Contract
Exhibit 10.33
2007 EMPLOYMENT AGREEMENT
This 2007 EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into this
25th day of January, 2007 (the “Effective Date”), by and between Toreador
Resources Corporation, a Delaware corporation (the “Company”) and Nigel X. X. Xxxxxx
(“Executive”) of the Company.
A. The parties hereto intend that this Agreement shall become effective upon the Effective
Date.
B. Executive desires to be employed by the Company, and the Company desires to secure
Executive’s services in the future.
C. The Company and Executive desire to set forth in writing the terms and conditions of their
agreement and understandings with respect to the employment of Executive.
D. This Agreement is a condition of Executive’s employment and is ancillary thereto.
NOW, THEREFORE, in consideration of the mutual premises and covenants set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
(a) “Annual Base Salary” shall mean Executive’s gross annual salary before any
deductions, exclusions or any deferrals or contributions under any Company plan or program of the
Company, but excluding bonuses, incentive compensation, employee benefits or any other non-salary
form of compensation.
(b) “Cause” shall mean (i) Executive’s commission of a dishonest or fraudulent act in
connection with Executive’s employment, or the misappropriation of Company property; (ii)
Executive’s conviction of, or plea of nolo contendere to, a felony or crime involving dishonesty;
(iii) Executive’s inattention to duties, unsatisfactory performance, or failure to perform
Executive duties hereunder, provided in each case the Company gives Executive written notice and
thirty (30) days to correct Executive’s performance to the Company’s satisfaction; (iv) a
substantial failure to comply with the Company’s policies; (v) a material and willful breach of
Executive’s fiduciary duties in any material respect, provided in each case the Company gives
Executive written notice and thirty (30) days to correct; (vi) Executive’s failure to comply in any
material respect with any legal written directive of the Board of Directors of the Company (the
“Board”); or (vii) any act or omission of Executive which is of substantial detriment to
the Company because of Executive’s intentional failure to comply with any statute, rule or
regulation, except any act or omission believed by Executive in good faith to have been in or not
opposed to the best interest of the Company (without intent of Executive to gain, directly or
indirectly, a profit to which Executive was not legally entitled). Any determination of whether an
Executive should be terminated for Cause pursuant to this
Agreement shall be made in the sole, good faith discretion of the Board of Directors, and
shall be binding upon all parties affected thereby.
(c) “Change in Control” means any one of the following, except as otherwise provided
herein: (i) during any period of two (2) consecutive years, individuals who, at the beginning of
such period constituted the entire Board, cease for any reason (other than death) to constitute a
majority of the directors, unless the election, or the nomination for election, by the Company’s
stockholders, of each new director was approved by a vote of a least a majority of the directors
then still in office who were directors at the beginning of the period; (ii) any person or group of
persons (i.e., two or more persons agreeing to act together for the purpose of acquiring, holding,
voting or disposing of equity securities of the Company (other than any “group” deemed to exist by
virtue of aggregating the number of securities beneficially owned by any or all of the current
directors of the Company (and the “Affiliates” of such directors, as that term is defined below)
serving as such as of May 19, 2005 (collectively, the “Exempt Group”)) together with his or
its Affiliates, becomes the beneficial owner, directly or indirectly, of 50.1% or more of the
voting power of the Company’s then outstanding securities entitled generally to vote for the
election of the Company’s directors; (iii) the merger or consolidation of the Company with or into
any other entity if the Company is not the surviving entity (or the Company is the surviving entity
but voting securities of the Company are exchanged for securities of any other entity) and any
person or group of persons (other than the Exempt Group), together with his or its Affiliates, is
the beneficial owner, directly or indirectly, of 50.1% or more of the surviving entity’s then
outstanding securities entitled generally to vote for the election of the surviving entity’s
directors; or (iv) the sale of all or substantially all of the assets of the Company or the
liquidation or dissolution of the Company. For purposes of this Section 1(c), the term
“Affiliate” with respect to any person shall mean any person who directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under common control with,
the person specified. Notwithstanding the foregoing provisions of this Section 1(c), in
lieu of the foregoing definition and to the extent necessary to comply with the requirements of
Section 409A of the Code, the definition of “Change in Control” shall be the definition provided
for under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and
the regulations or other guidance issued thereunder.
(d) “Disability” shall mean a physical or mental condition which, in the judgment of
the Board (excluding Executive, if applicable) prevents Executive from performing the essential
functions of Executive’s position with the Company, even with reasonable accommodation, for a
period of not less than ninety (90) consecutive days.
(e) “Good Reason” shall mean (i) failure to elect or reelect or otherwise to maintain
Executive in the office or the position, or a substantially equivalent office or position, of or
with the Company (or any successor thereto by operation of law or otherwise), as the case may be,
which Executive holds at the Effective Date; (ii) (A) a significant adverse change in the nature or
scope of the authorities, powers, functions, responsibilities or duties attached to the position
with the Company which Executive holds at the Effective Date, or (B) a reduction in Executive’s
Annual Base Salary set forth in Section 2(b) received from the Company and the annual bonus
opportunity available to Executive for the year in which the termination occurs under the Company’s
then existing bonus program applicable to Executive, any of which is not remedied by the Company
within thirty (30) calendar days after receipt by the Company of
2
written notice from Executive of such change, reduction or termination, as the case may be;
(iii) the Company relocates its principal executive offices (if such offices are the principal
location of Executive’s work), or requires Executive to have his or her principal location of work
changed, to any location that, in either case, is in excess of twenty-five (25) miles from the
location thereof at the Effective Date; or (iv) without limiting the generality or effect of the
foregoing, any material breach of this Agreement by the Company or any successor thereto which is
not remedied by the Company within thirty (30) calendar days after receipt by the Company of
written notice from Executive of such breach.
(f) “Subsidiary” shall mean an entity in which the Company directly or indirectly
beneficially owns 50% or more of the outstanding voting stock or other voting equity thereof.
(g) “Voluntary Resignation” shall mean any termination of Executive’s employment with
the Company upon such Executive’s own initiative, including Executive’s retirement other than
termination of Executive’s employment for Good Reason which shall not be deemed a “Voluntary
Resignation” for purposes of this Agreement.
SECTION 2
COMPENSATION AND BENEFITS
(a) Duties. Executive’s title is President and Chief Executive Officer and Executive
will report directly to the Board. Executive shall faithfully, diligently and to the best of his
ability perform such duties as are customarily performed by such officers of companies of similar
size and in the same industry as the Company, together with such other duties as are mutually
agreed by Executive and the Board of the Company from time to time (which duties shall be
consistent with his titles and positions as set forth above), and shall devote substantially all of
his business time to the management of the business of the Company. Executive shall perform
Executive’s duties principally at the principal place of business of the Company located in Dallas,
Texas or such other location as is consented to by Executive, with such travel to such other
locations from time to time as Executive reasonably determines to be appropriate for the discharge
of his duties or as the Board may prescribe. Without limiting the foregoing, such duties shall, at
the request of the Board, include serving as an officer or director of any subsidiary of the
Company, without compensation. For services as an officer and employee of the Company, Executive
shall be entitled to the full protection of the applicable indemnification provisions of the
Certificate of Incorporation and Bylaws of the Company to the fullest extent permitted by law,
which indemnification shall remain effective after termination of the Agreement with respect to
Executive’s actions and inaction during the term hereof.
(b) Initial Inducement. As an inducement to Executive to accept the responsibilities
and duties as the Chief Executive Officer, the Company agrees to grant him up to one hundred
thousand (100,000) shares of the Company’s common stock as herein provided, subject to the terms
and conditions of the Company’s 2005 Long-Term Incentive Plan and any applicable award agreement.
This grant shall be awarded over four years, in the following amounts: ten thousand (10,000) shares
at the end of the first year of his employment, twenty thousand (20,000) shares at the end of his
second year of employment, thirty thousand (30,000) at the end of his third year of employment, and
forty thousand (40,000) shares at the end of his
3
fourth year of employment. Should Executive submit his Voluntary Resignation or be terminated
for Cause or because of his death or Disability, the balance of the shares not awarded as of such
termination of employment shall be forfeited. Notwithstanding anything to the contrary contained
herein, any shares to be awarded pursuant to this Section 2(b) shall be immediately awarded
to Executive, in accordance with, and subject to any limitations contained within, the Company’s
2005 Long-Term Incentive Plan, in the event (i) Executive’s employment with the Company is
terminated by the Company for any reason other than Cause; (ii) Executive resigns for Good Reason;
or (iii) a Change in Control occurs during the Employment Term and, following such Change in
Control, (A) Executive’s employment is terminated without Cause; (B) Executive is demoted from the
positions of Chief Executive Officer and President or (C) Executive’s authorities, powers,
functions, responsibilities or duties attached to Executive’s position with the Company which
Executive holds at the Effective Date are materially reduced.
(c) Annual Base Salary. Executive’s Annual Base Salary is $360,000. This amount will
be subject to applicable deductions and withholding. From time to time, but no less than annually,
the Annual Base Salary shall be subject to review by the Board, and any adjustment shall be subject
to the approval of Executive. In the event the Annual Base Salary is adjusted, such adjusted
Annual Base Salary shall be payable to Executive under this Agreement and in accordance with the
pay practices of the Company for that fiscal year and each subsequent fiscal year (unless adjusted
in the future pursuant to this paragraph), provided that no downward adjustment shall be made
without Executive’s consent.
(d) Vacation. Executive shall be entitled to paid vacation in the months of March,
April and May of 2007 as these vacations had been scheduled prior to the Executive’s election as
President of the Company. In addition, for each calendar year during which Executive is employed
by the Company, Executive shall be entitled to four (4) weeks of paid vacation, to be taken in
accordance with the Company’s policy then in effect. Such vacations shall be taken at such times
as are consistent with the reasonable business needs of the Company.
(e) Bonus Plan. Executive shall be a participant in the Company’s annual bonus plan
subject to the attainment of performance objectives and other provisions of such plan in effect
each year of this Agreement. If all of the four goals established by the Board on January 25, 2007
are achieved in 2007, Executive shall be entitled to receive under the Short Term Incentive
Compensation Plan a bonus during January 2008 equal to a value of $252,000, consisting of cash and
common stock in such proportions as Executive may choose, provided, however, that Executive agrees
to elect to receive at least one-half of such payment in common stock, subject to any limitations
on grants set forth in the Company’s 2005 Long-Term Incentive Plan. The common stock shall be
valued at its market price on or nearest to the day of the award. This bonus as stated may be less
if fewer than all of the four goals are achieved. The Compensation Committee of the Board of the
Company will determine which of the goals are achieved and, if fewer than all, will determine the
amount under the Short Term Incentive Compensation Plan to be awarded to Executive.
In addition, Executive shall be awarded forty thousand (40,000) shares of restricted common
stock of the Company under the 2005 Long Term Incentive Compensation Plan in the event all four
goals established by the Board are achieved in 2007 in accordance with, and subject to any
limitations contained within, the Company’s 2005 Long-Term Incentive Plan
4
and the applicable award agreement with respect to such award. These shares shall vest
equally over three years, beginning on the first anniversary of the date of the award. As stated
above, the Compensation Committee of the Board will determine which of the goals are achieved and,
if fewer than all, will determine the amount to be awarded under the 2005 Long Term Incentive
Compensation Plan to Executive.
(f) Benefit Plans. During his employment pursuant to this Agreement, subject to
eligibility requirements and applicable employee contributions, and except as otherwise expressly
provided in this Agreement, Executive shall be entitled to participate in the Company sponsored
employee benefit plans, pension plans, 401(k) plans, medical benefit plans, group life insurance
plans, hospitalization plans, or other employee welfare plans that the Company may adopt for
employees generally from time to time during Executive’s employment pursuant to this Agreement, and
as such plans may be modified, amended, terminated, or replaced from time to time. In addition,
Executive shall receive such other compensation as the Board of the Company (or a committee thereof
designated by the Board) may from time to time determine to pay Executive whether in the form of
bonuses, stock options, incentive compensation or otherwise. Notwithstanding anything to the
contrary contained herein, the Company retains the right to amend, modify or terminate any of its
employee benefit plans, policies or programs at any time.
(g) Fringe Benefits. During his employment pursuant to this Agreement, and except as
otherwise provided in this Agreement, Executive shall be entitled to participate on substantially
the same terms and conditions in the Company sponsored fringe benefits generally provided to
similarly situated personnel, such as sick pay.
(h) Reimbursement of Expenses. The Company shall reimburse Executive for all
reasonable out-of-pocket expenses incurred by Executive in the course of his duties, upon
presentation of appropriate documentation of such costs as and when required by and to the
satisfaction of the Company, on a basis that is consistent with the Company’s past practices.
In addition, during the Employment Term, the Company agrees to reimburse Executive for the
reasonable, documented out-of-pocket costs incurred by Executive in connection with his personal
travel between his office in New York, his home in Connecticut and the Company’s offices in Dallas,
Texas. The Company further agrees to reimburse Executive for the reasonable cost of a hotel room
and meals in Dallas, Texas until the earlier of (i) the date Executive finds a permanent residence
in Dallas, Texas or (ii) March 1, 2007. Once Executive has made arrangements for a permanent
residence in Dallas, Texas, the Company agrees to reimburse Executive for the reasonable,
documented out-of-pocket moving and storage costs (including packing and unpacking of household
goods) incurred by Executive in connection with relocating his permanent residence to Dallas,
Texas, as well as the reasonable, documented out-of-pocket costs incurred by Executive for storage
of any furniture or household goods that do not fit within his Dallas, Texas residence. Further,
the Company agrees to reimburse Executive for the reasonable, documented out-of-pocket moving and
storage costs (including packing and unpacking of household goods) incurred by Executive in
connection with moving from Dallas, Texas at the end of the Employment Term.
5
Executive has given notice to the lessor of his New York office that he will be closing his
New York office and the Company will reimburse the Executive for the expense of this office from
the time of his election to March 31, 2007, which expense, in the aggregate, is expected to equal
approximately $6,000.
(i) Withholding and Payroll Taxes. The payment of any Annual Base Salary and bonus or
other amounts to Executive as provided hereunder or otherwise shall be subject to applicable
withholding and payroll taxes and such other deductions as may be required by law or under any of
the Company’s policies or plans from time to time in effect.
SECTION 3
SEVERANCE RIGHTS
(a) Interest. Without limiting the rights of Executive at law or in equity, if the
Company fails to make any payment or provide any benefit required to be made or provided under this
Section 3 on a timely basis, the Company will pay interest on the amount or value thereof
at an annualized rate of interest equal to the so-called composite “U.S. prime rate” as quoted from
time to time during the relevant period in the Money Rate Section of the edition of The Wall Street
Journal delivered in Dallas, Texas, plus 2%. Such interest will be payable with the applicable
payment or benefit. Any change in such prime rate will be effective on and as of the date of such
change.
(b) Continued Benefits. A termination of Executive’s employment with the Company will
not affect the rights that Executive may have pursuant to any agreement, policy, plan, program or
arrangement of the Company or any of their Subsidiaries providing employee benefits, which rights
shall be governed by the terms thereof, except if Executive is entitled to and is receiving the
severance benefits contemplated by this Agreement, Executive shall not be entitled to also receive
severance compensation under any other severance plan or policy of the Company.
(c) Resignation from Positions. Immediately upon Executive’s termination of
employment with the Company for any reason, Executive will resign as an officer and employee of the
Company and as a member of the Board of the Company and of the board of directors of each
subsidiary of the Company and from all other positions with the Company and its Subsidiaries. The
Company’s obligations to Executive under this Section 3 are conditioned on Executive
furnishing such resignations and on Executive executing the release in the form attached hereto as
Exhibit A. Notwithstanding the foregoing, nothing herein shall prevent the remaining
members of the Board from re-electing Executive as a member of the Board following such
resignation, nor shall prevent Executive from serving as a member of the Board following such
re-election.
(d) Termination of Employment. Either party may terminate Executive’s employment with
the Company at any time, without notice and for any reason; provided, however:
(i) Termination for Cause or Due to Voluntary Resignation or Disability. If during the
Employment Term, the Company terminates Executive’s employment
6
with the Company for Cause or Executive terminates his employment due to his Voluntary Resignation
or Disability, the Company shall have no further obligation to Executive under this Agreement
except to pay his Annual Base Salary and earned but unused vacation through his date of
termination, on or before the next regularly scheduled pay-date after termination and to perform
such other obligations as imposed by law.
(ii) Termination without Cause or for Good Reason. If during the Employment Term, the Company
terminates Executive’s employment without Cause or Executive terminates his employment with the
Company for Good Reason, then the Company, provided that Executive executes and timely provides a
release and covenant not to xxx in a form reasonably satisfactory to the Company (in the form
attached hereto as Exhibit A), shall pay to Executive the following:
A. An amount equal to Executive’s Annual Base Salary earned through the date of termination of
employment with the Company and a lump sum payment for any accrued and earned, but unused, vacation
shall be paid to Executive on or before the next regularly scheduled pay-date after the effective
date of the termination.
X. Xxxxxxxxx payments equal to, in the aggregate, two (2) years of Executive’s Annual Base
Salary then in effect (reduced by any required withholding) in twenty-four (24) equal installments
on the first pay day of each month following Executive’s termination, beginning on the first pay
day of each month following the month in which such termination occurs. If Executive is eligible
to receive severance payments under this Section 3(d)(ii), then such severance payments
shall continue to be paid to Executive regardless of the fact that the Agreement terminates
following commencement of such payments; provided, however, that in the event of Executive’s death
prior to the receipt of all payments, any remaining payments shall be made to Executive’s estate.
C. If, on the date of termination, the Company sponsors a medical plan for the benefit of the
eligible employees and if Executive is eligible for and elects continuation coverage under such
medical plan, then the Company agrees to pay the same portion of Executive’s individual premiums
for such coverage as the portion of said premiums that the Company paid for Executive immediately
prior to his termination of employment, until the earlier of: (i) the last day of the twenty-fourth
(24th) month following Executive’s termination of employment or (ii) the date
Executive’s coverage under the Company’s United States medical plan terminates for any reason.
Thereafter, if Executive is eligible and wishes to continue his continuation coverage and the
maximum applicable continuation coverage period has not expired, Executive may continue such
coverage, provided, however, Executive shall be solely responsible for payment of the entire
premium for such coverage. All benefits (other than those with respect to which continuation is
required by law) under this Section 3(d)(ii) shall cease no later than the death of
Executive.
D. The payments provided in this Section 3(d)(ii) shall represent the sole remedy for
any claim Executive may have arising out of termination of this Agreement by the Company without
Cause or by Executive for Good Reason.
7
(iii) Death. Executive’s employment under this Agreement shall terminate immediately upon the
death of Executive. If during the Employment Term such termination occurs, Executive’s designated
beneficiary, or his personal representative, shall receive the payments and benefits described
below from the Company:
A. Executive’s unpaid Annual Base Salary earned through the date of termination and a lump sum
payment for any earned but unused vacation shall be paid on or before the next regularly scheduled
pay-date after termination.
B. An amount equal to the pro-rata portion of any bonus that would have been payable to
Executive under the Company’s annual bonus plan then in effect, as provided in Section
2(d), if Executive had remained employed for the full year, shall be paid within the time
period prescribed by such plan.
C. Benefits will continue for Executive’s spouse and eligible dependents in accordance with
the Company’s policy, the terms of the applicable plans, and as required by law.
SECTION 4
SIX MONTH HOLD BACK; TAX DISCLOSURE
(a) To the extent (i) any payments to which Executive becomes entitled under this Agreement,
or any agreement or plan referenced herein, in connection with Executive’s termination of
employment with the Company constitute deferred compensation subject to Section 409A of the Code,
and (ii) Executive is deemed at the time of such termination of employment to be a “specified
employee” under Section 409A of the Code, then such payment or payments shall not be made or
commence until the earliest of (x) the expiration of the six (6) month period measured from the
date of Executive’s “separation from service” (as such term is defined in Proposed Treasury
Regulations under Section 409A of the Code and any other guidance issued under Section 409A of the
Code) with the Company; (y) the date Executive becomes “disabled” (as defined in Section 409A of
the Code); and (z) the date of Executive’s death following such separation from service. During
any period that payment or payments to Executive are deferred pursuant to the foregoing, Executive
shall be entitled to interest on the deferred payment or payments at a per annum rate equal to the
highest rate of interest applicable to six (6) month money market accounts offered by the following
institutions: Citibank N.A., Xxxxx Fargo Bank, N.A. or Bank of America, on the date of such
“separation from service.” Upon the expiration of the applicable deferral period, any payments
which would have otherwise been made during that period (whether in a single sum or in
installments) in the absence of this Section 4 (together with accrued interest thereon)
shall be paid to Executive or Executive’s beneficiary in one lump sum.
(b) Executive has reviewed with Executive’s own tax advisors the tax consequences of this
Agreement and the transactions contemplated hereby. Executive is relying solely on his tax
advisors and not on any statements or representations of the Company or any of their agents and
understands that Executive (and not the Company) shall be responsible for Executive’s own tax
liability that may arise as a result of this Agreement or the transactions contemplated hereby,
except as otherwise specifically provided in this Agreement.
8
(c) The Company shall include the provisions of this Agreement in its own review of the
applicability of Section 409A of the Code. If, upon review, amendment of this Agreement could
result in Executive not being subject to payment of interest and tax penalty under Section 409A,
the Company will amend this Agreement in order to avoid such interest and tax penalty provided that
the Company determines, in its reasonable discretion, that such amendment can be implemented
without additional cost to the Company, other than immaterial administrative costs.
SECTION 5
VESTING OF STOCK OPTIONS, RESTRICTED STOCK
Vesting of any long-term incentive grants and awards resulting from employment terminations,
regardless of the reason for or date of such termination, shall be governed by the long-term
incentive plan document and any grant or award agreements and shall not be affected by the terms of
this Agreement. Notwithstanding the foregoing, any of the awards made to Executive pursuant to
Section 2(e) above shall become 100% vested in the event a Change in Control occurs during
the Employment Term and, following such Change in Control, (A) Executive’s employment is terminated
without Cause; (B) Executive is demoted from the positions of Chief Executive Officer and
President; or (C) Executive’s authorities, powers, functions, responsibilities or duties attached
to Executive’s position with the Company which Executive holds at the Effective Date are materially
reduced.
SECTION 6
AT-WILL EMPLOYMENT
The parties hereto acknowledge that Executive’s employment with the Company is and shall
continue to be at-will, as defined under applicable law. If Executive’s employment terminates for
any reason, Executive shall not be entitled to any payments or benefits, other than as provided by
this Agreement or as may otherwise be available in accordance with the terms of the Company’s
employee plans and written policies in effect at the time of termination.
SECTION 7
EXPIRATION OF AGREEMENT
Unless earlier terminated as provided in this Agreement or unless extended as provided in this
Section 7, this Agreement shall terminate one (1) year following the Effective Date (the
“Employment Term”); provided, however, that except as otherwise set forth in this
Section 7, the parties’ respective rights and obligations under Sections 3(b), 3(c),
3(d), 7, 9, 10, 11 and 12, as well as any other unpaid obligation (whether such payment is to
be made in cash or securities) of the Company hereunder (including but not limited to sections or
subsections of this Agreement not specifically listed above), will survive any termination or
expiration of this Agreement or the termination of Executive’s employment for any reason
whatsoever.
Upon the expiration of the Employment Term, Executive and the Company may, but shall be under
no obligation to, negotiate terms and conditions of any subsequent term of employment. In the
event, however, that Executive remains in the employ of the Company after the Employment Term
expires, then (i) the terms of this Agreement shall not be applicable, (ii)
9
Executive shall be an employee-at-will subject to the benefits, programs, and policies of the
Company then in effect, and (iii) either party may terminate the employment relationship at any
time with or without Cause.
SECTION 8
NO OBLIGATION TO MITIGATE
(a) Executive is under no obligation to mitigate damages in the amount of any payment provided
herein by seeking other employment or otherwise.
(b) The amount of any payment provided herein shall not be reduced, offset or subject to
recovery by the Company by reason of any compensation earned by Executive as the result of
Executive’s employment by another employer after the termination date of Executive’s employment
with the Company. Notwithstanding the foregoing, this Section 8 shall not limit the
Company’s ability to enforce any non-competition agreement with Executive.
SECTION 9
BREACH OF AGREEMENT
The prevailing party in any legal proceeding based upon this Agreement or the Release
Agreement shall be entitled to reasonable attorneys’ fees and court costs, in addition to any other
recoveries allowed by law.
SECTION 10
ASSIGNMENT, SUCCESSORS
(a) Without limiting the rights of Executive as provided in Section 3 hereof, the
Company shall require any successor to or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the business and/or assets of the
Company, by agreement in form and substance reasonably satisfactory to Executive, to expressly and
unconditionally assume and agree to perform this Agreement.
(b) This Agreement shall inure to the benefit of and be enforceable by Executive’s personal
and legal representatives, executors, administrators, successors, heirs, distributees, devises and
legatees. If Executive dies while any amounts are payable hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this Agreement to
Executive’s devisee, legatee, or other designee or, if there is no such designee, to Executive’s
estate.
(c) This Agreement is personal to Executive and without the prior written consent of the Board
shall not be assignable by Executive except by will or the laws of descent and distribution.
10
SECTION 11
NOTICE
Any notices or other communications required or permitted under, or otherwise in connection
with, this Agreement shall be in writing and shall be deemed to have been duly given when delivered
in person or upon confirmation of receipt when transmitted by facsimile transmission (but only if
followed by transmittal by national overnight courier or hand delivery on the next Business Day) or
upon receipt after dispatch by registered or certified mail, postage prepaid, or on the next
Business Day if transmitted by national overnight courier, in each case addressed as follows:
(i) If to the Company, to:
Toreador Resources Corporation
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chairman of the Board
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chairman of the Board
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a mandated copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(ii) if to Executive, to the address set forth for Executive on the signature page hereof.
SECTION 12
MISCELLANEOUS
(a) No provisions of this Agreement may be modified, waived or discharged except in a writing
signed and dated by Executive and the Company. No waiver by any party at any time of any breach by
another party of, or compliance with, any condition or provision of this Agreement shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or any prior or subsequent
time.
(b) This Agreement reflects the entire agreement of the parties with respect to its subject
matter, and supersedes all previous agreements. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
(c) This Agreement shall be governed and construed in all respects in accordance with the
internal laws of the State of Texas (without giving effect to principles of
11
conflicts of laws). All references to sections of the Code or regulations issued thereunder
shall be deemed also to refer to any successor provisions to such sections or regulations.
(d) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall remain in full
force and effect.
(e) This Agreement may be executed in several counterparts, each of which shall be deemed to
be an original but all of which together will constitute one and the same instrument.
(f) Each party hereto has participated in the preparation and drafting of this Agreement,
which each party acknowledges is the result of extensive negotiations between the parties.
Executive acknowledge that he or she has read and understands this Agreement, that Executive has
had sufficient time and opportunity to consult with counsel regarding this Agreement, and that
Executive has entered into this Agreement voluntarily and without coercion.
* * * * *
12
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
date first above written.
| Toreador Resources Corporation |
||||
| By: | /s/ Xxxx Xxxx XxXxxxxxxx | |||
| Name: | Xxxx Xxxx XxXxxxxxxx | |||
| Title: | Chairman of the Board | |||
EXECUTIVE: Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
|
||
0000 Xxxxxxxxx, #000
|
||
Xxxxxx, XX 00000
|
||
000-000-0000
|
S-1
EXHIBIT A
RELEASE AGREEMENT
This Release is made pursuant to Paragraph (g) of Section 3 of the 2007 Employment
Agreement dated [DATE OF EMPLOYMENT AGREEMENT], (“Employment Agreement”), in consideration
for and as condition precedent to the receipt of benefits to be paid to Executive pursuant to
Section 3 of the Employment Agreement.
In consideration of the Severance payments the Company is paying to Executive pursuant to
Section 3 of the Employment Agreement, by signing below, the undersigned Executive hereby releases
all claims against the Company, as those terms are defined in the Employment Agreement, and their
affiliates, successors and assigns, and their respective agents, officers, shareholders, directors,
partners, employees, representatives and attorneys, (“Releasees”), arising out of
Executive’s employment with Releasees, and any of them.
Release and Discharge of Claims. Executive hereby irrevocably and unconditionally
releases and discharges from any and all claims, liabilities, obligations, promises, causes of
actions, actions, suits, or demands, of whatsoever kind or character, known or unknown, suspected
to exist or not suspected to exist, anticipated or not anticipated, arising from or relating to any
agreements or arrangements between Executive and any of the Releasees, whether as an employee,
consultant or otherwise, or the termination of such agreements or arrangements (“Claims”).
Such Claims include, but are not limited to the following: claims based upon employment
discrimination or harassment of any kind or nature; claims based upon any violation of Releasees’
policies, procedures or regulations; claims of any kind based upon any actual or implied agreement,
contract, promise, written or oral statement of any kind whatsoever between Executive and any of
the Releasees or the alleged breach thereof; claims based upon alleged violation of the Texas Labor
Code, Title 7 of the Civil Rights Act of 1964 as Amended, the United States and/or Texas
Constitutions, the Americans With Disabilities Act, and the Age Discrimination in Employment Act,
the Older Workers Benefits Protection Act; claims based upon Federal and State wage and hour laws;
any State and Federal tort or common law claims; and claims based on any other State and Federal
statutes or laws. Notwithstanding the above, Claims does not include any claims arising out of any
Company sponsored employee benefit plans (other than any severance arrangements (but excluding the
Employment Agreement) between the Company and Executive. Executive covenants and agrees not to
file, xxx or assert any claims against Releasees in connection with any of the above-mentioned
Claims. Executive acknowledges and agrees that s/he is aware that s/he may hereafter discover
claims which presently exist, but which are presently unknown or unsuspected, or may discover facts
in addition to or different from those which s/he now knows or believes to be true as to the
matters released herein. Nevertheless, it Executive’s intention, through this Release, to fully,
finally and forever release all such matters, and all claims related thereto, which do now exist.
In entering into this Release, Executive does not rely upon any statement, representation or
promise of any other party hereto or any other person or entity, except as expressly stated in this
Release.
No Waiver of Future Claims. Executive acknowledges that this Release does not release
claims which do not exist as of the date of signature hereof.
Release-1
Release — 1
Review and Revocation Periods. Executive may take twenty-one (21) days to review and
consider this agreement. Executive has the right to, and is encouraged to, consult with legal
counsel regarding this agreement. Executive has seven (7) days from the date on which Executive
signs this agreement in which to revoke this agreement. To be effective, any such revocation must
be in writing delivered to
at the Company, Toreador Resources Corporation,
, before midnight on the seventh (7th) day after the date of
Executive’s signature on this agreement. The Company’s obligation to provide any benefits pursuant
to Section 3 of the Employment Agreement does not become final and binding until the
expiration of the seven (7) day revocation period and so long as this Release has not been revoked
during such period.
Voluntary Agreement. Executive acknowledges that s/he has read and understands this
agreement, has been given a reasonable time to review it, has been advised to and has had the
opportunity to consult with counsel and in fact has consulted counsel regarding this agreement, and
has entered into this agreement voluntarily and without coercion.
Dated:
| Xxxxx Xxxxxx | ||||
Release-2
