal Dive Entity Cal Dive shall
credit participating Transferred Employees with any amounts paid by them under the corresponding
Helix Welfare Plans toward satisfaction of applicable deductibles, co-payments, coinsurance and
out-of-pocket maximums.
ARTICLE 4
COMPENSATION MATTERS
AND NON-ERISA BENEFIT ARRANGEMENTS
COMPENSATION MATTERS
AND NON-ERISA BENEFIT ARRANGEMENTS
4.1 Assumption of Individual Agreements. Effective on the Transfer Date for any and
each Transferred Employee, Cal Dive will assume and/or be responsible for satisfying any and all
obligations and liabilities (fixed or contingent) of Helix or any Helix Entity incurred or arising
under or in connection with any individual employment, retention, separation, consulting,
representation or other personal services-related agreements (together with any ancillary trust or
other agreements) made directly or indirectly with or for the benefit of such Transferred
Employee; provided, however, that, following the applicable Transfer Date, Helix and the other
Helix Entities shall retain any rights which it or any of them would have had following the
termination of any such agreement, determined as if the agreement terminated immediately prior to
the Transfer Date, except to the extent that the exercise of such rights by Helix and the other
Helix Entities following the Transfer Date would adversely affect the rights of any Cal Dive
Entity under such agreement. Cal Dive shall indemnify Helix and the Helix Entities and their
affiliates and hold them and each of them harmless from, against and with respect to any claim,
liability or expense asserted or imposed against it or any of them under or in connection with any
of the agreements described in the first sentence of this Section 4.1.
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4.2 Stock Incentive Plans.
(a) Outstanding Helix Stock Options. Under the terms of the Helix Energy
Solutions Group, Inc. 2005 Long-Term Incentive Plan and/or the 1995 Long Term Incentive Plan
of Helix Energy Solutions Group, Inc. (the “Helix Stock Incentive Plans”), upon the
Trigger Date the Transferred Employees shall be deemed to have terminated employment for all
purposes of the Helix Stock Incentive Plans. Notwithstanding such provisions, Helix, in its
sole discretion, may elect for any Transferred Employee that any or all stock options
granted to such Transferred Employee under the Helix Stock Incentive Plans will continue
under their present terms and the terms of the plans under which they were granted and shall
be exercisable for shares of common stock of Helix. In the event Helix does elect that any
stock options granted to any Transferred Employee shall continue under the terms of the
Helix Stock Incentive Plans, the parties hereby agree that upon the Trigger Date all such
stock options granted to Transferred Employees under the Helix Stock Incentive Plans and
outstanding as of the Trigger Date shall remain exercisable until the earlier of (1) the
expiration of the general term of the option or (2) the later of (i) December 31 of the
calendar year in which the Trigger Date occurs, or (ii) the 15th day of the third
month after the expiration of the 60-day period commencing on the Trigger Date. In
addition, with respect to any such options that Helix has elected to continue under the
terms of the Helix Stock Incentive Plan(s), at Helix’s sole discretion, Helix may agree on
an employee by employee basis that to the extent necessary to avoid the forfeiture of any
such unvested stock options due to the operation of the immediately preceding sentence, the
vesting of all such unvested stock options granted to Transferred Employees under the Helix
Stock Incentive Plans and outstanding as of the Trigger Date shall be accelerated and such
stock options shall become fully vested on the Trigger Date. If, prior to the lapse or
forfeiture of a stock option granted to a Transferred Employee under a Helix Stock Incentive
Plan the Department of Treasury issues guidance in which it expressly takes the position
that a stock option that would have otherwise expired early due to termination of employment
may remain exercisable for its general term without being subject to section 409A of the
Code, Helix shall take such actions as are necessary to amend such stock option granted to a
Transferred Employee under a Helix Stock Incentive Plans with respect to which Helix has
elected that such option should continue to specify that such stock option will remain
exercisable in accordance with its original provisions except that employment with a Cal
Dive Entity shall be treated in the same manner as if it were employment with a Helix
Entity. In consideration of the foregoing agreements in this Section 4.2(a), following the
Trigger Date, Cal Dive shall pay to Helix monthly service fees (“Stock Option Service
Fees”). The Stock Option Service Fee for a month shall be an amount equal to the sum of
(x) the aggregate third party costs incurred by Helix during the month in connection with
the administration of the stock options granted to Transferred Employees under the Helix
Stock Incentive Plans and (y) the total costs and expenses recognized, accrued or otherwise
incurred by Helix during the month for financial accounting purposes with respect to the
stock options granted to Transferred Employees under the Helix Stock Incentive Plans and/or
the agreements contained in the foregoing provisions of this Section 4.2(a) (the costs and
expenses described in this clause (y) are referred to herein as the “Stock Option Accounting
Costs and Expenses”). Helix’s determination concerning any amount of the Stock Option
Accounting Costs and Expenses shall be binding on the parties hereto. The Stock Option
Service Fees will be
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charged to Cal Dive on a monthly basis. Cal Dive shall pay to Helix the Stock Option
Service Fee for a month within 15 days after Cal Dive receives written notification of the
amount of the Stock Option Service Fee due for the month. Notwithstanding the foregoing,
each calendar year Cal Dive may, in its discretion, elect to pay the aggregate Stock Option
Service Fees for the calendar year in a single sum within 15 days after Cal Dive receives
written notification of the amount of the aggregate Stock Option Service Fees for the
calendar year.
(b) Outstanding Helix Restricted Stock Awards. Notwithstanding the fact that under
the terms of the Helix Stock Incentive Plans upon the Trigger Date the Transferred Employees shall
be deemed to have terminated employment for all purposes of the Helix Stock Incentive Plans,
Helix, in its sole discretion, may elect for any Transferred Employee that any or all restricted
stock awards granted to such Transferred Employee under the Helix Stock Incentive Plans will
continue under their present terms and the terms of the plans under which they were granted. For
purposes of vesting of such restricted stock awards, employment with a Cal Dive Entity shall be
treated in the same manner as if it were employment with Helix. In consideration of the foregoing
agreements in this Section 4.2(b), following the Trigger Date, Cal Dive shall pay to Helix monthly
service fees (“Restricted Stock Service Fees”). The Restricted Stock Service Fee for a
month shall be an amount equal to the sum of (x) the aggregate third party costs incurred by Helix
during the month in connection with the administration of the restricted stock awards granted to
Transferred Employees under the Helix Stock Incentive Plans which Helix has elected to continue,
as described above, and (y) the total costs and expenses recognized, accrued or otherwise
incurred by Helix during the month for financial accounting purposes with respect to such
restricted stock awards granted to Transferred Employees under the Helix Stock Incentive Plans
and/or the agreements contained in the foregoing provisions of this Section 4.2(b) (the costs and
expenses described in this clause (y) are referred to herein as the “Restricted Stock Accounting
Costs and Expenses”). Helix’s determination concerning the amount of the Restricted Stock
Accounting Costs and Expenses shall be binding on the parties hereto. The Restricted Stock Service
Fees will be charged to Cal Dive on a monthly basis. Cal Dive shall pay to Helix the Restricted
Stock Service Fee for a month within 15 days after Cal Dive receives written notification of the
amount of the Restricted Stock Service Fee due for the month. Notwithstanding the foregoing, each
calendar year Cal Dive may, in its discretion, elect to pay the aggregate Restricted Stock Service
Fees for the calendar year in a single sum within 15 days after Cal Dive receives written
notification of the amount of the aggregate Restricted Stock Service Fees for the calendar year.
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4.3 .Helix Employee Stock Purchase Plan. Transferred Employees who are participating
in the Helix Energy Solutions Group, Inc. 1998 Employee Stock Purchase Plan (the “Helix Stock
Purchase Plan”) on the date of the Agreement will continue to participate in the Helix Stock
Purchase Plan through the end of the offering period in which the Transfer Date occurs. Cal Dive
shall pay to Helix, within five days following the close of such offering period, the fair market
value of the shares of Helix’s common stock purchased under the Helix Stock Purchase Plan during
the offering period. For this purpose, the fair market value of a share of Helix common stock
shall be the closing price of Helix stock on the New York Stock Exchange on the last trading day
of the offering period in which the Transfer Date occurs.
4.4 Annual Incentive Compensation. Cal Dive shall assume all liabilities with
respect to the payment of annual incentive awards to Transferred Employees for the calendar year
in which the Transfer Date occurs, subject to the terms and provisions of the applicable incentive
plan.
4.5 Workers’ Compensation. Except as otherwise specifically provided herein, Cal
Dive shall be solely responsible for all claims for workers’ compensation reported by a
Transferred Employee on or after the applicable Transfer Date. Unless Helix determines otherwise,
Helix shall continue to be responsible after the Transfer Date for administering all claims for
workers’ compensation for injuries to any Transferred Employee occurring prior to the applicable
Transfer Date and reported timely under the terms of any Helix workers’ compensation policy or
plan; provided, however, that Cal Dive shall reimburse, and shall indemnify Helix for any amounts
payable under such prior programs, or for any claims not reported timely and where Helix has been
prejudiced by such late reporting.
4.6 Accrued Vacation and other Paid Time Off. Cal Dive and the Cal Dive Entities
shall recognize and assume or retain, as the case may be, all liability for all vacation, holiday,
flex days and sick days, including banked sick days accrued by Transferred Employees as of the
applicable Transfer Date, on terms and conditions similar to those in effect immediately before
such time.
4.7 Leaves of Absence. Cal Dive shall honor the terms and conditions of any approved
leave of absence of a Transferred Employee that begins before and continues immediately after the
applicable Transfer Date.
ARTICLE 5
GENERAL PROVISIONS
GENERAL PROVISIONS
5.1 No Third Party Beneficiaries; Preservation of Rights to Amend. The Agreement
shall be binding upon and inure to the benefit only of the parties hereto and their respective
successors. Notwithstanding any other provisions to the contrary, except with respect to such
successors, the Agreement is not intended and shall not be construed for the benefit of any third
party or any person not a signatory hereto. Without limiting the generality of the foregoing: (a)
no Transferred Employee (or his/her spouse, dependent or beneficiary), or any other person not a
party to the Agreement, shall be entitled to assert any claim hereunder; (b) except as expressly
provided in the Agreement, nothing in the Agreement shall preclude Helix or any Helix Entity, at
any time after the date hereof, from amending or terminating any Helix Plan; and (c) except
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as expressly provided in the Agreement, nothing in the Agreement shall preclude Cal Dive or
any Cal Dive Entity, at any time after the date hereof, from amending or terminating any Cal Dive
Plan.
5.2 Schedule of Transferred Employees. The parties shall maintain a schedule, which
shall be attached hereto as Schedule 1, that lists all Transferred Employees, and which
will be supplemented from time to time to add (but not delete) each Transferred Employee and the
Transfer Date with respect to each such Transferred Employee.
5.3 Personnel Records. Subject to applicable law, each party shall furnish or make
available to the other copies of such personnel and other documents and records relating to the
Transferred Employees as may be reasonably requested by the other in connection with the proper
administration of its payroll and Plans or the proper operation of its business or the execution
of its rights and obligations under the Agreement.
5.4 Applicability to Subsidiaries. Each of Helix and Cal Dive shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and obligations set
forth in this Agreement to be performed by a Helix Entity or a Cal Dive Entity, respectively.
5.5 Fiduciary Matters. The parties acknowledge that actions required to be taken
pursuant to the Agreement may be subject to fiduciary duties or standards of conduct under ERISA
or other applicable law. Neither party shall be deemed to be in violation of the Agreement if it
fails to comply with any provision of the Agreement based upon its good faith determination that
to do so would violate such a fiduciary duty or standard. Each party shall be responsible for
taking such actions as are deemed necessary and appropriate to comply with its own fiduciary
responsibilities and shall fully release and indemnify the other party for any liabilities caused
by the failure to satisfy any such responsibility.
5.6 Administrative Complaints/Litigation. As of and after any Transfer Date, Cal
Dive shall assume, and be solely liable for, the handling, administration, investigation, and
defense of actions, including, without limitation, ERISA, and any regulations or guidance issued
thereunder, the Code and any regulations or guidance issued thereunder to the extent such Code
provisions relate to or affect employee benefit matters, occupational safety and health,
employment standards, union grievances, wrongful dismissal, discrimination or human rights and
unemployment compensation claims, asserted at any time against a Helix Entity or a Cal Dive
Entity by any Transferred or any other person arising out of or relating to such Transferred
Employee’s employment with a Helix Entity or a Cal Dive Entity. Any obligations, losses, expenses
and claims arising from such actions shall be deemed to be Cal Dive Liabilities as described in,
and shall be retained or assumed, as the case may be, by Cal Dive under and in accordance with,
the Master Agreement. Helix reserves the right to participate in the investigation, defense or
settlement of any matter to the extent it deems reasonably necessary.
5.7 Reimbursement and Indemnification. Each of the parties shall reimburse the
other, within 30 days of receipt from the other party of appropriate verification, for all costs
and expenses which the other may incur in satisfaction of a liability or obligation which, under
this Agreement, is the liability or obligation of such party. All liabilities retained, assumed
or indemnified against by Cal Dive or a Cal Dive Entity pursuant to this Agreement shall be
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deemed Cal Dive Liabilities, and all liabilities specifically retained, assumed or
indemnified against by Helix pursuant to the Agreement shall be deemed Excluded Liabilities for
purposes of the Master Agreement.
5.8 Singular/Plural Words. If the context requires it, words used in the singular or
plural will include the other.
5.9 Master Agreement Provisions. The following provisions of the Master Agreement
are hereby incorporated herein by reference and, unless otherwise expressly specified herein,
shall apply as if fully set forth herein: Article V (relating to releases and indemnification);
the provisions of Sections 4.7 and 6.2 (relating to exchange of information and confidentiality);
and Article VIII (relating to Miscellaneous).
5.10 Applicable Law. To the extent not preempted by applicable federal law, the
Agreement shall be governed by, construed and interpreted in accordance with the laws of the State
of Texas, without regard to its choice of laws principles, as to all matters, including matters of
validity, construction, effect, performance and remedies.
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IN WITNESS WHEREOF, the parties have caused the Agreement to be executed in their names by a
duly authorized officer as of the date first written above.
| HELIX ENERGY SOLUTIONS GROUP, INC. | ||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: | Xxxxxx Xxxxxx |
|||||
| Title: | President
& CEO
|
|||||
| CAL DIVE INTERNATIONAL, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx |
|||||
| Title: | President
and Chief Executive Officer
|
|||||
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Schedule 1
| Employee | Transfer Date | |
Xxxx Xxxxx
|
February 1, 2007 | |
Xxxxx Xxxxx |
||
Xxxxx Xxxxxxx |
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