Form of Participation Agreement pursuant to the Talos Energy Operating Company LLC Amended and Restated Executive Severance Plan
[NAME OF ELIGIBLE EXECUTIVE]
Participation Agreement Talos Energy Operating Company LLC Amended and Restated Executive Severance Plan
Dear [FIRST NAME OF ELIGIBLE EXECUTIVE]:
We are pleased to inform you that you have been designated as eligible to participate in the Talos Energy Operating Company LLC Amended and Restated Executive Severance Plan (as it may be amended from time to time, the Plan), as a Tier  Executive. Your participation in the Plan is subject to the terms and conditions of the Plan and your execution and delivery of this agreement, which constitutes a Participation Agreement (as defined in the Plan). A copy of the Plan is attached hereto as Annex A and is incorporated herein and deemed to be part of this Participation Agreement for all purposes.
In signing below, you expressly agree to be bound by, and promise to abide by, the terms of Sections 7, 8, 9, 10 and 11 of the Plan, which create certain restrictions with respect to confidentiality, non-solicitation, ownership of intellectual property, non-disparagement and post-termination cooperation. You agree that the covenants within Sections 7, 8, 9, 10 and 11 of the Plan are reasonable in all respects.
You acknowledge and agree that the Plan and this Participation Agreement supersede all prior severance benefit policies, plans and arrangements of the Company or any other member of the Company Group (and supersedes all prior oral or written communications by the Company or any of other member of the Company Group with respect to severance benefits), and all such prior policies, plans, arrangements and communications are hereby null and void and of no further force and effect with respect to your participation therein.
You further acknowledge and agree that (i) you have fully read, understand and voluntarily enter into this Participation Agreement and (ii) you have had a sufficient opportunity to consult with your personal tax, financial planning advisor and attorney about the tax, financial and legal consequences of your participation in the Plan before signing this Participation Agreement.
Unless otherwise defined herein, capitalized terms used in this Participation Agreement shall have the meanings set forth in the Plan. This Participation Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
Please execute this Participation Agreement in the space provided below and send a fully executed copy to [CONTACT] no later than [DATE].
[Signature Page Follows]
|TALOS ENERGY OPERATING COMPANY LLC|
AGREED AND ACCEPTED
this ____ day of __________, 20___ by:
[NAME OF ELIGIBLE EXECUTIVE]
TALOS ENERGY OPERATING COMPANY LLC
AMENDED AND RESTATED EXECUTIVE SEVERANCE PLAN
TALOS ENERGY OPERATING COMPANY LLC
AMENDED AND RESTATED EXECUTIVE SEVERANCE PLAN
1. Purpose. Talos Energy Operating Company LLC (the Company), has adopted the Talos Energy Operating Company LLC Amended and Restated Executive Severance Plan (the Plan) to provide severance pay and benefits to eligible officers and management employees who are Eligible Executives (as defined below) and whose employment is terminated on or after October 21, 2020 (the Effective Date). The Plan is intended to be maintained primarily for the purpose of providing benefits for a select group of management or highly compensated employees.
2. Definitions. For purposes of the Plan, the following terms shall have the respective meanings set forth below:
(a) Accrued Amounts means (i) all accrued and unpaid Base Salary through the Date of Termination, which shall be paid within 10 business days following the Date of Termination (or earlier if required by applicable law); (ii) reimbursement for all incurred but unreimbursed expenses for which an Eligible Executive is entitled to reimbursement in accordance with the expense reimbursement policies of the Company in effect as of the Date of Termination; and (iii) benefits to which an Eligible Executive may be entitled pursuant to the terms of any plan or policy sponsored by the Company or any of its Affiliates as in effect from time to time.
(b) Affiliate means with respect to any person, any other person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the person in question. As used herein, the term control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or otherwise.
(c) Applicable March 15 means March 15 of the calendar year following the calendar year in which the Date of Termination occurs.
(d) Applicable Period means (i) with respect to each Tier 1 Executive, a period of 24 months beginning on the Eligible Executives Date of Termination; and (ii) with respect to each Tier 2 Executive, a period of 18 months beginning on the Eligible Executives Date of Termination.
(e) Applicable Severance Multiple means (i) with respect to each Tier 1 Executive, 2.0; and (ii) with respect to each Tier 2 Executive, 1.5.
(f) Applicable CIC Severance Multiple means (i) with respect to each Tier 1 Executive, 2.5; and (ii) with respect to each Tier 2 Executive, 2.0.
(g) Base Salary means the amount an Eligible Executive is entitled to receive as base salary on an annualized basis, calculated as of the Date of Termination, including any amounts that an Eligible Executive could have received in cash had he not elected to contribute to an employee benefit plan maintained by the Company, but excluding all annual cash incentive awards, bonuses, equity awards, and incentive compensation payable by the Company as consideration for an Eligible Executives services. Notwithstanding the foregoing, in the event of a reduction in an Eligible
Executives Base Salary resulting in such Eligible Executives resignation for Good Reason, for purposes of determining such Eligible Executives Severance Amount, such Eligible Executives Base Salary shall be deemed to be that in effect immediately prior to such reduction.
(h) Board means the Board of Directors of Talos Energy Inc.
(i) Cause means (i) an Eligible Executives material breach of the Plan or any other written agreement between such Eligible Executive and one or more members of the Company Group, including such Eligible Executives breach of any representation, warranty or covenant made under any such agreement; (ii) an Eligible Executives material breach of any law applicable to the workplace or employment relationship, or an Eligible Executives material breach of any material policy or code of conduct established by a member of the Company Group and applicable to such Eligible Executive, including the Companys policies on discrimination, harassment and sexual harassment; (iii) an Eligible Executives gross negligence, willful misconduct, breach of fiduciary duty, fraud, theft or embezzlement on the part of such Eligible Executive; (iv) the commission by an Eligible Executive of, or conviction or indictment of an Eligible Executive for, or plea of nolo contendere by an Eligible Executive to, any felony (or state law equivalent) or any crime involving moral turpitude; or (v) an Eligible Executives willful failure or refusal, other than due to Disability, to perform such Eligible Executives obligations pursuant to the Plan or to follow any lawful directive from the Company, as determined by the Company; provided, however, that if such Eligible Executives actions or omissions as set forth in the preceding clause (v) are of such a nature that the Company determines that they are curable by such Eligible Executive, such actions or omissions must remain uncured 30 days after the Company first provided Employee written notice of the obligation to cure such actions or omissions.
(j) Change in Control has the meaning assigned to such term in the LTIP, as in effect from time to time.
(k) COBRA means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
(l) COBRA Continuation Period means the period beginning on the first day of the first calendar month following such Eligible Executives Date of Termination and continuing for a number of months thereafter equal to such Eligible Executives Applicable Period; provided, however, that the COBRA Continuation Period shall immediately terminate upon the earlier of (i) the time such Eligible Executive becomes eligible to be covered under a group health plan sponsored by another employer (and such Eligible Executive shall promptly notify the Company in the event that such Eligible Executive becomes so eligible) or (ii) the date such Eligible Executive is no longer eligible to receive COBRA continuation coverage.
(m) Code means the Internal Revenue Code of 1986, as amended.
(n) Committee means the Compensation Committee of the Board or such other committee designated by the Board to administer the Plan.
(o) Company Group means Talos Energy Inc. and each of its direct and indirect subsidiaries, including the Company.
(p) Confidential Information means all trade secrets, non-public information, proprietary information, knowledge, data, designs, ideas, concepts, improvements, product developments, discoveries and inventions, whether patentable or not, that are conceived, made, developed or acquired by or disclosed to an Eligible Executive, individually or in conjunction with others, during the period that the Eligible Executive is employed by the Company or any other member of the Company Group (whether during business hours or otherwise and whether on the Companys premises or otherwise) that relate to any member of the Company Groups businesses or properties, products or services (including all such information relating to corporate opportunities, operations, future plans, proposals, products, marketing, selling, budgets, licenses, prices, transactions, costs, recipes, production techniques, methods of doing business, business plans, strategies for developing business and market share, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or acquisition targets or their requirements, the identity of key contacts within customers organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names and marks). Moreover, all documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic databases, maps, drawings, architectural renditions, models and all other writings or materials of any type including or embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression are and shall be the sole and exclusive property of the Company Group, and be subject to the same restrictions on disclosure applicable to all Confidential Information pursuant to the Plan. For purposes of the Plan, Confidential Information shall not include any information that (i) is or becomes generally available to the public other than as a result of a disclosure or wrongful act of the Eligible Executive or any of the Eligible Executives agents; (ii) was available to the Eligible Executive on a non-confidential basis before its disclosure by a member of the Company Group; or (iii) becomes available to the Eligible Executive on a non-confidential basis from a source other than a member of the Company Group; provided, however, that such source is not bound by a confidentiality agreement with, or other obligation with respect to confidentiality to, a member of the Company Group.
(q) Date of Termination means the effective date of the termination of an Eligible Executives employment with the Company and its Affiliates, as applicable, such that the Eligible Executive is no longer employed by the Company or any of its Affiliates.
(r) Disability means an Eligible Executive is unable to perform the essential functions of such Eligible Executives position (after accounting for reasonable accommodation, if applicable and required by applicable law), due to physical or mental impairment or other incapacity that continues, or can reasonably be expected to continue, for a period in excess of 120 consecutive days or 180 days, whether or not consecutive (or for any longer period as may be required by applicable law), in any 12-month period. The determination of whether an Eligible Executive has incurred a Disability shall be made in good faith by the Company.
(s) Eligible Executive means any employee of the Company or an Affiliate of the Company who (i) is designated by the Committee as an Eligible Executive who is eligible to participate in the Plan; (ii) has executed and returned a Participation Agreement to the Company; (iii) is not covered under any other severance plan, policy, program or arrangement sponsored or maintained by the Company or any of its Affiliates; and (iv) is
not a party to an employment or severance agreement with the Company or any of its Affiliates pursuant to which such employee is eligible for severance payments or benefits. The Committee shall have the sole discretion to determine whether an employee is an Eligible Executive. Eligible Executives shall be limited to a select group of management or highly compensated employees within the meaning of Sections 201, 301 and 401 of ERISA.
(t) ERISA means the Employee Retirement Income Security Act of 1974, as amended.
(u) Good Reason means (i) a material diminution in an Eligible Executives Base Salary or authority, duties or responsibilities with the Company or its Affiliates; (ii) a material breach by the Company of any of its obligations under the Plan; or (iii) a relocation of the geographic location of an Eligible Executives principal place of employment by more than 50 miles from the location of such Eligible Executives principal place of employment as of the Effective Date. Notwithstanding the foregoing provisions of this definition or any other provision of the Plan to the contrary, any assertion by an Eligible Executive of a termination for Good Reason shall not be effective unless all of the following conditions are satisfied: (A) the condition described in this definition giving rise to such Eligible Executives termination of employment must have arisen without such Eligible Executives consent; (B) such Eligible Executive must provide written notice to the Company of the existence of such condition(s) within 30 days after the initial occurrence of such condition(s); (C) the condition(s) specified in such notice must remain uncorrected for 30 days following the Companys receipt of such written notice; and (D) the date of such Eligible Executives termination of employment must occur within 90 days after the initial occurrence of the condition(s) specified in such notice.
(v) LTIP means the Talos Energy Inc. Long Term Incentive Plan, as the same may be amended, restated or otherwise modified from time to time or any successor plan thereto.
(w) Participation Agreement means the participation agreement delivered to each Eligible Executive by the Committee prior to his or her entry into the Plan evidencing the Eligible Executives agreement to participate in the Plan and to comply with all terms, conditions and restrictions within the Plan.
(x) Prior Year Annual Bonus means any earned but unpaid annual cash bonus that an Eligible Executive earned for the fiscal year of the Company ending prior to the Date of Termination.
(y) Prohibited Period means the period during which an Eligible Executive is employed by the Company or any of its Affiliates and continuing through the last day of the Eligible Executives Applicable Period following the Eligible Executives Date of Termination.
(z) Pro-Rata Annual Bonus means an amount equal to the annual cash bonus that an Eligible Executive would have been entitled to receive for the fiscal year of the Company in which the Date of Termination occurs based on actual performance (as determined by the Committee following the end of such fiscal year in accordance with the LTIP or any successor plan thereto), multiplied by a fraction, the numerator of which is the number of days in such fiscal year during which such Eligible Executive was employed by the Company and its Affiliates, and the denominator of which is 365.
(aa) Qualifying Termination means the termination of an Eligible Executives employment (i) by the Company without Cause (which, for the avoidance of doubt, does not include a termination due to death or Disability); or (ii) due to an Eligible Executives resignation for Good Reason.
(bb) Release Requirement means the requirement that an Eligible Executive execute and deliver to the Company a general release of claims, in a form acceptable to the Company, on or prior to the date that is 21 days following the date upon which the Company delivers the release to an Eligible Executive (which shall occur no later than seven days following the Date of Termination) or, in the event that such termination of employment is in connection with an exit incentive or other employment termination program (as such phrase is defined in the Age Discrimination in Employment Act of 1967, as amended), the date that is 45 days following such delivery date. Notwithstanding the foregoing or any other provision in the Plan to the contrary, the Release Requirement shall not be considered satisfied if the release described in the preceding sentence is revoked by the Eligible Executive within any time provided by the Company for such revocation.
(cc) Section 409A means Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder, including any such regulations or guidance that may be amended or issued after the Effective Date.
(dd) Severance Amount means, with respect to an Eligible Executive, an amount equal to the product of (i) the Applicable Severance Multiple or, in the event of a Qualifying Termination that occurs within the 24-month period following a Change in Control, the Applicable CIC Severance Multiple and (ii) the sum of such Eligible Executives (A) Base Salary and (B) Target Annual Bonus.
(ee) Target Annual Bonus means the target amount of an Eligible Executives annual cash bonus immediately prior to the Date of Termination; provided, however, in the event such Date of Termination occurs during the 24 months following a Change in Control, the Target Annual Bonus shall mean the greater of (i) the target amount of an Eligible Executives annual cash bonus immediately prior to the Date of Termination and (ii) the target amount of an Eligible Executives annual cash bonus immediately prior to the Change in Control.
(ff) Tier means an Executive Tier used for purposes of determining the level of severance benefits an Eligible Executive is eligible to receive. Each Eligible Executive shall be designated by the Committee as a Tier 1 Executive or a Tier 2 Executive.
3. Administration of the Plan.
(a) Administration by the Committee. The Committee shall be responsible for the management and control of the operation and the administration of the Plan, including interpretation of the Plan, decisions pertaining to eligibility to participate in the Plan, computation of severance benefits, granting or denial of severance benefit claims and review of claims denials. The Committee has absolute discretion in the exercise of its powers and responsibilities. For this purpose, the Committees powers shall include the following authority, in addition to all other powers provided by the Plan:
(i) to make and enforce such rules and regulations as it deems necessary or proper for the efficient administration of the Plan;
(ii) to interpret the Plan, the Committees interpretation thereof to be final and conclusive on all persons claiming benefits under the Plan;
(iii) to decide all questions concerning the Plan and the eligibility of any person to participate in the Plan, and to designate each Eligible Executive as either a Tier 1 Executive or a Tier 2 Executive;
(iv) to make a determination as to the right of any person to a benefit under the Plan (including to determine whether and when there has been a termination of an Eligible Executives employment and the cause of such termination);
(v) to appoint such agents, counsel, accountants, consultants, claims administrator and other persons as may be required to assist in administering the Plan;
(vi) to allocate and delegate its responsibilities under the Plan and to designate other persons to carry out any of its responsibilities under the Plan, any such allocation, delegation or designation to be in writing;
(vii) to sue or cause suit to be brought in the name of the Plan; and
(viii) to obtain from the Company, its Affiliates and from Eligible Executives such information as is necessary for the proper administration of the Plan.
(b) Indemnification of the Committee. The Company shall, without limiting any rights that the Committee may have under the Companys charter or bylaws, applicable law or otherwise, indemnify and hold harmless the Committee and each member thereof (and any other individual acting on behalf of the Committee or any member thereof) against any and all expenses and liabilities arising out of such persons administrative functions or fiduciary responsibilities, excepting only expenses and liabilities arising out of the persons own gross negligence or willful misconduct. Expenses against which such person shall be indemnified hereunder include the amounts of any settlement, judgment, attorneys fees, costs of court, and any other related charges reasonably incurred in connection with a claim, proceeding, settlement, or other action under the Plan.
(c) Compensation and Expenses. The Committee shall not receive additional compensation with respect to services for the Plan. To the extent required by applicable law, but not otherwise, the Committee shall furnish bond or security for the performance of their duties hereunder. Any expenses properly incurred by the Committee incident to the administration, termination or protection of the Plan, including the cost of furnishing bond, shall be paid by the Company.
(d) Plan Year. The plan year for the Plan shall be the 12-month period beginning each January 1; provided, however, that the first plan year for the Plan shall begin on the Effective Date and shall end on December 31, 2018.
4. Eligibility. Only individuals who are Eligible Executives may participate in the Plan. The Committee has full and absolute discretion to determine and select which employees of the Company and its Affiliates are Eligible Executives. Once an employee has been designated as an Eligible Executive, he or she shall automatically continue to be an Eligible Executive until he or she ceases to be an employee or is removed as an Eligible Executive by the Committee; provided, however, that if an employee is an Eligible Executive as of the date of a Change in Control, then he or she may not be removed as an Eligible Executive by the Committee during the 12-month period following the date of such Change in Control. The Plan shall supersede all prior practices, policies, procedures and plans relating to severance benefits from the Company and its Affiliates with respect to the Eligible Executives.
5. Plan Benefits.
(a) Qualifying Termination. In the event an Eligible Executives employment with the Company and, as applicable, each of its Affiliates, ends due to a Qualifying Termination, such Eligible Executive shall be entitled to receive the Accrued Amounts, and so long as such Eligible Executive satisfies the Release Requirement and abides by the terms of Sections 7, 8, 9, 10 and 11 below, such Eligible Executive shall also be entitled to receive:
(i) A lump sum severance payment to such Eligible Executive in an amount equal to the Severance Amount, payable on or prior to the Companys first regularly scheduled pay date that on or after the date that is 60 days after such Eligible Executives Date of Termination;
(ii) The Prior Year Annual Bonus, if applicable, payable in a lump sum at the time annual bonuses for such prior fiscal year are paid to executives of the Company, but in no event later than the Applicable March 15;
(iii) A Pro-Rata Annual Bonus for the fiscal year of the Company in which the Date of Termination occurs, payable in a lump sum at the time annual bonuses for such fiscal year are paid to executives of the Company, but in no event later than the Applicable March 15; and
(iv) If such Eligible Executive timely and properly elects to continue coverage for such Eligible Executive and such Eligible Executives spouse and eligible dependents, if any, under the Companys group health plans pursuant to COBRA, similar in the amounts and types of coverage provided under the Companys group health plans to such Eligible Executive prior to such Eligible Executives Date of Termination, then during the COBRA Continuation Period (as defined below), the Company shall provide a subsidy, which subsidy shall be paid directly to the applicable COBRA administrator, on a monthly basis for the difference between the amount such Eligible Executive pays to effect and continue such coverage and the employee contribution amount that active executive employees of the Company pay for the same or similar coverage under such group health plans (the COBRA Benefit). Notwithstanding anything in the preceding provisions of this Section 5(a)(iv) to the contrary, (A) the election of COBRA continuation coverage and the payment of any premiums due with respect to such COBRA continuation coverage will remain such Eligible Executives sole responsibility, and the Company will assume no obligation for payment of any such premiums relating to such COBRA continuation coverage and
(B) if the provision of the benefit described in this Section 5(a)(iv) cannot be provided in the manner described above without penalty, tax, or other adverse impact on the Company, then the Company and such Eligible Executive shall negotiate in good faith to determine an alternative manner in which the Company may provide a substantially equivalent benefit to such Eligible Executive without such adverse impact on the Company. If such Eligible Executive has not become eligible to be covered under a group health plan sponsored by another employer by the earlier of end of the COBRA Continuation Period or December 1 of the calendar year following the calendar year in which such Eligible Executives Date of Termination occurs (such earlier date being the COBRA Payment Trigger Date), then, on the Companys first regularly scheduled pay date following the COBRA Payment Trigger Date (but in no event later than December 31 of the calendar year following the calendar year in which the such Eligible Executives Date of Termination occurs), the Company shall pay to Executive a lump sum cash payment equal to (A) the difference between the amount such Eligible Executive paid to effect and continue coverage for such Eligible Executive and his or her spouse and eligible dependents and the employee contribution amount that active executive employees of the Company pay for the same or similar coverage under such group health plans, if any, under the Companys group health plan for the complete calendar month next preceding the COBRA Payment Trigger Date, multiplied by (B) the number of complete calendar months remaining in such Eligible Executives Applicable Period.
(b) Termination as a Result of Death or Disability. In the event an Eligible Executives employment with the Company and, as applicable, each of its Affiliates, ends due to such Eligible Executives death or Disability, such Eligible Executive shall be entitled to receive the Accrued Amounts, and so long as such Eligible Executive (or the executor of such Eligible Executives estate or such Eligible Executives legal guardian, as applicable) satisfies the Release Requirement and abides by the terms of Sections 7, 8, 9, 10 and 11 below, such Eligible Executive shall also be entitled to receive:
(i) The Prior Year Annual Bonus, if applicable, payable in a lump sum at the time annual bonuses for such prior fiscal year are paid to executives of the Company, but in no event later than the Applicable March 15; and
(ii) A Pro-Rata Annual Bonus for the fiscal year of the Company in which the Date of Termination occurs, payable in a lump sum at the time annual bonuses for such fiscal year are paid to executives of the Company, but in no event later than the Applicable March 15.
(c) Other Non-Qualifying Terminations of Employment. In the event that an Eligible Executives employment with the Company and, as applicable, each of its Affiliates terminates other than pursuant to a Qualifying Termination or as a result of death or Disability, then all compensation and benefits to such Eligible Executive shall terminate contemporaneously with such termination of employment, except that such Eligible Executive shall be entitled to the Accrued Amounts.
(d) After-Acquired Evidence. Notwithstanding any provision of the Plan to the contrary, in the event that the Company determines that an Eligible Executive is eligible to receive the Severance Amount and other severance benefits pursuant to Sections 5(a) and (b) but, after such determination, the Company subsequently acquires evidence or determines that: (i) such Eligible Executive has failed to abide by the terms of Sections 7, 8, 9, 10 or 11; or (ii) a Cause condition existed prior to the Date of Termination that, had the Company been fully aware of such condition, would
have given the Company the right to terminate such Eligible Executives employment for Cause, then the Company shall have the right to cease the payment of the Severance Amount and to cease providing any other severance benefits under Sections 5(a) and (b), and such Eligible Executive shall promptly return to the Company any payment of the Severance Amount and any other severance benefits received by such Eligible Executive prior to the date that the Company determines that the conditions of this Section 5(d) have been satisfied.
6. Certain Excise Taxes. Notwithstanding anything to the contrary in the Plan, if an Eligible Executive is a disqualified individual (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in the Plan, together with any other payments and benefits which such Eligible Executive has the right to receive from the Company or any of its Affiliates, would constitute a parachute payment (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in the Plan shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by such Eligible Executive from the Company and its Affiliates will be one dollar ($1.00) less than three times such Eligible Executives base amount (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by such Eligible Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after- tax position to such Eligible Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times such Eligible Executives base amount, then such Eligible Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Section 6 shall require the Company to be responsible for, or have any liability or obligation with respect to, such Eligible Executives excise tax liabilities under Section 4999 of the Code.
7. Confidentiality. During the period in which an Eligible Executive participates in the Plan, the Eligible Executive shall be provided with, and will have access to, Confidential Information. In consideration of such Eligible Executives receipt of Confidential Information and access to such Confidential Information and in exchange for other valuable consideration provided hereunder, and as a condition to participation in the Plan, each Eligible Executive shall be subject to the covenants and restrictions in this Section 7 and in Sections 8, 9, 10, 11 and 12.
(a) In General. Both during the period in which an Eligible Executive is employed by or affiliated with the Company and thereafter, except as expressly permitted by the Plan or by directive of the Board, the Eligible Executive shall not disclose any Confidential Information to any person or entity and shall not use any Confidential Information except for the benefit of the Company Group. Each Eligible Executive acknowledges
and agrees that such Eligible Executive would inevitably use and disclose Confidential Information in violation of this Section 7 if such Eligible Executive were to violate any of the covenants set forth in Section 8. Each Eligible Executive shall follow all Company policies and protocols regarding the physical security of all documents and other materials containing Confidential Information (regardless of the medium on which Confidential Information is stored). The covenants of this Section 7(a) shall apply to all Confidential Information, whether now known or later to become known to an Eligible Executive during the period that such Eligible Executive is employed by or affiliated with the Company or any other member of the Company Group.
(b) Permitted Disclosures. Notwithstanding any provision of Section 7(a) to the contrary, an Eligible Executive may make the following disclosures and uses of Confidential Information: (i) disclosures to other employees of the Company Group who have a need to know the information in connection with the businesses of the Company Group; (ii) disclosures to customers and suppliers when, in the reasonable and good faith belief of the Eligible Executive, such disclosure is in connection with the Eligible Executives performance of his or her duties for the Company and is in the best interests of the Company; (iii) disclosures and uses that are approved in writing by the Company; or (iv) disclosures to a person or entity that has (A) been retained by a member of the Company Group to provide services to one or more members of the Company Group and (B) agreed in writing to abide by the terms of a confidentiality agreement.
(c) Return of Confidential Information. Upon the termination of the Eligible Executives employment with the Company and at any other time upon request of the Company, an Eligible Executive shall promptly surrender and deliver to the Company all documents (including electronically stored information) and all copies thereof and all other materials of any nature containing or pertaining to all Confidential Information and any other Company Group property (including any Company Group-issued computer, mobile device or other equipment) in the Eligible Executives possession, custody or control and the Eligible Executive shall not retain any such documents or other materials or property of the Company Group. Within 10 days of any such request, the Eligible Executive shall certify to the Company in writing that all such documents, materials and property have been returned to the Company.
(d) Additional Permitted Disclosures. Nothing in the Plan (whether in this Section 7 or otherwise) shall prohibit or restrict an Eligible Executive from lawfully (i) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by any governmental or regulatory agency, entity, or official(s) (collectively, Governmental Authorities) regarding a possible violation of any law; (ii) responding to any inquiry or legal process directed to such Eligible Executive individually from any such Governmental Authorities; (iii) testifying, participating or otherwise assisting in an action or proceeding by any such Governmental Authorities relating to a possible violation of law; (iv) making any other disclosures that are protected under the whistleblower provisions of any applicable law; or (v) making disclosures to such Eligible Executives retained attorneys for the purposes of seeking legal advice as to such Eligible Executives rights and obligations under the Plan and/or relating to legal recourse for possible violations of the Plan or any law by the Company. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, an Eligible Executive 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 (x) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (y) solely for the purpose of reporting or investigating a suspected violation of law; (B) is made to such Eligible Executives attorney in
relation to a lawsuit for retaliation against such Eligible Executive for reporting a suspected violation of law; or (C) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Nor does the Plan require an Eligible Executive to obtain prior authorization from any member of the Company Group before engaging in any conduct described in this Section 7(d), or to notify any member of the Company Group that such Eligible Executive has engaged in any such conduct.
(a) Access to Confidential Information and Development of Goodwill. The Company shall provide each Eligible Executive access to Confidential Information for use only during the period during which such Eligible Executive is employed by the Company, and each Eligible Executive acknowledges and agrees that the Company will be entrusting the Eligible Executive, in his unique and special capacity, with developing the goodwill of the Company, and in consideration thereof and in consideration of the Company providing the Eligible Executive with access to Confidential Information and as an express incentive for the Company to allow the Eligible Executive to participate in the Plan, the Eligible Executive has voluntarily agreed to the covenants set forth in this Section 8. Each Eligible Executive further agrees and acknowledges that the limitations and restrictions set forth herein are reasonable in all respects and not oppressive, will not cause the Eligible Executive undue hardship, and are material and substantial parts of the Plan intended and necessary to protect the Confidential Information, goodwill and substantial and legitimate business interests.
(b) Restrictions. During the Prohibited Period, an Eligible Executive shall not, without the prior written approval of the Company, directly or indirectly, for the Eligible Executive or on behalf of or in conjunction with any other person or entity of any nature, solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group.
(c) Enforcement. Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in Section 7 and this Section 8, and because of the immediate and irreparable damage that would be caused to members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Companys or any other member of the Company Groups exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
9. Ownership of Intellectual Property. The Company shall own, and, by agreeing to participate in the Plan, each Eligible Executive assigns, all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designs, know-how, ideas and information authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by the
Eligible Executive during the period in which the Eligible Executive is or has been employed by or affiliated with the Company or any other member of the Company Group that either (a) relate, at the time of conception, reduction to practice, creation, derivation or development, to any member of the Company Groups businesses or actual or anticipated research or development, or (b) were developed on any amount of the Companys or any other member of the Company Groups time or with the use of any member of the Company Groups equipment, supplies, facilities or trade secret information (all of the foregoing collectively referred to herein as Company Intellectual Property), and the Eligible Executive shall promptly disclose all Company Intellectual Property to the Company. All of each Eligible Executives works of authorship and associated copyrights created during the period in which the Eligible Executive is employed by or affiliated with the Company or any other member of the Company Group and in the scope of the Eligible Executives employment shall be deemed to be works made for hire within the meaning of the Copyright Act. Each Eligible Executive shall perform, during and after the period in which the Eligible Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, all reasonable acts deemed necessary by the Company to assist each member of the Company Group, at the Companys expense, in obtaining and enforcing its rights throughout the world in the Company Intellectual Property. Such acts may include execution of documents and assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) in the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual Property.
10. Non-Disparagement. Each Eligible Executive shall refrain, both during the Eligible Executives employment with the Company and thereafter, from publishing any oral or written statements about the Company, any member of the Company Group or any of their respective directors, officers, employees, consultants, agents or representatives that (a) are slanderous, libelous or defamatory, (b) disclose Confidential Information of or regarding the Companys or any member of the Company Groups business affairs, directors, officers, managers, members, employees, consultants, agents or representatives, or (c) place the Company, any member of the Company Group or any of their respective directors, officers, managers, members, employees, consultants, agents or representatives in a false light before the public.
11. Defense and Pursuit of Claims. An Eligible Executive shall, following the termination of his or her employment, cooperate with the Company Group and its counsel in any litigation or human resources matters in which such Eligible Executive may be a witness or potential witness or with respect to which such Eligible Executive may have knowledge of relevant facts or evidence. The Company shall reimburse such Eligible Executive for reasonable and necessary expenses incurred in the course of complying with this Section 11 provided that the Eligible Executive provides reasonable documentation of the same and obtains the Companys prior approval for incurring such expenses.
12. Enforcement. Money damages would not be a sufficient remedy for any breach of Sections 7, 8, 9, 10 or 11 by an Eligible Executive, and any member of the Company Group shall be entitled to enforce the provisions of such Sections by terminating payments or additional benefits then owing to the Eligible Executive and to specific performance, injunctive relief and other equitable relief, without bond, as remedies for such breach or any threatened breach. In addition, in the event of a breach by an Eligible Executive, the Eligible Executive shall repay to the Company any and all
payments received or paid or deemed paid by the Company for the benefit of the Eligible Executive pursuant to the Plan. Such remedies shall not be deemed the exclusive remedies for a breach of Sections 7, 8, 9, 10 or 11, but shall be in addition to all remedies available at law or in equity, including the recovery of damages from the Eligible Executive and the Eligible Executives agents. This Section 12 and Sections 7, 8, 9, 10 or 11, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific section (or portion thereof) shall not affect the provisions of any other section (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and the Plan shall thereby be reformed.
13. Claims Procedure and Review.
(a) Filing a Claim. Any Eligible Executive that the Committee determines is entitled to severance benefits under the Plan is not required to file a claim for benefits. Any Eligible Executive (i) who is not paid severance benefits hereunder and who believes that he or she is entitled to severance benefits hereunder or (ii) who has been paid severance benefits hereunder and believes that he or she is entitled to greater benefits hereunder may file a claim for severance benefits under the Plan in writing with the Committee.
(b) Initial Determination of a Claim. If a claim for severance benefits hereunder is wholly or partially denied, the Committee shall, within a reasonable period of time but no later than 90 days after receipt of the claim (or 180 days after receipt of the claim if special circumstances require an extension of time for processing the claim), notify the claimant of the denial. Such notice shall (i) be in writing, (ii) be written in a manner calculated to be understood by the claimant, (iii) contain the specific reason or reasons for denial of the claim, (iv) refer specifically to the pertinent Plan provisions upon which the denial is based, (v) describe any additional material or information necessary for the claimant to perfect the claim (and explain why such material or information is necessary), and (vi) describe the Plans claim review procedures and time limits applicable to such procedures, including a statement of the claimants right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review.
(c) Appeal of a Denied Claim. Within 60 days of the receipt by the claimant of this notice, the claimant may file a written appeal with the Committee. In connection with the appeal, the claimant may review Plan documents and may submit written issues and comments. The Committee shall deliver to the claimant a written decision on the appeal promptly, but not later than 60 days after the receipt of the claimants appeal (or 120 days after receipt of the claimants appeal if there are special circumstances which require an extension of time for processing). Such decision shall (i) be in writing, (ii) be written in a manner calculated to be understood by the claimant, (iii) include specific reasons for the decision, (iv) refer specifically to the Plan provisions upon which the decision is based, (v) state that the claimant is entitled to receive, on request and free of charge, reasonable access to and copies of all documents, records, and other information relevant to the claimants claim for benefits, and (vi) a statement of the Participants right to bring an action under Section 502(a) of ERISA. If special circumstances require an extension of up to 180 days for an initial claim or 120 days for an appeal, whichever applies, the Committee shall send written notice of the extension. This notice shall indicate the special circumstances requiring the extension and state when the Committee expects to render the decision.
(d) The benefits claim procedure provided in this Section 13 is intended to comply with the provisions of 29 C.F.R. §2560.503-1. All provisions of this Section 13 shall be interpreted, construed, and limited in accordance with such intent.
14. General Provisions.
(a) Taxes. The Company is authorized to withhold from all payments made hereunder amounts of withholding and other taxes due or potentially payable in connection therewith, and to take such other action as the Company may deem advisable to enable the Company and the Eligible Executive to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any payments made under the Plan.
(b) No Mitigation. No Eligible Executive shall have any duty to mitigate the amounts payable under the Plan by seeking or accepting new employment or self-employment following a Qualifying Termination.
(c) Offset. The Company may set off against, and each Eligible Executive authorizes the Company to deduct from, any payments due to the Eligible Executive, or to his or her estate, heirs, legal representatives, or successors, any amounts which may be due and owing to the Company or an Affiliate of the Company by the Eligible Executive, whether arising under the Plan or otherwise; provided, however, that no such offset may be made with respect to amounts payable that are subject to the requirements of Section 409A unless the offset would not result in a violation of the requirements of Section 409A.
(d) Amendment and Termination. Prior to a Change in Control, the Plan may be amended or modified in any respect, and may be terminated, in any such case, by the Board; provided, however, that the Plan may not be amended, modified or terminated in any manner that would in any way adversely affect the benefits or protections provided hereunder to any individual who is an Eligible Executive under the Plan at such time, (i) at the request of a third party who has indicated an intention or taken steps to effect a Change in Control and who effectuates a Change in Control, or (ii) otherwise in connection with, or in anticipation of, a Change in Control that actually occurs, and any such attempted amendment, modification or termination shall be null and void ab initio. Any action taken to amend, modify or terminate the Plan which is taken subsequent to the execution of an agreement providing for a transaction or transactions which, if consummated, would constitute a Change in Control shall conclusively be presumed to have been taken in connection with a Change in Control. For the duration of the 12-month period following a Change in Control, the Plan may not be amended or modified in any manner that would in any way adversely affect the benefits or protections provided hereunder to any individual who is an Eligible Executive under the Plan on the date a Change in Control occurs.
(e) Successors. The Plan will be binding upon any successor to the Company, its assets, its businesses or its interest (whether as a result of the occurrence of a Change in Control or otherwise), in the same manner and to the same extent that the Company would be obligated under the Plan if no succession had taken place. All payments and benefits that become due to an Eligible Executive under the Plan will inure to the benefit of his or her heirs, assigns, designees or legal representatives.
(f) Transfer and Assignment. Neither an Eligible Executive nor any other person shall have any right to sell, assign, transfer, pledge, anticipate or otherwise encumber, transfer, hypothecate or convey any amounts payable under the Plan prior to the date that such amounts are paid.
(g) Unfunded Obligation. All benefits due an Eligible Executive under the Plan are unfunded and unsecured and are payable out of the general assets of the Company. The Company is not required to segregate any monies or other assets from its general funds with respect to these obligations. Eligible Executives shall not have any preference or security interest in any assets of the Company other than as a general unsecured creditor.
(h) Severability. If any provision of the Plan (or portion thereof) is held to be illegal or invalid for any reason, the illegality or invalidity of such provision (or portion thereof) will not affect the remaining provisions (or portions thereof) of the Plan, but such provision (or portion thereof) will be fully severable and the Plan will be construed and enforced as if the illegal or invalid provision (or portion thereof) had never been included herein.
(i) Section 409A. The Plan is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of the Plan, payments provided under the Plan may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under the Plan that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. Any payments to be made under the Plan upon the termination of an Eligible Executives employment shall only be made if such termination of employment constitutes a separation from service under Section 409A. Each installment payment under the Plan is intended to be a separate payment for purposes of Section 409A. Notwithstanding any provision in the Plan to the contrary, if any payment or benefit provided for herein would be subject to additional taxes and interest under Section 409A if an Eligible Executives receipt of such payment or benefit is not delayed until the earlier of (i) the date of such Eligible Executives death or (ii) the date that is six months after such Eligible Executives Date of Termination (such date, the Section 409A Payment Date), then such payment or benefit shall not be provided to such Eligible Executive (or such Eligible Executives estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under the Plan are exempt from, or compliant with, Section 409A and in no event shall the Company or any of its Affiliates be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by any Eligible Executive on account of non-compliance with Section 409A.
(j) Governing Law; Submission to Jurisdiction. All questions arising with respect to the provisions of the Plan and payments due hereunder will be determined by application of the laws of the State of Texas, without giving effect to any conflict of law provisions thereof, except to the extent preempted by federal law (including ERISA, which is the federal law that governs the Plan, the administration of the Plan and any claims made under the Plan). Any action to obtain emergency, temporary or preliminary injunctive relief as permitted by Sections 8 and 12 will be brought only in the state and federal courts residing in, or with jurisdiction over, Harris County, Texas. The Eligible Executives recognize that such forum and venue is convenient.
(k) Status. The Plan is intended to qualify for the exemptions under Title I of ERISA provided for plans that are unfunded and maintained primarily for the purpose of providing benefits for a select group of management or highly compensated employees.
(l) Third-Party Beneficiaries. Each Affiliate of the Company shall be a third- party beneficiary of the Eligible Executives covenants and obligations under Sections 7, 8, 9, 10, 11 and 12 and shall be entitled to enforce such obligations as if a party hereto.
(m) No Right to Continued Employment. The adoption and maintenance of the Plan shall not be deemed to be a contract of employment between the Company or any of its Affiliates and any person, or to have any impact whatsoever on the at-will employment relationship between the Company or any of its Affiliates and the Eligible Executives. Nothing in the Plan shall be deemed to give any person the right to be retained in the employ of the Company or any of its Affiliates for any period of time or to restrict the right of the Company or any of its Affiliates to terminate the employment of any person at any time.
(n) Title and Headings; Construction. Titles and headings to Sections hereof are for the purpose of reference only and shall in no way limit, define or otherwise affect the provisions hereof. Unless the context requires otherwise, all references herein to an agreement, plan, instrument or other document shall be deemed to refer to such agreement, plan, instrument or other document as amended, supplemented, modified and restated from time to time to the extent permitted by the provisions thereof. The word or as used herein is not exclusive and is deemed to have the meaning and/or. The words herein, hereof, hereunder and other compounds of the word here shall refer to the entire Plan, and not to any particular provision hereof. Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely. The use herein of the word including following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as without limitation, but not limited to, or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter. Neither the Plan nor any uncertainty or ambiguity herein shall be construed or resolved against any party hereto, whether under any rule of construction or otherwise. On the contrary, the Plan has been reviewed by each of the parties hereto and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the parties hereto.
(o) Overpayment. If, due to mistake or any other reason, a person receives severance payments or benefits under the Plan in excess of what the Plan provides, such person shall repay the overpayment to the Company in a lump sum within 30 days of notice of the amount of overpayment. If such person fails to so repay the overpayment, then without limiting any other remedies available to the Company, the Company may deduct the amount of the overpayment from any other amounts which become payable to such person under the Plan or otherwise.
(p) Clawback. Any amounts payable under the Plan are subject to any policy (whether in existence as of the Effective Date or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to the Eligible Executive. The Company will make any determination for clawback or recovery in its sole discretion and in accordance with applicable laws, regulations, and securities exchange listing standards.
(q) Agent for Service of Legal Process. Legal process may be served on the Committee, which is the plan administrator, at the following address: Compensation Committee of the Board of Directors, c/o Talos Energy Inc., 333 Clay St., Suite 3300, Houston, Texas 77002.
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