1. | Resignation. You hereby confirm your resignation as President and Chief Executive Officer and as a member of the Board of Directors of Transocean Ltd., and from any and all other officer or director positions with Transocean, effective February 16, 2015 (the “Resignation Date”). |
2. | Termination. Your employment with Transocean shall terminate effective May 31, 2015 (the “Termination Date”). Your base salary shall continue to be paid at an annual rate of $1,250,000 through your Termination Date. |
3. | Severance Pay. You shall receive a lump sum cash payment equal to $1,250,000 gross (the “Compensation”), subject to and contingent upon your timely execution of the waiver and release attached hereto as Annex I (the “Waiver and Release”). In order to be considered timely, the Waiver and Release must be signed by you and delivered to Transocean no earlier than one month and one day from your Termination Date but no later than two months after your Termination Date. Payment of the Compensation shall be made within ten days after delivery by you to Transocean of your duly executed Waiver and Release. Except for those obligations created by, arising out of or referred to in the Agreement, the payment of the Compensation shall discharge any claims and rights you may have against Transocean, including any right you may have to payment arising in connection with earned but unused vacation time or with overtime work. |
4. | Bonus. In lieu of payment of a 2015 bonus under the Performance Award and Cash Bonus Plan of Transocean Ltd., you shall receive a lump sum cash payment equal to $651,402 gross (the “Cash Bonus”). Payment of the Cash Bonus is subject to and contingent upon |
5. | Long-Term Incentive Plan Awards. You will not receive any additional awards under the Long-Term Incentive Plan of Transocean Ltd. (the “LTIP”). You should refer to the applicable award letters as to the specific treatment of any awards previously granted to you under the LTIP. In addition, the following terms shall apply to any awards previously granted to you under the LTIP that remain outstanding as of the Termination Date. |
Grant Date | DUs Granted | Number of DUs that were Vested Prior to Termination Date | Number of DUs that will Vest on the Termination Date |
2/14/2013 | 46,020 | 30,680 | 15,340 |
2/13/2014 | 90,365 | 30,121 | 60,244 |
Grant Date | Exercise Price (in USD) | Number Awarded | Vested as of Termination Date | Forfeited on Termination Date | Exercise Period Ends |
11/27/2007 | $73.21 | 17,248 | 17,248 | n/a | 5/31/2016 |
11/27/2007 | $83.70 | 17,248 | 17,248 | n/a | 5/31/2016 |
7/9/2008 | $144.32 | 27,728 | 27,728 | n/a | 5/31/2016 |
2/12/2009 | $60.19 | 56,000 | 56,000 | n/a | 5/31/2016 |
3/1/2010 | $80.26 | 63,675 | 63,675 | n/a | 5/31/2016 |
2/10/2011 | $78.76 | 57,621 | 57,621 | n/a | 5/31/2016 |
2/17/2012 | $50.79 | 132,244 | 132,244 | n/a | 5/31/2016 |
2/14/2013 | $59.30 | 123,512 | 82,341 | 41,171 | 5/31/2016 |
Grant Date | CDUs Held | Forfeited as of Termination Date | Outstanding as of Termination Date | Earned |
2/14/2013 | 46,020 | 9,379 | 36,641 | TBD* |
2/13/2014 | 90,365 | 49,821 | 40,544 | TBD* |
6. | Benefits. |
7. | Tax Treatment. Transocean shall use commercially reasonable efforts to secure an extension of your certificate of coverage. You acknowledge that in order to secure such extension the U.S. Social Security Administration may require confirmation by you of your intent to return to live in the United States on or before July 31, 2015. Tax treatment during any period of extension of certificate of coverage will be handled consistent with past practice. Notwithstanding the foregoing, tax withholding and reporting shall be handled in a manner consistent with applicable law. The parties agree that Section 8 of the Employment Agreement is hereby incorporated by reference. |
8. | General Release. In exchange for this Agreement you agree, on behalf of yourself, your heirs, relations, successors, executors, administrators, assigns, agents, representatives, attorneys, and anyone acting on your behalf as follows: |
9. | Miscellaneous. |
10. | Cooperation. Following the termination of your employment with Transocean, you agree to reasonably cooperate with and make yourself available on a continuing basis to Transocean and its representatives and legal advisors in connection with any matters in which you are or were involved during your employment with Transocean or any existing or future claims, investigations, administrative proceedings, lawsuits and other legal and business matters as reasonably requested by Transocean. You also agree to promptly send the General Counsel of Transocean Ltd. copies of all correspondence (for example, but not limited to, subpoenas) received by you in connection with any such matters involving or relating to Transocean, unless you are expressly prohibited by law from so doing. You agree not to cooperate voluntarily in any third party claims against Transocean. You agree that nothing in this Agreement restricts your ability to appropriately respond to a subpoena or other request from the government or regulators. Transocean agrees to reimburse you for your reasonable out-of-pocket expenses incurred in connection with the performance of your obligations under this section. |
11. | Electronic Access. Beginning on February 25, 2015 Transocean will terminate your user access from all Transocean systems including email and computer systems. During the period beginning on the Resignation Date and ending on the Termination Date, the email address steven.newman@deepwater.com will remain active with the following auto-reply in effect: |
12. | Confidentiality. You acknowledge that, in the course of your employment with Transocean, you have acquired Confidential Information which is and remains the exclusive property of Transocean. You agree not to divulge to any other person, firm, corporation or legal entity, any Confidential Information or trade secret of Transocean, except as required by law. “Confidential Information” shall mean information: (A) disclosed to or known by you as a consequence of or through your employment with Transocean; (B) not generally known outside of Transocean; and (C) which relates to any aspect of Transocean or their business, finances, operation plans, budgets, research, or strategic development. “Confidential Information” includes, but is not limited to, Transocean’s trade secrets, proprietary information, financial documents, long range plans, customer information, employee compensation, marketing strategy, data bases, pricing and costing data, patent information, computer software developed by Transocean, investments made by Transocean, and any information provided to Transocean by a third party under restrictions against disclosure or use by Transocean or others. |
13. | Return of Transocean’s Property. You acknowledge and agree that you will promptly return to Transocean no later than on the Termination Date all property pertaining to its business activities that is in your possession, as well as any other property of Transocean that you are expressly requested to return, including computers, files, documents, and other materials which were given to you by Transocean for your use during your employment or which are otherwise in your possession, custody or control. Upon your return of such property, Transocean shall provide you with digital copies of the files and historical emails detailed in Annex 2. |
14. | Non-Disparagement. You agree that, in acting alone or in concert with others, you will not (A) publicly criticize or disparage the Released Parties in a manner intended or reasonably calculated to result in public embarrassment to, or injury to the reputation of the Released Parties; (B) directly or indirectly, acting alone or acting in concert with others, institute or prosecute, or assist any person in any manner in instituting or prosecuting, any legal proceedings of any nature against the Released Parties; (C) commit damage to the property of Transocean or otherwise engage in any misconduct which is injurious to the business or reputation of Transocean; or (D) take any other action, or assist any person in taking any other action, that is adverse to the interests of Transocean or inconsistent with fostering the goodwill of Transocean. Likewise, Transocean shall refrain, and shall use reasonable efforts |
15. | Non-Solicitation of Customers. You agree that, during the one year period beginning on the Termination Date, you will not directly or indirectly, on your own behalf or on behalf of others, solicit or accept any business involving the provision of mobile offshore drilling units provided or produced by Transocean for the purpose of drilling offshore oil and gas wells from any person that was a customer or client or prospective customer or client of Transocean in any country during the period during which you were employed by Transocean. |
16. | Non-Solicitation of Employees. You agree that during the term of your employment under this Agreement and for a period of one year following the Termination Date, you will not either directly or indirectly solicit, induce, recruit or encourage any of Transocean’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage, take away or hire Transocean’s employees, either for yourself or any other person or entity. |
17. | Indemnification Agreement. Nothing in this Agreement shall act as a release or waiver by you of any rights of defense or indemnification which would otherwise be afforded to you under the Articles of Association of Transocean Ltd. or the similar governing documents of any affiliate of Transocean Ltd., or any rights of defense or indemnification afforded to you under the indemnification agreement previously entered into between you and Transocean, or any rights of defense or indemnification which would be afforded to you under any officer liability or other insurance policy maintained by Transocean. |
18. | Enforcement of Agreement. No waiver or nonaction with respect to any breach by the other party of any provision of this Agreement, nor the waiver or nonaction with respect to any breach of the provisions of similar agreements with other employees or consultants shall be construed to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself. Should any provisions hereof be held to be invalid or wholly or partially unenforceable, such holdings shall not invalidate or void the remainder of this Agreement. Portions held to be invalid or unenforceable shall be revised and reduced in scope so as to be valid and enforceable, or, if such is not possible, then such portion shall be deemed to have been wholly excluded with the same force and effect as if they had never been included herein. |
19. | Choice of Law. This Agreement shall be interpreted and construed in accordance with and shall be governed by the laws of Switzerland, notwithstanding any conflicts of law principles |
20. | Notices. Notices provided for in this Agreement shall be in writing and shall either be personally delivered by hand or sent by: (i) mail service, postage prepaid, properly packaged, addressed and deposited with the mail service system; (ii) via facsimile transmission or electronic mail if the receiver acknowledges receipt; or (iii) via Federal Express or other expedited delivery service provided that acknowledgment of receipt is received and retained by the deliverer and furnished to the sender. Notices to you by Transocean shall be delivered to the last address you have filed, in writing, with Transocean, and notices by you to Transocean shall be delivered to Transocean, c/o General Counsel, Chemin de Blandonnet 10, CH-1214 Vernier, Switzerland. |
21. | Assignment. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and any successors or assigns of Transocean. |
22. | Section 409A. This Agreement is intended to be operated in compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) or an exception thereto. Each provision of this Agreement will be interpreted, to the extent possible, to comply with Section 409A of the Code or to qualify for an applicable exception to the requirements of Section 409A. The parties believe that the payments and benefits due pursuant to Section 3, 4, and 5 are exempt from the requirements of Section 409A of the Code and that the payments and benefits due under the Non-Qualified Plans comply with Section 409A. With respect to any payments owed to you that constitute “nonqualified deferred compensation” for purposes of Section 409A of the Code, the parties agree that the “Resignation Date” shall constitute the date of your “separation from service” for purposes of Section 409A. Payments of any amounts under the Non-Qualified Plans will not be made prior to the first to occur of (i) the first business day of the seventh month following your “separation from service” or (ii) the date of your death. Under no circumstances may the time or schedule of any payment made or benefit provided pursuant to this Agreement be accelerated or subject to further deferral except as otherwise permitted or required pursuant to Section 409A of the Code and you do not have the right to make any election regarding the time or form of any payment due under this Agreement. Any reimbursement or in-kind payment provided pursuant to this Agreement or otherwise that constitutes “nonqualified deferred compensation” shall (i) be reimbursed no later than the last day of the tax year following the tax year in which the expense was incurred; (ii) not affect or be affected by any other expenses that are eligible for reimbursement in any other tax year; and (iii) not be subject to liquidation or exchange for any other benefit. |
• | All historical email labeled “Personal” or “Sent Items” archived in Transocean’s digital archive systems or located on the laptop hard drive. |
• | The following sub-directories located on laptop hard drive: |