Exhibit 99.11
NONSTATUTORY STOCK OPTION AGREEMENT
AGREEMENT made as of the _______ day of ___________, 20____, between TRICO
MARINE SERVICES, INC., a Delaware corporation (the "Company"), and XXXXXX X.
XXXXXXXXXXX ("Director"), who is Chairman of the Board of Directors of the
Company (the "Board").
To carry out the purposes of the TRICO MARINE SERVICES, INC. 2004 STOCK
INCENTIVE PLAN (the "Plan"), by affording Director the opportunity to purchase
shares of the common stock of the Company, par value $.01 per share ("Stock"),
and in consideration of the mutual agreements and other matters set forth herein
and in the Plan, the Company and Director hereby agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to Director the
right and option ("Option") to purchase all or any part of an aggregate of
______ shares of Stock on the terms and conditions set forth herein and in the
Plan, which Plan is incorporated herein by reference as a part of this
Agreement. ________ shares of Stock subject to this Option are referred to
herein as the "Time Shares," and the portion of this Option covering the Time
Shares is referred to herein as the "Time Option." ________ shares of Stock
subject to this Option are referred to herein as the "Performance Shares," and
the portion of this Option covering the Performance Shares is referred to herein
as the "Performance Option." In the event of any conflict between the terms of
this Agreement and the Plan, the Plan shall control. Capitalized terms used but
not defined in this Agreement shall have the meaning attributed to such terms
under the Plan, unless the context requires otherwise.
2. PURCHASE PRICE. The purchase price of Stock purchased pursuant to the
exercise of this Option shall be $______ per share, which has been determined to
be not less than the Fair Market Value of the Stock at the date of grant of this
Option. For all purposes of this Agreement, Fair Market Value of Stock shall be
determined in accordance with the provisions of the Plan.
3. EXERCISE OF OPTION. Subject to the provisions of Paragraph 5, the Time
Option may be exercised, by written notice to the Company at its principal
executive office addressed to the attention of its Corporate Secretary (or such
other officer or employee of the Company as the Company may designate from time
to time), at any time and from time to time after the date of grant hereof, but,
except as otherwise provided below, the Time Option shall not be exercisable for
more than a percentage of the aggregate number of Time Shares offered by the
Time Option determined by the number of full years from the date of grant hereof
to the date of such exercise, in accordance with the following schedule:
PERCENTAGE OF TIME SHARES THAT
NUMBER OF FULL YEARS MAY BE PURCHASED
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Less than 1 year 33-1/3%
1 year 50%
2 years 66-2/3%
3 years 83-1/3%
4 or more years 100%
4. EXERCISE OF PERFORMANCE OPTION. (a) Subject to the provisions of
Paragraph 5, the Performance Option may be exercised, by written notice to the
Company at its principal executive office addressed to the attention of its
Corporate Secretary (or such other officer or employee of the Company as the
Company may designate from time to time), at any time and from time to time
after the date of grant hereof, but the Performance Option shall not be
exercisable for more than a percentage of the aggregate number of Performance
Shares offered by the Performance Option determined from the following schedule
based on the [performance criteria to be added] determined under Paragraph 4(b):
PERCENTAGE OF PERFORMANCE SHARES
[PERFORMANCE CRITERIA TO BE ADDED] THAT MAY BE PURCHASED
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(b) As soon as administratively feasible after the date upon which
the Board determines that one of the following events has occurred:
[performance criteria to be added], the Company shall provide notice to
Director of such determination.
(c) The Performance Option shall not become exercisable for any
Performance Shares as to which the applicable performance criteria are not
met within the period or by the date prescribed for any reason, including
without limitation pursuant to Paragraph 5 hereof.
5. CHANGE IN CONTROL; EFFECT OF TERMINATION OF BOARD MEMBERSHIP; GENERAL
TERMS OF EXERCISE. Notwithstanding anything to the contrary in Paragraph 3 or
Paragraph 4 (other than Paragraph 4(c)), if Director has served continuously as
a director of the Company from the date of grant hereof to the date upon which a
Change in Control (as defined below) occurs, then this Option may be exercised
in full from and after the date upon which the Change in Control occurs.
Further, this Option may be exercised only while Director remains a director of
the Company and will terminate and cease to be exercisable upon Director's
ceasing to serve as a director of the Company, except that:
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(a) If Director ceases to serve as a director of the Company by
reason of disability (within the meaning of section 22(e)(3) of the Code),
this Option may be exercised in full by Director (or Director's estate or
the person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Director) at any time
during the period of one year following such termination.
(b) If Director dies while serving as a director of the Company,
Director's estate, or the person who acquires this Option by will or the
laws of descent and distribution or otherwise by reason of the death of
Director, may exercise this Option in full at any time during the period
of one year following the date of Director's death.
(c) If Director ceases to serve as a director of the Company other
than by reason of (i) his removal from the Board for Cause (as defined
below) by the shareholders of the Company or (ii) his voluntary
resignation (which shall not include a resignation of Director (1) at the
request, formal or informal, of the nominating or governance committees of
the Board or a majority of the other members of the Board that Director
either resign as a member of the Board or as Chairman of the Board for a
reason other than for Cause or (2) following a reduction in the amount of
Director's monthly director fees), then this Option may be exercised in
full by Director at any time during the period of one year following such
termination, or by Director's estate (or the person who acquires this
Option by will or the laws of descent and distribution or otherwise by
reason of the death of Director) during a period of one year following
Director's death if Director dies during such one year period following
termination. The Board may, in its sole discretion, advise Director in
writing, prior to a voluntary resignation of Director as a director of the
Company, that such resignation will be treated for purposes of this
paragraph as a removal by the Board other than for Cause. "Cause" shall
mean that Director (A) has willfully refused without proper legal reason
to perform the services and responsibilities required of him as a director
of the Company, (B) has materially breached any material corporate policy
maintained and established by the Company that is of general applicability
to the members of the Board, (C) has willfully engaged in conduct that he
knows or should know is materially injurious to the Company or any of its
affiliates, or (D) has been convicted of a crime involving moral turpitude
or any felony or 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 Director in a material manner;
provided, however, that a determination that Director was removed for
Cause must be approved by at least a majority of a quorum (as defined in
the Company's By-laws) of the other members of the Board after Director
has been given written notice by the Board of the specific reason for such
determination and an opportunity for Director, together with his counsel,
to be heard before the Board.
This Option shall not be exercisable in any event after the expiration of
seven years from the date of grant hereof. The purchase price of shares as to
which this Option is exercised shall be paid in full at the time of exercise (a)
in cash (including check, bank draft or money order payable to the order of the
Company), (b) by delivering or constructively tendering to the Company shares of
Stock having a Fair Market Value equal to the purchase price (provided such
shares used for this purpose must have been held by Director for such minimum
period of time as may be established from time to time by the Committee), (c) if
the Stock is readily tradable on
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a national securities market, through a "broker-assisted cashless exercise" in
accordance with a Company established policy or program for the same, or (d) any
combination of the foregoing. No fraction of a share of Stock shall be issued by
the Company upon exercise of an Option or accepted by the Company in payment of
the exercise price thereof; rather, Director shall provide a cash payment for
such amount as is necessary to effect the issuance and acceptance of only whole
shares of Stock. Unless and until a certificate or certificates representing
such shares shall have been issued by the Company to Director, Director (or the
person permitted to exercise this Option in the event of Director's death) shall
not be or have any of the rights or privileges of a shareholder of the Company
with respect to shares acquirable upon an exercise of this Option.
For purposes of this Agreement, a Change in Control shall mean (a) a
merger of the Company with another entity, a consolidation involving the
Company, or the sale of all or substantially all of the assets of the Company to
another entity if, in any such case, (i) the holders of equity securities of the
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 the Company immediately prior to such transaction or event or (ii)
the persons who were members of the Board 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, (b) the
dissolution or liquidation of the Company, (c) 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, (i) if the Company has not
engaged in a merger or consolidation, the Company, or (ii) if the Company has
engaged in a merger or consolidation, the resulting entity, or (d) as a result
of or in connection with a contested election of directors, the persons who were
members of the Board immediately before such election shall cease to constitute
a majority of the Board. 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 the 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" shall refer
to the board of directors (or comparable governing body) of the resulting
entity. Notwithstanding anything to the contrary, a Change in Control shall not
include the contemplated reorganization of the Company that will occur on or
about ____________, 2004.
6. WITHHOLDING OF TAX. To the extent that the exercise of this Option or
the disposition of shares of Stock acquired by exercise of this Option results
in compensation income or wages to Director for federal, state or local tax
purposes, Director shall deliver to the Company at the time of such exercise or
disposition such amount of money as the Company may require to meet its minimum
obligation under applicable tax laws or regulations. No exercise of this Option
shall be effective until Director (or the person entitled to exercise this
Option, as
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applicable) has made arrangements approved by the Company to satisfy all
applicable minimum tax withholding requirements of the Company.
7. STATUS OF STOCK. The Company intends to register for issuance under the
Securities Act of 1933, as amended (the "Act"), the shares of Stock acquirable
upon exercise of this Option, and to keep such registration effective throughout
the period this Option is exercisable. In the absence of such effective
registration or an available exemption from registration under the Act, issuance
of shares of Stock acquirable upon exercise of this Option will be delayed until
registration of such shares is effective or an exemption from registration under
the Act is available. The Company intends to use its reasonable efforts to
ensure that no such delay will occur. In the event exemption from registration
under the Act is available upon an exercise of this Option, Director (or the
person permitted to exercise this Option in the event of Director's death or
incapacity), if requested by the Company to do so, will execute and deliver to
the Company in writing an agreement containing such provisions as the Company
may require to assure compliance with applicable securities laws.
Director agrees that the shares of Stock which Director may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable federal or state securities
laws. Director also agrees that (i) the certificates representing the shares of
Stock purchased under this Option may bear such legend or legends as the
Committee deems appropriate in order to assure compliance with applicable
securities laws, (ii) the Company may refuse to register the transfer of the
shares of Stock purchased under this Option on the stock transfer records of the
Company if such proposed transfer would in the opinion of counsel satisfactory
to the Company constitute a violation of any applicable securities law, and
(iii) the Company may give related instructions to its transfer agent, if any,
to stop registration of the transfer of the shares of Stock purchased under this
Option.
8. SURRENDER OF OPTION. At any time and from time to time prior to the
termination of this Option, Director may surrender all or a portion of this
Option to the Company for no consideration by providing written notice to the
Company at its principal executive office addressed to the attention of its
Corporate Secretary (or such other officer or employee of the Company as the
Company may designate from time to time). Such notice shall specify the number
of shares with respect to which this Option is being surrendered and, if this
Option is being surrendered with respect to less than all of the shares then
subject to this Option, then such notice shall also specify the date upon which,
or the circumstances under which, this Option became (or would become)
exercisable in accordance with Paragraph 3 or Paragraph 4 with respect to the
shares being surrendered.
9. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under
Director.
10. ENTIRE AGREEMENT. Unless otherwise specifically provide herein, this
Agreement constitutes the entire agreement of the parties with regard to the
subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to
the Option granted hereby. Without limiting the scope of the preceding sentence,
all prior understandings and agreements, if any, among the parties hereto
relating to the
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subject matter hereof are hereby null and void and of no further force and
effect. Any modification of this Agreement shall be effective only if it is in
writing and signed by both Director and an authorized officer of the Company.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Director has executed
this Agreement, all as of the day and year first above written.
TRICO MARINE SERVICES, INC.
By: _____________________________________
_________________________________________
XXXXXX X. XXXXXXXXXXX
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