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Exhibit 10.2
CHANGE OF CONTROL
AGREEMENT
This Change of Control
Agreement (this “Agreement”) is entered into as of
October 31, 2007 between Trico Marine Services, Inc. (the
“Company”) and Jim Katosic (the
“Employee”).
WHEREAS , the Employee is currently employed
by the Company as its Chief Accounting Officer; and
WHEREAS , the Company is desirous of
continuing to employ the Employee in such capacity on the terms and
conditions, and for the consideration, hereinafter set forth and
the Employee is desirous of continuing to be employed by the
Company on such terms and conditions and for such
consideration;
NOW, THEREFORE , for and in consideration of
the mutual promises, covenants and obligations contained herein,
the receipt and sufficiency of which are hereby acknowledged, the
Company and the Employee agree as follows:
1.
Effective
Date . Effective as of July 27, 2007 (the
“Effective Date”), the Employee’s employment by
the Company shall be subject to the terms and conditions of this
Agreement.
2.
Position .
From and after the Effective Date, the Company shall employ
the Employee in the position of Chief Accounting Officer of the
Company, or in such other positions as the parties mutually may
agree.
3.
Duties and
Responsibilities . The Employee agrees to serve in
the position referred to in Section 2 and to perform diligently and
to the best of his abilities the duties and services appertaining
to such office, as well as such additional duties and services
appropriate to such office which the parties mutually may agree
upon from time to time. The Employee’s employment shall
also be subject to the policies maintained and established by the
Company that are of general applicability to the Company’s
executive employees, as such policies may be amended from time to
time.
4.
Change of Control
Benefits . If in connection with, based upon, or
within 12 months after, a Change of Control, (i) the
Employee’s employment is terminated, (ii) there is a
significant reduction in the nature or scope of the
Employee’s duties and responsibilities or the assignment to
the Employee of duties and responsibilities that are materially
inconsistent with the position referred to in Section 2, or
(iii) as a condition of employment, the Employee is required to
relocate to a site more than 50 miles from his present business
address (each, the “Trigger Event”), then the Company
shall provide the Employee with the Change of Control Benefits.
Any lump sum cash payment due to the Employee pursuant to the
preceding sentence shall be paid to the Employee within 5 business
days of the date of the Trigger Event.
For purposes of this Agreement, a “Change of
Control” shall mean (i) a merger of the Company with another
entity, a consolidation involving the Company, or the sale of all
or substantially all of the assets of the Company to another entity
if, in any such case, (a) the holders of equity securities of the
Company immediately prior to such transaction or event do not
beneficially own immediately after such transaction or event equity
securities of the resulting entity entitled to 50% or more of the
votes then eligible to be cast in the election of directors (or
comparable governing body) generally of the resulting entity in
substantially the same proportions that they owned the equity
securities of the Company immediately prior to such transaction or
event or (b) the persons who were members of the Board of Directors
immediately prior to such transaction or event shall not constitute
at least a majority of the Board of Directors of the resulting
entity immediately after such transaction or event, (ii) the
dissolution or liquidation of the Company, (iii) when any person or
entity, including a “group” as contemplated by Section
13(d)(3) of the Securities Exchange Act of 1934, as amended,
acquires or gains ownership or control (including, without
limitation, power to vote) of more than 50% of the combined
voting power of the outstanding securities of, (A) if the Company
has not engaged in a merger or consolidation, the Company, or (B)
if the Company has engaged in a merger or consolidation, the
resulting entity, or (iv) as a result of or in connection with a
contested election of
1
directors, the persons who were members of the Board of
Directors immediately before such election shall cease to
constitute a majority of the Board of Directors. For purposes
of the preceding sentence, (1) “resulting entity” in
the context of a transaction or event that is a merger,
consolidation or sale of all or substantially all assets shall mean
the surviving entity (or acquiring entity in the case of an asset
sale) unless the surviving entity (or acquiring entity in the case
of an asset sale) is a subsidiary of another entity and the holders
of common stock of the Company receive capital stock of such other
entity in such transaction or event, in which event the resulting
entity shall be such other entity, and (2) subsequent to the
consummation of a merger or consolidation that does not constitute
a Change of Control, the term “Company” shall refer to
the resulting entity and the term “Board of Directors”
shall refer to the board of directors (or comparable governing
body) of the resulting entity.
For purposes of this Agreement, “Change of Control
Benefits” means (i) a lump sum cash payment equal to the sum
of: (a) 1.5 times the Employee’s annual base salary at
the rate in effect on the date of the Trigger Event (or, if higher,
the Employee’s annual base salary in effect immediately prior
to the Change of Control), (b) 1.5 times the higher of (1) the
Employee’s highest annual bonus paid during the 3 most recent
fiscal years or (2) the Employee’s Target Bonus (as provided
in the Company’s annual cash incentive plan) for the fiscal
year in which the Trigger Event occurs, and (c) any bonus that
the Employee has earned and accrued as of the date of the Trigger
Event, which relates to periods that have ended on or before such
date and which have not yet been paid to the Employee by the
Company, (ii) all of the outstanding stock options, restricted
stock awards and other equity based awards granted by the Company
to the Employee shall become fully vested and immediately
exercisable in full on the date of the Trigger Event, and (iii)
Health Coverage.
For purposes of this Agreement, “Health
Coverage” means that if the E
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