Exhibit 99.12
DRAFT - 11/11/04
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between Trico
Marine Services, Inc., a Delaware corporation ("Company"), and
_____________________ ("Executive").
WITNESSETH:
WHEREAS, Executive is currently employed by Company; 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 the Effective Date as
defined in the Joint Prepackaged Plan Of Reorganization Of Trico Marine
Services, Inc., Trico Marine Assets, Inc., And Trico Marine Operators, Inc.
Under Chapter 11 Of the Bankruptcy Code, as confirmed by the Bankruptcy Court
(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 __________________ and ___________________ 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 "Initial
Expiration Date"); provided, however, that beginning on the Initial Expiration
Date, and on each anniversary of the Initial 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 90 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
(iv) for any other reason whatsoever, in the sole discretion of the
Board of Directors.
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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
significant reduction 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, or (D) any requirement that Executive
relocate to a site more than 50 miles from his present business address;
provided, however, that, prior to Executive's termination for Good Reason,
Executive must give written notice to Company of any such breach,
reduction, assignment or requirement and such breach, reduction,
assignment or requirement must remain uncorrected for 10 days following
such written notice; or
(ii) at any time for any other reason whatsoever, in the sole
discretion of Executive.
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) 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.
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ARTICLE 3: COMPENSATION AND BENEFITS
3.1 BASE SALARY. During the period of this Agreement, Executive shall
receive a minimum annual base salary of $________________. 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 (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 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
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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 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. Notwithstanding
anything herein to the contrary, a Change in Control shall not include the
contemplated reorganization of Company that will occur on or about the
Effective Date.
"Termination Benefits" means (i) a lump sum cash payment equal to
the sum of (A) one year of Executive's annual base salary at the rate in
effect under paragraph 3.1 on the date of termination of Executive's
employment and (B) 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
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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.
"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"), during the twelve-month period
commencing on the date of Executive's termination of employment from
Company (the "Severance Period"), then throughout 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 Company shall use its
reasonable efforts so that such health benefits are provided to Executive
under one or more insurance policies (or such other manner) so that
reimbursement or payment of benefits to Executive thereunder shall not
result in taxable income to Executive. 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 Extended Coverage Period shall immediately end if and to the
extent Executive becomes eligible to receive health plan coverage from a
subsequent employer (with Executive being obligated hereunder to promptly
report such eligibility to Company).
4.2 TERMINATION BY EXPIRATION. If Executive's employment hereunder shall
terminate upon expiration of the term provided in paragraph 2.1 hereof because
either party has provided the notice contemplated in such paragraph, then all
compensation and all benefits to Executive hereunder shall continue to be
provided until the expiration of such term and such compensation and benefits
shall terminate contemporaneously with termination of his employment.
4.3 TERMINATION BY COMPANY. If Executive's employment hereunder shall be
terminated by Company prior to expiration of the term provided in paragraph 2.1,
then, upon such termination, regardless of the reason therefor, all compensation
and benefits to Executive hereunder shall terminate contemporaneously with the
termination of such employment; provided, however, that, subject to paragraph
4.7 below, if such termination shall be for any reason other than those
encompassed by paragraph 2.2(i), 2.2(ii), or 2.2(iii), then Company shall
provide Executive with the Termination Benefits, except that if such termination
occurs within twelve months after the date upon which a Change in Control
occurs, then the Termination Benefits provided by Company under this paragraph
shall be reduced by an amount equal to one
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year of Executive's annual base salary at the rate in effect as of the date of
such Change in Control. Any lump sum cash payment due to Executive pursuant to
the preceding sentence shall be paid to Executive within five business days of
the date of Executive's termination of employment with Company; provided,
however, that if the lump sum cash payment would be subject to additional taxes
and interest under Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code"), then payment of the lump sum cash payment shall be deferred to the
extent required to avoid such additional taxes and interest.
4.4 TERMINATION BY EXECUTIVE. If Executive's employment hereunder shall be
terminated by Executive prior to expiration of the term provided in paragraph
2.1, then, upon such termination, regardless of the reason therefor, all
compensation and benefits to Executive hereunder shall terminate
contemporaneously with the termination of such employment; provided, however,
that, subject to paragraph 4.7 below, if such termination occurs for Good
Reason, then Company shall provide Executive with the Termination Benefits,
except that if such termination occurs within twelve months after the date upon
which a Change in Control occurs, then the Termination Benefits provided by
Company under this paragraph shall be reduced by an amount equal to one year of
Executive's annual base salary at the rate in effect as of the date of such
Change in Control. Any lump sum cash payment due to Executive pursuant to this
paragraph shall be paid to Executive within five business days of the date of
Executive's termination of employment with Company; provided, however, that if
the lump sum cash payment would be subject to additional taxes and interest
under Section 409A of the Code, then payment of the lump sum cash payment shall
be deferred to the extent required to avoid such additional taxes and interest.
4.5 CHANGE IN CONTROL BENEFITS. If Executive is employed by Company on the
date upon which a Change in Control occurs, then Company shall provide Executive
with the Termination Benefits (other than Health Coverage), which benefits shall
be determined as if Executive's employment by Company terminated on the date of
such Change in Control; provided, however, that, if Executive is entitled to
Termination Benefits under paragraph 4.3 or 4.4 of this Agreement as of the date
of such Change in Control, then Executive shall not also be entitled to
additional Termination Benefits under this paragraph. Any lump sum cash payment
due to Executive pursuant to the preceding sentence shall be paid to Executive
within five business days of the date of the Change in Control.
4.6 PARACHUTE PAYMENTS. Notwithstanding anything to the contrary in this
Agreement, if Executive is a "disqualified individual" (as defined in Section
280G(c) of the Code, and the benefits provided for in this Article, together
with any other payments and benefits which Executive has the right to receive
from Company and its affiliates, would constitute a "parachute payment" (as
defined in Section 280G(b)(2) of the Code), then the benefits provided hereunder
(beginning with any benefit to be paid in cash hereunder) shall be either (1)
reduced (but not below zero) so that the present value of such total amounts and
benefits received by Executive will be one dollar ($1.00) less than three times
Executive's "base amount" (as defined in Section 280G of the Code) and so that
no portion of such amounts and benefits received by Executive shall be subject
to the excise tax imposed by Section 4999 of the Code or (2) paid in full,
whichever produces the better net after-tax position to Executive (taking into
account any applicable excise tax under Section 4999 of the Code and any other
applicable taxes). The determination as to whether any such reduction in the
amount of the benefits provided hereunder
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is necessary shall be made initially by Company in good faith. If a reduced
benefit is provided hereunder in accordance with clause (1) of the first
sentence of this paragraph and through error or otherwise that payment, when
aggregated with other payments and benefits from Company (or its affiliates)
used in determining if a "parachute payment" exists, exceeds one dollar ($1.00)
less than three times Executive's base amount, then Executive shall immediately
repay such excess to Company upon notification that an overpayment has been
made.
4.7 RELEASE AND FULL SETTLEMENT. Anything to the contrary herein
notwithstanding, as a condition to the receipt of Termination Benefits under
paragraph 4.3 or 4.4 hereof, Executive shall first execute a release, in the
form established by the Board of Directors, releasing the Board of Directors,
Company, and Company's parent corporation, subsidiaries, affiliates, and their
respective shareholders, partners, officers, directors, employees, attorneys and
agents from any and all claims and from any and all causes of action of any kind
or character including, but not limited to, all claims or causes of action
arising out of Executive's employment with Company or its affiliates or the
termination of such employment, but excluding all claims to vested benefits and
payments Executive may have under any compensation or benefit plan, program or
arrangement, including this Agreement. The performance of Company's obligations
hereunder and the receipt of any benefits provided under paragraphs 4.3 and 4.4
shall constitute full settlement of all such claims and causes of action.
4.8 NO DUTY TO MITIGATE LOSSES. Executive shall have no duty to find new
employment following the termination of his employment under circumstances which
require Company to pay any amount to Executive pursuant to this Article 4.
Except to the extent Executive becomes eligible to receive health plan coverage
from a subsequent employer as provided in paragraph 4.1 with respect to Health
Coverage, any salary or remuneration received by Executive from a third party
for the providing of personal services (whether by employment or by functioning
as an independent contractor) following the termination of his employment under
circumstances pursuant to which this Article 4 apply shall not reduce Company's
obligation to make a payment to Executive (or the amount of such payment)
pursuant to the terms of this Article 4.
4.9 LIQUIDATED DAMAGES. In light of the difficulties in estimating the
damages for an early termination of Executive's employment under this Agreement,
Company and Executive hereby agree that the payments, if any, to be received by
Executive pursuant to this Article 4 shall be received by Executive as
liquidated damages.
4.10 OTHER BENEFITS. This Agreement governs the rights and obligations of
Executive and Company with respect to Executive's base salary and certain
perquisites of employment. Except as expressly provided herein, Executive's
rights and obligations both during the term of his employment and thereafter
with respect to stock options, restricted stock, incentive and deferred
compensation, life insurance policies insuring the life of Executive, and other
benefits under the plans and programs maintained by Company shall be governed by
the separate agreements, plans and other documents and instruments governing
such matters.
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ARTICLE 5: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS
5.1 DISCLOSURE TO EXECUTIVE. Executive acknowledges that Company has and
will in the course of his employment disclose to Executive, or place Executive
in a position to have access to or develop, trade secrets or confidential
information of Company and its affiliates; and/or shall entrust Executive with
business opportunities of Company and its affiliates; and/or shall place
Executive in a position to develop business good will on behalf of Company and
its affiliates.
5.2 PROPERTY OF COMPANY. All information, ideas, concepts, improvements,
discoveries, and inventions, whether patentable or not, which are conceived,
made, developed or acquired by Executive, individually or in conjunction with
others, during Executive's employment by Company (whether during business hours
or otherwise and whether on Company's premises or otherwise) which relate to the
business, products or services of Company or its affiliates shall be disclosed
to Company and are and shall be the sole and exclusive property of Company and
its affiliates. Moreover, all documents, drawings, memoranda, notes, records,
files, correspondence, manuals, models, specifications, computer programs,
E-mail, voice mail, electronic databases, maps and all other writings or
materials of any type embodying any of such information, ideas, concepts,
improvements, discoveries, and inventions are and shall be the sole and
exclusive property of Company and its affiliates. Upon Executive's termination
of employment for any reason, Executive shall deliver the same, and all copies
thereof, to Company.
5.3 PATENT AND COPYRIGHT ASSIGNMENT. Executive agrees to assign and
transfer to Company or its designee, without any separate remuneration or
compensation, his entire right, title and interest in and to all Inventions and
Works in the Field (as hereinafter defined), together with all United States and
foreign rights with respect thereto, and at Company's expenses to execute and
deliver all appropriate patent and copyright applications for securing United
States and foreign patents and copyrights on such Inventions and Works in the
Field, and to perform all lawful acts, including giving testimony and executing
and delivering all such instruments, that may be necessary or proper to vest all
such Inventions and Works in the Field and patents and copyrights with respect
thereto in Company, and to assist Company in the prosecution or defense of any
interference which may be declared involving any of said patent applications or
patents or copyright applications or copyrights. For purposes of this Agreement
the words "Inventions and Works in the Field" shall include any discovery,
process, design, development, improvement, application, technique, program or
invention, whether patentable or copyrightable or not and whether reduced to
practice or not, conceived or made by Executive, individually or jointly with
others (whether on or off Company's premises or during or after normal working
hours) while employed by Company; provided, however, that no discovery, process,
design, development, improvement, application, technique, program or invention
reduced to practice or conceived by Executive off Company's premises and after
normal working hours or during hours when Executive is not performing services
for Company, shall be deemed to be included in the term "Inventions and Works in
the Field" unless directly or indirectly related to the business then being
conducted by Company or its affiliates or any business which Company or its
affiliates is then actively exploring.
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5.4 NO UNAUTHORIZED USE OR DISCLOSURE. Executive acknowledges that the
business of Company and its affiliates is highly competitive and that their
strategies, methods, books, records, and documents, their technical information
concerning their products, equipment, services, and processes, procurement
procedures and pricing techniques, the names of and other information (such as
credit and financial data) concerning their customers and business affiliates,
all comprise confidential business information and trade secrets which are
valuable, special, and unique assets which Company and its affiliates use in
their business to obtain a competitive advantage over their competitors.
Executive further acknowledges that protection of such confidential business
information and trade secrets against unauthorized disclosure and use is of
critical importance to Company and its affiliates in maintaining their
competitive position. Executive hereby agrees that Executive will not, at any
time during or after Executive's employment by Company, make any unauthorized
disclosure of any confidential business information or trade secrets of Company
and its affiliates, or make any use thereof, except in the carrying out of
Executive's employment responsibilities hereunder. Company and its affiliates
shall be third party beneficiaries of Executive's obligations under this
paragraph. As a result of Executive's employment by Company, Executive may also
from time to time have access to, or knowledge of, confidential business
information or trade secrets of third parties, such as customers, suppliers,
partners, joint venturers, and the like, of Company and its affiliates.
Executive also agrees to preserve and protect the confidentiality of such third
party confidential information and trade secrets to the same extent, and on the
same basis, as the confidential business information and trade secrets of
Company and its affiliates. These obligations of confidence apply irrespective
of whether the information has been reduced to a tangible medium of expression
(e.g., is only maintained in the minds of Company's employees) and, if it has
been reduced to a tangible medium, irrespective of the form or medium in which
the information is embodied (e.g., documents, drawings, memoranda, notes,
records, files, correspondence, manuals, models, specifications, computer
programs, E-mail, voice mail, electronic databases, maps and all other writings
or materials of any type).
5.5 ASSISTANCE BY EXECUTIVE. Both during the period of Executive's
employment by Company and thereafter, Executive shall assist Company and its
affiliates and their respective nominees, at any time, in the protection of
Company's and its affiliates' worldwide rights, titles, and interests in and to
information, ideas, concepts, improvements, discoveries, and inventions, and
their copyrighted works, including without limitation, the execution of all
formal assignment documents requested by Company and its affiliates or their
respective nominees and the execution of all lawful oaths and applications for
applications for patents and registration of copyright in the United States and
foreign countries.
5.6 REMEDIES. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article 5 by Executive, and Company
shall be entitled to enforce the provisions of this Article 5 by terminating any
payments then owing to Executive under this Agreement and/or to specific
performance and injunctive relief as remedies for such breach or any threatened
breach. Such remedies shall not be deemed the exclusive remedies for a breach of
this Article 5, but shall be in addition to all remedies available at law or in
equity to Company and its affiliates, including the recovery of damages from
Executive and Executive's agents involved in such breach and remedies available
to Company and its affiliates pursuant to other agreements with Executive.
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ARTICLE 6: NON-COMPETITION OBLIGATIONS
6.1 NON-COMPETITION OBLIGATIONS. As part of the consideration for the
compensation and benefits to be paid to Executive hereunder; to protect the
trade secrets and confidential information of Company and its affiliates that
have been or will in the future be disclosed or entrusted to Executive, the
business good will of Company and its affiliates that has been and will in the
future be developed in Executive, or the business opportunities that have been
and will in the future be disclosed or entrusted to Executive by Company and its
affiliates; and as an additional incentive for Company to enter into this
Agreement, Company and Executive agree to the provisions of this Article 6.
Executive agrees that during the period of Executive's non-competition
obligations hereunder, Executive shall not, directly or indirectly for Executive
or for others, in any geographic area or market where Company or its affiliates
are conducting any business as of the date of termination of the employment
relationship or have during the previous 12 months conducted any business:
(i) engage in any offshore supply vessel business serving the oil and
gas industry that is competitive with the business conducted by
Company or its affiliates;
(ii) render any advice or services to, or otherwise assist, any other
person, association, or entity who is engaged, directly or
indirectly, with any offshore supply vessel business serving the oil
and gas industry that is competitive with the business conducted by
Company or its affiliates;
(iii) induce any employee of Company or its affiliates to terminate his or
her employment with Company or its affiliates, or hire or assist in
the hiring of any such employee by any person, association, or
entity not affiliated with Company;
(iv) request or cause any customer of Company or its affiliates to
terminate any business relationship with Company or its affiliates.
These non-competition obligations shall apply during the period that Executive
is employed by Company and shall continue until the first anniversary of the
termination of Executive's employment. Executive understands that the foregoing
restrictions may limit Executive's ability to engage in certain businesses
anywhere in the world during the period provided for above, but acknowledges
that Executive will receive sufficiently high remuneration and other benefits
under this Agreement to justify such restriction.
6.2 ENFORCEMENT AND REMEDIES. Executive acknowledges that money damages
would not be sufficient remedy for any breach of this Article 6 by Executive,
and Company shall be entitled to enforce the provisions of this Article 6 by
terminating any payments then owing to Executive under this Agreement and/or to
specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies for
a breach of this Article 6, but shall be in addition to all remedies available
at law or in equity to Company, including, without limitation, the recovery of
damages from Executive
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and Executive's agents involved in such breach and remedies available to Company
pursuant to other agreements with Executive.
6.3 REFORMATION. It is expressly understood and agreed that Company and
Executive consider the restrictions contained in this Article 6 to be reasonable
and necessary to protect the proprietary information of Company and its
affiliates. Nevertheless, if any of the aforesaid restrictions are found by a
court having jurisdiction to be unreasonable, or overly broad as to geographic
area or time, or otherwise unenforceable, the parties intend for the
restrictions therein set forth to be modified by such courts so as to be
reasonable and enforceable and, as so modified by the court, to be fully
enforced.
ARTICLE 7: MISCELLANEOUS
7.1 NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO COMPANY TO: Trico Marine Services, Inc.
0000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chairman of the Board of Directors
IF TO EXECUTIVE TO: ____________________________
____________________________
____________________________
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices or changes of address shall be
effective only upon receipt.
7.2 APPLICABLE LAW. This Agreement is entered into under, and shall be
governed for all purposes by, the laws of the State of Texas.
7.3 NO WAIVER. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
7.4 SEVERABILITY. If a court of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable, then the invalidity or
unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.
7.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
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7.6 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS. 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 and all other normal employee deductions made
with respect to Company's employees generally.
7.7 HEADINGS. The paragraph headings have been inserted for purposes of
convenience and shall not be used for interpretive purposes.
7.8 GENDER AND PLURALS. Wherever the context so requires, the masculine
gender includes the feminine or neuter, and the singular number includes the
plural and conversely.
7.9 AFFILIATE. As used in this Agreement, the term "affiliate" shall mean
any entity which owns or controls, is owned or controlled by, or is under common
ownership or control with, Company.
7.10 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of Company and any successor of Company, by merger or otherwise. Except
as provided in the preceding sentence, this Agreement, and the rights and
obligations of the parties hereunder, are personal and neither this Agreement,
nor any right, benefit, or obligation of either party hereto, shall be subject
to voluntary or involuntary assignment, alienation or transfer, whether by
operation of law or otherwise, without the prior written consent of the other
party.
7.11 TERM. This Agreement has a term co-extensive with the term of
employment provided in paragraph 2.1. Termination shall not affect any right or
obligation of any party which is accrued or vested prior to such termination.
7.12 ENTIRE AGREEMENT. Except as provided in (i) the written benefit plans
and programs referenced in paragraph 3.3(iii) (and any agreements between
Company and Executive that have been executed under such plans and programs) and
(ii) any signed written agreement contemporaneously or hereafter executed by
Company and Executive, this Agreement constitutes the entire agreement of the
parties with regard to the subject matter hereof, and contains all the
covenants, promises, representations, warranties and agreements between the
parties with respect to employment of Executive by Company. Without limiting the
scope of the preceding sentence, all understandings and agreements preceding the
date of execution of this Agreement and relating to the subject matter hereof
(other than the agreements described in clause (i) of the preceding sentence)
are hereby null and void and of no further force and effect. Any modification of
this Agreement will be effective only if it is in writing and signed by the
party to be charged.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
_____ day of ________________, 2004, to be effective as of the Effective Date.
TRICO MARINE SERVICES, INC.
By: __________________________________
Name: ____________________________
Title: ___________________________
"COMPANY"
______________________________________
______________ "EXECUTIVE"
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