AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is
made by and between Trico Marine Services, Inc., a Delaware
corporation (“Company”), and Geoffrey A. Jones
(“Executive”).
WHEREAS,
Executive and Company have heretofore entered into an Employment
Agreement effective as of September 1, 2005, as amended (the
“Prior Agreement”);
WHEREAS,
both Executive 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 Executive in an
executive capacity on the terms and conditions, and for the
consideration, hereinafter set forth and Executive 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 Executive
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, Executive’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 Executive in the positions of Vice President and Chief
Financial Officer of Company, or in such other positions as the
parties mutually may agree.
1.3 Duties
and Services . Executive agrees to serve in the positions
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. Executive’s employment shall also be subject to the
policies maintained and established by Company that are of general
applicability to Company’s executive employees, as such
policies may be amended from time to time.
1.4 Other
Interests . Executive 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 of Company (the “Board of Directors”). The
foregoing notwithstanding, the parties recognize and agree that
Executive may engage in other business activities that do
not
conflict with
the business and affairs of Company or interfere with
Executive’s performance of his duties hereunder, which shall
be at the sole determination of the Board of Directors.
1.5 Duty of
Loyalty . Executive acknowledges and agrees that Executive
owes a fiduciary duty of loyalty to act at all times in the best
interests of Company. In keeping with such duty, Executive shall
make full disclosure to Company of all business opportunities
pertaining to Company’s business and shall not appropriate
for Executive’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 Executive for the
period beginning on the Effective Date and ending on the first
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 30 days 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 Executive’s employment under this Agreement at any
time for any of the following reasons:
(i) upon
Executive’s death;
(ii) upon
Executive’s becoming incapacitated by accident, sickness, or
other circumstances which, in the opinion of a physician selected
by Company, renders him mentally or physically incapable of
performing the duties and services required of him
hereunder;
(iii) for
“Cause”, which shall mean Executive (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 executive
employees, (D) has willfully engaged in conduct that he knows
or should know is materially injurious to Company or any of its
affiliates, or (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 Executive in a
material manner; provided, however, that Executive’s
employment may be terminated for Cause only if such termination is
approved by at least a majority of a quorum (as defined in
Company’s By-laws) of the members of the Board of Directors
after Executive has been given written notice by Company of the
specific reason for such termination and an opportunity for
Executive, together with his counsel, to be heard before the Board
of Directors; or
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(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
Executive’s Right to Terminate . Notwithstanding
the provisions of paragraph 2.1, Executive 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 Executive’s annual base salary
that is consistent with reductions taken generally by other
executives of Company shall not be considered a material breach of
a material provision of this Agreement), (B) a material
diminution in the nature or scope of Executive’s duties and
responsibilities, (C) the assignment to Executive 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 Executive, (D) any material change
in the geographic location at which Executive must perform
services, or (E) Executive not being offered a comparable position
at the “resulting entity” (as defined in paragraph 4.1)
in connection with a Change in Control. Prior to Executive’s
termination for Good Reason, Executive 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
Executive.
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
Executive’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 written notice to Executive that it has
elected to terminate Executive’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. If Executive 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 Deemed
Resignations . Any termination of Executive’s
employment shall constitute an automatic resignation of Executive
as an officer of Company and each affiliate of Company, and an
automatic resignation of Executive from the Board of Directors (if
applicable)
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and from the
board of directors of any affiliate of Company and from the board
of directors or similar governing body of any corporation, limited
liability company or other entity in which Company or any affiliate
holds an equity interest and with respect to which board or similar
governing body Executive serves as Company’s or such
affiliate’s designee or other representative.
2.6
Separation from Service . For all purposes of this
Agreement, Executive shall be considered to have terminated
employment with the Company when Executive 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, Executive
shall receive a minimum annual base salary of $325,000.
Executive’s annual base salary shall be reviewed by the Board
of Directors (or a committee thereof) on an annual basis, and, in
the sole discretion of the Board of Directors (or such committee),
such annual base salary may be increased, but not decreased (except
for a decrease that is consistent with reductions taken generally
by other executives of Company), effective as of any date
determined by the Board of Directors. Executive’s annual base
salary shall be paid in equal installments in accordance with
Company’s standard policy regarding payment of compensation
to executives but no less frequently than monthly.
3.2
Bonuses . Executive shall be eligible to participate in
Company’s annual cash incentive 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).
3.3 Other
Perquisites . During his employment hereunder, Executive
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 executive employees generally,
Company shall reimburse Executive for, or pay on behalf of
Executive, reasonable and appropriate expenses incurred by
Executive 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, Executive shall
be entitled to four weeks of paid vacation each calendar year (or
such greater amount of vacation as provided to executives of
Company generally) and to all holidays provided to executives of
Company generally; provided, however, that for the period beginning
on the Effective Date and ending on the last day of the calendar
year in which the Effective Date occurs, Executive shall be
entitled to four weeks of paid vacation (or such greater amount of
vacation as provided to executives of Company generally) reduced by
the number of
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vacation days
that Executive has already used during such calendar year and prior
to the Effective Date.
(iii) Other
Company Benefits - Executive and, to the extent applicable,
Executive’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 executive 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 executive employees generally.
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
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 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
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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) 2.99 times Executive’s annual
base salary at the rate in effect under paragraph 3.1 on the date
of termination of Executive’s employment (or, if higher,
Executive’s annual base salary in effect immediately prior to
the Change in Control), (B) 2.99 times the higher of
(1) Executive’s highest annual bonus paid during the
three most recent fiscal years or (2) Executive’s Target
Bonus (as provided in Company’s annual cash incentive plan)
for the fiscal year in which Executive’s date of termination
occurs, and (C) any bonus that Executive has earned and
accrued as of the date of termination of Executive’s
employment which relates to periods that have ended on or before
such date and which have not yet been paid to Executive by Company;
(ii) all of the outstanding stock options, restricted stock
awards and other equity based awards granted by Company to
Executive shall become fully vested and immediately exercisable in
full on the date of termination of Executive’s employment;
and (iii) Health Coverage.
“Code”
shall mean the Internal Revenue Code of 1986, as
amended.
“Health
Coverage” means that if Executive 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 one-year period commencing on the date of
Executive’s termination of employment from Company (the
“Severance Period”), Company shall promptly reimburse
Executive on a monthly basis for the difference between the amount
Executive 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 after the Severance Period Executive
continues his COBRA coverage and Executive’s COBRA coverage
terminates at any time during the eighteen-month period commencing
on the day immediately following the last day of the Severance
Period (the “Extended Coverage Period”), then Company
shall provide Executive (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 Executive that is no greater than the
cost of COBRA coverage; provided, however, that such health
benefits shall be provided to Executive 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 Executive’s income. Notwithstanding the
preceding provisions of this paragraph, Company’s obligation
to reimburse Executive during the Severance Period and to provide
health benefits to Executive during the Ext
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