Exhibit
10.2
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT is made as of
May 7, 2007 (the “Agreement Date”), by and between Cal
Dive International, Inc., a Delaware corporation (the
“Corporation”), and
_____________(“Indemnitee”), a resident of the State of
Texas.
In consideration of Indemnitee’s
continued service after the date hereof, the Corporation and
Indemnitee agree as follows:
1.
Definitions.
As used in this Agreement:
(a)
The term “Board” shall mean
the Board of Directors of the Corporation.
(b)
The term “Change of Control”
shall mean:
(i)
the acquisition by any Person of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 30% of the outstanding shares
of the Corporation’s Common Stock, $.01 par value per share
(the “Common Stock”); provided, however, that for
purposes of this subsection (i), the following events shall not
constitute a Change of Control:
(A)
The continuing ownership by Helix Energy
Solutions Group, Inc. (“Helix”) of that number of
shares of the Common Stock that Helix owned as of the
completion of the initial public offering of the Common Stock,
provided that Helix does not thereafter increase its percentage
ownership of the outstanding shares of Common Stock (except as
otherwise permitted hereby);
(B)
any acquisition of Common Stock by
a Person directly from the Corporation;
(C)
any acquisition of Common Stock by the
Corporation;
(D)
any acquisition of Common Stock by any
employee benefit plan (or related trust) sponsored or maintained by
the Corporation or any entity controlled by the Corporation;
or
(E)
any acquisition of Common Stock by any
entity pursuant to a transaction that complies with clauses (A),
(B) and (C) of subsection (iii) hereof; or
(ii)
the Incumbent Board ceases for any reason
to constitute at least a majority of the Board; or
(iii)
consummation of a reorganization, merger
or consolidation, or sale or other disposition of all or
substantially all of the assets of the Corporation (a
“Business Combination”), in each case, unless,
following such Business Combination,
(A)
Persons who were the beneficial owners of
the outstanding Common Stock and any other securities of the
Corporation entitled to vote generally in the election of directors
immediately prior to such Business Combination continue to have
collectively the direct or indirect beneficial ownership,
respectively, of 50% or more of the then outstanding shares of
common stock, and 50% or more of the Voting Power of the then
outstanding voting securities of the corporation resulting from
such Business Combination (which, for purposes of this paragraph
(A) and paragraphs (B) and (C), shall include a corporation which
as a result of such transaction controls the Corporation or all or
substantially all of the Corporation’s assets either directly
or through one or more subsidiaries); and
(B)
except to the extent that such ownership
in the Corporation existed prior to the Business Combination,
no Person (excluding, for the purpose of this clause, any
corporation resulting from such Business Combination or any
employee benefit plan or related trust of the Corporation or the
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 20% or more of the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or 20% or more of the combined Voting Power of
the then outstanding voting securities of such corporation;
and
(C)
at least a majority of the members of the
board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such Business
Combination, or, in the absence of an agreement, of the action
taken by the Board approving such Business Combination;
or
(iv)
approval by the stockholders of the
Corporation of a complete liquidation or dissolution of the
Corporation.
(c)
The term “Claim” shall mean a
claim related to any threatened, pending or completed action, suit
or proceeding, including appeals, whether civil, criminal,
administrative, arbitrative or investigative and whether made
judicially or extra-judicially, or any separate issue or matter
therein, as the context requires, in which Indemnitee is or will be
involved as a party, as a witness or otherwise, by reason of his
Corporate Status, provided that any such action, suit or
proceeding which is brought by the Indemnitee against the
Corporation or directors or officers of the Corporation, other than
an action brought by Indemnitee to enforce his rights under this
Agreement, shall not be deemed a Claim without prior approval of a
majority of the Impartial Directors.
(d)
The term “Corporate Status”
shall mean the status of a person as a (i) director or officer of
the Corporation or any subsidiary of the Corporation, (ii)
fiduciary with respect to any employee benefit plan of the
Corporation or any subsidiary of the Corporation, or (iii)
director, officer, partner, employee or agent of any other
corporation, partnership, joint venture, trust or other for-profit
or not-for-profit entity or enterprise, if such position is or was
held at the request of the Corporation, in each case whether such
position was held before or after the Agreement Date.
(e)
The term “Determining Body”
shall mean (i) all Impartial Directors, as long as there is at
least one Impartial Director, or (ii) if there are no Impartial
Directors, if a
Change of Control has occurred, or if the
Independent Directors so direct (regardless of whether the
directors voting on such appointment are Impartial Directors),
independent legal counsel (which may be the regular outside
counsel of the Corporation) designated by the Impartial Directors
or, if there are no Impartial Directors, the Independent
Directors.
(f)
The term “DGCL” shall mean
the Delaware General Corporation Law.
(g)
The term “Disbursing Officer”
shall mean the Chairman of the Board of the Corporation or, if the
Chairman of the Board is a party to the Claim for which
indemnification is being sought, any officer who is not a party to
such Claim who is designated by the Chairman of the Board to be the
Disbursing Officer with respect to indemnification requests related
to the Claim, which designation shall be made promptly after
receipt of the initial request for indemnification with respect to
such Claim.
(h)
The term “Expenses” shall
mean any expenses or costs including, without limitation,
reasonable attorney’s fees and retainers, court costs,
transcript costs, fees of experts and witnesses, and other
reasonable costs and expenses incurred by the Indemnitee in
connection with prosecuting or defending, or preparing to prosecute
or defend, or serving as a witness with respect to, a Claim. If any
of the foregoing amounts paid on behalf of Indemnitee are
includible within Indemnitee’s taxable income for federal or
state income tax purposes, the Corporation will reimburse
Indemnitee for any taxes incurred with respect thereto by paying to
Indemnitee an amount which, after taking into account taxes on such
amount, equals Indemnitee’s incremental tax liability.
Expenses shall not be deemed to include judgments, penalties, fines
or amounts paid in settlement by an Indemnitee, and shall be
determined after taking into account any amounts that have already
been paid directly to the Indemnitee, or to a third party at
Indemnitee’s request, either (i) pursuant to the provisions
of Section 3 hereof or (ii) by another entity or enterprise of a
type described in clause (iii) of Section 1(d) that relate to such
Claim.
(i)
The term “Impartial
Directors” shall mean the directors who are not parties to a
Claim for which indemnification is being sought.
(j)
The term “Incumbent Board”
shall mean the Board as of the date of the Agreement Date,
provided, however, that any individual who becomes a director after
the Agreement Date whose election or appointment by the Board
or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered a
member of the Incumbent Board, unless such individual’s
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Incumbent
Board.
(k)
The term “Indemnifiable
Costs” shall mean Expenses, judgments, fines, penalties or
amounts paid in settlement that are incurred or paid by Indemnitee
in connection with prosecuting or defending, or preparing to
prosecute or defend a Claim, or serving as a witness with respect
to a Claim, but shall not include any amounts that have already
been paid directly to the Indemnitee pursuant to the provisions of
Section 3 hereof.
(l)
The term “Independent
Directors” shall mean the members of the Board that are
independent directors as defined by Section 303A of the New York
Stock Exchange Listed Company Manual or successor provision, or, if
the Common Stock is not then quoted on the NYSE, that qualify as
independent, disinterested, or a similar term as defined in the
rules of the principal securities exchange or inter-dealer
quotation system on which the Common Stock is then listed or
quoted.
(m)
The term “Insurance Policy”
shall mean, collectively, the Primary Directors’ and
Officers’ Liability Policy that the Corporation has obtained
from Federal Insurance Company (Chubb) and the Excess
Directors’ and Officers’ Liability Policy that the
Corporation has obtained from U.S. Specialty Insurance Company (HCC
Global), on behalf of its directors and officers, for the policy
period commencing July 1, 2006 and ending July 1, 2007, or any
successor directors’ and officers’ liability insurance
policy that the Corporation from time to time maintains.
(n)
The term “Person” shall mean
any individual, entity or group(within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934.
(o)
The term “Standard of
Conduct” shall mean, with respect to any Claim that is
asserted, conduct by the Indemnitee that was in good faith and in a
manner that the Indemnitee reasonably believed to be in, or not
opposed to, the best interest of the Corporation, and, in the case
of a Claim which is, or which is related to, a criminal action or
proceeding, conduct that Indemnitee had no reasonable cause to
believe was unlawful. The termination of any Claim by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not meet the Standard of
Conduct
2.
Limitation of Liability.
To the fullest extent provided by
Article IX of the Amended and Restated Certificate of Incorporation
of the Corporation (as in effect on the date hereof), Indemnitee
shall not be liable to the Corporation or its stockholders for any
breach of his fiduciary duty. If and to the extent such provisions
of the Amended and Restated Certificate of Incorporation are
amended to permit further limitations of liability, Indemnitee
shall not be liable for any breach of his fiduciary duty to the
fullest extent permitted after taking into account any such
amendment.
3.
Maintenance of Insurance.
(a) The Corporation
represents and warrants that it presently maintains in full force
and effect the Insurance Policy, a copy of which it has provided to
the Indemnitee. Subject to Section 3(b) hereof, the Corporation
hereby agrees that, so long as Indemnitee shall continue to be a
director or officer of the Corporation and for any period
thereafter as the Indemnitee is subject to a Claim, the Corporation
shall use commercially reasonable efforts to maintain in effect for
the benefit of Indemnitee one or more valid and enforceable
policies of directors and officers liability insurance providing,
in all respects, coverage favorably comparing to that currently
provided to Indemnitee under the Insurance Policy (a
“Comparable Policy”).
(b)
The Corporation shall not be required to
maintain the Insurance Policy or a Comparable Policy if, in the
reasonable business judgment of a majority of Independent
Directors of the Corporation, either (i)
the premium cost for such insurance is excessive when compared to
the amount and benefits of coverage provided, or (ii) the coverage
provided by such insurance is so limited by exclusions, retentions,
deductibles or otherwise that there is insufficient benefit to the
Corporation or its directors and officers from such
insurance.
(c)
If the Corporation does not purchase and
maintain in effect the Insurance Policy or a Comparable Policy, the
Corporation agrees, to the extent permitted by law, to hold
harmless and indemnify Indemnitee to the full extent of the
coverage that would otherwise have been provided for the benefit of
Indemnitee pursuant to the Insurance Policy.
4.
Indemnification of
Indemnitee. The
Corporation agrees to hold harmless and indemnify the Indemnitee as
follows:
(a)
Indemnity in Connection with Claims
Other than Claims by or in the Right of the Corporation
. With respect to any Claim
against the Indemnitee that is not by or in the right of the
Corporation, the Corporation shall indemnify and hold
harmless Indemnitee against such Indemnifiable Costs as they are
actually and reasonably incurred, if the Indemnitee has met the
Standard of Conduct.
(b)
Indemnification for Proceedings by or
in the Right of the Corporation . With respect to any Claim by or in the right
of the Corporation, the Corporation shall indemnify and hold
harmless Indemnitee against any Expenses as they are actually and
reasonably incurred, if the Indemnitee has met the Standard of
Conduct; provided that no indemnification shall be
made with respect to any Claim as to which the Indemnitee shall
have been adjudged to be liable to the Corporation unless and to
the extent that a court of competent jurisdiction determines that
such indemnification shall be made.
(c)
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful . Notwithstanding, and without limiting, any
other provision of this Agreement, to the extent that the
Indemnitee is successful in whole or in part in the defense of the
Claim on the merits or otherwise, the Corporation shall indemnify
the Indemnitee against all Expenses actually and
reasonab
