Exhibit 10.1
EMPLOYMENT
AGREEMENT
This AGREEMENT (this “
Agreement ”) is made and entered into as of the 15th
day of September 2009, by and between Toreador Resources
Corporation, a Delaware corporation (the “ Company
”), and Marc Sengès (“ Employee
”).
W
I T N
E S S E T H
:
WHEREAS, the Company desires to
employ the Employee as its Chief Financial Officer as of
September 15, 2009 (the “ Effective Date
”); and
WHEREAS, the Company desires to
enter into this Agreement embodying the terms of such employment,
and Employee desires to enter into this Agreement and to accept
such employment, subject to the terms and provisions of this
Agreement.
NOW, THEREFORE, in consideration of
the promises and mutual covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of
which are mutually acknowledged, the Company and Employee hereby
agree as follows:
Section 1.
Definitions .
(a)
“ Accrued Obligations ” shall mean (i) all
accrued but unpaid Base Salary through the date of termination of
Employee’s employment, (ii) any unpaid or unreimbursed
expenses incurred in accordance with Section 1 below,
(iii) any benefits provided under the Company’s employee
benefit plans upon a termination of employment and in accordance
with the terms contained therein.
(b)
“ Agreement ” shall have the meaning set forth
in the preamble hereto.
(c)
“ Appointment Date ” shall have the meaning set
forth in Section 3(a) below.
(d)
“ Base Salary ” shall mean the salary provided
for in Section 4(a) below or any increased salary granted
to Employee pursuant to Section 4(a).
(e)
“ Board ” shall mean the Board of Directors of
the Company.
(f)
“ Cause ” shall mean (i) Employee’s
act(s) of gross negligence or willful misconduct in the course
of Employee’s employment hereunder that is or could
reasonably be expected to be materially injurious to the Company or
any other member of the Company Group, (ii) willful failure or
refusal by Employee to perform in any material respect his duties
or responsibilities, (iii) misappropriation by Employee of any
assets or business opportunities of the Company or any other member
of the Company Group, (iv) embezzlement or fraud committed by
Employee, or at his direction, (v) Employee’s conviction
of, or pleading “guilty” or “ no contest”
to, (A) a felony under United States state or federal law, or
(B) any other criminal charge in any jurisdiction that has, or
could be reasonably expected to have, a material adverse impact on
the performance of Employee’s duties to the Company or any
other member of the Company Group or otherwise result in material
injury to the reputation or business of the Company or any other
member of the Company Group, (vi) any material violation of a
written Company policy, including but not limited to those relating
to sexual harassment or business conduct, and those otherwise set
forth in the manuals or statements of written Company policy, or
(vii) Employee’s breach of Section 9 of this
Agreement.
(g)
“ Change of Control ” shall mean a “change
of control event” within the meaning of Treas. Reg.
1.409A-3(i)(5); provided , that in no event shall the
consummation of the Proposed Transaction constitute a Change in
Control for purposes of this Agreement.
(h)
“ Change of Control Severance Term ” shall mean
the twenty-four (24) month period following Employee’s
termination pursuant to Section 8(h) below.
(i)
“ Code ” shall mean the Internal Revenue Code of
1986, as amended.
(j)
“ Common Shares ” shall have the meaning set
forth in Section 4(c) below.
(k)
“ Company ” shall have the meaning set forth in
the preamble hereto.
(l)
“ Company Group ” shall mean the Company
together with any direct or indirect subsidiaries of the
Company.
(m)
“ Compensation Committee ” shall mean the Board
or the committee of the Board designated to make compensation
decisions relating to senior executive officers of the Company
Group.
(n)
“ Competitive Activities ” shall mean any
business activities in which the Company or any other member of the
Company Group engages during the Term of Employment.
(o)
“ Confidential Information ” shall mean
confidential or proprietary trade secrets, client lists, client
identities and information, information regarding service
providers, investment methodologies, marketing data or plans, sales
plans, management organization information, operating policies or
manuals, business plans or operations or techniques, financial
records or data, or other financial, commercial, business, or
technical information (i) relating to the Company or any other
member of the Company Group or (ii) that the Company or any
other member of the Company Group may receive belonging to
suppliers, customers, or others who do business with the Company or
any other member of the Company Group, but shall exclude any
information that is in the public domain or hereafter enters the
public domain, in each case without the breach by Employee of
Section 9(a) below.
(p)
“ Developments ” shall have the meaning set
forth in Section 9(f) below.
(q)
“ Disability ” shall mean any physical or mental
disability or infirmity of the Employee that has prevented the
performance of Employee’s duties for a period of
(i) ninety (90) consecutive days or (ii) one hundred
twenty (120) non-consecutive days during any twelve (12) month
period. Any question as to the existence, extent, or
potentiality of Employee’s Disability upon which Employee and
the Company cannot agree shall be determined by a qualified,
independent physician selected by the Company and approved by
Employee (which approval shall not be unreasonably withheld).
The determination of any such physician shall be final and
conclusive for all purposes of this Agreement.
(r)
“ Effective Date ” shall have the meaning set
forth in the recitals above.
(s)
“ Employee ” shall have the meaning set forth in
the preamble hereto.
(t)
“ Good Reason ” shall mean, without
Employee’s consent, (i) a diminution in Employee’s
title, duties, or responsibilities, (ii) a reduction in the
Base Salary, STI Award target or LTI Award target, (iii) the
failure of the Company to pay any compensation hereunder when due
or to perform any other obligation of the Company hereunder, or
(iv) failure of the Company to obtain a written
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agreement from any successor
or assign of the Company to assume the obligations of the Company
under this Agreement upon a Change of Control.
(u)
“ Interfering Activities ” shall mean
(i) encouraging, soliciting, or inducing, or in any manner
attempting to encourage, solicit, or induce, any individual
employed by, or individual or entity providing consulting services
to, the Company or any other member of the Company Group to
terminate such employment or consulting services; provided ,
that the foregoing shall not be violated by general advertising not
targeted at employees or consultants of the Company or any other
member of the Company Group; (ii) hiring any individual who
was employed by the Company or any other member of the Company
Group within the six (6) month period prior to the date of
such hiring; or (iii) encouraging, soliciting, or inducing, or
in any manner attempting to encourage, solicit, or induce, any
customer, supplier, licensee, or other business relation of the
Company or any other member of the Company Group to cease doing
business with or materially reduce the amount of business conducted
with the Company or any other member of the Company Group, or in
any way interfering with the relationship between any such
customer, supplier, licensee, or business relation and the Company
or any other member of the Company Group.
(v)
“ LTI Award ” shall have the meaning set forth
in Section 4(c) below.
(w)
“ Person ” shall mean any individual,
corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust (charitable or
non-charitable), unincorporated organization, or other form of
business entity.
(x)
“ Proposed Transaction ” shall mean the proposed
transaction whereby the Company will become a wholly-owned
subsidiary of Toreador Holding SAS, a wholly-owned subsidiary of
the Company.
(y)
“ Release Expiration Date ” shall mean the date
that is twenty-one (21) days following the date upon which the
Company timely delivers Employee the release contemplated in
Section 8(h) below, 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 forty-five (45) days following such delivery
date.
(z)
“ Restricted Area ” shall mean any jurisdiction
in which the Company or any other member of the Company Group
engages in business during the Term of Employment, or at the time
of a termination of Employee’s employment was engaged in
business.
(aa)
“ Restricted Period ” shall mean the period
commencing on the Effective Date and extending to the twelve (12)
month anniversary of Employee’s termination of employment for
any reason.
(bb)
“ Severance Term ” shall mean the six
(6) month period following Employee’s termination by the
Company without Cause (other than by reason of death or Disability)
or by Employee for Good Reason.
(cc)
“ STI Award ” shall have the meaning set forth
in Section 4(a) below.
(dd)
“ Term of Employment ” shall mean the period
specified in Section 2 below.
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Section 2.
Acceptance and Term of
Employment .
The Company
agrees to employ Employee, and Employee agrees to serve the
Company, on the terms and conditions set forth herein. The
“Term of Employment” shall mean the period commencing
on the Effective Date and, unless terminated sooner as provided in
Section 8 hereof, continuing for a period of two
(2) years from the Effective Date; provided, however, that the
Term of Employment shall be extended automatically at the end of
the initial two (2) year term for a one (1) year term and
thereafter for successive one (1) year terms if neither the
Company nor Employee has advised the other in writing in accordance
with Section 17 at least ninety (90) days prior to the end of
the then current term that such term will not be extended for an
additional one (1) year term.
Section 3.
Position, Duties, and
Responsibilities; Place of Performance .
(a)
During the Term of Employment, Employee shall be employed and serve
as the Chief Financial Officer of the Company and shall have such
duties and responsibilities as are commensurate with such
title. The Employee shall report to the Chief Executive
Officer and shall carry out and perform all orders, directions and
policies given to him by the Chief Executive Officer consistent
with his position and title.
(b)
Employee shall devote his full business time, attention, skill, and
best efforts to the performance of his duties under this Agreement
and shall not engage in any other business or occupation during the
Term of Employment, including, without limitation, any activity
that (x) conflicts with the interests of the Company or any
other member of the Company Group, (y) interferes with the
proper and efficient performance of Employee’s duties for the
Company, or (z) interferes with Employee’s exercise of
judgment in the Company’s best interests.
Notwithstanding the foregoing, nothing herein shall preclude
Employee from (i) serving, with the prior written consent of
the Board, as a member of the boards of directors or advisory
boards (or their equivalents in the case of a non-corporate entity)
of non-competing businesses, (ii) engaging in charitable
activities and community affairs, and (iii) managing his
personal investments and affairs; provided , however
, that the activities set out in clauses (i), (ii), and
(iii) shall be limited by Employee so as not to materially
interfere, individually or in the aggregate, with the performance
of his duties and responsibilities hereunder.
Section 4.
Compensation . During the Term of
Employment, Employee shall be entitled to the following
compensation:
(a)
Base Salary . Employee shall be paid an annualized
Base Salary, payable in accordance with the regular payroll
practices of the Company, of not less than EUR 204,500 (or its
counter value in United States Dollar at the date hereof, i.e
…), with increases, if any, as may be approved in writing by
the Compensation Committee.
(b)
Short-Term Incentive Awards .
(i)
In his capacity as CFO of the Company, Employee shall be eligible
for an annual cash short-term incentive award determined by the
Compensation Committee in respect of each fiscal year (or partial
fiscal year) during the Term of Employment (the “ STI
Award ”) in accordance with this Section 4(b).
The target STI Award for each fiscal year shall be 75% of Base
Salary (or such greater percentage of Base Salary as the Board or
Compensation Committee shall determine, in its sole discretion)
and, if earned, shall be paid by no later than March 31st of
each year with respect to the preceding year.
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(ii)
The criteria for achieving the STI Award shall be based upon the
level of achievement of Company and individual performance
objectives for such fiscal year, as determined by the Board or the
Compensation Committee and agreed to by Employee, as evidenced by
an Addendum to this Agreement executed by the Company and Employee
by December 1 of each year with respect to the following
year.
(iii)
The STI Award for any partial fiscal year occurring during the Term
of Employment shall be pro rated as and to the extent provided in
Section 8.
(c)
Long-Term Incentive Awards .
(i)
In his capacity as CFO of the Company, Employee shall be eligible
for a long-term incentive award determined by the Compensation
Committee in respect of each fiscal year (or partial fiscal year)
during the Term of Employment in accordance with this
Section 4(c) (the “ LTI Award
”). The LTI Award for 2009, the performance criteria
for which the Company agrees have been achieved, shall be the
grant, as of the Effective Date, of the number of shares of common
stock of the Company (“ Common Shares ”) equal
to 150% of the Base Salary divided by the closing price of the
Common Shares on the Effective Date.
(ii)
The target LTI Award for each subsequent fiscal year shall be a
number of Common Shares equal to 150% of Base Salary divided by the
January Representative Value (as defined in Exhibit A,
annexed hereto) of the Company’s Common Shares and, if
earned, shall be granted by no later than March 31st of the
following year. The actual LTI Award payable shall be based
upon the level of achievement of the annual performance objectives
for such fiscal year, as described in Exhibit A annexed
hereto.
(iii)
The LTI Award for any year shall vest in three equal installments,
with the first 1/3 vesting on the first anniversary of the grant of
the LTI Award , the second 1/3 vesting on the second anniversary of
the grant of the LTI Award, and the remaining 1/3 vesting on the
third anniversary of the grant of the LTI Award, and shall be
subject to such restriction on written transfer policies as the
Company may adopt from time to time and which are applicable to all
officers, directors and other management personnel of the
Company.
Section 5.
Employee Benefits
.
(a)
General . During the Term of Employment, Employee
shall be entitled to participate in health insurance, retirement,
and other benefits provided to other senior executives of the
Company.
(b)
Vacation and Time Off . During each calendar year of
the Term of Employment, Employee shall be eligible for twenty-five
(25) days paid vacation, as well as sick pay and other paid and
unpaid time off in accordance with the policies and practices of
the Company.
Section 6.
Key-Man Insurance
.
At any time during the Term of
Employment, the Company shall have the right to insure the life of
Employee for the sole benefit of the Company, in such amounts, and
with such terms, as it may determine. All premiums payable
thereon shall be the obligation of the Company. Employee
shall have no interest in any such policy, but agrees to cooperate
with the Company in procuring such insurance by submitting to
physical examinations, supplying all information required by the
insurance company, and
5
executing all necessary documents, provided that
no financial obligation is imposed on Employee by any such
documents.
Section 7.
Reimbursement of Business
Expenses .
Employee is authorized to incur
reasonable business expenses in carrying out his duties and
responsibilities under this Agreement, and the Company shall
promptly reimburse him for all such reasonable business expenses,
subject to documentation in accordance with written Company policy,
as in effect from time to time.
Section 8.
Termination of Employment
.
(a)
General . The Term of Employment shall terminate
earlier than as provided in Section 2 hereof upon the earliest
to occur of (i) Employee’s death, (ii) a
termination by reason of a Disability, (iii) a termination by
the Company with or without Cause, and (iv) a termination by
Employee with or without Good Reason. Upon any termination of
Employee’s employment for any reason, except as may otherwise
be requested by the Company in writing and agreed upon in writing
by Employee, Employee shall resign from any and all directorships,
committee memberships, and any other positions Employee holds with
the Company or any other member of the Company Group.
(b)
Termination Due to Death or Disability .
Employee’s employment shall terminate automatically upon his
death. The Company may terminate Employee’s employment
immediately upon the occurrence of a Disability, such termination
to be effective upon Employee’s receipt of written notice of
such termination. In the event Employee’s employment is
terminated due to his death or Disability, Employee or his estate
or his beneficiaries, as the case may be, shall be entitled
to:
(i)
The Accrued Obligations; and
(ii)
Any unpaid STI Award in respect of any completed fiscal year that
has ended prior to the date of such termination, which amount shall
be paid within sixty (60) days from the date of such;
and
(iii)
Any STI Award that would have been payable with respect to the year
of termination in the absence of the Employee’s death or
Disability, pro-rated for the period the Employee worked prior to
his death or Disability provided that the Employee has worked at
least 6 months in the fiscal year for which the bonus is payable,
which amount shall be paid at such time STI Awards are paid to
other senior executives of the Company, but in no event later than
one day prior to the date that is 2 1/2 months following the last
day of the fiscal year in which such termination occurs;
and
(iv)
Immediate pro-rata vesting of any Common Shares previously awarded
to the Employee based on the number of months the Employee has
worked for the Company from the date of grant as a percentage of
the total number of months required for complete vesting in absence
of a termination of employment, and cancellation of any remaining
Common Shares not so vested; and
(v)
The rights to the same compensation and benefits as provided in
Section 8(d) below, in lieu of clauses (i) through
(iv), if the termination of Employee’s employment is by
reason of death or Disability while the Employee is traveling on
official Company business.
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Following such termination of Employee’s
employment by reason of death or Disability, except as set forth in
this Section 8(b), Employee shall have no further rights to
any compensation or any other benefits under this
Agreement.
(c)
Termination by the Company for Cause .
(i)
The Company may terminate Employee’s employment at any time
for Cause, effective upon Employee’s receipt of written
notice of such termination; provided , however , that
with respect to any Cause of termination relying on clause
(ii) or (vi) of the definition of Cause set forth in
Section 1(f) hereof, to the extent such act or acts are
curable, Employee shall be given not less than twenty (20)
days’ written notice by the Board of the Company’s
intention to terminate him for Cause, such notice to state in
detail the particular act or acts or failure or failures to act
that constitute the grounds on which the proposed termination for
Cause is based, and such termination shall be effective at the
expiration of such twenty (20) day notice period unless Employee
has substantially cured such act or acts or failure or failures to
act that give rise to Cause during such period.
(ii)
In the event the Company terminates Employee’s employment for
Cause, he shall be entitled only to the Accrued Obligations, and
any previously awarded Common Shares which are not vested as of the
date of termination shall be cancelled. Following such
termination of Employee’s employment for Cause, except as set
forth in this Section 8(c)(ii), Employee shall hav
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