EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Agreement is made this day of April, 1997, between Cal Dive
International, Inc., a Minnesota corporation (the "Company"), and Xxx Xxxxxxxx
(Employee), an individual residing at 00000 Xxxxxxxx Xxxxx, #000, Xxxxxxx, 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
Senior Vice President - Business Development for the Company; and
WHEREAS, the Company wishes to continue to employ Employee as Senior
Vice President - Business Development and Employee is willing to accept such
continued employment upon the terms and conditions set forth in this Agreement;
WHEREAS, the execution and delivery of this Agreement by the Company
and Employee is a condition to the purchase of shares of the Company's Common
Stock by Coflexip (the "Purchaser") from the Company and certain shareholders of
the Company, including, among others, Employee, pursuant to a Purchase Agreement
dated as of the date hereof among the Company, the Purchaser and such
shareholders;
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 and
terminating on April 30, 1999 (the "Employment Term") subject to earlier
termination pursuant to the provisions of Section 7 hereof. During the
Employment Term, Employee shall devote all of his time, energy and skill during
regular business hours to the affairs of the Company and any of its affiliated
business entities and to the promotion of their interests.
(b) Employee's duties shall include acting as Senior Vice President -
Business Development for the Company with all responsibilities assigned to that
office from time to time by the President, and Chief Executive Officer or 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.
(d) Other Agreements - Attached hereto (as Attachment 1) is an existing
employment Memorandum and Addendum Letter between the Company and Xxxxxxxx each
dated August 1, 1996 (the "Memos). As to matters described therein, the Memos'
terms ( excluding the termination and non-disclosure terms in paragraphs 3 and 4
on page 1 of the first Memo, which terms are superseded in their entirety by
Sections 4, 5, 6 and 7 hereof) are incorporated herein by reference and, to the
extent inconsistent with the terms of this Employment Agreement, the Memos'
terms shall control in all circumstances.
SECTION 2. COMPENSATION.
(a) SALARY. During the Employment Term, as Compensation for his
services and covenants and agreements hereunder, the Company agrees to pay
Employee an initial salary for the period from the date hereof to April 30, 1999
at the rate of One Hundred Twenty Thousand Dollars ($120,000) per annum, 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 of
Directors.
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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, 1997, 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 the 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:
(i) April 30, 2002 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
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the Employee or termination by the Company for "Cause", or (B) the
first anniversary of the date of termination of the 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 the 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 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 executive 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, 2002 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.
(b) In accordance with Minnesota Statutes, Chapter 181, Section 181.78,
Employee is hereby advised that no provision of this Agreement is intended to
assign any of Employee's rights in an invention for which no equipment,
supplies, facility or trade secret information of the Company was used and which
was developed entirely on the Employee's own time, and which does not relate
directly to the business of the Company or to the Company's actual or
demonstrably anticipated research or development, or which does not result from
any work performed by the
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Employee for the Company.
(c) 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. 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) EFFECT OF TERMINATION. In the event that this 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 Company's 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.
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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), or
mailed by first class, registered mail, return receipt requested, postage and
registry fees prepaid and addressed as follows:
If to the Employee:
At the address set forth on page 1 hereof.
If to the Company:
Cal Dive International, Inc.
00000 Xxxxxxxxx Xxxxxxx
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.
(d) 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.
(e) 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.
(f) 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.
(g) 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
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of Texas.
(h) 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 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.
(i) 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 ___________________________ ____________________________Title:
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[CAL DIVE LOGO]
C O N F I D E N T I A L
M E M O R A N D U M
TO: XXX XXXXXXXX
FROM: XXXX XXXXX
DATE: JULY 24, 1996
SUBJECT: EMPLOYMENT - SENIOR VICE PRESIDENT OF
BUSINESS DEVELOPMENT (CAL DIVE)
--------------------------------------------------------------------------------
This memorandum is intended to describe our mutual understanding regarding your
employment with Cal Dive.
You will serve in the capacity as Senior Vice President of Business Development
and principly assist to the best of your ability the President and other Senior
Executives of Cal Dive to identify and then capitalizing on business development
opportunities both from a marketing and acquisition standpoint. You will keep
the President, other senior officers, and Board of Directors fully informed on
all key matters, obtain prior approval of senior officers and Board on any
significant commitments you may seek to make and will at all times endeavor to
implement the instructions and directions given to you by the President,
Chairman, and Board of Directors.
You may terminate your employment at will. The Board of Directors may terminate
your employment at any time without cause or explanation by Board action. If you
are terminated for "cause," leave voluntarily or we do not renew your contract
at four years, you will NOT BE ENTITLED TO ANY SEVERANCE PAYMENT. If you are
terminated by Cal Dive without "cause," leave due to the departure of Xxxxx
Xxxxx or Xxxx Xxxxx, or leave because the Company significantly reduces your
duties or title or requires you to relocate out of the Houston area, you will
receive severance payment within ninety (90) days after the date of your
termination equal to (except as provided in Addendum to Employment Memo dated
the same date as this memo) your then annualized base salary. For purposes
hereof, "cause" shall be:
"the commission of an act involving fraud, embezzlement, or a felony,
financial dishonesty, plus dereliction of duties, moral turpitude,
causing material harm to the company, repeated refusal to follow
reasonable directives of the Board or as further defined by separate
agreement."
In addition, you will be required to execute a nondisclosure and confidentiality
arrangement that will run until the fifth anniversary of the date of termination
of employment (unless termination arises for reasons other than cause in which
event it is eighteen months) relative to information about the
company or its business.
You will be compensated as follows while employed by Cal Dive:
(a) An annual "Base Salary" of $120,000.00 payable semi-monthly.
(b) You will participate as determined by the Board, in the Senior
Officers Compensation Bonus Program as the same is established
each year up to a maximum of 50% of your base annual salary.
In accordance with the Company's plan, 1/2 of the available
bonus will be awarded based on achieving financial goals and
1/2 will be awarded based on a subjective evaluation by the
Company's executive management on the individual's efforts and
contribution.
(c) You will be entitled to one month vacation (with an agreed
period of vacation during 1996 as established between the
President and you).
(d) You will also be eligible for other benefits offered to Cal
Dive employees in accordance with Cal Dive's written plans and
policies as amended from time to time (including medical
insurance paid 50% by the Company).
(e) You will be entitled to reimbursement of expenses including a
home fax line, car mileage at the company established rate,
reimbursement for cellular phone costs and business related
telephone calls and other out-of-pocket expenses consistent
with Cal Dive's policies as they exist from time to time.
(f) You will also participate, as determined by the Board, in the
Company's 1995 Incentive Compensation Plan relating to Stock
Options. Options are determined by the Board once a year based
upon individual efforts and contributions and the Company's
financial results.
As we have discussed, Xxx, we propose a four (4) year employment arrangement
terminable by either party at will. I trust this memorandum covers what we have
mutually agreed. We look forward to adding you to the senior management team and
Cal Dive and to many successful business development endeavors under your
leadership.
If you feel the above accurately covers our agreement please sign and date in
the space provided below and we will seek final approvals. This Agreement is
subject to final Board approval.
Yours very truly,
Xxxx Xxxxx
President and Chief Operating Officer
AGREED: _________________________________ Date: ___________________________
Xxx Xxxxxxxx
August 1,1996
CONFIDENTIAL
Xx. Xxx Xxxxxxxx
Houston, TX
RE: ADDENDUM TO EMPLOYMENT MEMO
Dear Xxx:
This letter is intended to supplement and create an arrangement outside of
Cal Dive's normal Senior Executive Bonus Program for you to earn $20,000 of
additional compensation payable on or before the anniversary date of employment.
This bonus of $20,000 will be considered a part of your base salary in computing
any additional compensation or severance.
Each year of this five (5) year employment agreement you will receive a
completion bonus of $20,000 payable on or before your anniversary date of
employment.
Again, Xxx, we are anxious to add you to the senior management group at Cal
Dive and expect great things in terms of your efforts in business development.
If you feel the above accurately covers our agreement with regard to your bonus
totaling up to $20,000 annually, please sign and date in the space provided
below.
This document is in addition to the Memorandum of Employment dated
August _____, 1996, and subject to Board approval.
Yours Truly,
CAL DIVE INTERNATIONAL, INC.
Xxxx X. Xxxxx
President and Chief Operating Officer
AGREED: __________________________________ Dated: ________________________
Xxx Xxxxxxxx
