Execution Version EMPLOYMENT AGREEMENT
Exhibit 10.1
Execution Version
This Employment Agreement (“Agreement”), dated as of October 7, 2018 (the “Execution Date”) is made by and among (i) Rowan Companies, Inc., a Delaware corporation (“RCI”), ENSCO Global Resources Limited, a UK company (“Ensco UK”) and, solely for the purposes of guaranteeing the payments and obligations under this Agreement, Ensco plc, a public limited liability company organized under the Laws of England and Wales (together with any successor thereto, “Ensco” and along with its subsidiaries, the “Company”) and (ii) Dr. Xxxxxx Xxxxx (the “Executive”) (collectively referred to herein as the “Parties”).
B. | WHEREAS, Section 1.5 of the Transaction Agreement provides that, at Effective Time, as defined in the Transaction Agreement, the Executive shall be President and Chief Executive Officer of Ensco; |
C. | WHEREAS, the Parties desire to enter into an employment agreement on the terms and conditions set forth herein and to memorialize all of the rights, duties and obligations of the Parties with respect to the employment of Executive with the Company; and |
D. | WHEREAS, Executive has previously entered into that certain Change in Control Agreement with Rowan, effective as of April 25, 2014 (the “CiC Agreement”). |
1. | Employment. |
(e) Principal Place of Business; Relocation. Executive acknowledges that Executive’s principal place of employment, immediately following the Commencement Date, shall be London, England for such period of time until the Board elects that Executive shall relocate to Houston, Texas, or such other location to which Executive and the Board mutually agree; provided that it is agreed that Executive shall not be required to work in the UK for longer than three (3) years unless Executive expressly consents to any longer period. Executive hereby expressly consents to (i) Executive’s relocation from Houston, Texas to London, England in connection with the commencement of Executive’s employment with the Company, and, (ii) if the Board, in its discretion, determines to relocate the Executive back to Houston, Texas, any such relocation, in each instance subject to relocation benefits as set forth herein. Executive hereby expressly waives any “good reason,” “constructive termination” or similar concept that he may otherwise be entitled to claim under any agreement with Rowan, Ensco, or any of their respective affiliates, by reason of such required relocations.
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2. Compensation and Related Matters. During the Term, Executive will be entitled to the following:
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(iii) Legacy Change in Control Agreement.
(1) Effective as of the Closing Date (as defined in the Transaction Agreement), the Company shall expressly assume and guarantee the performance of all obligations (currently and in the future) of Rowan pursuant to the CiC Agreement; provided, that Executive agrees that the first sentence of Section 4 of the CiC Agreement shall not apply to any Awards (as defined in the CiC Agreement) held by the Executive on the Closing Date that are subject solely to time-based vesting. For the avoidance of doubt, performance units granted to the Executive under Rowan’s incentive plans will accelerate in accordance with Section 2.3(b) of the Transaction Agreement.
(2) If the Executive’s employment is terminated by the Company without Cause, by the Executive for Good Reason or due to Executive’s death or Disability, in any case, during the three year period following the Closing Date (the “Protection Period”): (i) any Awards (as defined in this Agreement) shall become immediately fully vested and where applicable, exercisable, all restrictions and conditions thereon shall be deemed satisfied in full, and all limitations shall be deemed expired unless otherwise provided in the applicable award documents and (ii) any vested share options or share appreciation rights held by the Executive shall be exercisable until the earlier of (A) the second anniversary of such termination or (B) the original maximum term of the share option or share appreciation right, as applicable.
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(3) Section 4 of the CiC Agreement shall apply to any Change in Control that occurs after the Closing Date; provided that the parties agree that the first sentence of Section 4 of the CiC Agreement shall not apply with respect to any Change in Control that occurs after the expiration of the Protection Period if, and only if, all equity-based awards granted on or after the Closing Date by Ensco to its senior executives (including the Executive) include Double Trigger Vesting Provisions, in which case such Double Trigger Vesting Provisions of Executive’s equity-based awards shall apply. For this purpose, “Double Trigger Vesting Provisions” means provisions that provide for full vesting of the award upon a termination without “cause” or a termination for “good reason” within a specified “protection period” following a “change in control” of Ensco (with “cause,” “good reason,” “change in control” and “protection period” as defined in the applicable Ensco equity plan or award agreement). If the conditions of the proviso in this Section 2(c)(iii)(3) are not satisfied, the first sentence of Section 4 of the CiC Agreement shall continue to apply to any Change in Control occurring after the Closing Date.
(4) For purposes of this Agreement, (i) the term “Company” in the definition of Change in Control shall be deemed to mean the Company and its successors and assigns instead of Rowan and (ii) the term “Effective Date” in the definition of “Change in Control” shall mean the Closing Date.
(i) During the Term, the Executive shall be eligible to participate in employee benefit plans, programs and arrangements of the Company (including medical, dental and defined contribution retirement plans).
(ii) During the Term, the Executive shall be eligible to participate in an expatriate assignment and tax equalization policy (the “Expatriate Assignment Policy”) that is not less favorable than Ensco’s current expatriation assignment and tax equalization policy otherwise applicable to its senior executive officers residing in London. In accordance with Ensco’s policy, tax equalization benefits will be provided on foreign assignment related to income pertaining to housing allowance, relocation benefits and non-cash benefits (including but not limited to home leave reimbursement, dependent education tuition, relocation allowance, tax preparation fees, moving expenses, etc.). Housing, relocation and non-cash benefits will not be taxable to the Executive and Ensco will be responsible for the associated home and host country tax obligations. Executive shall be responsible for both home and host location personal income and social taxes relating to all other compensation and would be eligible to utilize any foreign tax credits associated with such tax payments to offset home country tax obligations.
(iii) For the avoidance of doubt, during the Term, Executive will be entitled to the following allowances consistent with the Expatriate Assignment Policy: (i) a cost of living allowance of $25,000 per year, payable in monthly installments, (ii) a housing allowance equal to $160,000 annually, payable in monthly installments, (iii) education reimbursement of up to $45,000 per child per year, (iv) reimbursement for Executive and each eligible dependent for one home leave roundtrip airline ticket and ground transportation (airport transfer) per year, and (v) reimbursement for tax preparation services. Executive will not receive any foreign service premium or an allowance or reimbursement for utilities.
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Executive’s employment hereunder may be terminated by Ensco UK upon approval of Ensco in accordance with the Governing Policy, or by Executive, as applicable, without any breach of this Agreement under the following circumstances:
(i) Death. Executive’s employment hereunder shall terminate upon Executive’s death.
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(a) Termination for Cause, or Termination Upon Death, Disability or Resignation from the Company Without Good Reason. If Executive’s employment shall terminate as a result of Executive’s death pursuant to Section 3(a)(i) or Disability pursuant to Section 3(a)(ii), pursuant to Section 3(a)(iii) for Cause, or pursuant to Section 3(a)(vi) for Executive’s resignation from the Company without Good Reason, then Executive shall not be entitled to any payments or benefits, except as provided in Section 3(c), provided, however, that in the event of Executive’s death, Disability or retirement, Executive’s long-term incentive awards may vest or remain eligible to vest to the extent set forth in an applicable award agreement covering such award.
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(i) an amount in cash equal to 2.00 times the Base Salary, payable in a single lump sum on the First Payment Date (as defined below);
(ii) an amount in cash equal to 2.00 times the Average Bonus Amount, payable in single lump sum amount on the First Payment Date. For the purposes of this Agreement, the “Average Bonus Amount” means the greater of: (A) the average of the combined annual bonus awards received by Executive from the Company pursuant to its annual incentive plan in the three calendar years immediately before the Date of Termination (including, for the avoidance of doubt, the annual bonus awards received from Rowan and/or RCI prior to the Commencement Date) and (B) Executive’s Target Annual Bonus for the year during which the termination of employment occurs;
(iii) a pro-rated portion (based on the number of days Executive was employed by the Company during the fiscal year in which the Date of Termination occurs) of the Annual Bonus award that Executive would have earned had Executive remained employed through the end of the fiscal year in which the Date of Termination occurs, as determined by the Board based upon actual performance for such year (and, to the extent there is any discretionary component thereof, with the discretionary aspects being determined at not less than the target level) and paid in the year following the year of termination at the same time annual bonuses are generally paid to the Company’s senior executives;
(iv) continued coverage in the employer-provided medical, dental and vision plans available to Executive and Executive’s eligible dependents immediately prior to the Date of Termination, to the extent such coverage is elected by Executive pursuant to COBRA, for a period of twenty four (24) months following the Date of Termination; provided, that Executive will only be responsible for paying the applicable premiums for the cost of all such coverages at a rate not to exceed the cost to active employees of the Company, it being understood that during such twenty four (24) month period Executive shall pay the full cost (i.e., the full COBRA premium rate or such other rate reasonably determined by the Company) of the coverages as determined under the then current practices of the Company on a monthly basis and the Company will reimburse Executive the excess of such costs, if any, above the then active employee cost for such coverages; provided, that if the continued coverage contemplated by this Section 4(b)(iv) would be discriminatory and would result in the imposition of excise taxes or other liabilities on the Company for failure to comply with any requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), or other applicable law, the Company will provide Executive with a cash payment equal to the employer-portion of any COBRA premiums, inclusive of any taxes thereon, for the remainder of the twenty four (24) month period;
(v) if before, upon the commencement of or during the Term, Executive was required to relocate his principal place of employment outside of the United States, reimbursement of the reasonable cost of return relocation-related expenses (not including make-whole payments for any loss incurred on the sale of Executive’s principal residence) as provided under the Company’s Expatriate Assignment Policy; and
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(vi) any of Executive’s unvested equity, equity-based or long-term incentive awards granted under any equity or long-term incentive plans of Ensco or Rowan (including without limitation any stock options, restricted stock, restricted stock units, performance units, and/or performance shares) shall immediately become 100% vested in all of the rights and interests then held by Executive, provided, however, that unless a provision more favorable to the Executive is included in an applicable award agreement, all performance-based awards shall remain subject to attaining the applicable performance goals and conditions.
(a) It is the objective of this Agreement to maximize Executive’s net after-tax benefit if payments or benefits provided under this Agreement are subject to excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder (the “Code”). Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit by the Company or any affiliate or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments under Sections 4(b) hereof, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the Excise Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(b) The Total Payments shall be reduced in the following order: (i) reduction of non-cash benefits, beginning with those that would be provided last in time, (ii) reduction of equity award vesting, beginning with vesting or settlements that would occur last in time, (iii) reduction of cash payments, beginning with payments that would be made last in time, and (iv) reduction of any other payments or benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A.
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(c) All determinations regarding the application of this Section 5 shall be made by an accounting firm with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax selected by the Company and acceptable to Executive (“Independent Advisors”), a copy of which report and all worksheets and background materials relating thereto shall be provided to Executive. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne solely by the Company.
(a) Executive shall not, at any time during the Restriction Period (as defined below), directly or indirectly engage in, have any equity interest in, or manage, provide services to or operate any person, firm, corporation, partnership or business (whether as director, officer, employee, agent, representative, partner, security holder, consultant, independent contractor, or otherwise) that is primarily engaged in the business of providing contracted offshore drilling rigs in any country (or its territorial waters) in which the Company (i) has offices, establishes offices or has definitive plans to locate an office as of the Date of Termination, or (ii) has provided offshore oil and gas drilling services in the 24 months preceding the Date of Termination and in each case which competes with those parts of the business of the Company with which the Executive was involved to a material extent or for which he was responsible during the 12 months prior to the Date of Termination. Nothing herein shall prohibit Executive from being a passive owner of less than 5% of the outstanding equity interest of any entity, so long as Executive has no active participation in the business of such entity.
(b) Executive shall not, at any time during the Restriction Period, directly or indirectly, solicit, divert or take away from the Company, business opportunities with any Customer.
(c) Executive shall not, at any time during the Restriction Period, directly or indirectly, divert or take away any acquisition or other business opportunity that the Company is pursuing or with respect to which the Company has expended material efforts to identify or pursue.
(d) Executive shall not, at any time during the Restriction Period, directly or indirectly, contact or solicit, for the purpose of hiring, or hire any employee of the Company or any person employed by the Company at any time during the 12-month period immediately preceding the Date of Termination.
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(e) Executive shall not, at any time during the Restriction Period, directly or indirectly, induce or otherwise encourage any employee of the Company to leave the employment of the Company.
(f) Executive shall not, at any time during the Restriction Period, directly or indirectly, induce any supplier, distributor, representative or agent of the Company to terminate or adversely modify its relationship with the Company and with whom or which the Executive, or any person who reported directly to him, had material dealings during the 12-month period immediately preceding the Date of Termination.
(g) Executive shall not, at any time during and after the Term, disparage the Company in any way that could adversely affect the goodwill, reputation or business relationships of the Company with the public generally, or with its customers, suppliers or employees; provided, that the foregoing shall not apply to the extent that testimony is required in connection with any proceeding or otherwise as required by law or truthful statements to correct or clarify disparaging comments by the Company..
(h) In the event the terms of this Section 6 shall be determined by any court of competent jurisdiction: (i) while the Executive is based in the US, to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action, and (ii) while the Executive is based in the UK, to go beyond what is reasonable in all the circumstances for the protection of the legitimate interests of the Company but would be valid if any particular restriction(s) were deleted or some part or parts of its or their wording were deleted, restricted or limited then such restriction(s) shall apply with such deletions, restrictions or limitations as the case may be.
(i) As used in this Section 6, (i) the term “Company” shall include the Company and its current and future affiliates (ii) the term “Restriction Period” shall mean the period beginning on the Effective Time, and ending on the date twelve (12) months following the Date of Termination, provided, however, that while based in the US only, in the event Executive receives the payments and benefits described in Section 4(b) or Section 4(c), the Restriction Period shall continue until the date that is 24 months following the Date of Termination and (iii) the word “Customer” shall include any person, firm, company or entity who or which at any time during the 12 months prior to the Date of Termination (A) was provided with goods or services by the Company; or (B) was in the habit of dealing with the Company, other than in a de minimis way; and in each case with whom or which the Executive, or any person who reported directly to him, had material dealings at any time during the 12 months prior to the Date of Termination.
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7. Nondisclosure of Proprietary Information.
(a) Except in connection with the faithful performance of Executive’s duties hereunder or pursuant to Section 7(c) and (d), Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for Executive’s benefit or the benefit of any person, firm, corporation or other entity (other than the Company) any confidential or proprietary information or trade secrets of or relating to the Company (including, without limitation, business plans, business strategies and methods, acquisition targets, intellectual property in the form of patents, trademarks and copyrights and applications therefor, ideas, inventions, works, discoveries, improvements, information, documents, formulae, practices, processes, methods, developments, source code, modifications, technology, techniques, data, programs, other know-how or materials, owned, developed or possessed by the Company, whether in tangible or intangible form, information with respect to the Company’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, litigation or investigations, prospects and compensation paid to employees or other terms of employment) (collectively, the “Confidential Information”), or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such Confidential Information. The Parties hereby stipulate and agree that, as between them, any item of Confidential Information is important, material and confidential and affects the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Notwithstanding the foregoing, Confidential Information shall not include (i) any information legally acquired by or otherwise becoming known to Executive from or through any party other that the Company or its affiliates (which party Executive reasonably believes is not bound by any confidentiality obligation to the Company), or (ii) information that has been published in a form generally available to the public or is publicly available or has become public knowledge prior to the date Executive proposes to disclose or use such information, provided, that such publishing or public availability or knowledge of the Confidential Information shall not have resulted from Executive directly or indirectly breaching Executive’s obligations under this Section 7(a) or any other similar provision by which Executive is bound, or from any third-party breaching a provision similar to that found under this Section 7(a). For the purposes of the previous sentence, Confidential Information will not be deemed to have been published or otherwise disclosed merely because individual portions of the information have been separately published, but only if material features comprising such information have been published or become publicly available.
(b) Upon termination of Executive’s employment for any reason, Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents or property concerning the Company’s customers, business plans, marketing strategies, products, property or processes. In addition, upon termination of Executive’s employment for any reason, Executive shall return to the Company all property of the Company provided to Executive by the Company, or otherwise in the custody, possession or control of Executive (including, but not limited to, computers, computer equipment, office equipment, cell phone, keys, passcards, calling cards, credit cards, rolodexes, tapes, software, computer files, marketing and sales materials, and any other record, document or piece of equipment belonging to the Company. Following termination of employment, Executive will not retain any copies of the Company’s property, including any copies existing in electronic form, which are in Executive’s possession or control.
(c) Executive may respond to a lawful and valid subpoena or other legal process but shall give the Company the earliest possible notice thereof, shall, as much in advance of the return date as possible, make available to the Company and its counsel the documents and other information sought and shall assist such counsel at Company’s expense in resisting or otherwise responding to such process, in each case to the extent permitted by applicable laws or rules.
(d) Nothing in this Agreement shall prohibit Executive from (i) disclosing information and documents when required by law, subpoena or court order (subject to the requirements of Section 7(c) above), (ii) disclosing information and documents to Executive’s attorney, financial or tax adviser for the purpose of securing legal, financial or tax advice, (iii) disclosing Executive’s post-employment restrictions in this Agreement in confidence to any potential new employer, (iv) retaining, at any time, Executive’s personal correspondence, Executive’s personal contacts and documents related to Executive’s own personal benefits, entitlements and obligations, or (v) while based in the UK, disclosing information which the Executive or another person may be ordered to disclose by a court of competent jurisdiction or which he discloses pursuant to and in accordance with the Public Xxxxxxxx Xxxxxxxxxx Xxx 0000, or as may be required by law.
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(e) Nothing in this Agreement shall prohibit Executive from reporting possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Xxxxxxxx-Xxxxx Act of 2002, or any other whistleblower protection provisions of any law or regulation (including the right to receive an award for information provided to any such government agencies).
(f) 18 U.S.C. § 1833(b) provides: “An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Accordingly, the parties hereto have the right to disclose in confidence trade secrets to federal, state and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The parties hereto also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure.
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(b) Cause. “Cause” for termination by the Company of Executive’s employment shall mean:
(i) the willful and continued failure by Executive to substantially perform Executive’s duties hereunder (other than any such failure resulting from Executive’s incapacity due to physical or mental illness or any such actual or anticipated failure after Executive has given notice to the Company of an event or circumstance constituting Good Reason as described below unless the Company has cured such event or circumstance) after a written demand for substantial performance is delivered to Executive by the Board, which demand specifically identifies the manner in which the Board believes that Executive has not substantially performed Executive’s duties and, if such breach is capable of cure, Executive fails to cure same within thirty (30) days after receiving such demand;
(ii) the willful engaging by Executive in unauthorized conduct that is demonstrably and materially injurious to the Company;
(iii) the material breach of this Agreement or a material policy of the Company that has been delivered to Executive before the Execution Date and that apply to executive-level employees (or that Executive has agreed in writing to include in the definition of Cause) that causes material damage to the Company, which, if such breach is capable of cure, remains uncured thirty (30) days following Executive’s receipt of notice of same; or
(iv) Executive has (i) while based in the US, been convicted of or pled nolo contendere to, a misdemeanor involving moral turpitude or a felony, or (ii) while based in the UK, committed any criminal offence (other than a motoring offence for which a non-custodial penalty may be imposed).
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(i) a material breach by the Company of the terms of this Agreement, or any other equity, compensation, or other written agreement between the Company and Executive, including, but not limited to, the failure of the Company to make any material payment or provide any material benefit specified under this Agreement or another applicable agreement and the Company’s breach of the first sentence of Section 1(e) hereof;
(ii) any material diminution in Executive’s authority, duties or responsibilities as President or Chief Executive Officer or the assignment to Executive of any duties materially inconsistent with Executive’s status as President and Chief Executive Officer;
(iii) the failure of the Company to continue Executive in the positions of both President and Chief Executive Officer;
(iv) a material reduction in Executive’s Base Salary, Target Annual Bonus, or Annual Equity Award, as in effect as of the Effective Time or as the same may be increased from time to time, except for across-the-board reductions similarly affecting all senior executives of the Company;
(v) the Company’s removal of Executive from the Board or failure to nominate Executive to the Board (other than in connection with a termination by the Company for Cause, or a result of death or Disability, and it being understood that a failure of the Company’s shareholders to re-elect Executive to the Board will not constitute Good Reason hereunder);
(vi) the failure of the Company to elect an independent Chairman of the Board with effect on or before the date that is nineteen (19) months following the Effective Date (as defined in the Transaction Agreement);
(vii) the relocation of the site of Executive’s principal place of employment to a location that is more than 50 miles outside of either Houston, Texas or London, England; or
(viii) the Company gives Executive Notice of Non-Renewal pursuant to Section 1(b) and the Parties do not, prior to the expiration of the Term, execute a new employment agreement governing the terms of Executive’s employment to be in effect thereafter;
provided, however, that Executive may not resign his employment for Good Reason unless: (x) Executive provides the Company with at least thirty (30) days (or, in the case of the Company’s breach of the first sentence of Section 1(e) hereof, sixty (60) days) prior written notice of his intent to resign for Good Reason (which notice must describe the particular acts or omissions which the Executive reasonably believes in good faith constitute “Good Reason” and be provided within ninety (90) days following the date on which Executive has knowledge of the occurrence of the acts or omissions purported to constitute Good Reason); and (y) the Company has not remedied the alleged violation(s) within thirty (30) days after receiving written notice of the basis for Good Reason.
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(a) Governing Law; Jurisdiction. This Agreement shall be governed, construed, interpreted and enforced in accordance with its express terms, and otherwise in accordance with the substantive laws of Texas without reference to the principles of conflicts of law of Texas. Any suit or proceeding arising under this Agreement shall be brought solely in a federal or state court sitting in the State of Texas, except for any suit or proceeding seeking an equitable remedy hereunder, which may be brought in any court of competent jurisdiction. By Executive’s execution hereof, Executive hereby consents and irrevocably submits to the jurisdiction of the federal and state courts having general jurisdiction over the State of Texas, and agrees that any process in any suit or proceeding commenced in such courts under this Agreement may be served upon Executive personally, by certified mail, return receipt requested, or by courier service, with the same full force and effect as if personally served upon Executive in the county in which Executive is employed. Each of the parties waives any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense of lack of jurisdiction with respect thereto.
(c) Clawback. To the extent required by applicable law or any applicable securities exchange listing standards, or as otherwise determined by the Board (or a committee thereof), amounts paid or payable under this Agreement or any other compensation arrangement of the Company or its affiliates shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company before the grant or award of such compensation, which clawback policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement or any other compensation arrangement of the Company or its affiliates.
(i) If to the Company, the General Counsel at its headquarters,
(ii) If to Executive, at the last address that the Company has in its personnel records for Executive, or
(iii) At any other address as any Party shall have specified by notice in writing to the other Party.
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(iv) Expense Reimbursements, Legal Fees. To the extent that any reimbursements or payment of legal fees under this Agreement are subject to Section 409A, any such reimbursements or payment payable to Executive shall be paid to Executive no later than December 31 of the year following the year in which the expense or payment was incurred; provided, that Executive submits Executive’s reimbursement or payment request, as the case may be, promptly following the date the expense is incurred, the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year, other than medical expenses referred to in Section 105(b) of the Code, and Executive’s right to reimbursement or payment under this Agreement will not be subject to liquidation or exchange for another benefit.
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[Signature Page Follows]
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This Agreement has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.
EXECUTED as a deed by | Signature |
ENSCO Global Resources Limited | |
acting by an authorized signatory, in the presence of: | Director |
Print name
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Witness signature |
Name (in BLOCK CAPITALS) |
SIGNED as a deed by Dr Xxxxxx Xxxxx | Signature |
in the presence of: |
Witness signature |
Name (in BLOCK CAPITALS) |
[Signature Page to Employment Agreement]
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EXECUTED, as a deed by | Signature |
Rowan Companies, Inc. | |
acting by a director, in the presence of: | Director |
Print name
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Witness signature |
Name (in BLOCK CAPITALS) |
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Solely for the purposes of guaranteeing the obligations of Ensco and/or the Company under the Agreement:
EXECUTED, as a deed by | Signature |
ENSCO plc | |
acting by a director, in the presence of: | Director |
Print name
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Witness signature |
Name (in BLOCK CAPITALS) |
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Exhibit A
Separation Agreement and Release
This Separation Agreement and Release (“Agreement”) is made by and between Dr. Xxxxxx Xxxxx (“Executive”) and [_______] (the “Company”) (collectively, referred to as the “Parties” or individually referred to as a “Party”). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Employment Agreement (as defined below).
WHEREAS, the Parties have previously entered into that certain Employment Agreement, dated as of October 7, 2018 (the “Employment Agreement”); and
NOW, THEREFORE, in consideration of the Severance Payments described in Section 4 of the Employment Agreement, which, pursuant to the Employment Agreement, are conditioned on Executive’s execution and non-revocation of this Agreement, and in consideration of the mutual promises made herein, the Company and Executive hereby agree as follows:
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(a) any and all claims relating to or arising from Executive’s employment or service relationship with the Company or any of its direct or indirect subsidiaries or affiliates and the termination of that relationship;
(b) any and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
(d) any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; and the Xxxxxxxx-Xxxxx Act of 2002;
(e) any and all claims for violation of the federal or any state constitution;
(f) any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by Executive as a result of this Agreement; and
(h) any and all claims for attorneys’ fees and costs.
Executive agrees that the release set forth in this section shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not release claims that cannot be released as a matter of law, including, but not limited to, Executive’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company (with the understanding that Executive’s release of claims herein bars Executive from recovering such monetary relief from the Company or any Releasee), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims to any benefit entitlements vested as the date of separation of Executive’s employment, pursuant to written terms of any employee benefit plan of the Company or its affiliates and Executive’s right under applicable law and any Retained Claims. This release further does not release claims for breach of Section 3(c) or Section 4(b) of the Employment Agreement.
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6. Governing Law; Jurisdiction. This Agreement shall be governed, construed, interpreted and enforced in accordance with its express terms, and otherwise in accordance with the substantive laws of Texas without reference to the principles of conflicts of law of Texas. Any suit or proceeding arising under this Agreement shall be brought solely in a federal or state court sitting in the State of Texas, except for any suit or proceeding seeking an equitable remedy hereunder, which may be brought in any court of competent jurisdiction. By Executive’s execution hereof, Executive hereby consents and irrevocably submits to the jurisdiction of the federal and state courts having general jurisdiction over the State of Texas, and agrees that any process in any suit or proceeding commenced in such courts under this Agreement may be served upon Executive personally, by certified mail, return receipt requested, or by courier service, with the same full force and effect as if personally served upon Executive in the county in which Executive is employed. Each of the parties waives any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense of lack of jurisdiction with respect thereto
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[Signature Page Follows]
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EXECUTIVE | ||
Dated: _____________ | Dr. Xxxxxx Xxxxx | |
COMPANY | ||
Dated: _____________ | By: | |
Name: | ||
Title: |
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