Exhibit 99.9
DRAFT - 11/11/04
[ACCELERATION OF VESTING]
NONSTATUTORY STOCK OPTION AGREEMENT
(EMPLOYEE, DIRECTOR OR CONSULTANT)
AGREEMENT made as of the _______ day of ___________, 20____, between TRICO
MARINE SERVICES, INC., a Delaware corporation (the "Company"), and
_______________________________ ("Optionee").
To carry out the purposes of the TRICO MARINE SERVICES, INC. 2004 STOCK
INCENTIVE PLAN (the "Plan"), by affording Optionee the opportunity to purchase
shares of the common stock of the Company, par value $.01 per share ("Stock"),
and in consideration of the mutual agreements and other matters set forth herein
and in the Plan, the Company and Optionee hereby agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to Optionee the
right and option ("Option") to purchase all or any part of an aggregate of
______ shares of Stock on the terms and conditions set forth herein and in the
Plan, which Plan is incorporated herein by reference as a part of this
Agreement. ________ shares of Stock subject to this Option are referred to
herein as the "Time Shares," and the portion of this Option covering the Time
Shares is referred to herein as the "Time Option." ________ shares of Stock
subject to this Option are referred to herein as the "Performance Shares," and
the portion of this Option covering the Performance Shares is referred to herein
as the "Performance Option." In the event of any conflict between the terms of
this Agreement and the Plan, the Plan shall control. Capitalized terms used but
not defined in this Agreement shall have the meaning attributed to such terms
under the Plan, unless the context requires otherwise; provided, however, that
the terms "Cause," "Change in Control" and "Good Reason" shall have the meanings
assigned to such terms in that certain Employment Agreement dated as of
_______________, 2004, between Optionee and the Company (the "Employment
Agreement"). This Option shall not be treated as an incentive stock option
within the meaning of section 422(b) of the Code.
2. PURCHASE PRICE. The purchase price of Stock purchased pursuant to the
exercise of this Option shall be $______ per share, which has been determined to
be not less than the Fair Market Value of the Stock at the date of grant of this
Option. For all purposes of this Agreement, Fair Market Value of Stock shall be
determined in accordance with the provisions of the Plan.
3. EXERCISE OF TIME OPTION. Subject to the provisions of Paragraph 5, the
Time Option may be exercised, by written notice to the Company at its principal
executive office addressed to the attention of its Corporate Secretary (or such
other officer or employee of the Company as the Company may designate from time
to time), at any time and from time to time after the date of grant hereof, but,
except as otherwise provided below, the Time Option shall not be exercisable for
more than a percentage of the aggregate number of Time Shares offered by the
Time Option determined by the number of full years from the date of grant hereof
to the date of such exercise, in accordance with the following schedule:
PERCENTAGE OF TIME SHARES
NUMBER OF FULL YEARS THAT MAY BE PURCHASED
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Less than 1 year 33-1/3 %
1 year 50%
2 years 66-2/3%
3 years 83-1/3%
4 or more years 100%
4. EXERCISE OF PERFORMANCE OPTION. (a) Subject to the provisions of
Paragraph 5, the Performance Option may be exercised, by written notice to the
Company at its principal executive office addressed to the attention of its
Corporate Secretary (or such other officer or employee of the Company as the
Company may designate from time to time), at any time and from time to time
after the date of grant hereof, but the Performance Option shall not be
exercisable for more than a percentage of the aggregate number of Performance
Shares offered by the Performance Option determined from the following schedule
based on the [PERFORMANCE CRITERIA TO BE ADDED] determined under Paragraph 4(b):
PERCENTAGE OF PERFORMANCE SHARES
[PERFORMANCE CRITERIA TO BE ADDED] THAT MAY BE PURCHASED
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(b) As soon as administratively feasible after the date upon which
the Board determines that one of the following events has occurred:
[PERFORMANCE CRITERIA TO BE ADDED], the Company shall provide notice to
Optionee of such determination.
(c) The Performance Option shall not become exercisable and shall
cease to be outstanding with respect to any Performance Shares as to which
the applicable performance criteria are not met within the period or by
the date prescribed for any reason, including without limitation pursuant
to Paragraph 5 hereof.
5. CHANGE IN CONTROL; EFFECT OF TERMINATION OF EMPLOYMENT; GENERAL TERMS
OF EXERCISE. Notwithstanding anything to the contrary in Paragraph 3 or
Paragraph 4 (other than Paragraph 4(c)), if Optionee has been continuously
employed by the Company from the date of grant hereof to the date upon which a
Change in Control occurs, then this Option may be exercised in full from and
after the date upon which the Change in Control occurs. Further, this Option may
be exercised only while Optionee remains an employee of the Company and will
terminate and cease to be exercisable upon Optionee's termination of employment
with the Company, except that:
(a) If Optionee's employment with the Company terminates by reason
of disability (within the meaning of section 22(e)(3) of the Code), this
Option may be
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exercised in full by Optionee (or Optionee's estate or the person who
acquires this Option by will or the laws of descent and distribution or
otherwise by reason of the death of Optionee) at any time during the
period of one year following such termination.
(b) If Optionee dies while in the employ of the Company, Optionee's
estate, or the person who acquires this Option by will or the laws of
descent and distribution or otherwise by reason of the death of Optionee,
may exercise this Option in full at any time during the period of one year
following the date of Optionee's death.
(c) If Optionee's employment with the Company is terminated by the
Company without Cause or Optionee voluntarily terminates such employment
for Good Reason, then this Option may be exercised in full (if Optionee
executes a release as provided under paragraph 4.7 of his Employment
Agreement) by Optionee at any time during the period of three months
following such termination, or by Optionee's estate (or the person who
acquires this Option by will or the laws of descent and distribution or
otherwise by reason of the death of Optionee) during a period of one year
following Optionee's death if Optionee dies during such three month
period; provided, however, that if Optionee fails to execute a release
under paragraph 4.7 of his Employment Agreement, then in each case this
Option may only be exercised by Optionee as to the number of shares
Optionee was entitled to purchase hereunder as of the date Optionee's
employment so terminates. The Committee may, in its sole discretion,
advise Optionee in writing, prior to a voluntary termination of Optionee's
employment without Good Reason, that such termination will be treated for
purposes of this paragraph as a voluntary termination for Good Reason.
This Option shall not be exercisable in any event after the expiration of
seven years from the date of grant hereof. The purchase price of shares as to
which this Option is exercised shall be paid in full at the time of exercise (a)
in cash (including check, bank draft or money order payable to the order of the
Company), (b) by delivering or constructively tendering to the Company shares of
Stock having a Fair Market Value equal to the purchase price (provided such
shares used for this purpose must have been held by Optionee for such minimum
period of time as may be established from time to time by the Committee), (c) if
the Stock is readily tradable on a national securities market, through a
"broker-assisted cashless exercise" in accordance with a Company established
policy or program for the same, or (d) any combination of the foregoing. No
fraction of a share of Stock shall be issued by the Company upon exercise of an
Option or accepted by the Company in payment of the exercise price thereof;
rather, Optionee shall provide a cash payment for such amount as is necessary to
effect the issuance and acceptance of only whole shares of Stock. Unless and
until a certificate or certificates representing such shares shall have been
issued by the Company to Optionee, Optionee (or the person permitted to exercise
this Option in the event of Optionee's death) shall not be or have any of the
rights or privileges of a shareholder of the Company with respect to shares
acquirable upon an exercise of this Option.
6. WITHHOLDING OF TAX. To the extent that the exercise of this Option or
the disposition of shares of Stock acquired by exercise of this Option results
in compensation income or wages to Optionee for federal, state or local tax
purposes, Optionee shall deliver to the Company at the time of such exercise or
disposition such amount of money as the Company may require to meet its minimum
obligation under applicable tax laws or regulations. No exercise of
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this Option shall be effective until Optionee (or the person entitled to
exercise this Option, as applicable) has made arrangements approved by the
Company to satisfy all applicable minimum tax withholding requirements of the
Company.
7. STATUS OF STOCK. The Company intends to register for issuance under the
Securities Act of 1933, as amended (the "Act"), the shares of Stock acquirable
upon exercise of this Option, and to keep such registration effective throughout
the period this Option is exercisable. In the absence of such effective
registration or an available exemption from registration under the Act, issuance
of shares of Stock acquirable upon exercise of this Option will be delayed until
registration of such shares is effective or an exemption from registration under
the Act is available. The Company intends to use its reasonable efforts to
ensure that no such delay will occur. In the event exemption from registration
under the Act is available upon an exercise of this Option, Optionee (or the
person permitted to exercise this Option in the event of Optionee's death or
incapacity), if requested by the Company to do so, will execute and deliver to
the Company in writing an agreement containing such provisions as the Company
may require to assure compliance with applicable securities laws.
Optionee agrees that the shares of Stock which Optionee may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable federal or state securities
laws. Optionee also agrees that (i) the certificates representing the shares of
Stock purchased under this Option may bear such legend or legends as the
Committee deems appropriate in order to assure compliance with applicable
securities laws, (ii) the Company may refuse to register the transfer of the
shares of Stock purchased under this Option on the stock transfer records of the
Company if such proposed transfer would in the opinion of counsel satisfactory
to the Company constitute a violation of any applicable securities law, and
(iii) the Company may give related instructions to its transfer agent, if any,
to stop registration of the transfer of the shares of Stock purchased under this
Option.
8. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, Optionee shall
be considered to be in the employment of the Company as long as Optionee remains
(i) an employee of, (ii) a member of the board of directors of, or (iii) a
Consultant to, either the Company, an Affiliate or a corporation or a parent or
subsidiary of such corporation assuming or substituting a new option for this
Option. Without limiting the scope of the preceding sentence, it is expressly
provided that Optionee shall be considered to have terminated employment with
the Company at the time of the termination of the "Affiliate" status under the
Plan of the entity or organization that employs Optionee or to which Optionee
otherwise provides services. Any question as to whether and when there has been
a termination of such employment relationship, and the cause of such
termination, shall be determined by the Committee, and its determination shall
be final.
9. SURRENDER OF OPTION. At any time and from time to time prior to the
termination of this Option, Optionee may surrender all or a portion of this
Option to the Company for no consideration by providing written notice to the
Company at its principal executive office addressed to the attention of its
Corporate Secretary (or such other officer or employee of the Company as the
Company may designate from time to time). Such notice shall specify the number
of shares with respect to which this Option is
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being surrendered and, if this Option is being surrendered with respect to less
than all of the shares then subject to this Option, then such notice shall also
specify the date upon which, or the circumstances under which, this Option
became (or would become) exercisable in accordance with Paragraph 3 or Paragraph
4 with respect to the shares being surrendered.
10. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under
Optionee.
11. ENTIRE AGREEMENT. Unless otherwise specifically provide herein, 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
the Option granted hereby; provided, however, that the terms of this Agreement
shall not modify and shall be subject to the terms and conditions of any
employment and/or severance agreement between the Company (or an Affiliate) and
the Optionee in effect as of the date a determination is to be made under this
Agreement. Without limiting the scope of the preceding sentence, except as
provided therein, all prior understandings and agreements, if any, among the
parties hereto relating to the subject matter hereof are hereby null and void
and of no further force and effect. Any modification of this Agreement shall be
effective only if it is in writing and signed by both Optionee and an authorized
officer of the Company.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Optionee has executed
this Agreement, all as of the day and year first above written.
TRICO MARINE SERVICES, INC.
By:
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OPTIONEE
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