NPWR 8-K
Net Power Inc. (NPWR)
8-K
2023-08-25
For: 2023-08-21
View Original
Added on
April 06, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): August 21, 2023
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||||||||||||
| (Address of principal executive offices) | (Zip Code) | |||||||
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |||||
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | |||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 5.02 Compensatory Arrangements of Certain Officers.
On August 21, 2023, the Board of Directors of NET Power Inc. (the “Company”) adopted the NET Power Inc. Executive Severance Plan (the “Executive Severance Plan”). The Executive Severance Plan provides severance payments to eligible officers and management employees who are designated as Eligible Executives and whose employment is terminated on or after August 21, 2023. Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the Executive Severance Plan.
Upon the termination of an Eligible Executive’s employment due to a Qualifying Termination (as defined below) that occurs outside of a Change in Control Protection Period, and so long as the Eligible Executive satisfies the conditions to payment described below, the Eligible Executive will be entitled to receive a cash severance payment equal to the sum of the following amounts, payable in a lump sum generally within 30 days after satisfaction of the Release Requirement: (i) an amount equal to the sum of the Eligible Executive’s (A) Base Salary and (B) Average Actual Annual Bonus (the “Base Cash Severance Amount”), (ii) a pro-rated portion of the Eligible Executive’s Target Annual Bonus (the “Pro-Rata Bonus Amount”), and (iii) an amount equal to the product of (x) 12 and (y) the monthly premium amount for the Eligible Executive’s group health plan coverage (including coverage for the Eligible Executive’s eligible dependents) under the Company’s group health plans as in effect immediately prior to the Eligible Executive’s Date of Termination (the “Group Health Plan Amount”). For purposes of the Executive Severance Plan, a “Qualifying Termination” means the termination of an Eligible Executive’s employment (i) by the Company or any of its affiliates without Cause (which, for the avoidance of doubt, does not include a termination due to death or Disability); or (ii) due to an Eligible Executive’s resignation for Good Reason.
Upon the termination of an Eligible Executive’s employment due to a Qualifying Termination that occurs during a Change of Control Protection Period, and so long as such Eligible Executive satisfies the conditions to payment described below, such Eligible Executive will be entitled to receive a cash severance payment equal to the sum of the following amounts, payable in a lump sum within 30 days after satisfaction of the Release Requirement: (i) an amount equal to the product of (A) 1.5 and (B) the Base Cash Severance Amount, (ii) the Pro-Rata Bonus Amount, and (iii) an amount equal to the product of (x) 1.5 and (y) the Group Health Plan Amount.
Severance payments under the Executive Severance Plan to an Eligible Executive are conditioned on the Eligible Executive’s execution and non-revocation of a general release of claims and the Eligible Executive’s continued compliance with the terms of the Executive Severance Plan, including the restrictive covenant obligations under the Executive Severance Plan. For Eligible Executives who were previously eligible for severance benefits under another individual agreement with the Company or any of its affiliates, the Executive Severance Plan supersedes all prior agreements, practices, policies, procedures and plans relating to severance benefits. If the payments or benefits payable under the Executive Severance Plan would be subject to the parachute payment excise tax imposed under Section 4999 of the Internal Revenue Code, then those payments or benefits will be reduced (but not below zero) if such reduction would result in a better net after-tax position for the Eligible Executive.
This summary of the Executive Severance Plan does not purport to be complete and is subject to and qualified in its entirety by reference to the text of the Executive Severance Plan and form of Participation Agreement thereunder filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K, which are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d)Exhibits.
| Exhibit Number | Description | |||||||
| 10.1 | ||||||||
| 10.2 | ||||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |||||||
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: | August 25, 2023 | |||||||||||||
| NET POWER INC. | ||||||||||||||
| By: | /s/ Akash Patel | |||||||||||||
| Name: | Akash Patel | |||||||||||||
| Title: | Chief Financial Officer | |||||||||||||
NET POWER INC.
EXECUTIVE SEVERANCE PLAN
1.Purpose. NET Power Inc. (the “Company”) has adopted the NET Power Inc. 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 August 21, 2023 (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 ten 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)“Average Actual Annual Bonus” means, with respect to an Eligible Executive, the average of the actual annual bonuses paid to the Eligible Executive with respect to the two calendar years immediately preceding the calendar year that includes such Eligible Executive’s Date of Termination or, in the event the Eligible Executive has not been eligible to receive annual bonuses for such two calendar years, the Eligible Executive’s Target Annual Bonus.
(d)“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 such Eligible Executive 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 Executive’s services. Notwithstanding the foregoing, in the event of a reduction in an Eligible Executive’s Base Salary resulting in such Eligible Executive’s resignation for Good Reason, for purposes of determining such Eligible Executive’s Severance Amount, such Eligible Executive’s Base Salary shall be deemed to be that in effect immediately prior to such reduction.
(e)“Board” means the Board of Directors of the Company.
(f)“Business” means any line of business in which any member of the Company Group is engaged or has taken steps to enter at any time during an Eligible Executive’s Employment Period.
(g)“Business Opportunity” means any actual or potential commercial, investment or other business opportunity of any member of the Company Group or relating to the Business about which the Eligible Executive learned during the Prohibited Period.
(h) “Cause” has the meaning set forth in the Equity Incentive Plan.
(i)“Change in Control” has the meaning set forth in the Equity Incentive Plan.
(j)“Change in Control Protection Period” means the period commencing on the date that is three months prior to the date on which a Change in Control is consummated and ending on the 24-month anniversary of the date on which such Change in Control is consummated.
(k)“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985.
(l)“Code” means the U.S. Internal Revenue Code of 1986.
(m)“Committee” means the Compensation Committee of the Board or such other committee designated by the Board to administer the Plan. If no committee is duly authorized by the Board to administer the Plan, the term “Committee” shall be deemed to refer to the Board for all purposes under the Plan.
(n)“Company Group” means the Company and each of its direct and indirect past, present and future subsidiaries and Affiliates.
(o)“Confidential Information” means all information that is conceived, made, developed or acquired by or disclosed to any member of the Company Group (whether conveyed orally or in writing), individually or in conjunction with others, including: (i) technical information of any member of the Company Group, its affiliates, its investors, customers, vendors, suppliers or other third parties, including computer programs, software, databases, data, ideas, know-how, formulae, compositions, processes, discoveries, machines, inventions (whether patentable or not), designs, developmental or experimental work, techniques, improvements, work in process, research or test results, original works of authorship, training programs and procedures, diagrams, charts, business and product development plans, and similar items; (ii) information relating to any member of the Company Group’s businesses or properties, products or services (including all such information relating to corporate opportunities, operations, future plans, 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) or pursuant to which any member of the Company Group owes a confidentiality obligation; and (iii) other valuable, confidential information and trade secrets of any member of the Company Group, its affiliates, its customers or other third parties. 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 or the other applicable member 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
2
Information shall not include any information that 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 Executive’s agents.
(p)“Customer” means, as of the applicable date of determination, any person or entity that had purchased or received goods or services from any member of the Company Group during the 36 months immediately preceding such date.
(q)“Date of Termination” means the effective date of the termination of an Eligible Executive’s employment with the Company and its Affiliates, as applicable, such that the Eligible Executive is no longer employed by any member of the Company Group.
(r)“Disability” has the meaning set forth in the Equity Incentive Plan.
(s)“Eligible Executive” means any employee of any member of the Company Group 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 any member of the Company Group; and (iv) is not a party to an employment or severance agreement with any member of the Company Group 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)“Employment Period” means the period during which an Eligible Executive is employed or engaged by or affiliated with the Company or any other member of the Company Group.
(u)“Equity Incentive Plan” means the NET Power Inc. 2023 Omnibus Incentive Plan, or any successor equity incentive plan established by the Company.
(v)“ERISA” means the Employee Retirement Income Security Act of 1974.
(w)“Good Reason” means, with respect to an Eligible Executive, the occurrence of any of the following prior to the Eligible Executive’s Date of Termination and without the Eligible Executive’s written consent: (i) a greater than 20% reduction in such Eligible Executive’s Base Salary other than a general reduction in base salary that affects all similarly situated executives or service providers in substantially the same proportions; (ii) a relocation of such Eligible Executive’s principal place of employment by more than 50 miles; (iii) any material breach by the Company of any material provision of the Plan; or (iv) a material and adverse change in such Eligible Executive’s authority, duties or responsibilities (other than temporarily while such Eligible Executive is physically or mentally incapacitated or as required by applicable law) taking into account the Company’s size, status as a public (or non-public) company, and capitalization 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) such Eligible Executive must provide written notice to the Company of the Eligible Executive’s intent to terminate employment for Good Reason, specifying in reasonable detail the alleged condition(s) giving rise to Good Reason, within 30 days after the initial occurrence of such condition(s); (B) the condition(s) specified in such notice must remain uncorrected for 30 days following the Company’s receipt of such written notice; and (C) the date of such Eligible Executive’s termination of employment must occur within 60 days after the initial occurrence of the condition(s) specified in such notice; otherwise, the Eligible Executive
3
will be deemed to have irrevocably waived the Eligible Executive’s rights to terminate employment for Good Reason on the basis of such condition(s).
(x)“Market Area” means (i) during an Eligible Executive’s Employment Period, every state, city, county, territory or other locale in which the Company Group operates or has taken substantial preparatory steps to enter, and (ii) after the Eligible Executive’s Employment Period, every state, city, county, territory or other locale in which the Eligible Executive has a material presence or influence or has engaged in the Business on behalf of the Company Group within the one-year period immediately preceding the last day of the Eligible Executive’s Employment Period.
(y)“Participation Agreement” means the participation agreement delivered to each Eligible Executive by the Committee prior to his or her participation in the Plan evidencing the Eligible Executive’s agreement to participate in the Plan and to comply with all terms, conditions and restrictions within the Plan.
(z)“Potential Customer” means, as of the applicable date of determination, any person or entity that has contacted, or that has been contacted by or otherwise identified by, any member of the Company Group as a possible Customer during the 36 months immediately preceding such date.
(aa)“Potential Supplier” means, as of the applicable date of determination, any person or entity that has contacted, or that has been contacted by or otherwise identified by, any member of the Company Group as a possible Supplier during the 36 months immediately preceding such date.
(ab)“Prohibited Period” means, with respect to an Eligible Executive, the Eligible Executive’s Employment Period and (i) with respect to the restrictions in Sections 8(c), 9(c)(i) and 9(c)(ii), the 12-month period immediately thereafter or (ii) with respect to the restrictions in Sections 9(c)(iii), 9(c)(iv) and 9(c)(v), the 24-month period immediately thereafter.
(ac)“Qualifying Termination” means the termination of an Eligible Executive’s employment (i) by any member of the Company Group without Cause (which, for the avoidance of doubt, does not include a termination due to death or Disability); or (ii) due to an Eligible Executive’s resignation for Good Reason.
(ad)“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 (the “Release”), 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), 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 Eligible Executive revokes the Release within any time provided by the Company for such revocation.
(ae)“Section 409A” means Section 409A of the Code.
(af)“Severance Amount” means, collectively, the cash payments set forth in Sections 5(a) or 5(b), as applicable.
4
(ag)“Supplier” means, as of the applicable date of determination, any person or entity that has provided goods or services to any member of the Company Group during the 36 months immediately preceding such date.
(ah)“Target Annual Bonus” means an Eligible Executive’s target annual bonus for the calendar year that includes such Eligible Executive’s Date of Termination.
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 Committee’s 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 Committee’s 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;
(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 Executive’s 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 Company’s 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 person’s administrative functions or fiduciary responsibilities, excepting only expenses and liabilities arising out of the person’s 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.
5
(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.
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, such individual shall automatically continue to be an Eligible Executive until the Eligible Executive ceases to be an employee or is removed as an Eligible Executive by the Committee. The Plan shall supersede all prior agreements, practices, policies, procedures and plans relating to severance benefits sponsored, maintained or entered into by any and all members of the Company Group with respect to the Eligible Executives.
5.Plan Benefits.
(a)Qualifying Termination Outside of a Change in Control Protection Period. In the event an Eligible Executive’s employment with any member of the Company Group ends due to a Qualifying Termination that occurs outside of a Change in Control Protection Period, 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 an amount equal to the sum of the amounts set forth in clauses (i), (ii) and (iii), payable in lump sum within 30 days after satisfaction of the Release Requirement, but in no event later than March 15th of the calendar year following such Eligible Executive’s Date of Termination; provided that if the end of such 30-day period could occur in the calendar year following the calendar year in which such Eligible Executive’s Date of Termination occurred, taking into account the maximum period provided to the Eligible Executive to satisfy the Release Requirement, then, the Company shall pay the amounts set forth in clauses (i), (ii) and (iii) in such following calendar year, regardless of the calendar year in which the Eligible Executive actually satisfies the Release Requirement, but in no event later than March 15th of such calendar year:
(i)An amount equal to the sum of such Eligible Executive’s (A) Base Salary and (B) Average Actual Annual Bonus (the amount of such payment, the “Base Cash Severance Amount”);
(ii)A pro-rated portion of such Eligible Executive’s Target Annual Bonus, calculated by multiplying such Target Annual Bonus by a fraction, (A) the numerator of which equals the number of calendar days that such Eligible Executive was employed by any member of the Company Group during the calendar year in which the Date of Termination occurs and (B) the denominator of which equals 365 or 366, as applicable (the “Pro-Rata Bonus Amount”); and
(iii)An amount equal to the product of (A) 12, multiplied by (B) the monthly premium amount for such Eligible Executive’s group health plan coverage (including coverage for such Eligible Executive’s eligible dependents) under the Company’s group health plans as in effect immediately prior to such Eligible Executive’s Date of Termination (such amount, the “Group Health Plan Amount”). For the avoidance of doubt, if, as of an Eligible Executive’s Date of Termination, such Eligible Executive does not participate in any of the Company’s group health plans, then the Group Health Plan Amount will equal zero.
6
(b)Qualifying Termination During a Change in Control Protection Period. In the event an Eligible Executive’s employment with any member of the Company Group ends due to a Qualifying Termination that occurs during a Change in Control Protection Period, 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 an amount equal to the sum of the amounts set forth in clauses (i), (ii) and (iii), payable in lump sum within 30 days after satisfaction of the Release Requirement, but in no event later than March 15th of the calendar year following such Eligible Executive’s Date of Termination:
(i)An amount equal to the product of (A) 1.5, multiplied by (B) the Base Cash Severance Amount;
(ii)The Pro-Rata Bonus Amount; and
(iii)An amount equal to the product of (A) 1.5, multiplied by (B) the Group Health Plan Amount.
(c)Equity Incentive Awards. For clarity, in the event that an Eligible Executive’s employment with any member of the Company Group terminates (pursuant to a Qualifying Termination or otherwise), all outstanding equity incentive awards then held by such Eligible Executive, and granted pursuant to an award agreement subject to the Equity Incentive Plan or otherwise, will be treated in accordance with the terms and conditions of such award agreement and, as applicable, the Equity Incentive Plan.
(d)Non-Qualifying Terminations of Employment. In the event that an Eligible Executive’s employment with any member of the Company Group terminates other than pursuant to a Qualifying Termination, including 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.
(e)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 pursuant to Sections 5(a) or 5(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 Executive’s employment for Cause, then the Company shall have the right to cease the payment of the Severance Amount, and such Eligible Executive shall promptly return to the Company any payment of the Severance Amount received by such Eligible Executive prior to the date that the Company determines that the conditions of this Section 5(e) have been satisfied.
(f)No Duplication. Except as otherwise expressly provided pursuant to the Plan, the Plan shall be construed and administered in a manner that avoids duplication of compensation and benefits that may be provided under any other plan, program, policy or other arrangement or individual contract or under any statute, rule or regulation. In the event an Eligible Executive is covered by any other plan, program, policy, individually negotiated agreement or other arrangement, in effect as of the Eligible Executive’s Date of Termination, that may duplicate the payments and benefits provided for in Sections 5(a) or 5(b), as applicable, the Committee is specifically empowered to reduce or eliminate the duplicative benefits provided for under the Plan.
7
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 that such Eligible Executive has the right to receive from the Company or any of its Affiliates, and taking into account reductions in respect of reasonable compensation for personal services to be rendered by the Eligible Executive on or following the date of the relevant “change in ownership or control” (within the meaning of Section 280G of the Code), including pursuant to applicable non-competition and other restrictive covenant obligations, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits 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 less than three times such Eligible Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such payments 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 of clauses (a) or (b) results in 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 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 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 any of its Affiliates used in determining if a “parachute payment” exists, exceeds one dollar less than three times such Eligible Executive’s 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, any 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 Executive’s 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 and 11.
(a)In General. Both during the Eligible Executive’s Employment Period and thereafter, except as expressly permitted by the Plan or by express written directive of the Board, the Eligible Executive shall not, and shall cause the Eligible Executive’s affiliates not to, directly or indirectly, disclose any Confidential Information to any person or entity or use any Confidential Information, in each case, 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 9. Each Eligible Executive shall follow all Company Group policies and protocols regarding the security of all documents and other materials containing Confidential Information (regardless of the medium on which Confidential Information is stored). Except to the extent required for the performance of the Eligible Executive’s duties on behalf of the Company Group, an Eligible Executive shall not remove from facilities of any member of the Company Group any information, property, equipment, drawings, notes, reports, manuals, invention records, computer software, customer information, or other data or materials that relate in any way to the Confidential Information, whether paper or
8
electronic and whether produced by such Eligible Executive or obtained from the Company Group. The covenants of this Section 7 shall apply to all Confidential Information, whether now known or later to become known to an Eligible Executive during the Eligible Executive’s Employment Period.
(b)Return of Confidential Information. On the last day of the Eligible Executive’s Employment Period, 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 property or equipment) in the Eligible Executive’s possession, custody or control and the Eligible Executive shall not retain any such documents or other materials or property of the Company Group. Within five 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.
(c)Additional Permitted Disclosures. Notwithstanding the foregoing, nothing in the Plan or in any other agreement between the Eligible Executive and any member of the Company Group 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 authority (including the U.S. Securities and Exchange Commission) regarding a possible violation of any law; (ii) responding to any inquiry or legal process directed to such Eligible Executive from any such governmental authority; (iii) testifying, participating or otherwise assisting in any action or proceeding by any such governmental authority relating to a possible violation of law or pursuant to the Sarbanes-Oxley Act; (iv) accepting any U.S. Securities and Exchange Commission awards; or (v) making any other disclosures that are protected under the whistleblower provisions of any applicable law or regulation; provided that the Eligible Executive use reasonable best efforts to (A) disclose only information that is reasonably related to such possible violations or that is requested by such agency or entity, (B) request that such agency or entity treat such information as confidential, (C) to the extent permitted by law, notify the applicable member of the Company Group of such pending disclosure in writing in advance and (D) consult with the applicable member of the Company Group concerning the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), 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: (1) 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; (2) is made to such Eligible Executive’s attorney in relation to a lawsuit for retaliation against such Eligible Executive for reporting a suspected violation of law or (3) is made in a complaint or other document filed in a lawsuit or proceeding, if such filing is made under seal. Nothing in the Plan or any other agreement between the Eligible Executive and any member of the Company Group requires an Eligible Executive to obtain prior authorization before engaging in any conduct described in this Section 7(c), or to notify any member of the Company Group that the Eligible Executive has engaged in any such conduct, and nothing is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.
8.Ownership of Intellectual Property.
(a)Each Eligible Executive agrees that the Company or other member of the Company Group, as applicable, shall (and hereby does) own, and such Eligible Executive shall (and hereby does) assign to the applicable member of the Company Group, all right, title and interest relating to any and all inventions (whether or not patentable), discoveries, developments,
9
improvements, innovations, works of authorship, mask works, designs, know-how, ideas, formulae, processes, techniques, data, information and similar items authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by such Eligible Executive during such Eligible Executive’s Employment Period, whether or not registerable under U.S. law or the laws of other jurisdictions, that either (i) relate, at the time of conception, to reduction to practice, creation, derivation or development, to any member of the Company Group, the Business or any actual or anticipated research or development with respect thereto, or (ii) were developed on any amount of the Company’s or any other member of the Company Group’s time or with the use of any member of the Company Group’s equipment, supplies, facilities or Confidential Information (all of the foregoing collectively referred to herein as “Company Intellectual Property”), and such Eligible Executive shall promptly disclose to the Company in writing all Company Intellectual Property. To support an Eligible Executive’s disclosure obligation herein, the Eligible Executive shall keep and maintain adequate and current written records of all Company Intellectual Property made by the Eligible Executive (solely or jointly with others) 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 in such form as may be specified from time to time by the Company. These records shall be available to, and remain the sole property of, the Company at all times. For the elimination of doubt, the foregoing ownership and assignment provisions apply without limitation to 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.
(b)All of an Eligible Executive’s 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 Executive’s employment or engagement shall be deemed to be “works made for hire” within the meaning of the Copyright Act of 1976. To the extent any right, title and interest in and to Company Intellectual Property cannot be assigned by an Eligible Executive to the Company, the Eligible Executive shall grant, and does hereby grant, to the Company Group an exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, use, sell, offer for sale, import, export, reproduce, practice and otherwise commercialize such rights, title and interest.
(c)Each Eligible Executive agrees to disclose promptly in writing to the Company Group all Company Intellectual Property conceived, reduced to practice, created, derived, developed, or made by the Eligible Executive during the Prohibited Period, whether or not the Eligible Executive believes the Company Intellectual Property is subject to the Plan, to permit a determination by the Company Group as to whether or not the Company Intellectual Property is or should be considered works made for hire. The Company Group will receive that information in confidence.
(d)Each Eligible Executive recognizes that the Plan will not be deemed to require assignment of any invention or intellectual property that is unrelated to the Business or any actual or anticipated research or development with respect thereto and that the Eligible Executive developed entirely on the Eligible Executive’s own time without using the equipment, supplies, facilities, trade secrets, or Confidential Information of any member of the Company Group. In addition, the Plan does not apply to any invention that qualifies fully for protection from assignment to the applicable member of the Company Group under any specifically applicable state law or regulation.
(e)To the extent allowed by law, this Section 8 applies to all rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” such as the right to be named as author, the right to modify, the right to prevent mutilation and the right to prevent commercial exploitation or the like, including without limitation those rights set forth in 17
10
U.S.C. §106A (collectively, “Moral Rights”). To the extent an Eligible Executive retains any Moral Rights under applicable law, the Eligible Executive hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by the Company or any member of the Company Group, and the Eligible Executive hereby waives and agrees not to assert any Moral Rights with respect to such Moral Rights. Each Eligible Executive shall confirm any such ratifications, consents, waivers, and agreements from time to time as requested by the Company.
(f)All inventions (whether or not patentable), original works of authorship, designs, know-how, mask works, ideas, trademarks or names, information, developments, improvements, and trade secrets of which an Eligible Executive is the sole or joint author, creator, contributor, or inventor that were made or developed by such Eligible Executive prior to the Eligible Executive’s Employment Period, or in which the Eligible Executive asserts any intellectual property right, and which are applicable to or relate in any way to the business, products, services, or demonstrably anticipated research and development or business of any member of the Company Group (“Prior Inventions”) are listed on the applicable Annex to the Eligible Executive’s Participation Agreement, and the Eligible Executive represents that such Annex is a complete list of all such Prior Inventions. If no such list is attached, the Eligible Executive hereby represents and warrants that there are no Prior Inventions, and the Eligible Executive shall make no claim of any rights to any Prior Inventions. If, in the course of an Eligible Executive’s employment with or affiliation with the Company or any other member of the Company Group, the Eligible Executive uses in connection with or otherwise incorporates into the product, process, or device of any member of the Company Group a Prior Invention, the Company Group is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use, import, export, offer for sale, sell and otherwise commercialize such Prior Invention as part of or in connection with (i) such product, process, or device of any member of the Company Group and (ii) the conduct of the business of the Company Group.
(g)Each Eligible Executive shall perform, during and after the Eligible Executive’s Employment Period, all acts deemed necessary or desirable by the Company to permit and assist each member of the Company Group, at the Company’s expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Company Intellectual Property and Confidential Information assigned, to be assigned, or licensed to the Company under the Plan. 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 or Confidential Information, in each case, without diminishing any rights or claims of the Company to any Company Intellectual Property or otherwise.
(h)In the event that the Company (or, as applicable, any other member of the Company Group) is unable for any reason to secure an Eligible Executive’s signature to any document required to file, prosecute, register, or memorialize the assignment of any patent, copyright, mask work or other applications or to enforce any patent, copyright, mask work, moral right, trade secret or other proprietary right under any Confidential Information or Company Intellectual Property, the Eligible Executive hereby irrevocably designates and appoints the Company and each of the Company’s duly authorized officers and agents as the Eligible Executive’s agents and attorneys-in-fact to act for and on Eligible Executive’s behalf and instead of the Eligible Executive, (i) to execute, file, prosecute, register and memorialize the assignment of any such application, (ii) to execute and file any documentation required for such enforcement, and (iii) to do all other lawfully permitted acts to further the filing, prosecution, registration, memorialization of assignment, issuance, and enforcement of patents, copyrights,
11
mask works, moral rights, trade secrets or other rights under the Confidential Information or Company Intellectual Property, all with the same legal force and effect as if executed by the Eligible Executive. For the avoidance of doubt, the provisions of this Section 8(h) apply fully to all derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part, continuing patent applications, reissues, and reexaminations of all Company Intellectual Property.
(i)In the event that an Eligible Executive enters into, on behalf of any member of the Company Group, any contracts or agreements relating to any Confidential Information or Company Intellectual Property, the Eligible Executive shall assign such contracts or agreements to the Company (or the applicable member of the Company Group) promptly, and in any event, prior to the end of the Eligible Executive’s Employment Period. If the Company (or the applicable member of the Company Group) is unable for any reason to secure the Eligible Executive’s signature to any document required to assign said contracts or agreements, or if the Eligible Executive does not assign said contracts or agreements to the Company (or the applicable member of the Company Group) prior to the end of the Eligible Executive’s Employment Period, the Eligible Executive hereby irrevocably designates and appoints the Company (or the applicable member of the Company Group) and each of the Company’s duly authorized officers and agents as the Eligible Executive’s agents and attorneys-in-fact to act for and on the Eligible Executive’s behalf and instead of the Eligible Executive to execute said assignments and to do all other lawfully permitted acts to further the execution of said documents.
9.Non-Competition; Non-Solicitation.
(a)The Eligible Executive acknowledges that participation in the Plan provides the Eligible Executive with a further incentive to build the goodwill of the Company Group and further aligns the Eligible Executive’s interests with the Company Group’s long-term business interests. As an express inducement for the Company to permit each Eligible Executive to participate in the Plan and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, and in order to protect the Confidential Information, and the Company Group’s goodwill and other legitimate business interests, each Eligible Executive voluntarily agrees to the covenants set forth in the Plan. Each Eligible Executive further agrees that the Eligible Executive will not challenge the reasonableness or enforceability of any of the covenants set forth in the Plan and that the Eligible Executive will reimburse the Company and any other member of the Company Group for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of the Plan if either the Company or such other member of the Company Group prevails on any material issue involved in such dispute or if the Eligible Executive challenges the reasonableness or enforceability of any of the provisions of the Plan.
(b)The Eligible Executive agrees and acknowledges that the limitations and restrictions set forth in the Plan, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause the Eligible Executive undue hardship, do not interfere with the Eligible Executive’s ability to earn a living, and are material and substantial parts of the Plan intended and necessary to prevent unfair competition and protect the Confidential Information and the goodwill and legitimate business interests of the Company Group. The Eligible Executive further agrees and acknowledges that the Eligible Executive’s employment with the Company or any other member of the Company Group is in an executive, management or professional capacity.
(c)During the Prohibited Period, each Eligible Executive shall not, except on behalf of the Company Group or with the prior express written approval of the Board, and shall
12
cause the Eligible Executive’s affiliates to not, directly or indirectly, for such Eligible Executive or on behalf of or in conjunction with any other person or entity of any nature:
(i)engage in or participate in (or prepare to engage in or participate in), within the Market Area, competition with any member of the Company Group in any aspect of the Business, which prohibition shall prevent the Eligible Executive from directly or indirectly: (A) owning any interest in, investing in, controlling, managing, operating, participating in, lending the Eligible Executive’s name to, contributing to, providing assistance, services or advice to, being an officer or director of, or otherwise deriving any economic benefit from, or taking any steps to engage in any of the foregoing with, any person or entity engaged in or planning to engage in any activity that is competitive with the Business in the Market Area, or (B) joining, becoming an employee or consultant of, otherwise rendering services for or being affiliated with or engaged by, or taking any steps to engage in any of the foregoing with, any person or entity engaged in, or planning to engage in, any activity that is competitive with the Business in the Market Area in any capacity; provided, that the purchase of a public security of a corporation engaged in such business or service shall not in itself be deemed a violation of this Section 9 so long as the Eligible Executive does not own, directly or indirectly, more than two percent (2%) of the securities of such corporation;
(ii)appropriate or interfere with or attempt to appropriate or interfere with any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area;
(iii)call on, solicit, canvass, approach, encourage, entice, influence or induce any Customer, Potential Customer, sales representative or distributor of any member of the Company Group to purchase or acquire, offer or provide, or attempt to purchase, acquire, offer or provide, any products or services competitive with the products or services offered by the Business, or solicit, induce or encourage any Customer, Potential Customer, Supplier, Potential Supplier, sales representative or distributor of any member of the Company Group to cease or lessen such person’s or entity’s business with any member of the Company Group or otherwise adversely affect such relationship, or attempt to do any of the foregoing;
(iv)engage, or assist in any activities that result in or are intended to result in diversion of clients, Customers, Suppliers, sales representatives, distributors, income, goodwill, or any other thing of value from any member of the Company Group to the Eligible Executive or to any other person or entity; or
(v)(A) solicit, canvass, approach, encourage, entice, recruit, influence or induce any person who is at any time during the Prohibited Period an employee or a contractor of any member of the Company Group to terminate or reduce his, her or its employment or engagement with any member of the Company Group, or (B) hire or retain, solicit for employment or engagement, or attempt to hire, retain, or solicit for employment or engagement any employee or contractor of any member of the Company Group, or otherwise adversely interfere with any such relationship. An employee or contractor shall be deemed covered by this Section 9(c)(v) while so employed or engaged and for a period of six months thereafter.
(d)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 the Plan, and because of the substantial, immediate and irreparable damage that would be caused to the 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 (i) enforce all such
13
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, (ii) indemnification by the Eligible Executive from any loss or harm, and (iii) recover any costs or attorneys’ fees, arising out of or in connection with any breach by the Eligible Executive or the Eligible Executive’s affiliates or enforcement action relating to the Eligible Executive’s obligations under Sections 7, 8, 9 and 10 and all other relief as may be proper (including money damages if appropriate), to the extent permitted by law. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s 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 under the Plan and at law and equity. Further, in the event of any violation of the provisions of this Section 9, the Eligible Executive agrees that the post-termination restrictions contained in this Section 9 will be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable Prohibited Period will be tolled during any period of such violation.
(e)The covenants in this Section 9, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (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, unlawful or unenforceable (in whole or in part), then it is the intention of the parties that such restrictions be enforced to the fullest extent allowed by applicable law, and the Plan shall thereby be reformed to the extent necessary in order that any such provision or portion thereof shall be legally enforceable to the fullest extent permitted by applicable law.
10.Non-Disparagement. Subject to Section 7(c) above, each Eligible Executive agrees that the Eligible Executive will not, and will cause such Eligible Executive’s affiliates to not, make, publish or communicate any disparaging or defamatory comments, remarks or statements, whether written or oral, regarding the Company Group, any member of the Company Group or any of their respective current or former directors, officers, members, managers, partners, executives, direct or indirect owners (including equity holders), customers, clients, suppliers, other associated third parties, businesses, business practices, prospects, products or services.
11.Cooperation. Each Eligible Executive agrees that during the Employment Period and thereafter (regardless of whether the Eligible Executive resigns or the Eligible Executive’s employment is terminated by the Company Group, or the reason for such resignation or termination), the Eligible Executive shall provide reasonable and timely cooperation in connection with: (a) any actual or threatened litigation, inquiry, review, investigation, process, or other matter, action, or proceeding (whether conducted by or before any court, regulatory or governmental entity, or by or on behalf of the Company Group or otherwise), that relates to events occurring during the Eligible Executive’s Employment Period or about which the Company Group otherwise believes the Eligible Executive may have relevant information; (b) the transitioning of the Eligible Executive’s role and responsibilities to other personnel; and (c) the provision of information in response to the Company Group’s requests and inquiries in connection with the Eligible Executive’s separation of employment. Each Eligible Executive’s cooperation shall include being available to (i) meet with and provide information to the Company Group and its counsel or other agents in connection with fact-finding, investigatory, discovery, or pre-litigation or other proceeding issues, and (ii) provide truthful testimony (including via affidavit, deposition, at trial, or otherwise) in connection with any such matter, all without the requirement of being subpoenaed.
14
12.Prior Obligations. Each Eligible Executive hereby represents and warrants that the Eligible Executive is not the subject of, or a party to, any non-competition, non-solicitation, restrictive covenant or non-disclosure agreement, or any other agreement, obligation, restriction or understanding that would prohibit the Eligible Executive from complying with the Plan or fully performing each of the Eligible Executive’s duties and responsibilities for the Company Group, or would in any manner, directly or indirectly, limit or affect any of the duties and responsibilities that may now or in the future be assigned to the Eligible Executive by any member of the Company Group. Each Eligible Executive expressly acknowledges and agrees that the Eligible Executive is strictly prohibited from using or disclosing any confidential information belonging to any prior employer in the course of performing services for any member of the Company Group, and the Eligible Executive agrees and promises that the Eligible Executive shall not do so. Each Eligible Executive shall not introduce documents or other materials containing confidential information of any prior employer to the premises or property (including computers and computer systems) of any member of the Company Group.
13.Consent to Notification. If an Eligible Executive ceases to be employed by any member of the Company Group, the Eligible Executive hereby grants the Company Group consent to notify any new employer, any third party engaging the Eligible Executive’s services, or any entity to which the Eligible Executive becomes a partner, member, employee or otherwise engaged, regarding the Eligible Executive’s rights and obligations under the Plan.
14.Claims Procedure and Review.
(a)Filing a Claim. Any Eligible Executive that the Committee determines is entitled to severance payments or benefits under the Plan is not required to file a claim for such payments or benefits. Any Eligible Executive (i) who is not paid severance payments or benefits hereunder and who believes that such Eligible Executive is entitled to severance payments or benefits hereunder or (ii) who has been paid severance payments or benefits hereunder and believes that such Eligible Executive is entitled to greater benefits hereunder may file a claim for severance payments or benefits under the Plan in writing with the Committee.
(b)Initial Determination of a Claim. If a claim for severance payments or 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 Plan’s claim review procedures and time limits applicable to such procedures, including a statement of the claimant’s 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 claimant’s appeal (or 120 days after receipt of the claimant’s 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,
15
and other information relevant to the claimant’s claim for benefits, and (vi) a statement of the claimant’s 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)Compliance with ERISA. The benefits claim procedure provided in this Section 14 is intended to comply with the provisions of 29 C.F.R. § 2560.503-1. All provisions of this Section 14 shall be interpreted, construed, and limited in accordance with such intent.
15.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 an Eligible Executive to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any payments made or benefits provided 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 any 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 Board and the Committee shall have the power to amend or terminate the Plan from time to time in its discretion and for any reason (or no reason) (including the removal of an individual as an Eligible Executive); provided that no such amendment or termination shall be effective with respect to an Eligible Executive whose termination of employment occurred prior to the amendment or termination of the Plan; and provided, further, that, to the extent any such amendment has a detrimental impact to any Eligible Executive, such amendment will become effective with respect to such Eligible Executive six months following approval thereof by the Board or Committee. Notwithstanding the foregoing, during a Change in Control Protection Period, no amendment or termination of the Plan shall impair any rights of, or obligations to, any Eligible Executive under the Plan (including the removal of an individual as an Eligible Executive) unless such Eligible Executive expressly consents to such amendment or termination.
(e)Successors. The Plan will be binding upon any successor to the Company, its assets, its businesses or its interests (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,
16
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 to 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)COBRA. Subject to the rules and regulations of COBRA, in connection with an Eligible Executive’s Date of Termination, the Company will provide an Eligible Executive the option to elect to continue group health plan coverage through COBRA. The election of COBRA continuation coverage and the payment of any premiums due with respect to such COBRA continuation coverage will remain such Eligible Executive’s sole responsibility, and neither the Company nor any of its Affiliates will assume any obligation for payment of any such premiums relating to such COBRA continuation coverage.
(j)Section 409A. The Plan is intended to comply with Section 409A or one or more exemptions thereunder and shall be construed and administered in accordance with such intent. 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 exempt from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be treated as exempt from Section 409A to the maximum extent possible. Any payments to be made under the Plan upon the termination of an Eligible Executive’s employment shall only be made if such termination of employment constitutes a “separation from service” under Section 409A. In no event may an Eligible Executive, directly or indirectly, designate the calendar year of any payment under the Plan. Any 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 Executive’s receipt of such payment or benefit is not delayed until the earlier of (i) the date of such Eligible Executive’s death or (ii) the date that is six months after such Eligible Executive’s 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 Executive’s 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.
(k)Governing Law. All questions arising with respect to the provisions of the Plan and payments or benefits due hereunder will be determined by application of the laws of the State of Delaware, 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).
17
(l)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.
(m)Third-Party Beneficiaries. Each member of the Company Group not party hereto shall be a third-party beneficiary of the Eligible Executive’s covenants and obligations under Sections 7, 8, 9, 10 and 11 and shall be entitled to enforce such obligations as if a party hereto.
(n)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, on the one hand, and any of the Eligible Executives, on the other hand. 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.
(o)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 laws, regulations, contracts, documents, agreements and instruments refer to such laws, regulations, contracts, documents, agreements and instruments as they may be amended, restated or otherwise modified from time to time, and references to particular provisions of laws or regulations include a reference to the corresponding provisions of any succeeding law or regulation. 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.
(p)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’ notice of the amount of the 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.
(q)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.
18
(r)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 NET Power Inc., Attention: Legal Department, 404 Hunt Street, Suite 410, Durham, North Carolina 27701.
19
[NET Power Inc. Letterhead]
[Date]
Re: Participation Agreement – NET Power Inc. Executive Severance Plan
Dear [__]:
We are pleased to inform you that you have been designated as eligible to participate in the NET Power Inc. Executive Severance Plan (as it may be amended from time to time, the “Plan”). 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.
[Include provisions in the Plan that are to be modified for the particular participant, if any.]
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-competition, non-solicitation, ownership of intellectual property (subject to any Prior Inventions listed on Annex B attached hereto), 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 policies, plans, agreements 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 payments or benefits), and all such prior policies, plans, arrangements and communications are hereby null and void and of no further force or effect, solely with respect to your severance entitlements set forth 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 [●] no later than [●].
[Remainder of Page Intentionally Blank]
Sincerely,
NET POWER INC.
By:
Name:
Title:
AGREED AND ACCEPTED
this day of , 20 by:
[Name]
2
ANNEX A
NET POWER INC.
EXECUTIVE SEVERANCE PLAN
EXECUTIVE SEVERANCE PLAN
[See attached]
ANNEX B
PRIOR INVENTIONS
1. The following is a complete list of all Prior Inventions relevant to the subject matter of the Eligible Executive’s employment by the Company or other member of the Company Group that have been made or conceived or first reduced to practice by the Eligible Executive alone or jointly with others prior to the Eligible Executive’s Employment Period:
Check appropriate space(s):
None.
See below:
Due to confidentiality agreements with a prior employer, the Eligible Executive cannot disclose certain Prior Inventions that would otherwise be included on the above-described list.
Additional sheets attached.
2. The Eligible Executive proposes to bring to the Eligible Executive’s employment the following devices, materials, and documents of a former employer or other person to whom the Eligible Executive has an obligation of confidentiality that is not generally available to the public, which materials and documents may be used in the Eligible Executive’s employment pursuant to the express written authorization of the Eligible Executive’s former employer or such other person (a copy of which is attached to this Agreement):
Check appropriate space(s):
None.
See below.
Additional sheets attached.
4