EXHIBIT 10.16
TOREADOR RESOURCES CORPORATION
2002 STOCK OPTION PLAN
The purpose of the 2002 Stock Option Plan is to promote the growth and
general prosperity of Toreador Resources Corporation, a Delaware corporation
(the "Corporation") by permitting the Corporation to grant to the officers, key
employees and key consultants of the Corporation or its Affiliates stock options
to acquire a proprietary interest in the Corporation so that they will apply
their best efforts for the benefit of the Corporation, and to aid the
Corporation in attracting able persons to enter the service of the Corporation
and its Affiliates. It is further intended that the options granted pursuant to
this Plan will be either incentive stock options within the meaning of Section
422 of the Internal Revenue Code or nonqualified stock options.
ARTICLE I
DEFINITIONS
For the purposes of this Plan, in addition to the other terms
specifically defined elsewhere herein, the following terms shall have the
meanings indicated unless the context requires otherwise:
"AFFILIATE" means (a) any corporation, other than the Corporation, in
an unbroken chain of corporations ending with the Corporation if, at the time of
granting of the Stock Option, each of the corporations, other than the last
corporation in the unbroken chain, owns stock possessing fifty-percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain, and (b) any corporation, other than the
Corporation, beginning with the Corporation if, at the time of granting of the
Stock Option, each of the corporations, other than the last corporation in the
unbroken chain, owns stock possessing fifty-percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
"BOARD" means the board of directors of the Corporation.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the committee appointed or designated by the Board to
administer the Plan in accordance with Article 2 of this Plan.
"COMMON STOCK" means the common stock which the Corporation is
currently authorized to issue or may in the future be authorized to issue.
"CORPORATION" means Toreador Resources Corporation, a Delaware
corporation.
"DATE OF GRANT" means the effective date on which a Stock Option is
awarded to a Participant as set forth in the Option Agreement.
"DISABILITY" means total and permanent disability as defined in Section
22(e)(3) of the Code.
"EFFECTIVE DATE" means December 31, 2001.
"ELIGIBLE PARTICIPANT" shall have the meaning set forth in Section 5.1
hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"FAIR MARKET VALUE" means, as of a particular date, (a) the closing
sales price per share of Common Stock on the Nasdaq National Market System on
that date, or, if there shall have been no such sale so reported on that date,
on the last preceding date on which such a sale was so reported, (b) if the
Common Stock is not so listed or quoted, the mean between the closing bid and
asked price on that date, or, if there are no quotations available for such
date, on the last preceding date on which such quotations shall be available, as
reported by Nasdaq, or, if not reported by Nasdaq, by the National Quotation
Bureau, Inc., or (c) if none of the above is applicable, such amount as may be
determined by
the Board (acting on the advice of an Independent Third Party, should the Board
elect in its sole discretion to utilize an Independent Third Party for this
purpose), in good faith, to be the fair market value per share of Common Stock.
"INDEPENDENT THIRD PARTY" means an individual or entity independent of
the Corporation having experience in providing investment banking or similar
appraisal or valuation services and with expertise generally in the valuation of
securities or other property for purposes of this Plan. The Board may utilize
one or more Independent Third Parties.
"INCENTIVE STOCK OPTION" means an option to purchase shares of Common
Stock granted to an Eligible Participant pursuant to Article V and which is
intended to qualify as an incentive stock option under Section 422 of the Code.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONEMPLOYEE DIRECTOR" means any director of the Board who is not an
employee of the Corporation or any Affiliate.
"NONQUALIFIED STOCK OPTION" means an option to purchase shares of
Common Stock granted to a Participant pursuant to Article IV and which is not
intended to qualify as an incentive stock option under Section 422 of the Code.
"OPTION AGREEMENT" means a written agreement between the Corporation
and a Participant that sets forth the terms, conditions and limitations
applicable to a Stock Option.
"PARTICIPANT" means any employee, consultant, or Nonemployee Director
of the Corporation or any Affiliate of the Corporation who is, or who is
proposed to be, a recipient of a Stock Option.
"PLAN" means the Toreador Resources Corporation 2002 Stock Option Plan,
as it may be amended from time to time.
"SPREAD" shall have the meaning set forth in Article XII hereof.
"STOCK DIVIDEND" means a dividend or other distribution declared on the
shares of Common Stock payable in (i) capital stock of the Corporation or any
Affiliate of the Corporation, or (ii) rights, options or warrants to receive or
purchase capital stock of the Corporation or any Affiliate of the Corporation,
or (iii) securities convertible into or exchangeable for capital stock of the
Corporation or any Affiliate of the Corporation, or (iv) any capital stock
received upon the exercise, or with respect to, the foregoing.
"STOCK OPTION" shall mean an Incentive Stock Option or a Nonqualified
Stock Option granted pursuant to the Plan.
"TERMINATION FOR CAUSE" means : (1) for any person other than
Nonemployee Directors, Termination of Service by the Board or the Board of
Directors of an Affiliate because of incompetence, insubordination, dishonesty,
or other acts detrimental to the interest of the Corporation or its Affiliates,
or any material breach by the Participant of any employment, nondisclosure,
covenant not to compete, or other contract with the Corporation or one of its
Affiliates; (2) for Nonemployee Directors, Termination of Service on account of
any act of (a) fraud or intentional misrepresentation, or (b) embezzlement,
misappropriation or conversion of assets or opportunities of the Corporation or
any direct or indirect majority-owned subsidiary of the Corporation. Termination
for Cause shall be determined by the Board or, if applicable, the Board of
Directors of an Affiliate, in its sole discretion and in good faith.
"TERMINATION OF SERVICE" means termination of employment with the
Corporation and all of its Affiliates for an employee, termination of service as
a director for a Nonemployee Director, or the expiration or termination of the
contract between a Participant who is an independent contractor and the
Corporation or any Affiliate.
2
ARTICLE II
ADMINISTRATION
Subject to the terms of this Article II, the Plan shall be administered
by the Committee which shall consist of not less than three (3) members of the
Board. Any member of the Committee may be removed at any time, with or without
cause, by resolution of the Board. Any vacancy occurring in the membership of
the Committee may be filled by appointment by the Board. Each member of the
Committee, at the time of his appointment to the Committee and while he is a
member thereof, must be a "disinterested person", as that term is defined in
Rule 16b-3 promulgated under the 1934 Act, and an "outside director" under
Section 162(m) of the Code.
The Board shall select one of its members to act as the Chairman of the
Committee, and the Committee shall make such rules and regulations for its
operation as it deems appropriate. A majority of the Committee shall constitute
a quorum, and the act of a majority of the members of the Committee present at a
meeting at which a quorum is present or any action taken without a meeting
evidenced by a writing executed by all members of the Committee shall be the act
of the Committee. Subject to the terms hereof, the Committee shall have
exclusive power to:
a. Designate, from time to time, the particular officers, key
employees, Nonemployee Directors, and consultants to whom
Stock Options will be granted;
b. Designate the time or times when Stock Options will be
granted;
c. Determine the number of shares of Common Stock subject to
issuance pursuant to any Stock Option award, and all of the
terms, conditions, restrictions and limitations, if any, of an
award of Stock Options, including the time and conditions of
exercise or vesting;
d. Accelerate the vesting or exercise of any Stock Options when
such actions would be in the best interests of the
Corporation;
e. Interpret the Plan, prescribe, amend, and rescind any rules
and regulations necessary or appropriate for the
administration of the Plan; and
f. Make such other determinations and take such other action as
it deems necessary or advisable in connection with the
foregoing.
The Committee shall have full authority and responsibility to
administer the Plan, including authority to interpret and construe any provision
of the Plan and the terms of any Stock Options issued under it and to adopt such
rules and regulations for administering the Plan as it may deem necessary.
Except as provided below, any interpretation, determination, or other action
made or taken by the Committee shall be final, binding, and conclusive on all
interested parties, including the Corporation and all Participants.
ARTICLE III
SHARES SUBJECT TO THE PLAN
Subject to the provisions of Articles XI and XII of the Plan, the
maximum aggregate number of shares of Common Stock issuable pursuant to the
exercise of Stock Options granted under the Plan shall be 500,000 shares of
Common Stock. The Committee and the appropriate officers of the Corporation
shall from time to time take whatever actions are necessary to execute,
acknowledge, file and deliver any documents required to be filed with or
delivered to any governmental authority or any stock exchange or transaction
reporting system on which shares of Common Stock are listed or quoted in order
to make shares of Common Stock available for issuance pursuant to this Plan.
Shares of Common Stock subject to Stock Options that (i) are forfeited or
terminated, (ii) expire unexercised, (iii) are settled in cash in lieu of Common
Stock, or (iv) are exchanged for Common Stock owned by the Participant upon
exercise of a Stock Option, shall immediately become available for the
subsequent granting of Stock Options; provided, however, that in no event shall
the number of shares of Common Stock subject to Incentive Stock Options exceed,
in the aggregate, 500,000 shares of Common Stock plus shares subject to
Incentive Stock Options which are forfeited or terminated, or
3
expire unexercised. Shares to be distributed and sold may be made available
from either authorized but unissued Common Stock or Common Stock held by the
Corporation in its treasury.
ARTICLE IV
STOCK OPTION GRANTS
4.1 Eligibility. The Committee shall, from time to time, select the
particular officers, key employees, and key consultants of the Corporation and
its Affiliates to whom the Stock Options are to be granted and/or distributed in
recognition of each such Participant's contribution to the Corporation's or the
Affiliate's success. Nonemployee Directors who do not elect to decline to
participate pursuant to the following sentence will be eligible to receive Stock
Options as provided in Section 4.2. A director otherwise eligible to participate
in the Plan may make an irrevocable, one-time election, by written notice to the
Committee within ten (10) days after his or her initial election to the Board,
to decline to participate in the Plan.
4.2 Grant of Stock Options. All grants of Stock Options under this
Article IV shall be awarded by the Committee. Each grant of Stock Options shall
be evidenced by an Option Agreement setting forth the total number of shares
subject to the Stock Option, the option exercise price, the term of the Stock
Option, the vesting schedule, and such other terms and provisions as are
approved by the Committee, but, except to the extent permitted herein, are not
inconsistent with the Plan. In the case of an Incentive Stock Option, the Option
Agreement shall also include provisions that may be necessary to assure that the
option is an Incentive Stock Option under the Code. The Corporation shall
execute Option Agreements upon instructions from the Committee. Any Nonemployee
Director who does not, in accordance with Section 4.1, decline to participate
shall, on the date that is ten (10) days after his or her initial election as a
director of the Corporation, automatically be granted a Stock Option to purchase
10,000 shares of Common Stock, as adjusted in accordance with Article XI. Any
Nonemployee Director who does not, in accordance with Section 4.1, decline to
participate shall, on the date that is ten (10) days after an annual meeting of
the Company, automatically be granted a Stock Option to purchase 10,000 shares
of Common Stock, as adjusted in accordance with Article XI. The options will be
granted at fair market value on the grant date and become exercisable, subject
to certain conditions, in three (3) equal annual installments on the first three
(3) anniversaries of the grant date and terminate (10) years from the grant date
unless terminated sooner as a result of the death or termination of directorship
of the holder thereof. If, on the Date of Grant of a Stock Option to a
Nonemployee Director, fewer shares of Common Stock remain available for grant
than are necessary to permit the grant of Stock Options to each person entitled
to receive a Stock Option, then a Stock Option covering an equal number of whole
shares of Common Stock, up to 10,000 shares or 10,000 shares, as the case may
be, shall be granted to each Nonemployee Director who has not previously been
granted a Stock Option.
4.3 Exercise Price. The exercise price for a Nonqualified Stock Option
shall not be less than the Fair Market Value per share of the Common Stock on
the Date of Grant. Subject to the terms of Section 5.1 hereof, the exercise
price for an Incentive Stock Option shall be equal to the Fair Market Value per
share of the Common Stock on the Date of Grant. Notwithstanding anything to the
contrary contained in this Section 4.3, the exercise price of each Stock Option
granted pursuant to the Plan shall not be less than the par value per share of
the Common Stock.
4.4 Option Period. The option period will begin and terminate on the
respective dates specified by the Committee, but may not terminate later than
ten (10) years from the Date of Grant. No Stock Option granted under the Plan
may be exercised at any time after the expiration of its option period. The
Committee may provide for the vesting and exercise of Stock Options in
installments and upon such terms, conditions and restrictions as it may
determine. In addition to the provisions contained elsewhere herein concerning
automatic acceleration of unmatured installments of Stock Options, the Committee
shall have the right to accelerate the time at which any Stock Option granted to
a Participant shall become vested, or exercisable.
ARTICLE V
LIMITS ON INCENTIVE STOCK OPTIONS
5.1 Eligibility; Option Period. Only employees of the Corporation or an
Affiliate may receive an Incentive Stock Option. Notwithstanding the provisions
of Section 4.4 hereof, if a Participant eligible to receive an Incentive Stock
Option under Section 422 of the Code (an "Eligible Participant") owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of the Code)
more than 10% of the combined voting power of all classes of stock of the
4
Corporation (or any Affiliate of the Corporation) and an Incentive Stock Option
is granted to such Eligible Participant, the option period term of such
Incentive Stock Option (to the extent required by the Code at the time of grant)
shall be no more than five (5) years from the Date of Grant. In addition, the
option price of any such Incentive Stock Option granted to any such Eligible
Participant owning more than 10% of the combined voting power of all classes of
stock of the Corporation (or any Affiliate of the Corporation) shall be at least
110% of the Fair Market Value of the Common Stock on the Date of Grant.
5.2 Limitation on Exercises of Shares Subject to Incentive Stock
Options. To the extent required by the Code for incentive stock options, the
exercise of Incentive Stock Options granted under the Plan shall be subject to
the $100,000 calendar year limit as set forth in Section 422(d) of the Code; to
the extent that any grant exceeds such $100,000 calendar year limit, the portion
of such granted Stock Option shall be deemed a Nonqualified Stock Option granted
pursuant to Article IV.
5.3 Disqualifying Disposition. If Common Stock acquired upon exercise of
an Incentive Stock Option is disposed of by an Eligible Participant prior to the
expiration of either two (2) years from the Date of Grant of such Stock Option
or one (1) year from the transfer of shares to such Eligible Participant
pursuant to the exercise of such Stock Option, or in any other disqualifying
disposition within the meaning of Section 422 of the Code, such Eligible
Participant shall notify the Corporation in writing of the date and terms of
such disposition. A disqualifying disposition by an Eligible Participant shall
not affect the status of any other Stock Option granted under the Plan as an
incentive stock option within the meaning of Section 422 of the Code.
5.4 Termination. Notwithstanding the provisions of Article VII, the
option period of an Eligible Participant's Incentive Stock Options shall
terminate no later than ninety (90) days after such Participant's Termination of
Service with the Corporation and its Affiliates; provided, that if such service
terminates by reason of the death or Disability of the Participant, then the
option period of such Participant's Incentive Stock Options shall terminate no
later than twelve (12) months after such termination by reason of death or
Disability.
ARTICLE VI
EXERCISE OF STOCK OPTIONS; RESTRICTED STOCK
6.1 Exercise of Options.
(a) Options granted to employees, consultants, and Nonemployee
Directors shall be exercisable in accordance with the terms of the applicable
Option Agreement.
(b) Except as otherwise provided in Section 14.2, a Stock Option may be
exercised solely by the Participant during his lifetime or after his death by
the person or persons entitled thereto under his will or the laws of descent and
distribution.
(c) The purchase price of the shares as to which a Stock Option is
exercised shall be paid in full at the time of the exercise. The full purchase
price of shares purchased shall be paid upon exercise of the Stock Option in
cash, or, with the consent of the Committee, with shares of Common Stock
previously owned by the Participant or, with the consent of the Committee, by a
combination of cash and such shares. Additionally, the Committee in its sole
discretion may provide for payment of the exercise price, (a) by loans from the
Corporation or (b) by authorizing a third party to sell the shares (or a
sufficient portion thereof) acquired upon exercise of a Stock Option, and
assigning the delivery to the Corporation of a sufficient amount of the sale
proceeds to pay for all the shares acquired through such exercise and any tax
withholding obligations resulting from such exercise. No holder of a Stock
Option shall be, or have any of the rights or privileges of, a shareholder of
the Corporation in respect of any shares subject to any Stock Option unless and
until certificates evidencing such shares shall have been issued by the
Corporation to such holder.
6.2 Restricted Stock. Each Option Agreement may contain or otherwise
provide for conditions giving rise to the forfeiture of Common Stock acquired
pursuant to an Option Agreement granted hereunder or otherwise and such
restrictions on the transferability of shares of the Common Stock acquired
pursuant to an Option Agreement hereunder or otherwise as the Committee in its
sole and absolute discretion shall deem proper and advisable. Such conditions
giving rise to forfeiture may include, but need not be limited to, the
requirement that the Participant render substantial
5
services to the Corporation or its Affiliates for a specified period of time.
Such restrictions on transferability may include, but need not be limited to,
options and rights of first refusal in favor of the Corporation and shareholders
of the Corporation, other than the Participant who is a party to the particular
Option Agreement relating to such share of Common Stock or a subsequent holder
of the shares of Common Stock who is bound by such Option Agreement. Such
Certificates for shares of Common Stock, when issued, may have the following
legend, or statements of other applicable restrictions, endorsed thereon, and
may not be immediately transferable:
The shares of Stock evidenced by this certificate have been issued to
the registered owner in reliance upon written representations that
these shares have been purchased for investment. These shares may not
be sold, transferred, or assigned unless, in the opinion of the
Corporation or its legal counsel, such sale, transfer, or assignment
will not be in violation of the Securities Act of 1933, as amended,
applicable rules and regulations of the Securities and Exchange
Commission, and any applicable state securities laws.
ARTICLE VII
TERMINATION OF SERVICE
Upon the Termination of Service of a Participant for any reason, the
specific Option Agreement shall govern the treatment of any unexercised Stock
Options. In the event of such a termination, the Committee may, in its
discretion, provide for the extension of the exercisability of a Stock Option
for any period that is not beyond the applicable expiration date thereof,
accelerate the vesting or exercisability of a Stock Option, eliminate or make
less restrictive any restrictions contained in a Stock Option, waive any
restriction or other provision of this Plan or a Stock Option or otherwise amend
or modify the Stock Option in any manner that is either (a) not adverse to such
Participant or (b) consented to by such Participant.
Except as otherwise set forth above, or as provided in Section 5.4 with
respect to Incentive Stock Options, a Participant's Stock Options may be
exercised as follows in the event of such Participant's Termination of Service:
(a) Death. In the event of the Participant's death prior to
Termination of Service, all unmatured installments of Stock Options
outstanding shall thereupon automatically be accelerated and
exercisable in full, and the Stock Options may be exercised for a
period of twelve (12) months after the Participant's death or until
expiration of the option period (if sooner), by the Participant's
estate or personal representative(s), or by the person(s) who acquired
the right to exercise the Stock Option by bequest or inheritance or by
reason of the Participant's death;
(b) Disability. In the event of a Participant's (other than a
Nonemployee Director) Termination of Service as the result of
Disability, then all unmatured installments of Stock Options
outstanding shall thereupon automatically be accelerated and
exercisable in full, and the Stock Options may be exercised by such
Participant or his guardian or legal representative for a period of
twelve (12) months after such termination or until expiration of the
option period (if sooner);
(c) Termination for Cause. In the event of the Participant's
Termination for Cause, then all unvested Stock Options, or any unvested
portion thereof, shall not be exercisable and shall thereupon
immediately terminate; and
(d) Other Termination. In the event of a voluntary Termination
of Service by a Participant (including as a result of retirement by
that Participant) or Termination of Service of a Participant by the
Corporation or its Affiliate for any other reason, then all vested
Stock Options may be exercised for a period of three (3) months after
such termination or until expiration of the option period (if sooner)
and upon such date, all of the Participant's outstanding Stock Options
shall thereupon immediately terminate.
Notwithstanding the foregoing, an individual grant of a Stock Option to a
Participant under the Plan may provide, pursuant to the terms of the particular
Option Agreement, more restrictive terms than those contained in this Plan
concerning any exercise of such Stock Option with respect to any Termination of
Service by such Participant.
6
ARTICLE VIII
AMENDMENT OR DISCONTINUANCE
Subject to the limitations set forth in this Article VIII, the
Committee may at any time and from time to time, without the consent of the
Participants, alter, amend, revise, suspend, or discontinue the Plan in whole or
in part. In the event of any amendment to the Plan, the holder of any Stock
Option outstanding under the Plan shall, upon request of the Committee and as a
condition to the exercisability thereof, execute a conforming amendment in the
form prescribed by the Committee to any Option Agreement relating thereto within
such reasonable time as the Committee shall specify in such request.
Notwithstanding anything contained in this Plan to the contrary, unless required
by law, no action contemplated or permitted by this Article VIII shall adversely
affect any rights of Participants or obligations of the Corporation to
Participants with respect to any Stock Options theretofore granted under the
Plan without the consent of the affected Participant.
ARTICLE IX
EFFECT OF THE PLAN
Neither the adoption of this Plan nor any action of the Committee shall
be deemed to give any employee, consultant or Nonemployee Director any right to
be granted a Stock Option or to purchase or receive Common Stock of the
Corporation or any other rights except as may be evidenced by an Option
Agreement, or any amendment thereto, duly authorized by and executed on behalf
of the Corporation and then only to the extent of and upon and subject to the
terms and conditions expressly set forth therein.
ARTICLE X
TERM
The Plan shall be submitted to the Corporation's stockholders for their
approval; adoption of the Plan by the Corporation and the award of any Option
Agreement hereunder shall be subject to and conditioned upon such stockholders'
approval of the Plan. Unless sooner terminated by action of the Board, the Plan
will terminate on the 31st day of December, 2011. Stock Options under the Plan
may not be granted after that date, but Stock Options granted before that date
will continue to be effective in accordance with their terms and conditions.
ARTICLE XI
CAPITAL ADJUSTMENTS
If at any time while the Plan is in effect or unexercised Stock Options
are outstanding there shall be any increase or decrease in the number of issued
and outstanding shares of Common Stock through the declaration of a Stock
Dividend or through any recapitalization resulting in a stock split-up,
combination, or exchange of shares of Common Stock, then and in such event:
(i) An appropriate adjustment shall be made in the
maximum number of shares of Common Stock then subject to being
awarded under grants pursuant to the Plan, to the end that the
same proportion of the Corporation's issued and outstanding
shares of Common Stock shall continue to be subject to being
so awarded; and
(ii) Appropriate adjustments shall be made in the number
of shares of Common Stock and the exercise price per share
thereof then subject to purchase pursuant to each such Stock
Option previously granted and unexercised, to the end that the
same proportion of the Corporation's issued and outstanding
shares of Common Stock in each instance shall remain subject
to purchase at the same aggregate exercise price.
Any fractional shares resulting from any adjustment made pursuant to
this Article XI shall be eliminated for the purposes of such adjustment. Except
as otherwise expressly provided herein, the issuance by the Corporation of
shares of its capital stock of any class, or securities convertible into shares
of capital stock of any class, either in connection with direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Corporation convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof
7
shall be made with respect to, the number of or exercise price of shares of
Common Stock then subject to outstanding Stock Options granted under the Plan.
ARTICLE XII
RECAPITALIZATION, MERGER AND CONSOLIDATION
(a) The existence of this Plan and Stock Options granted
hereunder shall not affect in any way the right or power of the
Corporation or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the
Corporation's capital structure or its business, or any merger or
consolidation of the Corporation, or any issue of bonds, debentures,
preferred or prior preference stocks ranking prior to or otherwise
affecting the Common Stock or the rights thereof (or any rights,
options or warrants to purchase same), or the dissolution or
liquidation of the Corporation, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
(b) Subject to any required action by the stockholders, if the
Corporation shall be the surviving or resulting corporation in any
merger or consolidation, any outstanding Stock Option granted hereunder
shall pertain to and apply to the securities or rights (including cash,
property or assets) to which a holder of the number of shares of Common
Stock subject to the Stock Option would have been entitled.
(c) In the event of any reorganization, merger or
consolidation pursuant to which the Corporation is not the surviving or
resulting corporation, or of any proposed sale of substantially all of
the assets of the Corporation, there may be substituted for each share
of Common Stock subject to the unexercised portions of such outstanding
Stock Option that number of shares of each class of stock or other
securities or that amount of cash, property or assets of the surviving
or consolidated company which were distributed or distributable to the
stockholders of the Corporation in respect of each share of Common
Stock held by them, such outstanding Stock Options to be thereafter
exercisable for such stock, securities, cash or property in accordance
with their terms. Notwithstanding the foregoing, however, the
Committee, in its sole discretion, may cancel all such Stock Options as
of the effective date of any such reorganization, merger or
consolidation, or of any such proposed sale of substantially all of the
assets of the Corporation, or of any dissolution or liquidation of the
Corporation, and either:
(i) give notice to each holder thereof or his personal
representative of its intention to cancel such Stock Options
and permit the purchase during the thirty (30) day period next
preceding such effective date of any or all of the shares
subject to such outstanding Stock Options, including shares as
to which such Stock Options would not otherwise be
exercisable; or
(ii) pay the holder thereof an amount equal to a
reasonable estimate of an amount (hereinafter the "Spread")
equal to the difference between the net amount per share
payable in such transaction or as a result of such
transaction, less the exercise price of such Stock Options. In
estimating the Spread, appropriate adjustments to give effect
to the existence of the Stock Options shall be made, such as
deeming the Stock Options to have been exercised, with the
Corporation receiving the exercise price payable thereunder,
and treating the shares receivable upon exercise of the
Options as being outstanding in determining the net amount per
share. In cases where the proposed transaction consists of the
acquisition of assets of the Corporation, the net amount per
share shall be calculated on the basis of the net amount
receivable with respect to shares of Common Stock upon a
distribution and liquidation by the Corporation after giving
effect to expenses and charges, including but not limited to
taxes, payable by the Corporation before such liquidation
could be completed.
(d) In the event of a "Change in Control" of the Corporation,
then, notwithstanding any other provision in the Plan to the contrary,
all unmatured installments of Stock Options outstanding shall thereupon
automatically be accelerated and exercisable in full. Such acceleration
of exercisability shall not apply to a given Stock Option granted to
any Participant other than Nonemployee Directors if any surviving
acquiring corporation agrees to assume such Stock Option in connection
with the Change in Control. For the purposes of this Plan, a "Change in
Control" shall mean any one of the following: (i) during any period of
two (2)
8
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 Corporation's stockholders, of each new
director was approved by a vote of at 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 Corporation) (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 Corporation (and the "Affiliates" of such directors, as that term
is defined below) serving as such as of the date of this Plan
(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 Corporation's then outstanding
securities entitled generally to vote for the election of the
Corporation's directors; (iii) the merger or consolidation of the
Corporation with or into any other entity if the Corporation is not the
surviving entity (or the Corporation is the surviving entity but voting
securities of the Corporation are exchanged for securities of any other
entity) and any person or group of persons (as defined above) (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 Corporation or
the liquidation or dissolution of the Corporation. The term "Affiliate"
with respect to any person shall mean any person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person specified.
(e) Notwithstanding sub-Section (c) above of this Article XII,
in case the Corporation shall, at any time while any Stock Option under
this Plan shall be in force and remain unexpired, (i) sell all or
substantially all of its property or (ii) dissolve, liquidate, or wind
up its affairs, then, provided that the Committee so determines in its
sole discretion, each Participant may thereafter receive upon exercise
hereof (in lieu of each share of Common Stock of the Corporation which
such Participant would have been entitled to receive) the same kind and
amount of any securities or assets as may be issuable, distributable or
payable upon any such sale, dissolution, liquidation, or winding up
with respect to each share of Common Stock of the Corporation. In the
event that the Corporation shall, at any time prior to the expiration
of any Stock Option, make any partial distribution of its assets in the
nature of a partial liquidation, whether payable in cash or in kind
(but excluding the distribution of a cash dividend payable out of
retained earnings or earned surplus and designated as such), then in
such event the exercise prices then in effect with respect to each
option shall be reduced, as of the payment date of such distribution,
in proportion to the percentage reduction in the tangible book value of
the shares of the Corporation's Common Stock (determined in accordance
with generally accepted accounting principles) resulting by reason of
such distribution; provided, that in no event shall any adjustment of
exercise prices in accordance with the terms of the Plan result in any
exercise prices being reduced below the par value per share of the
Common Stock.
(f) Upon the occurrence of each event requiring an adjustment
of the exercise price and/or the number of shares purchasable pursuant
to Stock Options granted pursuant to the terms of this Plan, the
Corporation shall mail forthwith to each Participant a copy of its
computation of such adjustment which shall be conclusive and shall be
binding upon each such Participant, except as to any Participant who
contests such computation by written notice to the Corporation within
thirty (30) days after receipt thereof by such Participant.
ARTICLE XIII
OPTIONS IN SUBSTITUTION FOR STOCK OPTIONS
GRANTED BY OTHER CORPORATIONS
Stock Options may be granted under the Plan from time to time in
substitution for such stock options held by employees of a corporation who
become or are about to become employees of the Corporation or an Affiliate as
the result of a merger or consolidation of the employing corporation with the
Corporation or an Affiliate or the acquisition by either of the foregoing of
stock of the employing corporation as the result of which it becomes an
Affiliate. The terms and conditions of the substitute options so granted may
vary from the terms and conditions set forth in this Plan to such extent
9
as the Committee at the time of grant may deem appropriate to conform, in whole
or in part, to the provisions of the options in substitution for which they are
granted.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Other Compensation Plans. The adoption of this Plan shall not affect
any other stock option or incentive or other compensation plans in effect for
the Corporation or any Affiliate, nor shall the Plan preclude the Corporation or
any Affiliate from establishing any other forms of incentive or other
compensation plans.
14.2 Exercise of Stock Options. Stock Options granted under the Plan may
be exercised during the option period, at such times and in such amounts, in
accordance with the terms and conditions and subject to such restrictions as are
set forth herein and in the applicable Option Agreements.
14.3 Assignability. A Stock Option granted to a Participant optionee may
not be transferred or assigned other than by will or the laws of descent and
distribution or, with respect to a Nonqualified Stock Option, pursuant to the
terms of a qualified domestic relations order as defined by the Code or Title I
of ERISA, or the rules thereunder, or, with respect to an Incentive Stock
Option, by the Participant or his legally authorized representative during the
Participant's lifetime. The Committee may, in its discretion, authorize all or a
portion of the Stock Options granted to a Participant to be on terms which
permit transfer by such Participant to (A) the spouse, ex-spouse, children, step
children or grandchildren of the Participant ("Immediate Family Members"), (B) a
trust or trusts for the exclusive benefit of one or more Immediate Family
Members, or (C) a partnership or limited liability company in which one or more
Immediate Family Members are the only partners or members, so long as (i) the
Option Agreement evidencing any option granted pursuant to this Plan is approved
by the Committee and expressly provides for transferability in a manner
consistent with this Section 14.2 and (ii) subsequent transfers of such option
shall be prohibited except for transfers by will or the laws of descent and
distribution. Furthermore, the Committee may, in its discretion, authorize all
or a portion of the Stock Options granted to a Participant to be on terms which
permit transfer by such Participant to other entities or persons to whom the
Committee may in its discretion permit transfers of the option. Notwithstanding
any provision contained herein to the contrary, in the case of an Incentive
Stock Option, any transfer or assignment may occur only to the extent it will
not result in disqualifying such option as an incentive Stock Option under
Section 422 of the Code, or any successor provision. Any attempted assignment or
transfer in violation of this Section 14.2 shall be null and void.
14.4 Investment Intent. The Corporation may require that there be
presented to and filed with it by any Participant(s) under the Plan, such
evidence as it may deem necessary to establish that the Stock Options granted or
the shares of Common Stock to be purchased or transferred are being acquired for
investment purposes and not with a view to their distribution.
14.5 Allotment of Shares. The Committee shall determine the number of
shares of Common Stock to be offered from time to time by grant of Stock Options
to Participants under the Plan. The grant of a Stock Option to a Participant
shall not, by itself, be deemed either to entitle the Participant to, or to
disqualify the Participant from, participation in any other grant of Stock
Options under the Plan.
14.6 No Right to Continue Employment. This Plan does not constitute a
contract of employment. Nothing in the Plan or in any Stock Option confers upon
any employee the right to continue in the employ of the Corporation or any of
its Affiliates or interferes with or restricts in any way the right of the
Corporation or any of its Affiliates to discharge any employee at any time
(subject to any contract rights of such employee).
14.7 Stockholders' Rights. The holder of a Stock Option shall have none
of the rights or privileges of a stockholder except with respect to shares which
have been actually issued.
14.8 Tax Requirements. Any Participant who exercises any Stock Option
shall be required to pay the Corporation the amount of all taxes which the
Corporation is required to withhold as a result of the exercise of the Stock
Option. With respect to an Incentive Stock Option, in the event of a subsequent
disqualifying disposition of Common Stock within the meaning of Section 422 of
the Code, such payment of taxes may be made in cash, by check or through the
delivery of shares of Common Stock which the employee then owns, which shares
have an aggregate Fair Market
10
Value equal to the required withholding payment, or any combination thereof.
With respect to the exercise of a Nonqualified Stock Option, the Participant's
obligation to pay such taxes may be satisfied by the following, or any
combination thereof: (i) the delivery of cash to the Corporation in an amount
necessary to satisfy the required tax withholding obligation of the Corporation
and/or (ii) the actual delivery by the exercising Participant to the Corporation
of shares of Common Stock which the Participant owns and/or the Corporation's
withholding of a number of shares to be delivered upon the exercise of the Stock
Option), which shares so delivered or withheld have an aggregate Fair Market
Value which equals or exceeds (if necessary to avoid the issuance of fractional
shares) the required tax withholding payment. Any such withholding payments with
respect to the exercise of a Nonqualified Stock Option made by a Participant in
cash or by actual delivery of shares of Common Stock shall be required to be
made within thirty (30) days after the delivery to the Participant of any
certificate representing the shares of Common Stock acquired upon exercise of
the Stock Option.
14.9 Indemnification of Committee. No current or previous member of the
Committee, nor any officer or employee of the Corporation acting on behalf of
the Committee, shall be personally liable for any action, determination, or
interpretation taken or made in good faith with respect to the Plan, and all
such members of the Committee and each and any officer or employee of the
Corporation acting on its behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Corporation in respect of any such action,
determination or interpretation. The foregoing right of indemnification shall
not be exclusive of any other rights of indemnification to which such
individuals may be entitled under the Corporation's Certificate of Incorporation
or Bylaws, as a matter of law, or otherwise.
14.10 Restrictions. This Plan, and the granting and exercise of Stock
Options hereunder, and the obligation of the Corporation to sell and deliver
Common Stock under such Stock Options, shall be subject to all applicable
foreign and United States laws, rules and regulations, and to such approvals on
the part of any governmental agencies or stock exchanges or transaction
reporting systems as may be required. No Common Stock or other form of payment
shall be issued with respect to any Stock Option unless the Corporation shall be
satisfied based on the advice of its counsel that such issuance will be in
compliance with applicable federal and state securities laws and the
requirements of any regulatory authority having jurisdiction over the securities
of the Corporation. Unless the Stock Options and Common Stock covered by this
Plan have been registered under the Securities Act of 1933, as amended, each
person exercising a Stock Option under this Plan may be required by the
Corporation to give a representation in writing in form and substance
satisfactory to the Corporation to the effect that he is acquiring such shares
for his own account for investment and not with a view to, or for sale in
connection with, the distribution of such shares or any part thereof. If any
provision of this Plan is found not to be in compliance with such rules, such
provision shall be null and void to the extent required to permit this Plan to
comply with such rules. Certificates evidencing shares of Common Stock delivered
under this Plan may be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations
and other requirements of the Securities and Exchange Commission, any securities
exchange or transaction reporting system upon which the Common Stock is then
listed or quoted, and any applicable federal, foreign and state securities law.
The Committee may cause a legend or legends to be placed upon any such
certificates to make appropriate reference to such restrictions.
14.11 Gender and Number. Where the context permits, words in the
masculine gender shall include the feminine and neuter genders, the plural form
of a word shall include the singular form, and the singular form of a word shall
include the plural form.
14.12 Headings. Headings of articles and sections hereof are inserted for
convenience of reference and constitute no part of the Plan.
11
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed as of the 31st day of December, 2001 by its Chief Executive Officer
pursuant to prior action taken by the Board.
TOREADOR RESOURCES CORPORATION
By: /s/ G. THOMAS GRAVES III
------------------------------------
President and Chief Executive Officer
Attest:
/s/ GERRY F. CARGILE
- -------------------------------
Secretary
12