AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made by and
between Trico Marine Services, Inc., a Delaware corporation
(“Company”), and Ray Hoover
(“Employee”).
WHEREAS,
Employee and Company have heretofore entered into an Employment
Agreement effective as of July 23, 2007 (the “Prior
Agreement”);
WHEREAS,
both Employee and Company are desirous of revising certain of the
terms and conditions in the Prior Agreement and amending and
restating the Prior Agreement in the form of this Agreement;
and
WHEREAS ,
Company is desirous of continuing to employ Employee on the terms
and conditions, and for the consideration, hereinafter set forth
and Employee is desirous of continuing to be employed by 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, Company and Employee
agree as follows:
ARTICLE 1:
EMPLOYMENT AND DUTIES
1.1
Employment; Effective Date . Effective as of
December 9, 2008 (the “Effective Date”) and
continuing for the period of time set forth in Article 2 of
this Agreement, Employee’s employment by Company shall be
subject to the terms and conditions of this Agreement.
1.2
Positions . From and after the Effective Date, Company
shall employ Employee in the position of Global Director of
Technical Services, or in such other positions as the parties
mutually may agree.
1.3 Duties
and Services . Employee agrees to serve in the position
referred to in paragraph 1.2 and to perform diligently and to the
best of his abilities the duties and services appertaining to such
offices, as well as such additional duties and services appropriate
to such offices which the parties mutually may agree upon from time
to time. Employee’s employment shall also be subject to the
policies maintained and established by Company that are of general
applicability to Company’s Employee employees, as such
policies may be amended from time to time.
1.4 Other
Interests . Employee agrees, during the period of his
employment by Company, to devote substantially all of his business
time, energy and best efforts to the business and affairs of
Company and its affiliates and not to engage, directly or
indirectly, in any other business or businesses, whether or not
similar to that of Company, except with the consent of the Board of
Directors. The foregoing notwithstanding, the parties recognize and
agree that Employee may engage in other business activities that do
not conflict with the business and affairs of Company or interfere
with Employee’s performance of his duties hereunder,
which
shall be at the
sole determination of the Board of Directors. Nothing herein shall
prohibit Employee from being a passive owner of not more than 5% of
the outstanding stock of any class of a corporation, so long as
Employee has no active participation in the business of such
corporation (except if permitted at the sole determination of the
Board).
1.5 Duty of
Loyalty . Employee acknowledges and agrees that Employee
owes a fiduciary duty of loyalty to act at all times in the best
interests of Company. In keeping with such duty, Employee shall
make full disclosure to Company of all business opportunities
pertaining to Company’s business and shall not appropriate
for Employee’s own benefit business opportunities concerning
Company’s business.
ARTICLE 2:
TERM AND TERMINATION OF EMPLOYMENT
2.1
Term . Unless sooner terminated pursuant to other
provisions hereof, Company agrees to employ Employee for the period
beginning on the Effective Date and ending on the anniversary of
the Effective Date (the “New Expiration Date”);
provided, however, that beginning on the New Expiration Date, and
on each anniversary of the New Expiration Date thereafter, if this
Agreement has not been terminated pursuant to paragraph 2.2 or 2.3,
then said term of employment shall automatically be extended for an
additional one year period unless on or before the date that is
6 months prior to the first day of any such extension period
either party shall give written notice to the other that no such
automatic extension shall occur.
2.2
Company’s Right to Terminate . Notwithstanding the
provisions of paragraph 2.1, Company shall have the right to
terminate Employee’s employment under this Agreement at any
time for any of the following reasons:
(i) upon
Employee’s death;
(ii) upon
Employee’s becoming incapacitated by accident, sickness, or
other circumstances which, in the opinion of a physician reasonably
selected by Company which selection is reasonably agreed to by
Employee, renders him mentally or physically incapable of
performing the duties and services required of him
hereunder;
(iii) for
“Cause”, which shall mean Employee (A) has engaged
in gross negligence or willful misconduct in the performance of the
duties required of him hereunder, (B) has willfully refused
without proper legal reason to perform the duties and
responsibilities required of him hereunder, (C) has materially
breached any material provision of this Agreement or any material
corporate policy maintained and established by Company that is of
general applicability to Company’s Employee employees,
(D) has willfully engaged in conduct that he knows or should
know is materially injurious to Company or any of its affiliates,
(E) has been convicted of, or pleaded no contest to, a crime
involving moral turpitude or any felony, or (F) has engaged in
any act of serious dishonesty which adversely affects, or
reasonably could in the future adversely affect, the value,
reliability, or performance of Employee in a material manner;
provided, however, that Employee’s employment may be
terminated for Cause only if such termination is approved by at
least a majority of the members of the Board of Directors
(excluding Employee) after Employee has been given written notice
by Company of the specific
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reason for such
termination and a reasonable opportunity for Employee, together
with his counsel, to be heard before the Board of Directors;
or
(iv) for any other
reason whatsoever, in the sole discretion of the Board of
Directors.
Members of the
Board of Directors may participate in any hearing that is required
pursuant to paragraph 2.2(iii) by means of conference telephone or
similar communications equipment by means of which all persons
participating in the hearing can hear and speak to each
other.
2.3
Employee’s Right to Terminate . Notwithstanding
the provisions of paragraph 2.1, Employee shall have the right
to terminate his employment under this Agreement for any of the
following reasons:
(i) for
“Good Reason”, which shall mean, within 60 days of
and in connection with or based upon (A) a material breach by
Company of any material provision of this Agreement (provided,
however, that a reduction in Employee’s annual base salary
that is consistent with reductions taken generally by other
Employees of Company shall not be considered a material breach of a
material provision of this Agreement), (B) a material
dimunition in the nature or scope of Employee’s duties and
responsibilities (provided, however, that the failure to get
Employee elected or re-elected to the Board of Directors shall not
be considered a material dimunition in the nature or scope of
Employee’s duties and responsibilities if Company used its
reasonable efforts to secure Employee’s election or
re-election to the Board of Directors), (C) the assignment to
Employee of duties and responsibilities that are materially
inconsistent with the positions referred to in paragraph 1.2
and that result in a material negative change to Employee
(including requiring Employee to report to any person(s) other than
the Board of Directors), (D) any material change in the
geographic location at which Employee must perform services, or
(E) Employee not being offered the position of Chief Employee
Officer of the “resulting entity” (as defined in
paragraph 4.1) in connection with a Change in Control. Prior to
Employee’s termination for Good Reason, Employee must give
written notice to Company of the reason for his termination and the
reason must remain uncorrected for 30 days following such
written notice; or
(ii) at any time
for any other reason whatsoever, in the sole discretion of
Employee.
For purposes of
Section 2.3(i), “a material change in the geographic
location at which Executive must perform services” shall mean
a requirement that Executive relocate to a site more than fifty
(50) miles from his present business address.
2.4 Notice
of Termination . If Company desires to terminate
Employee’s employment hereunder at any time prior to
expiration of the term of employment as provided in paragraph 2.1,
it shall do so by giving at least 30 days (0 days if
Employee’s employment is terminated for Cause) written notice
to Employee that it has elected to terminate Employee’s
employment hereunder and stating the effective date and reason for
such termination, provided that no such action shall alter or amend
any other provisions hereof or rights arising hereunder.
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If Employee
desires to terminate his employment hereunder at any time prior to
expiration of the term of employment as provided in paragraph 2.1,
he shall do so by giving a 30-day written notice to the Company
that he has elected to terminate his employment hereunder and
stating the effective date and reason for such termination,
provided that no such action shall alter or amend any other
provisions hereof or rights arising hereunder.
2.5
Separation from Service . For all purposes of this
Agreement, Employee shall be considered to have terminated
employment with the Company when Employee incurs a
“separation from service” with the Company within the
meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue
Code of 1986, as amended, and applicable administrative guidance
issued thereunder.
ARTICLE 3:
COMPENSATION AND BENEFITS
3.1 Base
Salary . During the period of this Agreement, Employee
shall receive a minimum annual base salary of $200,000.
Employee’s annual base salary shall be reviewed on an annual
basis, and, in the discretion of his immediate supervisor, such
annual base salary may be increased, but not decreased (except for
a decrease that is consistent with reductions taken generally by
other Employees of Company), effective as of any date determined by
such supervisor. Employee’s annual base salary shall be paid
in equal installments in accordance with Company’s standard
policy regarding payment of compensation to Employees but no less
frequently than monthly.
3.2
Bonuses . Employee shall be eligible to participate in
Company’s Incentive Bonus Plan as approved from time to time
by the Board of Directors in amounts to be determined by the Board
of Directors (or a duly authorized committee thereof) based upon
criteria established by the Board of Directors (or such committee,
if any). Employee’s target bonus will be 50% of base salary
with a maximum of 100% of base salary on the achievement of
corporate goals specifically addressed in the Company’s
Incentive Bonus Plan as well as individual goals as determined by
Employee and Employee’s supervisor. Notwithstanding the
foregoing, Employee’s 2007 bonus shall be no lower than the
target (30%) of his base salary prior to the effective date of the
Prior Agreement ($115,000).
3.3 Other
Perquisites . During his employment hereunder, Employee
shall be afforded the following benefits as incidences of his
employment:
(i) Business
and Entertainment Expenses - Subject to Company’s
standard policies and procedures with respect to expense
reimbursement as applied to its Employee employees generally,
Company shall reimburse Employee for, or pay on behalf of Employee,
reasonable and appropriate expenses incurred by Employee for
business related purposes, including dues and fees to industry and
professional organizations and costs of entertainment and business
development.
(ii)
Vacation - During his employment hereunder, Employee shall
be entitled to four weeks of paid vacation each calendar year (or
such greater amount of vacation as provided to Employees of Company
generally) and to all holidays provided to Employees of Company
generally; provided, however, that for the period beginning on the
Effective
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Date and ending
on the last day of the calendar year in which the Effective Date
occurs, Employee shall be entitled to four weeks of paid vacation
(or such greater amount of vacation as provided to Employees of
Company generally) reduced by the number of vacation days that
Employee has already used during such calendar year and prior to
the Effective Date.
(iii) Equity
Awards – Employee shall receive the equity awards
described in the Prior Agreement in accordance with the terms of
the Prior Agreement if such awards have not been so provided as of
the Effective Date.
(iv) Other
Company Benefits .
a.
Employee and, to the extent applicable, Employee’s spouse,
dependents and beneficiaries, shall be allowed to participate in
all benefits, plans and programs, including improvements or
modifications of the same, which are now, or may hereafter be,
available to other Employee employees of Company. Such benefits,
plans and programs shall include, without limitation, any profit
sharing plan, thrift plan, health insurance or health care plan,
life insurance, disability insurance, pension plan, supplemental
retirement plan, vacation and sick leave plan, and the like which
may be maintained by Company. Company shall not, however, by reason
of this paragraph be obligated to institute, maintain, or refrain
from changing, amending, or discontinuing, any such benefit plan or
program, so long as such changes are similarly applicable to
Employee employees generally.
b.
Company shall, at no additional cost to Employee, provide a life
insurance policy equal to three times the Employee’s base
salary as set forth in section 3.1 above.
ARTICLE 4:
EFFECT OF TERMINATION AND CHANGE IN CONTROL ON COMPENSATION;
ADDITIONAL PAYMENTS
4.1 Defined
Terms . For purposes of this Article 4, the following
terms shall have the meanings indicated:
“Change in
Control” means (i) a merger of Company with another
entity, a consolidation involving Company, or the sale of all or
substantially all of the assets of Company to another entity if, in
any such case, (A) the holders of equity securities of 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 generally (or
comparable governing body) of the resulting entity in substantially
the same proportions that they owned the equity securities of
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 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
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amended (the
“Exchange Act”), 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 Company has not engaged in a merger or
consolidation, Company, or (B) if 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 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
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 in
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.
“Change in
Control Benefits” means (i) a lump sum cash payment
equal to the sum of: (A) 1.5 times Employee’s annual base
salary at the rate in effect under paragraph 3.1 on the date of
termination of Employee’s employment (or, if higher,
Employee’s annual base salary in effect immediately prior to
the Change in Control), (B) 1.5 times the higher of (1)
Employee’s highest annual bonus paid during the three most
recent fiscal years or (2) Employee’s Target Bonus (as
provided in Company’s annual cash incentive plan) for the
fiscal year in which Employee’s date of termination occurs,
and (C) any bonus that Employee has earned and accrued as of
the date of termination of Employee’s employment which
relates to periods that have ended on or before such date and which
have not yet been paid to Employee by Company; (ii) all of the
outstanding stock options, restricted stock awards and other equity
based awards granted by Company to Employee shall become fully
vested and immediately exercisable in full on the date of
termination of Employee’s employment; (iii) Health
Coverage, and (iv) reimbursement of reasonable out-of-pocket
relocation expenses (including, but not limited to, realtor fees,
closing costs and transportation of Employee’s automobiles
and other personal effects) back to Louisiana.
“Code”
shall mean the Internal Revenue Code of 1986, as
amended.
“Health
Coverage” means that if Employee elects to continue coverage
for himself or his eligible dependents under Company’s group
health plans pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”), then
during the required period of COBRA continuation coverage with
respect to Employee’s termination of employment from Company
(but no more than eighteen months) (the “COBRA
Period”), then throughout the COBRA Period Company shall
promptly reimburse Employee on a monthly basis for the difference
between the amount Employee pays to effect and continue such
coverage and the employee contribution amount that active senior
executive employees pay for the same or similar coverage under
Company’s group health plans. Further, if Employee has
continued his COBRA
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coverage
throughout the COBRA Period, then, for the thirty-six month period
beginning on the day immediately following the last day of the
COBRA Period (the “Extended Coverage Period”), Company
shall provide Employee (and his eligible dependents) with health
benefits substantially similar to those provided under its group
health plans for active employees for the remainder of the Extended
Coverage Period at a cost to Employee that is no greater than the
cost of COBRA coverage; provided, however, that such health
benefits shall be provided to Employee through an arrangement that
satisfies the requirements of sections 105 and 106 of the Code such
that the benefits or reimbursements under such arrangement are not
includible in Employee’s income. Notwithstanding the
preceding provisions of this paragraph, Company’s obligation
to reimburse Employee during the COBRA Period and to provide health
benefits to Employee during the Extended Coverage Period shall
immediately end if and to the extent Employee becomes eligible to
receive health plan coverage from a subsequent employer (with
Employee being obligated hereunder to promptly report such
eligibility to Company).
“Termination
Benefits” means (i) a lump sum cash payment equal to the
sum of: (A) 1.5 times Employee’s annual base salary at
the rate in effect under paragraph 3.1 on the date of termination
of Employee’s employment, (B) 1.5 times the higher of
(1) Employee’s highest annual bonus paid during the
three most recent fiscal years or (2) Employee’s Target
Bonus (as provided in Company’s annual cash incentive plan)
for the fiscal year in which Employee’s date of termination
occurs, and (C) any bonus that Employee has earned and accrued
as of the date of termination of Employee’s employment which
relates to periods that have ended on or before such date and which
have not yet been paid to Employee by Company; (ii) all of the
outstanding stock options, restricted stock awards and other equity
based awards granted by Company to Employee shall become fully
vested and immediately exercisable in full on the date of
termination of Employee’s employment; (iii) Health
Coverage, and (iv) reimbursement of reasonable out-of-pocket
relocation expenses (including, but not limited to, realtor fees,
closing costs and transportation of Employee’s automobiles
and other personal effects) back to Louisiana.
4.2
Termination By Expiration . If Employee’s
employment hereunder shall terminate upon expira
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