Exhibit 10.26
AMENDMENT NO. 1
TO
SEVERANCE AND CHANGE OF CONTROL
AGREEMENT
This Amendment No. 1 to Severance and
Change of Control Agreement (“Amendment No. 1”) between
Cal Dive International, Inc., a Delaware corporation (the
“Company”), and G. Kregg Lunsford (the
“Executive”) is dated as of January 1, 2009 (the
“Effective Date”).
WITNESSETH
WHEREAS, the Company and the Executive
entered into a Severance and Change of Control Agreement dated as
of January 1, 2008 (the “Agreement”);
WHEREAS, pursuant to Section 5.2 of the
Agreement the Executive agreed to execute any amendment or
modification of Appendix B that is necessary to properly reflect
the jurisdictions that should be listed on Appendix B;
WHEREAS, the Executive has been and will
continue to be an Executive of the Company and as a result has had,
and will continue to gain, access to and knowledge of certain trade
secrets and other confidential information regarding the Company,
including without limitation, the assets, manner of doing business,
processes, techniques, and other proprietary information which
constitutes a valuable asset of the Company;
WHEREAS, the payments and benefits
provided through the Agreement are intended to qualify for an
exclusion from Section 409A of the Internal Revenue Code of 1986,
as amended, and the regulations and guidance thereunder
(“Section 409A”) and the final Section 409A regulations
require that a termination for “Good Reason” occur
within a specified period following the event that constitutes
“Good Reason”; and
WHEREAS, the Executive and the Company
mutually desire to amend the Agreement to: (i) update
Appendix B thereto, (ii) expand on the definition of
“Business” and add a definition of “Prohibited
Territories” therein, and (iii) revise Sections 1.10, 5.1,
5.2 and 5.4 thereof, all as set forth in this Amendment;
NOW, THEREFORE, in consideration of the
mutual undertakings of this Amendment and the Agreement, and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as
follows:
1.
Section 1.2 of the Agreement shall be,
and is hereby, amended to read in its entirety as
follows:
Section 1.2
Business . “Business” shall mean the subsea
marine construction business of the Company, including manned
diving, pipelay and pipe burial services, platform installation and
salvage services.
2.
Sections 1.12 through 1.16 of the
Agreement shall be re-numbered as Sections 1.13 through 1.17 and a
new Section 1.12 shall be added to the Agreement to read in its
entirety as follows:
Section 1.12
Prohibited Territories
. “Prohibited
Territories” shall mean those jurisdictions listed on
Appendix B attached hereto, as it may be amended or modified from
time to time in accordance with the provisions of Section 5.2
hereof.
3.
Section 1.10 of the Agreement shall be,
and is hereby, amended to read in its entirety as
follows:
Section 1.10
Good Reason. “Good Reason” shall mean any of the
following events or conditions, provided that, (a) the Executive
shall have provided written notice to the Company within 90 days of
the initial existence of the condition described in this Section
1.10, (b) such event or condition continues uncured for a period of
30 days after written notice thereof is given by the Executive to
the Company and (c) the Date of Termination is no later than 180
days following the date of the initial existence of the condition
described in this Section 1.10 that constitutes Good Reason; and
provided further that, once there are more than three events that
constitute Good Reason within any consecutive 12-month period, the
need for the Executive to give notice is eliminated and the Company
shall have no opportunity to cure:
(i)
A material reduction by the Company of
the Executive's base salary that is then in effect, without his
prior consent;
(ii)
A material diminution in the Executive's
duties and status as an executive officer of the
Company;
(iii)
A failure in any material respect by the
Company to perform any of its obligations to the Executive under
this Agreement; or
(iv)
The relocation by the Company of the
Executive’s principal place of employment by the Company to a
location that is more than 75 miles from the location of the
Executive’s principal place of employment by the Company as
of the Agreement Date; provided that the Company shall not be
deemed to have relocated the Executive’s principal place of
employment if the Company requires the Executive to perform his
normal duties outside of the above location for less than an
aggregate of 120 days during any consecutive period of 365 days, as
long as no more than 30 days of any such 120 days are
consecutive.
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4.
Section 5.1 of the Agreement shall be,
and is hereby amended to read in its entirety as
follows:
Section 5.1
Nondisclosure of Confidential
Information . Executive
acknowledges and agrees that in the course of his employment, he
has been in a position to have access to and develop Confidential
Information. The Company promises to continue to provide
Confidential Information to Executive during his tenure as an
employee of the Company. As long as Executive is an employee
of the Company, the Executive shall hold in a fiduciary capacity
for the benefit of the Company all Confidential Informat
