exv10w43





Exhibit
10.43



SECOND AMENDED AND RESTATED

EMPLOYMENT AGREEMENT




     THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made by and between
Trico Marine Services, Inc., a Delaware corporation (“Company”), and Rishi A. Varma (“Executive”).



W I T N E S S E T H:




     WHEREAS, Executive and Company have heretofore entered into an Amended and Restated Employment
Agreement effective as of July 1, 2006, as amended (the “Prior Agreement”);



     WHEREAS, both Executive and Company are desirous of revising certain of the terms and
conditions in the Prior Agreement and amending and restating the Prior Agreement in the form of
this Agreement; and



     WHEREAS, Company is desirous of continuing to employ Executive in an executive capacity on the
terms and conditions, and for the consideration, hereinafter set forth and Executive is desirous of
continuing to be employed by Company on such terms and conditions and for such consideration;



     NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations
contained herein, Company and Executive agree as follows:



ARTICLE 1: EMPLOYMENT AND DUTIES




     1.1 Employment; Effective Date. Effective as of December 9, 2008 (the “Effective
Date”) and continuing for the period of time set forth in Article 2 of this Agreement, Executive’s
employment by Company shall be subject to the terms and conditions of this Agreement.



     1.2 Positions. From and after the Effective Date, Company shall employ Executive in
the positions of Chief Administrative Officer, Vice President, General Counsel and Corporate
Secretary of Company, or in such other positions as the parties mutually may agree.



     1.3 Duties and Services. Executive agrees to serve in the positions referred to in
paragraph 1.2 and to perform diligently and to the best of his abilities the duties and services
appertaining to such offices, as well as such additional duties and services appropriate to such
offices which the parties mutually may agree upon from time to time. Executive’s employment shall
also be subject to the policies maintained and established by Company that are of general
applicability to Company’s executive employees, as such policies may be amended from time to time.



     1.4 Other Interests. Executive agrees, during the period of his employment by
Company, to devote substantially all of his business time, energy and best efforts to the business
and affairs of Company and its affiliates and not to engage, directly or indirectly, in any other
business or businesses, whether or not similar to that of Company, except with the consent of the
Board of Directors of Company (the “Board of Directors”). The foregoing notwithstanding, the



 









 







parties recognize and agree that Executive may engage in other business activities that do not
conflict with the business and affairs of Company or interfere with Executive’s performance of his
duties hereunder, which shall be at the sole determination of the Board of Directors.



     1.5 Duty of Loyalty. Executive acknowledges and agrees that Executive owes a
fiduciary duty of loyalty to act at all times in the best interests of Company. In keeping with
such duty, Executive shall make full disclosure to Company of all business opportunities pertaining
to Company’s business and shall not appropriate for Executive’s own benefit business opportunities
concerning Company’s business.



ARTICLE 2: TERM AND TERMINATION OF EMPLOYMENT




     2.1 Term. Unless sooner terminated pursuant to other provisions hereof, Company
agrees to employ Executive for the period beginning on the Effective Date and ending on the first
anniversary of the Effective Date (the “New Expiration Date”); provided, however, that beginning on
the New Expiration Date, and on each anniversary of the New Expiration Date thereafter, if this
Agreement has not been terminated pursuant to paragraph 2.2 or 2.3, then said term of employment
shall automatically be extended for an additional one-year period unless on or before the date that
is 30 days prior to the first day of any such extension period either party shall give written
notice to the other that no such automatic extension shall occur.



     2.2 Company’s Right to Terminate. Notwithstanding the provisions of paragraph 2.1,
Company shall have the right to terminate Executive’s employment under this Agreement at any time
for any of the following reasons:




     (i) upon Executive’s death;




     (ii) upon Executive’s becoming incapacitated by accident, sickness, or other
circumstances which, in the opinion of a physician selected by Company, renders him mentally
or physically incapable of performing the duties and services required of him hereunder;




     (iii) for “Cause”, which shall mean Executive (A) has engaged in gross negligence or
willful misconduct in the performance of the duties required of him hereunder, (B) has
willfully refused without proper legal reason to perform the duties and responsibilities
required of him hereunder, (C) has materially breached any material provision of this
Agreement or any material corporate policy maintained and established by Company that is of
general applicability to Company’s executive employees, (D) has willfully engaged in conduct
that he knows or should know is materially injurious to Company or any of its affiliates, or
(E) has been convicted of, or pleaded no contest to, a crime involving moral turpitude or
any felony, or (F) has engaged in any act of serious dishonesty which adversely affects, or
reasonably could in the future adversely affect, the value, reliability, or performance of
Executive in a material manner; provided, however, that Executive’s employment may be
terminated for Cause only if such termination is approved by at least a majority of a quorum
(as defined in Company’s By-laws) of the members of the Board of Directors after Executive
has been given written notice by



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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 material diminution in the
nature or scope of Executive’s duties and responsibilities, (C) the assignment to Executive
of duties and responsibilities that are materially inconsistent with the positions referred
to in paragraph 1.2 and that result in a material negative change to Executive, (D) any
material change in the geographic location at which Executive must perform services, or (E)
Executive not being offered a comparable position at the “resulting entity” (as defined in
paragraph 4.1) in connection with a Change in Control. Prior to Executive’s termination for
Good Reason, Executive must give written notice to Company of the reason for his termination
and the reason must remain uncorrected for 30 days following such written notice; or




     (ii) at any time for any other reason whatsoever, in the sole discretion of Executive.


For purposes of Section 2.3(i), “a material change in the geographic location at which Executive
must perform services” shall mean a requirement that Executive relocate to a site more than fifty
(50) miles from his present business address.




     2.4 Notice of Termination. If Company desires to terminate Executive’s employment
hereunder at any time prior to expiration of the term of employment as provided in paragraph 2.1,
it shall do so by giving written notice to Executive that it has elected to terminate Executive’s
employment hereunder and stating the effective date and reason for such termination, provided that
no such action shall alter or amend any other provisions hereof or rights arising hereunder. If
Executive desires to terminate his employment hereunder at any time prior to expiration of the term
of employment as provided in paragraph 2.1, he shall do so by giving a 30-day written notice to the
Company that he has elected to terminate his employment hereunder and stating the effective date
and reason for such termination, provided that no such action shall alter or amend any other
provisions hereof or rights arising hereunder.



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     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.



     2.6 Separation from Service. For all purposes of this Agreement, Executive shall be
considered to have terminated employment with the Company when Executive incurs a “separation from
service” with the Company within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue
Code of 1986, as amended, and applicable administrative guidance issued thereunder.



ARTICLE 3: COMPENSATION AND BENEFITS




     3.1 Base Salary. During the period of this Agreement, Executive shall receive a
minimum annual base salary of $325,000. Executive’s annual base salary shall be reviewed by the
Board of Directors (or a committee thereof) on an annual basis, and, in the sole discretion of the
Board of Directors (or such committee), such annual base salary may be increased, but not decreased
(except for a decrease that is consistent with reductions taken generally by other executives of
Company), effective as of any date determined by the Board of Directors. Executive’s annual base
salary shall be paid in equal installments in accordance with Company’s standard policy regarding
payment of compensation to executives but no less frequently than monthly.



     3.2 Bonuses. Executive shall be eligible to participate in Company’s annual cash
incentive plan as approved from time to time by the Board of Directors in amounts to be determined
by the Board of Directors (or a duly authorized committee thereof) based upon criteria established
by the Board of Directors (or such committee, if any).



     3.3 Other Perquisites. During his employment hereunder, Executive shall be afforded
the following benefits as incidences of his employment:




     (i) Business and Entertainment Expenses - Subject to Company’s standard policies and
procedures with respect to expense reimbursement as applied to its executive employees
generally, Company shall reimburse Executive for, or pay on behalf of Executive, reasonable
and appropriate expenses incurred by Executive for business related purposes, including dues
and fees to industry and professional organizations and costs of entertainment and business
development.




     (ii) Vacation - During his employment hereunder, Executive shall be entitled to four
weeks of paid vacation each calendar year (or such greater amount of vacation as provided to
executives of Company generally) and to all holidays provided to executives of Company
generally; provided, however, that for the period beginning on the Effective Date and ending
on the last day of the calendar year in which the Effective Date occurs,



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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 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



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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)
2.99 times Executive’s annual base salary at the rate in effect under paragraph 3.1 on the
date of termination of Executive’s employment (or, if higher, Executive’s annual base salary
in effect immediately prior to the Change in Control), (B) 2.99 times the higher of (1)
Executive’s highest annual bonus paid during the three most recent fiscal years or (2)
Executive’s Target Bonus (as provided in Company’s annual cash incentive plan) for the
fiscal year in which Executive’s date of termination occurs, and (C) any bonus that
Executive has earned and accrued as of the date of termination of Executive’s employment
which relates to periods that have ended on or before such date and which have not yet been
paid to Executive by Company; (ii) all of the outstanding stock options, restricted stock
awards and other equity based awards granted by Company to Executive shall become fully
vested and immediately exercisable in full on the date of termination of Executive’s
employment; and (iii) Health Coverage.




     “Code” shall mean the Internal Revenue Code of 1986, as amended.




     “Health Coverage” means that if Executive elects to continue coverage for himself or
his eligible dependents under Company’s group health plans pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), then during the one-year
period commencing on the date of Executive’s termination of employment from Company (the
“Severance Period”), Company shall promptly reimburse Executive on a monthly basis for the
difference between the amount Executive pays to effect and continue such coverage and the
employee contribution amount that active senior executive employees pay for the same or
similar coverage under Company’s group health plans. Further, if after the Severance Period
Executive continues his COBRA coverage and Executive’s COBRA coverage terminates at any time
during the eighteen-month period commencing on the day immediately following the last day of
the Severance Period (the “Extended Coverage Period”), then Company shall provide Executive
(and his eligible dependents) with health benefits substantially similar to those provided
under its group health plans for active employees for the remainder of the Extended Coverage
Period at a cost to Executive that is no greater than the cost of COBRA coverage; provided,
however, that such health benefits shall be provided to Executive through an arrangement
that satisfies the requirements of sections 105 and 106 of the Code such that the benefits
or reimbursements under such arrangement are not includible in Executive’s income.
Notwithstanding the preceding provisions of this paragraph, Company’s obligation to
reimburse Executive during the Severance Period and to provide health benefits to Executive
during the 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).



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     “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, (B) 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 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 4.8 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 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 Executive’s release pursuant to paragraph 4.8 becomes irrevocable.



     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 4.8 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 Executive’s release pursuant to paragraph 4.8 becomes irrevocable.



     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



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be paid to Executive within five business days of the date of Executive’s termination of
employment with Company.



     4.6 Certain Delayed Payments. Notwithstanding any provision of this Agreement to the
contrary, if the payment of any amount or benefit under this Agreement would be subject to
additional taxes and interest under Section 409A of the Code because the timing of such payment is
not delayed as provided in Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder,
then any such payment or benefit that Executive would otherwise be entitled to during the first six
months following the date of Executive’s termination of employment shall be accumulated and paid or
provided, as applicable, on the date that is six months after the date of Executive’s termination
of employment (or if such date does not fall on a business day of Company, the next following
business day of Company), or such earlier date upon which such amount can be paid or provided under
Section 409A of the Code without being subject to such additional taxes and interest. If the
provisions of the preceding sentence become applicable such that the payment of any amount is
delayed, any payments that are so delayed shall accrue interest on a non-compounded basis, from the
date of Executive’s termination of employment to the actual date of payment, at the prime or base
rate of interest announced by JPMorgan Chase Bank (or any successor thereto) at its principal
office in New York on the date of such termination (or the first business day following such date
if such termination does not occur on a business day) and shall be paid in a lump sum on the actual
date of payment of the delayed payment amount. Executive hereby agrees to be bound by Company’s
determination of its “specified employees” (as such term is defined in Section 409A of the Code) in
accordance with any of the methods permitted under the regulations issued under Section 409A of the
Code.



     4.7 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. The Gross-up
Payment attributable to a particular Payment shall be made at the time such Payment is made;
provided, however, that in no event shall the Gross-up Payment be made later than the end of
Executive’s taxable year next following Executive’s taxable year in which Executive remits the
related taxes. 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



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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.



     4.8 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 release described in the preceding sentence must be effective and
irrevocable within 55 days after the date of the termination of Executive’s employment with the
Company. 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.



     4.9 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.



     4.10 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.



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     4.11 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,



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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



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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.




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     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.	 	 
	 

	 	 	 	3200 Southwest Freeway	 	 
	 

	 	 	 	Suite 2950	 	 
	 

	 	 	 	Houston, Texas 77027	 	 
	 

	 	 	 	Attention: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	If to Executive to:
	 	Rishi A. Varma	 	 
	 

	 	 	 	4144 Cason Street	 	 
	 

	 	 	 	Houston, Texas 77005	 	 





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



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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(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
                                        , to be effective as of the Effective Date.



	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	TRICO MARINE SERVICES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	“COMPANY”	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Rishi A. Varma	 	 
	 

	 	 	 	 	 	“EXECUTIVE”	 	 







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