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Exhibit 10.2
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release
(“Agreement”) is made and entered into by and between
Trico Marine Services, Inc. (“Company”) and Trevor
Turbidy (“Employee”).
1. Termination
. Employee’s employment
with Company has terminated without “Cause,” as such
term is defined in the Employment Agreement entered into between
Company and Employee effective September 1, 2005 (the
“Employment Agreement”), effective July 9, 2007 (the
“Termination Date”) through which date Employee has
been paid his regular salary.
2.
Definitions.
(a) “
Claims ” means all theories of recovery of whatever
nature, whether known or unknown, and whether recognized by the law
or equity of any jurisdiction. This term includes causes of
action, charges, indebtedness, losses, claims, liabilities, and
demands, whether arising in equity or under the common law or under
any contract or statute. This term includes any claims of
discrimination, harassment, retaliation, retaliatory discharge, or
wrongful discharge, and any other claim which is alleged or which
could be alleged by Employee, or on Employee’s behalf, in any
lawsuit or other proceeding. This term includes any claims
and rights arising under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §2000e, et seq .; the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §1001, et seq .;
the Americans with Disabilities Act, 42 U.S.C. §12101, et
seq .; the Worker Adjustment and Retraining Notification Act,
29 U.S.C. §2101, et seq .; the Family and Medical
Leave Act, 29 U.S.C. §2601, et seq .; and any
other federal, state or local law or regulation regarding
employment or the termination of employment. This term
includes any and all rights, benefits or claims Employee may have
under any employment contract or under any retention, severance,
bonus, stock option or incentive compensation plan, program or
agreement.
(b) “
Damages ” means all elements of relief or recovery of
whatever nature, whether known or unknown, which are recognized by
the law or equity of any jurisdiction which is sought or which
could be sought by Employee, or on Employee’s behalf, in any
lawsuit or other proceeding. This term includes actual,
incidental, indirect, consequential, compensatory, exemplary,
liquidated and punitive damages; rescission; attorneys’ fees;
interest; costs; equitable relief; and expenses. This term
also includes wages, benefits or other compensation owed, or
allegedly owed to Employee, by virtue of Employee’s
employment or termination of employment with Company, including
retention, severance, bonuses, stock option or incentive
compensation, payable pursuant to any plan, program, or
agreement.
(c) “
Employee ” means and includes Employee acting
individually; in any corporate or other representative capacity;
and on behalf of Employee’s heirs, executors, administrators,
legal representatives, successors, beneficiaries, and assigns.
(d)“ Released Parties ” means
and includes Company, and its past, present and future owners,
trustees, parents, subsidiaries, affiliates, and related entities,
and all of the foregoing entities’ and persons’ past,
present and future directors, officers, employees, associates,
agents, benefit plans (and each such plan’s fiduciaries,
administrators, trustees, sponsors and representatives), insurance
carriers, predecessors, successors, assigns, executors,
administrators, and representatives, in both their representative
and individual capacities; provided that this term does not include
Employee. Each of the Released Parties is an intended
beneficiary of this Agreement.
3.
Consideration . In
consideration for Employee executing this Agreement, Company agrees
to provide to Employee in accordance with the Employment Agreement
the following , items (a), (b), (c) and (d)
of which shall be paid on the first business day following the
six-month anniversary of the Termination Date
, and items (e) and (f) of which shall be provided as soon as
administratively feasible, but no earlier than eight days after
Employee executes this Agreement :
(a)
Three times Employee’s
current annual base salary, for a payment equal to
$1,125,000.00;
(b)
Three times the higher of
(i) Employee’s highest annual bonus paid in Company’s
three most recent fiscal years or (ii) Employee’s target
bonus as provided in Company’s annual cash incentive plan),
for a total of $1,387,500.00;
(c)
The amount of any earned and
accrued bonus for 2007 ($0);
(d)
Any unreimbursed business
expenses previously submitted to Company or incurred not more than
30 days prior to the Termination Date;
(e)
One month of
Employee’s current base salary ($31,250), which represents
the pre-termination notice period required by the Employment
Agreement; and
(f)
The following health
benefits:
(i)
If Employee elects to continue coverage for
himself and/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”), Company shall reimburse Employee on a monthly
basis for the difference between the amount Employee pays for
such COBRA continuation coverage and the employee contribution
amount that active senior executive employees pay for the same
or similar coverage under Company’s group health
plans;
(ii)
If Employee has continued his COBRA 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; 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 Internal Revenue Code of 1986, as
amended, such that the benefits or reimbursements under such
arrangement are not includible in Employee’s income;
(iii)The cost to Employee for the first eighteen
months of coverage during the Extended Coverage Period shall be
no greater than the employee contribution amount that active
senior executive employees pay for the same or similar coverage
under Company’s group health plans, and the cost to
Employee for the second eighteen months of coverage during the
Extended Coverage Period shall be no greater than the cost of
COBRA continuation coverage; and
(iv)
Notwithstanding the preceding provisions of this
paragraph 3(f), 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).
Company may withhold from any benefits and payments
made pursuant to this Agreement all federal, state, city and other
taxes as may be required pursuant to any law or governmental
regulation or ruling. Finally, the amounts described in items
(a), (b), (c) and (d) shall accrue interest on a non-compounded
basis, from July 9, 2007 to the date such amounts are actually
paid, at a rate of interest equal to the rate accrued by Company on
its cash reserves during such period, which interest shall be paid
in a lump sum on the date such amounts are actually paid.
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