SEPARATION AGREEMENT AND RELEASE
Exhibit
10.2
This Separation Agreement and Release (“Agreement”) is entered into by Toreador Resources
Corporation (“Toreador” or the
“Company”) and Xxxxxx Xxxxxxx
(“Employee”) as of June 27, 2008.
Toreador and Employee are referred to as the “Parties.” This Agreement cancels and supersedes all
prior agreements relating to Employee’s employment with the Company except as provided in this
Agreement.
WHEREAS, Employee was employed as the Senior Vice President, Exploration and Production,
pursuant to an Employment Agreement dated March 12, 2008 (the “Employment Agreement”) under which
the Parties agreed to certain terms and conditions of Employee’s employment with Toreador;
WHEREAS, because of his employment as an employee of Toreador, Employee has obtained intimate
and unique knowledge of all aspects of Toreador’s business operations, current and future plans,
financial plans and other confidential and proprietary information;
WHEREAS, Employee and Toreador mutually desire to terminate their employment relationship and
all other positions, if any, held by Employee in Toreador or any of its subsidiaries or affiliates
effective as of June 27, 2008 (the “Separation Date”); and
WHEREAS, the Parties desire to finally, fully and completely resolve all disputes that now or
may exist between them, including, but not limited to those concerning Employee’s job performance
and activities while employed by Toreador and his hiring, employment and voluntary resignation from
Toreador, and all disputes over benefits and compensation connected with such employment, and
specifically, but not limited to, any disputes arising from the terms of Employee’s employment as
set forth in the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereto agree as follows:
1. End of Employee’s Employment. The Parties agree that Employee’s employment with the
Company ended on the Separation Date. Employee will execute a resignation letter, in a form set
forth as Exhibit A attached, and provide any other documents, if necessary, to effect his
resignation from all positions with the Company. Employee agrees that this Agreement fully
supersedes any and all prior agreements, which terminate upon the Separation Date. The parties
acknowledge and agree that Employee would not be otherwise entitled to any severance payments
following his Separation Date under the Employment Agreement or any other plan, program, or
arrangement of the Company.
2. Certain Payments and Benefits.
| (a) | Accrued Obligations. Toreador shall pay Employee for all unpaid salary and any accrued but unused vacation through the Separation Date (“Accrued Obligations”). Except as stated in this Agreement or as required by law, all other compensation and |
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| benefits which relate to Employee’s employment with Toreador, including any benefits set forth in any policy or program, shall cease as of the Separation Date. | |||
| (b) | Separation Payment. Subject to Employee’s consent to and fulfillment of Employee’s obligations in this Agreement, and provided that Employee does not revoke this Agreement under Paragraph 16, the Company will pay Employee severance pay equal to twelve (12) months of Employee’s base salary in the amount of $19,166.67 per month (“Separation Payment”), payable on the first business day of each month, commencing on August 1, 2008, (which is the first day of the month following the expiration of the 30-day period immediately following the Effective Date), minus all required withholdings. The Separation Payment will not be treated as compensation under the Company’s 401(k) Plan or any other retirement plan. Employee recognizes and agrees that he is not otherwise entitled to the Separation Payment, and will receive the Separation Payment only as a condition of signing this Agreement. Each payment of the Separation Payment made in accordance with this Agreement Paragraph 2 shall be treated as a separate payment for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) to the extent Section 409A of the Code applies to such payments. | ||
| (c) | Benefits. Pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), if Employee is eligible for and elects COBRA continuation coverage under the Company’s medical plan, the Company shall pay the same portion of Employee’s individual premiums for such coverage as the portion of said premiums that the Company paid for Employee immediately prior to the Separation Date, until the earlier of: (i) the date that is 12-months following the Separation Date; (ii) the date that Employee obtains full-time employment with another entity, dies, or breaches the Agreement; or (iii) the date Employee’s coverage under the Company’s medical plan terminates for any reason. Thereafter, if Employee is eligible and wishes to continue his continuation coverage and the maximum applicable continuation coverage period has not expired, Employee may continue such coverage, provided however, Employee shall be solely responsible for payment of the entire premium for such coverage. To the extent the benefits provided under this Paragraph 2(c) are otherwise taxable to Employee, such benefits, for purposes of Section 409A of the Code (and the regulations and other guidance issued thereunder) (“Section 409A”) shall be provided as separate monthly in-kind payments of those benefits, and to the extent those benefits are subject to and not otherwise excepted from Section 409A, the provision of the in-kind benefits during one calendar year shall not affect the in-kind benefits to be provided in any other calendar year. Benefits provided under this Paragraph 2 to Employee or to his spouse or dependents shall be modified to the extent benefits under an applicable plan are modified for active employees of the Company. | ||
| (d) | Restricted Stock Awards. Employee and the Company acknowledge that Employee currently holds certain awards of restricted stock granted under Toreador Resources Corporation 2005 Long-Term Incentive Plan (the “Plan”), pursuant to the Employee Restricted Stock Awards granted on January 24, 2008, January 25, 2007, May 30, |
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| 2006, January 26, 2006, and November 7, 2005 (the “Restricted Stock Awards”). As of the Separation Date, (i) all of the unvested shares (3,000 shares) subject to the Employee Restricted Stock Award granted on January 24, 2008, and (ii) 4,000 of the unvested shares subject to the Employee Restricted Stock Award granted on January 25, 2007 shall be immediately vested; provided, however, that the Company shall continue to hold such shares until the Effective Date, at which time, unless such shares have been forfeited in accordance with the provisions of this Paragraph 2(d), the Company shall transfer such vested shares to Employee. Except as otherwise expressly provided in this Paragraph 2(d), all equity awards previously granted under the Plan by the Company to Employee and outstanding as of the Separation Date, including without limitation, any grants of restricted stock described in this Paragraph 2(d), shall continue to be governed by the terms and conditions of the applicable award agreements and the Plan, including, without limitation, any provisions providing for forfeiture of such awards upon Employee’s termination of employment with the Company. Notwithstanding anything to the contrary contained herein, in the event Employee does not consent to and fulfill his obligations under this Agreement during the Separation Period, any Restricted Stock Awards that vested in accordance with this Paragraph 2(d) shall be immediately forfeited and of no further force or effect. | |||
| (e) | Waiver of Additional Compensation or Benefits. Other than the compensation and payments provided for in this Agreement, Employee shall not be entitled to any additional compensation, nor shall Employee be entitled to any benefits, payments or grants under any benefit plan, severance plan or bonus or incentive program established by Toreador or any of Toreador’s affiliates. Employee agrees that the release in Paragraph 3 covers any claims he might have regarding his compensation, bonuses, stock options or grants and any other benefits Employee may or may not have received during the course of his relationship with Toreador. |
3. Mutual Release and Waiver.
| (a) | By Employee. In consideration of the payments and other consideration provided for in this Agreement, that being good and valuable consideration, the receipt, adequacy and sufficiency of which are acknowledged by Employee, Employee, on his own behalf and on behalf of his agents, administrators, representatives, executors, successors, heirs, devisees and assigns (collectively, the “Employee Releasing Parties”) hereby fully releases, remises, acquits and forever discharges the Company and all of its affiliates, and each of their respective past, present and future officers, directors, shareholders, equity holders, members, partners, agents, employees, consultants, independent contractors, attorneys, advisers, successors and assigns (collectively, the “Company Released Parties”), jointly and severally, from any and all claims, rights, demands, debts, obligations, losses, causes of action, suits, controversies, setoffs, affirmative defenses, counterclaims, third party actions, damages, penalties, costs, expenses, attorneys’ fees, liabilities and indemnities of any kind or nature whatsoever (collectively, the “Claims”), whether known or unknown, suspected or unsuspected, accrued or unaccrued, whether at law, equity, |
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| administrative, statutory or otherwise, and whether for injunctive relief, back pay, fringe benefits, reinstatement, reemployment, or compensatory, punitive or any other kind of damages, which any of the Employee Releasing Parties ever have had in the past or presently have against the Company Released Parties, and each of them, arising from or relating to Employee’s employment with the Company or its affiliates or the termination of that employment relationship or any circumstances related thereto, or any other matter, cause or thing whatsoever, including without limitation all claims arising under or relating to employment, employment contracts (including the Employment Agreement, any agreement to grant equity awards or any change in control agreement), employee benefits or purported employment discrimination, retaliation, wrongdoing or violations of civil rights of whatever kind or nature, including without limitation all claims arising under the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Equal Pay Act of 1963, the Rehabilitation Act of 1973, Title VII of the United States Civil Rights Act of 1964, 42 U.S.C. § 1981, the Civil Rights Act of 1991, the Civil Rights Acts of 1866 and/or 1871, the Xxxxxxxx-Xxxxx Act of 2002, the Texas Commission on Human Rights Act, the Texas Payday Law, the Texas Labor Code or any other applicable federal, state or local employment discrimination statute, law or ordinance, including, without limitation, any workers’ compensation or disability claims under any such laws, claims for wrongful discharge, breach of express or implied contract or implied covenant of good faith and fair dealing, and any other claims arising under state or federal law, as well as any expenses, costs or attorneys’ fees. Except as required by law, Employee agrees that he will not commence, maintain, initiate, or prosecute, or cause, encourage, volunteer, or advise with any other person to commence, maintain, initiate or prosecute, any action, lawsuit, proceeding, charge, petition, complaint or claim before any court, agency or tribunal against Toreador arising from, concerned with, or otherwise relating to, in whole or in part, Employee’s employment or separation from employment with Toreador or any of the matters discharged and released in this Agreement. By executing this Agreement, Employee hereby waives the right to recover in any proceeding he may bring before the Equal Employment Opportunity Commission (the “EEOC”) or any state human rights commission or in any proceeding brought by the EEOC or any state human rights commission (or any other agency) on Employee’s behalf. This release shall not apply to any of the Company’s obligations under this Agreement, or any vested 401(k), retirement plan, or any tax qualified pension plan of the Company or its affiliates, COBRA continuation coverage benefits or any employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended. Employee acknowledges that certain of the payments and benefits provided for in Paragraph 2 of this Agreement constitute good and valuable consideration for the release contained in this Paragraph 3(a). | |||
| (b) | By the Company. In consideration of the mutual promises contained in this Agreement, the Company, on behalf of itself and all of its subsidiaries, assigns and affiliates, and their present employees, officers, directors, successors and assigns, irrevocably and unconditionally releases, waives, and forever discharges, Employee |
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| and his heirs, executors, successors and assigns (the “Employee Released Parties”), from any and all claims, demands, actions, causes of action, rights, debts, obligations, losses, suits, controversies, setoffs, affirmative defenses, counterclaims, third party actions, damages, penalties, attorneys fees, costs, fees, and all liabilities and indemnities whatsoever, whether known or unknown, suspected or unsuspected, accrued or unaccrued, fixed or contingent, which the Company has, had, or may have against the Employee Released Parties relating to or arising out of his employment or termination of employment of the Company up to and including the date of this Agreement’s execution, except that this release does not include any act or omission taken by Employee while employed by the Company which was (i) criminal or (ii) fraudulent. This Agreement includes, without limitation, claims at law or equity or sounding in contract (express or implied) or tort, claims arising under any federal, state or local laws; or any other statutory or common law claims related to Employee’s employment or termination of employment of the Company up to and including the date of this Agreement’s execution. |
4. No Admission Of Liability. This Agreement shall not in any way be construed as an
admission by Toreador of any acts of wrongdoing or violation of any statute, law, or legal right.
Rather, Toreador specifically denies and disclaims that it has any liability to Employee, but is
willing to pay the sum described above at this time to definitively resolve once and forever this
matter and to avoid the costs, expense, and delay of litigation. This Agreement shall not in any
way be construed as an admission by Employee of any acts of wrongdoing or violation of any statute,
law, or legal right. Rather, Employee specifically denies and disclaims that it has any liability
to Toreador, but is willing to accept the sums described above at this time to definitively resolve
once and forever this matter and to avoid the costs, expense, and delay of litigation.
5. Mutual Non-Disclosure And Confidentiality. Employee and Toreador’s officers and members of
the Board of Directors agree to keep the facts of this Agreement and its terms completely
confidential. Notwithstanding the foregoing, the Employee and Toreador agree that (a) Toreador may
disclose such information as it deems necessary to those with a need to know and its professional
representatives, including but not limited to, accountants, bankers, attorneys and auditors or as
they may reasonably need to disclose by law, rule, regulation, or the regulations of any applicable
stock exchange or court order; and (b) Employee may disclose such information to his attorneys,
financial advisors and spouse, or pursuant to a court order or a duly issued subpoena by a court of
law or governmental entity that has jurisdiction or power to compel such disclosures, or in
connection with a lawful investigation or inquiry by a government entity. Employee shall furnish
Toreador with a copy of the court order or subpoena requiring that such information be disclosed
(with any inapplicable portions redacted) at least ten (10) days (or such lesser period as is
practicable given the terms of any such order or subpoena) in advance of any such disclosure.
Employee covenants and agrees to deliver the minimum amount of information Employee believes
reasonable necessary to fully comply with any such court order or subpoena, or as otherwise
required by law. Without limiting Toreador’s right to pursue any other legal or equitable remedies
available to it, Employee recognizes and agrees that any breach by Employee of this Paragraph 5
will result in immediate and irreparable harm to Toreador for which damages cannot readily be
calculated and for which damages are an inadequate remedy. Accordingly, Employee agrees that
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Toreador shall be entitled to injunctive relief to prevent any such actual or threatened breach by Employee. If
it is necessary for Toreador to employ the services of an attorney to enforce these commitments and
prevails on such claim(s), Employee shall be required to reimburse Toreador for such expense,
including its reasonable attorneys’ fees incurred in any action for injunctive relief or damages
hereunder.
6. Mutual Non-Disparagement. Employee and Toreador agree that neither Employee or his family
members nor Toreador’s Board of Directors, president, chief accounting officer, chief financial
officer, controller or any other officer shall publicly disclose, directly or indirectly, publish,
or otherwise communicate to any third party in any malicious, disparaging, defamatory, or
derogatory manner any information concerning the other Party to this Agreement.
7. Cooperation. As a further material inducement to Toreador to make the Separation Payment
described herein and for Employee to accept same, Employee hereby agrees to provide his full
cooperation, at the request of Toreador, with any of the Company Releasing Parties in any and all
such investigations or other legal, equitable or business matters or proceedings which involve any
matters for which Employee worked on or had responsibility during his employment with Toreador.
Employee also agrees to be reasonably available to Toreador or its representatives to provide
general advice or assistance as requested by Toreador. This includes but is not limited to
testifying (and preparing to testify) as a witness in any proceeding or otherwise providing
information or reasonable assistance to Toreador in connection with any investigation, claim or
suit, and cooperating with Toreador regarding any investigation, litigation, claims or other
disputed items involving Toreador that relate to matters within the knowledge or responsibility of
Employee. Specifically, Employee agrees (i) to meet with Toreador’s representatives, its counsel
or other designees at reasonable times and places with respect to any items within the scope of
this provision; (ii) to provide truthful testimony regarding same to any court, agency or other
adjudicatory body; (iii) to provide Toreador with immediate notice of contact or subpoena by any
non-governmental adverse party, and (iv) to not voluntarily assist any such non-governmental
adverse party or such non-governmental adverse party’s representatives. Employee acknowledges and
understands that his obligations of cooperation under this Paragraph 7 are not limited in time and
may include, but shall not be limited to, the need for or availability for testimony. Other than
the consideration identified in Paragraph 2, Employee shall receive no additional compensation for
time spent assisting Toreador pursuant to this Paragraph 7.
8. No Employment with Toreador. Employee waives all rights to employment, reemployment or
reinstatement (collectively “employment”) with Toreador. Employee agrees that he will not work for
Toreador or apply for employment with Toreador in any capacity. Employee recognizes that working
for Toreador, or any attempt to apply for employment with Toreador, would be a breach of this
Agreement and that Toreador may disregard any application by Employee.
9. Return of Toreador Property. Within 7 days of the Separation Date, Employee shall, to the
extent not previously returned or delivered: (a) return all equipment, records, files, programs or
other materials and property in his possession which belongs to Toreador or any one or more of its
affiliates, including, without limitation, all, computer access codes, Blackberries, credit cards,
keys and access cards; and (b) deliver all original and copies of notes, materials, records, plans,
technical data or other documents, files or programs (whether stored in paper form, computer
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form, digital form, electronically or otherwise) that relate or refer to (1) Toreador or any
one or more of its affiliates, or (2) Toreador or any one or more of Toreador’s affiliates’
financial statements, business contacts, and sales. By signing this Agreement, Employee represents
and warrants that he has not retained and has or will timely return and deliver all the items
described or referenced in subsections (a) or (b) above; and, that should he later discover
additional items described or referenced in subsections (a) or (b) above, he will promptly notify
Toreador and return/deliver such items to Toreador. Non-proprietary, public information is
specifically excluded from this Paragraph 9.
10. Breach of Agreement. In the event Employee fails to materially fulfill any of his
obligations in this Agreement, or Employee or anyone acting on his behalf brings suit against
Toreador seeking to declare any term of this Agreement void or unenforceable and if one or more
material terms of this Agreement are ruled by a court or arbitrator to be void or unenforceable or
subject to reduction or modification, then Toreador shall be entitled to (a) terminate the
Agreement, (b) terminate any remaining Separation Payments set forth in Paragraph 2, and Employee
will not be entitled to receive any remaining Separation Payments, (c) recover Separation Payments
and all other benefits set forth in Paragraph 2 already paid to Employee (except for the sum of
$1,000) upon court order, (d) recover attorneys’ fees, expenses and costs Toreador incurs in such
action, and/or (e) recover any and all other damages to which Toreador may be entitled at law or in
equity as a result of a breach of this Agreement. At Toreador’s sole option, the remaining terms
of this Agreement shall continue in full force and effect.
11. No Assignment Of Claims. Employee represents that he has not transferred or assigned, to
any person or entity, any claim involving Toreador, or any portion thereof or interest therein.
12. Binding Effect Of Agreement. This Agreement shall be binding upon Toreador and its
successors, representatives and assigns and upon Employee and his heirs, spouse, representatives,
successors and assigns.
13. Controlling Law. This Agreement shall in all respects be interpreted, enforced, and
governed under the laws of the State of Texas. Toreador and Employee agree that the language on
this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not
strictly for, or against, any of the parties.
14. Severability. Should any provision of this Agreement be declared or determined to be
illegal or invalid by any government agency or court of competent jurisdiction, the validity of the
remaining parts, terms or provisions of this Agreement shall not be affected and such provisions
shall remain in full force and effect.
15. Entire Agreement. This Agreement sets forth the entire agreement between the parties, and
fully supersedes any and all prior agreements, understandings, or representations between the
parties pertaining to Employee’s employment with Toreador, the subject matter of this Agreement or
any other term or condition of the relationship between Toreador and Employee including the
Employment Agreement. Employee represents and acknowledges that in executing this Agreement, he does not rely, and has not relied, upon any representation(s) by Toreador
or its agents except as expressly contained in this Agreement.
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16. Knowing and Voluntary Waiver. Employee, by his free and voluntary act of signing below,
(i) acknowledges that he has been given a period of twenty-one (21) days to consider whether to
agree to the terms contained herein, (ii) acknowledges that he has been advised to consult with an
attorney prior to executing this Agreement, (iii) acknowledges that he understands that this
Agreement specifically releases and waives all rights and claims he may have under the ADEA prior
to the date on which he signs this Agreement, and (iv) agrees to all of the terms of this Agreement
and intends to be legally bound thereby. Furthermore, Employee acknowledges that the payments and
benefits provided for in Paragraph 2 of this Agreement will be delayed until this Agreement becomes
effective, enforceable and irrevocable. The parties hereto acknowledge and agree that each party
has reviewed and negotiated the terms and provisions of this Agreement and has contributed to its
preparation (with advice of counsel). Accordingly, the rule of construction to the effect that
ambiguities are resolved against the drafting party shall not be employed in the interpretation of
this Agreement. Rather, the terms of this Agreement shall be construed fairly as to both parties
hereto and not in favor of or against either party, regardless of which party generally was
responsible for the preparation of this Agreement.
This Agreement will become effective, enforceable and irrevocable on the eighth day after the date
on which it is executed by Employee (the “Effective Date”). During the seven-day period prior to
the Effective Date, Employee may revoke his agreement to accept the terms hereof by indicating in
writing to the Company his intention to revoke. If Employee exercises his right to revoke
hereunder, he shall forfeit his right to receive any of the payments, restricted stock or benefits
provided for herein, and to the extent such payments or benefits have already been made, Employee
agrees that he will immediately reimburse the Company for the amounts of such payments and
benefits.
[Remainder of Page Intentionally Left Blank]
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I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING
AGREEMENT, THAT I UNDERSTAND ALL OF ITS TERMS AND THAT I AM
RELEASING CLAIMS AND THAT I AM ENTERING INTO IT VOLUNTARILY.
AGREEMENT, THAT I UNDERSTAND ALL OF ITS TERMS AND THAT I AM
RELEASING CLAIMS AND THAT I AM ENTERING INTO IT VOLUNTARILY.
AGREED TO BY:
| /s/ Xxxxxx Xxxxxxx | 6-27-2008 | |||||
STATE OF TEXAS
COUNTY OF DALLAS
Before me, a Notary Public, on this day personally appeared Xxxxxx Xxxxxxx, known to me to be
the person whose name is subscribed to the foregoing instrument, and acknowledges to me that he has
executed this Agreement on behalf of himself and his heirs, for the purposes and consideration
therein expressed.
Given
under my hand and seal of office this
27th day of June, 2008.
| /s/ X.X. Xxxxxxx | ||
(PERSONALIZED SEAL)
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TOREADOR RESOURCES CORPORATION
| By: | /s/ Xxxxx Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| Date: | 6/30/08 | |||
STATE OF TEXAS
COUNTY OF
Dallas
Before
me, a Notary Public, on this day personally appeared Xxxxx Xxxxxx, known to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of Toreador Resources Corporation, and
that s/he has executed the same on behalf of said corporation for the purposes and consideration
therein expressed, and in the capacity therein stated.
Given
under my hand and seal of office this 30th day of June, 2008.
/s/
Xxxxxxx X. Xxxxxxxx
Notary Public in and for the State of Texas |
(PERSONALIZED SEAL)
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EXHIBIT A
June ___, 2008
Dear Nigel:
I hereby resign my employment and all of my officer positions with Toreador Resources Corporation
and all of its affiliates effective immediately.
and all of its affiliates effective immediately.
Sincerely,
Xxxxxx Xxxxxxx
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