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Exhibit 10.5
INDEMNITY AGREEMENT
This Agreement made and entered into as of this
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, 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 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.
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
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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
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
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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.
(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 been given, deliver to the
Indemnitee a written objection to such selection; provided,
however, that such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the
requirements of "Independent Counsel" as defined in this Agreement,
and
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