ex10-16.htm


    
      
         


      

      
         


        
          

        

      

      
         


      
Exhibit 10.16


    AMENDMENT TO EMPLOYMENT
AGREEMENT

     

    THIS
AGREEMENT is entered into by and between HELIX ENERGY SOLUTIONS GROUP, INC., a
Minnesota corporation (the “Company”) and Robert P.
Murphy (the “Employee”)
effective as of January 1, 2009.

     

    WHEREAS,
the Company and the Employee previously entered into an agreement the deferred
compensation provisions of which are set forth in an exhibit to the Employee’s
offer letter dated January 22, 2006 entitled “Employment Agreement” (the
“Employment Agreement”)
and are incorporated by reference into a letter agreement between the Company
and Employee dated December 21, 2006 (the “Letter Agreement”);
and

     

    WHEREAS,
the Company and the Employee desire to amend the Employment Agreement to comply
with section 409A of the Internal Revenue Code of 1986, as amended;

     

    NOW
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Employee hereby agree as follows:

     

    (1) Accrued Bonus Due Upon
Death.  Clause (ii) of the second sentence of Section 7(b) is
deleted and the following provision is inserted in its stead:

     

    (ii)  ten
(10) days 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.)

     

    (2) Accrued Bonus Due Upon
Disability.  The third sentence of Section 7(c) is deleted and
the following provision is inserted in its stead:

     

    In the
event of Employee’s termination of employment due to Disability the Company
shall pay to Employee, any accrued but, as of the date of such termination,
unpaid Incentive Bonus (or, if such Disability shall have occurred after the
first three (3) months of the Company’s fiscal year, any prorated portion
thereof.) ten (10) days after Employee’s Separation From Service.

     

    (3) Cash Severance
Payments.  The last sentence of the first paragraphs of Section
7(d) and Section 7(e) of the Employment Agreement is deleted and the following
provision is inserted in its stead.

     

    To the
extent due, any cash severance benefits specified in Section 7(d), Section 7(e)
and any other provision of the Agreement (other than Section 7(b)), shall be
paid on the date that is ten days following Employee’s Separation From Service
if Employee is not a Specified Employee or on the date that is six months
following Employee’s Separation From Service if Employee is a Specified
Employee.  For purposes of this Agreement, the terms “Separation From
Service” and “Specified Employee”
shall have the meanings ascribed to such terms in section 409A of the Internal
Revenue Code of 1986, as amended and the Department of Treasury regulations
issued thereunder (“Section
409A”).

     

    (4) Medical and Dental
Benefits.  The Employment Agreement is amended by adding
thereto the following new Section 9(h):

     

    To the
extent that the medical or dental insurance benefits specified in Section 7(d)
or Section 7(e), as applicable, are taxable to Employee and are not otherwise
exempt from Section 409A the following provisions shall apply to the
reimbursement of such benefits.  The amount of medical or dental
insurance expenses eligible for reimbursement during Employee’s taxable year
will not affect the expenses eligible for reimbursement in any other taxable
year (with the exception of applicable lifetime maximums specified in the
plans).  Employee’s right to reimbursement is not subject to
liquidation or exchange for another benefit.

     

    (5) Tax Gross-Up
Payments.  The tax gross-up payment provision of Section 7(f)
is amended in its entirety to provide as follows:

     

    (i)  Certain Additional Payments
by the Company.  Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution to or for the benefit of Employee (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this section) (a “Payment”) would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by Employee with respect to such excise tax (such excise
tax, together with any such interest and penalties, hereinafter referred to as
the “Excise
Tax”), then Employee shall be entitled to receive an additional payment
(a “Gross Up
Payment”) in an amount such that after payment by Employee of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross Up Payment,
Employee retains an amount of the Gross Up Payment equal to the Excise Tax
imposed upon the Payments.  Employee acknowledges that the Gross Up
Payment can be withheld from Employee by the Company and, instead, paid to the
Internal Revenue Service on behalf of Employee.

     

    All
determinations required to be made under this Section 7(f) with respect to the
Excise Tax imposed by Section 4999 of the Code, including whether and when the
Gross Up Payment is required and the amount of such Gross Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
an accounting firm selected by the Company.  All fees and expenses of
the accounting firm shall be borne solely by the Company.  Any
determination by the accounting firm shall be binding upon the Company and
Employee.  As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
accounting firm hereunder, it is possible that Gross Up Payments which will not
have been made by the Company should have been made (“Underpayment”),
consistent with the calculations required to be made hereunder.  In
the event that it is ultimately determined in accordance with the procedures set
forth in this Section 7(f) that Employee is required to make a payment of any
Code Section 4999 Excise Tax, the accounting firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be paid by
the Company to or for the benefit of Employee within five days of the receipt of
the accounting firm’s determination of the amount of the
Underpayment.

     

    Employee
shall notify the Company in writing of any claims by the Internal Revenue
Service that, if successful, would require the payment by the Company of the
Gross Up Payment.  Such notification shall be given as soon as
practicable but no later than 30 days after Employee actually receives notice in
writing of such claim.  Employee shall not pay such claim prior to the
expiration of the 30-day period following the date on which he gives such notice
to the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due).  If the Company notifies
Employee in writing prior to the expiration of such period that it desires to
contest such claim, Employee shall:

     

    
      	
              (i)  

            	
              give
      the Company any information reasonably requested relating to such
      claim;

            


    

     

    
      	
              (ii)  

            	
              take
      such action in connection with contesting such claim as the Company shall
      reasonably request in writing from time to
time;

            


    

     

    
      	
              (iii)  

            	
              cooperate
      with the Company in good faith in order effectively to contest such claim;
      and

            


    

     

    
      	
              (iv)  

            	
              if
      the Company elects not to assume and control the defense of such claim,
      permit the Company to participate in any proceedings relating to such
      claim; provided,
      however, that the Company shall bear and pay directly all costs and
      expenses (including additional interest and penalties) incurred in
      connection with such contest and shall indemnify and hold Employee
      harmless, on an after tax basis, for any Excise Tax or income tax
      (including interest and penalties with respect thereto) imposed as a
      result of such representation and payment of costs and
      expenses.  Without limitation on the foregoing provisions of
      this section, the Company shall have the right, at its sole option, to
      assume the defense of and control all proceedings in connection with such
      contest, in which case it may pursue or forego any and all administrative
      appeals, proceedings, hearings and conferences with the taxing authority
      in respect of such claim and may either direct Employee to pay the tax
      claimed and sue for a refund or contest the claim in any permissible
      manner, and Employee agrees to prosecute such contest to a determination
      before any administrative tribunal, in a court of initial jurisdiction and
      in one or more appellate courts, as the Company shall
      determine.

            


    

     

    
      	
              (v)  

            	
              Notwithstanding
      anything in this section to the contrary, unless an earlier payment date
      is specified above, the Company shall, in accordance with Treasury
      Regulation § 1.409A-3(i)(1)(v), pay Employee (or pay on Employee’s behalf)
      all amounts to which Employee is entitled under this section no later than
      the end of Employee’s taxable year next following Employee’s taxable year
      in which Employee remits the Excise Tax or tax to the Internal Revenue
      Service (or in the case of costs and expenses payable under this section,
      no later than the end of Employee’s taxable year next following Employee’s
      taxable year in which the taxes that are the subject of the audit or
      litigation are remitted to the Internal Revenue Service, or where as a
      result of such audit or litigation no taxes are remitted, the end of
      Employee’s taxable year next following Employee’s taxable year in which
      the audit is completed or there is a final and nonappealable settlement or
      other resolution of the
litigation).

            


    

     

    (6) Specified Employee. Section 9
is amended by adding thereto the following new paragraph (h):

     

    (h)           Specified
Employee.  Notwithstanding any other provision herein, if
Employee is a Specified Employee, then any amounts under this Agreement which
are payable upon his Separation From Service and subject to the provisions of
Section 409A and not otherwise excluded under Section 409A, shall not be paid
until the date that is six (6) months after the date of Employee’s Separation
From Service (the “Waiting
Period”).  Any payments that would have been made to Employee
during the Waiting Period but for this Section 9(h) shall instead be made to
Employee in the form of a lump sum payment on the date that is six months
following the date of Employee’s Separation From Service.

     

    (7) Letter
Agreement.  With respect to the paragraph of the Letter
Agreement entitled “Termination,” the Company and Employee agree that the
provisions with respect to termination in the Employment Agreement as amended
hereby (rather than in the original form attached to the Employee’s offer letter
dated January 22, 2006) shall apply.

     

    IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date above first
written.

     

    
      	
              HELIX
      ENERGY SOLUTIONS GROUP, INC.

               

               

              By:
      __________________________________

               

              Date:
      _________________________________

            	
              ROBERT
      P. MURPHY

               

               

               

              By:
      __________________________________

               

              Date:
      _________________________________