Exhibit 10.4
INDEMNITY
AGREEMENT
This Agreement made and entered into
as of this 22nd day of January, 2009, by and between Toreador
Resources Corporation, a Delaware corporation (the
“Company”), and
(“Indemnitee”), who is currently serving the Company in
the capacity of a director and/or officer thereof;
W I T N E S S E T
H:
WHEREAS, several stockholders of the
Company have separately sought the resignation and replacement
certain existing directors of the Company, including the Chairman
and the Chief Executive Officer;
WHEREAS, the Chairman and CEO have
agreed to this request in exchange for the Company’s entering
into certain agreements, including separate Indemnity Agreements in
this form, with each;
WHEREAS, Section 145 of the General
Corporation Law of the State of Delaware and the Restated
Certificate of Incorporation of the Company, which set forth
certain provisions relating to the mandatory and permissive
indemnification of, and advancement of expenses to, officers and
directors (among others) of a Delaware corporation by such
corporation, are specifically not exclusive of other rights to
which those indemnified thereunder may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise; and
WHEREAS, after due consideration and
investigation of the terms and provisions of this Agreement and the
various other options available to the Company and the Indemnitee
in lieu thereof, the Board of Directors of the Company has
determined that the following Agreement is not only reasonable and
prudent but necessary to promote and ensure the best interests of
the Company and its stockholders;
NOW, THEREFORE, in consideration of
the premises and the mutual agreements herein set forth and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Indemnitee,
intending to be legally bound, do hereby agree as
follows:
1.
Definitions. As used in this
Agreement:
(a)
“Enterprise” shall mean any other corporation, limited
liability company, partnership, joint venture, trust, employee
benefit plan, organization or other enterprise of which Indemnitee
is or was serving at the request of the Company as a director,
officer, trustee, general partner, managing member, fiduciary,
employee or agent.
(b)
The term “Expenses” includes, without limitation, all
reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service
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fees and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, or being or preparing to be a witness in,
or otherwise involved in, a Proceeding. Should any payments
by the Company under this Agreement be determined to be subject to
any federal, state or local income or excise tax, Expenses will
also include such amounts as are necessary to place Indemnitee in
the same after-tax position, after giving effect to all applicable
taxes, Indemnitee would have been in had such tax not have been
determined to apply to those payments. Expenses also shall
include (i) Expenses incurred in connection with any appeal
resulting from any Proceeding, including, without limitation, the
premium, security for, and other costs relating to any cost bond,
supersedeas bond, or other appeal bond or its equivalent and (ii)
Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights
under this Agreement, by litigation or otherwise.
(c)
“Independent Counsel” means a law firm, or a member of
a law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained
to represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters
concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any
other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any person
who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company
agrees to pay the reasonable fees and expenses of the Independent
Counsel referred to above and to fully indemnify such counsel
against any and all Expenses, claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto.
(d)
“Proceeding” shall mean any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an
action, suit, or proceeding, and any inquiry or investigation that
could lead to such an action, suit or proceeding irrespective of
the initiator thereof. The final disposition of a Proceeding
shall be as determined by a settlement or the judgment of a court
or other investigative or administrative body. The Board of
Directors shall not make a determination as to the final
disposition of a Proceeding.
(e)
References to “fines” shall include any (i) excise
taxes assessed with respect to any employee benefit plan and (ii)
penalties; references to “serving at the request of the
Company” shall include any service as a director, officer,
trustee, general partner, managing member, fiduciary, employee or
agent which imposes duties on, or involves services by, such
director, officer, trustee, general partner, managing member,
fiduciary, employee or agent with respect to an Enterprise; and a
person who acts in good faith and in a manner he reasonably
believed to be in the interest of the Enterprise shall be deemed to
have acted in a manner “not opposed to the best interests of
the Company” as referred to in this Agreement.
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2. Indemnity in
Third Party Proceedings. The Company shall
indemnify Indemnitee in accordance with the provisions of this
Section 2 if Indemnitee is a party to or is threatened to be made a
party to or is otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Company to procure a judgment
in its favor) by reason of the fact that Indemnitee is or was a
director and/or officer of the Company, or is or was serving at the
request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or agent of an
Enterprise, against all Expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by Indemnitee (or on
his behalf) in connection with such Proceeding or any claim, issue
or matter therein, provided it is determined pursuant to Section 7
of this Agreement or by the court having jurisdiction in the
matter, that Indemnitee acted in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal Proceeding, had
no reasonable cause to believe his conduct was unlawful. The
termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
adversely affect the right of Indemnitee to indemnification or
create a presumption that Indemnitee did not act in good faith and
in a manner that he reasonably believed to be in or not opposed to
the best interests of the Company, or, with respect to any criminal
Proceeding, had no reasonable cause to believe that his conduct was
unlawful. Indemnitee shall have the right to employ
Indemnitee’s own legal counsel in any Proceeding for which
indemnification is available under this Section 2.
3. Indemnity in
Proceedings By or In the Right of the Company.
The Company shall indemnify Indemnitee in accordance
with the provisions of this Section 3 if Indemnitee is a party to
or is threatened to be made a party to or otherwise involved in any
Proceeding by or in the right of the Company to procure a judgment
in its favor by reason of the fact that Indemnitee is or was a
director and/or officer of the Company, or is or was serving at the
request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or agent of an
Enterprise, against all Expenses actually and reasonably incurred
by Indemnitee (or on his behalf) in connection with such Proceeding
provided it is determined pursuant to Section 7 of this Agreement
or by the court having jurisdiction in the matter, that Indemnitee
acted in good faith and in a manner that he reasonably believed to
be in or not opposed to the best interests of the Company, except
that no indemnification shall be made under this Section 3 in
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Company unless and only to
the extent that the Delaware Court of Chancery or the court in
which such Proceeding was brought or is pending, shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses as the Delaware
Court of Chancery or such other court shall deem proper.
Indemnitee shall have the right to employ Indemnitee’s own
legal counsel in any Proceeding for which indemnification is
available under this Section 3.
4.
Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement,
to the extent that Indemnitee is, by reason of the fact that
Indemnitee is or was a director and/or officer of the Company, or
is or was serving at the request of the Company as a director,
officer, trustee, general partner, managing member, fiduciary,
employee or agent of an Enterprise, a witness in any Proceeding to
which Indemnitee is not a party, he shall be
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indemnified against all Expenses actually and
reasonably incurred by Indemnitee (or on his behalf) in connection
therewith.
5.
Indemnification for Expenses of Successful Party.
Notwithstanding any other provision of this Agreement
to the contrary, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any Proceeding referred to
in Sections 2 and/or 3 of this Agreement, or in defense of any
claim, issue or matter therein, including dismissal with or without
prejudice, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by Indemnitee (or on his behalf)
in connection therewith. If Indemnitee is not wholly
successful in any Proceeding referred to in Sections 2 and/or 3 of
this Agreement, but is successful on the merits or otherwise
(including dismissal with or without prejudice) as to one or more,
but less than all claims, issues or matters therein, including
dismissal without prejudice, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred by Indemnitee
(or on his behalf) in connection with each successfully resolved
claim, issue or matter. For purposes of this Section 5, and
without limitation, the termination of any claim, issue or matter
in any Proceeding referred to in Sections 2 and/or 3 of this
Agreement by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
6. Advances of
Expenses. To the fullest extent permitted by
applicable law, the Expenses incurred by Indemnitee pursuant to
Sections 2 and/or 3 of this Agreement in connection with any
Proceeding or any claim, issue or matter therein shall be paid by
the Company currently and in advance of the final disposition of
such Proceeding or any claim, issue or matter therein no later than
10 days after receipt by the Company of a request for an Expense
advancement with appropriate documentation. The undersigned
Indemnitee hereby undertakes to repay the advanced Expenses to the
Company to the extent that it is ultimately determined pursuant to
Section 7, or, in the event the Indemnitee elects to pursue other
remedies pursuant to Section 9, that the undersigned Indemnitee is
not entitled to be indemnified therefor by the Company. This
agreement of Indemnitee to repay is unsecured and interest
free.
7.
Procedure for Determination of Entitlement to
Indemnification.
(a)
To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request.
(b)
Upon written request by Indemnitee for indemnification pursuant to
this Agreement, a determination, if required by Independent Counsel
in a written opinion to the Board of Directors of the Company, a
copy of which shall be delivered to Indemnitee, shall be obtained
by the Company at its expense; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 10 days after such determination. Any
costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in cooperating with the
person, persons or entity making the determination discussed in
this Section 7(b) with respect to Indemnitee’s entitlement to
indemnification, shall be borne by the Company (irrespective of the
determination as to Indemnitee’s entitlement to
indemnification) and the Company hereby indemnifies and agrees to
hold Indemnitee harmless therefrom.
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(c)
The Independent Counsel shall be selected by Indemnitee and
Indemnitee shall give written notice to the Company advising it of
the identity of the Independent Counsel so selected. The
Company may, within 10 days after such written notice of selection
shall have bee
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