Separation Agreement and Mutual Release between Toreador Resources Corporation and Michael J. FitzGerald
This agreement, dated June 27, 2008, is between Toreador Resources Corporation and Michael J. FitzGerald, ending FitzGerald’s employment as Executive Vice President. FitzGerald agrees to resign from all positions, and in return, the company will provide a lump sum for accrued salary and vacation, a severance payment equal to 12 months of base salary, and continued health benefits for up to 12 months under COBRA. Both parties mutually release each other from any claims related to employment, and all prior agreements are superseded by this document.
(a) | Accrued Obligations. Toreador shall pay Employee in a lump sum 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 benefits which relate to Employees employment with Toreador, including any benefits set forth in any policy or program, shall cease as of the Separation Date. |
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(b) | Separation Payment. Subject to Employees consent to and fulfillment of Employees obligations in this Agreement, and provided that Employee does not revoke this Agreement under Paragraph 17, the Company will pay to Employee severance pay equal to twelve (12) months of Employees base salary in the amount of $23,333.33 per month (Separation Payment), payable on 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 Companys 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. Any payment, including 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 Companys medical plan, the Company shall pay the same portion of Employees 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 Employees coverage under the Companys 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, 2006, January 26, 2006, and November 7, 2005 (the Restricted Stock Awards). As of the Separation Date, (i) all of the unvested shares (4,000 shares) subject to the Employee Restricted Stock Award granted on |
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January 24, 2008 and (ii) 1,000 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 Employees 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 Toreadors 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. |
(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, administrative, statutory or otherwise, and whether for injunctive relief, back pay, fringe benefits, reinstatement, reemployment, or |
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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 Employees 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 Sarbanes-Oxley 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, assist, volunteer, advise or cooperate 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, Employees 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 Employees behalf. This release shall not apply to any of the Companys 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 and his heirs, executors, successors and assigns (the Employee |
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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 separation from employment of the Company up to and including the date of this Agreements 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 Employees employment or termination of employment of the Company up to and including the date of this Agreements execution. |
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(a) | Employees Obligations. 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, |
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technical data or other documents, files or programs (whether stored in paper form, computer 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 Toreadors 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. | |||
(b) | Toreadors obligations. Toreador shall promptly return to Employee all personal property, as well as files, literature and technical information that is owned by the Employee, If such information has been used by Company it may make and retain a copy of such information. Within five (5) days of the date hereof Employee and Company shall make an appointment to retrieve such information. |
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/s/ Michael J. FitzGerald | June 27, 2008 | |
Michael J. FitzGerald | Date | |
STATE OF TEXAS | ||
COUNTY OF Dallas |
/s/ Emily Swift Crews Notary Public in and for the State of Texas |
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By: | /s/ Nigel Lovett | |||
Title: | President and Chief Executive Officer | |||
Date: | 6/30/08 | |||
/s/ Shirley Z. Anderson Notary Public in and for the State of Texas |
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Toreador Resources Corporation
13760 Noel Road, Suite 1100
Dallas, Texas 75240
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