EMPLOYMENT AGREEMENT
EXHIBIT
10.4
THIS
EMPLOYMENT AGREEMENT
(“Agreement”) is made by and between Trico Marine Services, Inc., a Delaware
corporation (“Company”), and Xxxxxx X’Xxxxxx (“Executive”).
W
I T N E S S E T H:
WHEREAS,
Company
is desirous 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 July 5, 2006 (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
Senior Vice President of Business and Strategic Development of Company,
reporting to the President, 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
eighteen month anniversary of the Effective Date (the “Initial Expiration
Date”); provided, however, that beginning
on the Initial Expiration Date, and on each eighteen month 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 eighteen month 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
(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 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, (D) any requirement that Executive relocate
to a site more than 50 miles from his present business address, 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.
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.
ARTICLE
3: COMPENSATION
AND BENEFITS
3.1 Base
Salary.
During
the period of this Agreement, Executive shall receive a minimum annual base
salary of $275,000. 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 vacation days that Executive has
already used during such calendar year and prior to the Effective
Date.
(iii) Equity
Awards
-
Subject to shareholder approval of an increase in the number of shares eligible
for issuance under the Company’s 2004 Stock Incentive Plan (the “Plan”) at the
annual meeting of shareholders in 2006 (the “Annual Meeting”), Executive shall
receive: (A) 10,000 restricted shares of common stock of Company, with
forfeiture restrictions that will lapse 100% on the third anniversary of the
date of grant; and (B) options to purchase 10,000 shares of common stock of
the
Company, vesting ratably over three years beginning on the first anniversary
of
the date of grant. The terms of the restricted stock and option awards shall
be
determined by the administrator of the Plan based upon criteria established
from
time to time by the administrator, except that the terms of the restricted
stock
and option awards must not conflict with the provisions of this Agreement.
It is
expressly understood that upon approval of the increase of shares available
for
issuance under the Plan at the Annual Meeting, the equity awards described
in
this section 3.3(iii)(A) and 3.3(iii)(B) shall be granted as of the date of
the
Annual Meeting and subject to no additional approvals by the Company and/or
the
Board of Directors of the Company.
| (iv) |
Other
Company Benefits.
|
a. 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. Notwithstanding the foregoing, Company shall reimburse Executive
for
COBRA (as defined in Section 4.1 below) coverage and benefits from the Effective
Date until such time as Executive and, to the extent applicable, Executive’s
spouse, dependents and beneficiaries, are eligible to participate in Company’s
benefits, plans and programs which are now, or may hereafter be, available
to
other executive employees of Company.
b. Company
shall, at no additional cost to Executive, provide a life insurance policy
equal
to three times the Executive’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 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.
“Change
in Control Benefits” means (i) a lump sum cash payment equal to the sum of:
(A) 1.5 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) 1.5 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.
“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 eighteen 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).
“Termination
Benefits” means (i) a lump sum cash payment equal to the sum of: (A) 1.5
times Executive’s annual base salary at the rate in effect under paragraph 3.1
on the date of termination of Executive’s employment, (B) 1.5 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; and (ii) Health Coverage.
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 other than
pursuant to paragraphs 2.2(i), 2.2(ii), or 2.2(iii), then Company will pay
and
provide to Executive all compensation and benefits that would otherwise be
due
pursuant to this Agreement through the Initial Expiration Date, as extended,
and; subject to paragraph 4.7 below, if such termination shall be for any reason
other than those encompassed by paragraphs 2.2(i), 2.2(ii), or 2.2(iii), then
Company shall provide Executive with the Termination Benefits, except that
if
Executive is entitled to the Change in Control Benefits pursuant to paragraph
4.5 as a result of such termination, then Executive will not receive the
Termination Benefits provided by Company 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 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 in whole or part 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 Executive is entitled to the Change
in
Control Benefits pursuant to paragraph 4.5 as a result of such termination,
then
Executive will not receive the Termination Benefits provided by Company under
this paragraph. 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 in whole or part to the extent required to avoid such additional
taxes and interest.
4.5 Change
in Control Benefits.
If
Executive’s employment is terminated pursuant to paragraph 2.2(iv) or paragraph
2.3(i) in connection with, based upon, or within 12 months after, a Change
in
Control, then Company shall provide Executive with the Change in Control
Benefits. 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 Code, then payment of the lump sum cash payment shall
be deferred in whole or part to the extent required to avoid such additional
taxes and interest.
4.6 Additional
Payments by Company.
Notwithstanding anything to the contrary in this Agreement, in the event that
any payment or distribution by Company to or for the benefit of Executive,
whether paid or payable or distributed or distributable pursuant to the terms
of
this Agreement or otherwise (a “Payment”), would be subject to the excise tax
imposed by Section 4999 of the Code, or any interest or penalties with respect
to such excise tax (such excise tax, together with any such interest or
penalties, are hereinafter collectively referred to as the “Excise Tax”),
Company shall pay to Executive an additional payment (a “Gross-up Payment”) in
an amount such that after payment by Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up
Payment equal to the Excise Tax imposed upon the Payments. Company and Executive
shall make an initial determination as to whether a Gross-up Payment is required
and the amount of any such Gross-up Payment. Executive shall notify Company
in
writing of any claim by the Internal Revenue Service which, if successful,
would
require Company to make a Gross-up Payment (or a Gross-up Payment in excess
of
that, if any, initially determined by Company and Executive) within 10 days
of
the receipt of such claim. Company shall notify Executive in writing at least
10
days prior to the due date of any response required with respect to such claim
if it plans to contest the claim. If Company decides to contest such claim,
Executive shall cooperate fully with Company in such action; provided, however,
Company shall bear and pay directly or indirectly all costs and expenses
(including additional interest and penalties) incurred in connection with such
action and shall indemnify and hold Executive harmless, on an after-tax basis,
for any Excise Tax or income tax, including interest and penalties with respect
thereto, imposed as a result of Company’s action. If, as a result of Company’s
action with respect to a claim, Executive receives a refund of any amount paid
by Company with respect to such claim, Executive shall promptly pay such refund
to Company. If Company fails to timely notify Executive whether it will contest
such claim or Company determines not to contest such claim, then Company shall
immediately pay to Executive the portion of such claim, if any, which it has
not
previously paid to Executive. In addition, Company may use reasonable tax
planning options to mitigate the effects of the Excise Tax and Executive agrees
to cooperate fully with Company in using all available tax planning options
to
mitigate the effects of the Excise Tax; provided, however, Company shall bear
and pay directly or indirectly all costs and expenses (including additional
interest and penalties) incurred in connection with using such tax planning
options and shall indemnify and hold Executive harmless, on an after-tax basis,
for any Excise Tax or income tax, including interest and penalties with respect
thereto, imposed as a result of Company’s use of such tax planning
options.
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.
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.
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.
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 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: Xxxxxx
X’Xxxxxx
0000
Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
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.
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(iv) (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.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement on the 5th day of July, 2006, to
be
effective as of the Effective Date.
TRICO
MARINE SERVICES, INC.
By:
/s/ Xxxxxx Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: President
and Chief Executive Officer
“COMPANY”
/s/
Xxxxxx X. X'Xxxxxx
Xxxxxx
X. X’Xxxxxx
“EXECUTIVE”
