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ITEM 14(a)3, EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") is
entered into as of November 1, 1997, by and between Bruce A. Smith ("Employee")
and Tesoro Petroleum Corporation, a Delaware corporation (the "Company").
RECITALS:
A. The Company and Employee are parties to an Employment
Agreement dated September 14, 1992, including all amendments thereto and
restatements prior to the date hereof (the "Prior Agreement").
B. The Company wishes to continue the engagement of Employee as
its President and Chief Executive Officer; as such, Employee shall have certain
responsibilities and shall receive certain compensation and benefits.
C. Employee and the Company wish to formalize the continuation of
this employment relationship by amending and restating the Prior Agreement,
including extending its term, and by setting forth certain additional
agreements between Employee and the Company.
THE PARTIES AGREE AS FOLLOWS:
1. Employment and Duties. During the term of this Agreement, the
Company agrees to employ Employee as the Company's President and Chief
Executive Officer, and Employee agrees to serve the Company in such capacity on
the terms and subject to the conditions set forth in this Agreement. Employee
shall devote substantially all of his business time, energy and skill to the
affairs of the Company as the Company, acting through its Board of Directors,
shall reasonably deem necessary to discharge Employee's duties in such
capacity. Employee may participate in social, civic, charitable, religious,
business, educational or professional associations, so long as such
participation would not materially detract from Employee's ability to perform
his duties under this Agreement. Employee shall not engage in any other
business activity during the term of this Agreement without the prior written
consent of the Company, other than the passive management of Employee's
personal investments or activities which would not materially detract from
Employee's ability to perform his duties under this Agreement.
2. Compensation.
(a) Salary; Withholding. During the term of this Agreement, the
Company shall pay Employee a base salary of $600,000 per year, payable in
arrears in equal bi-weekly installments ("Base Salary"). The parties shall
comply with all applicable withholding requirements in connection with all
compensation payable to Employee. The Company's Board of Directors may, in its
sole discretion, review and adjust upward Employee's Base Salary from time to
time, but no downward adjustment in Employee's Base Salary may be made during
the term of this Agreement.
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(b) Annual Incentive Plan. The Company shall maintain an Annual
Incentive Compensation Plan for executive officers in which the Employee shall
be entitled to participate in a manner consistent with his position with the
Company and the evaluations of his performance by the Board of Directors or any
appropriate Committee thereof.
(c) Stock Options and Other Incentive Grants. The Employee shall
be entitled to receive stock options and restricted stock, and other long-term
incentive plan grants under the Company's plans in effect from time to time, if
any, commensurate with his position with the Company and the evaluations of his
performance by the Board of Directors or any appropriate committee thereof.
(d) Flexible Perquisites Arrangement. The Employee shall receive
annually a stipulated amount of $30,000 which will be expended by the Company
on behalf of the Employee or paid to the Employee, at the Employee's election,
to cover various business-related expenses such as monthly dues for country,
luncheon or social clubs, automobile expenses and financial and tax planning
expenses. The Employee may elect at any time by written notice to the Company
to receive any of such stipulated amount which has not been paid to or on
behalf of the Employee. In addition, the Company will pay initiation fees and
reimburse the Employee for related tax expenses to the extent the Board of
Directors or a duly authorized committee thereof determines such fees are
reasonable and in the best interest of the Company.
(e) Other Benefits. Employee shall be eligible to participate in
and have the benefits under the terms of all life, accident, disability and
health insurance plans, pension, profit sharing, incentive compensation and
savings plans and all other similar plans and benefits which the Company from
time to time makes available to its management executives, including, without
limitation, those listed on Exhibit A, in the same manner and at least at the
same participation level as other senior management executives, as soon as
Employee meets the period of employment and other eligibility requirements of
general applicability of the various plans and benefits made available by the
Company.
3. Business Expenses. The Company shall promptly reimburse
Employee for all appropriately documented, reasonable business expenses
incurred by Employee in accordance with Company policies.
4. Term. This Agreement shall commence effective as of November
1, 1997, and, if not terminated earlier as herein provided, shall terminate on
the third anniversary date hereof, provided that, if the Company has not given
a notice of termination of employment in accordance with the following
sentence, the term of the Employee's employment hereunder shall automatically
be extended for an additional year on each anniversary date of this Agreement.
Notwithstanding the foregoing, the Company, at any time, may give the Employee
a notice of termination of the Employee's employment under this Agreement by
delivering to the Employee a written notice to such effect. The termination of
employment of the Employee shall be effective 30 days after such notice by the
Company. If a notice of termination of employment is given in accordance
herewith, the Employee shall be deemed to have been involuntarily terminated by
the Company other than
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for cause for purposes hereof and the Employee shall be entitled to the
benefits provided in Section 5 (or Section 9 as applicable) of this Agreement.
5. Termination by the Company Without Cause and Termination by
Employee for "Good Reason". The Company may, by delivering 30 days prior
written notice to Employee, terminate Employee's employment at any time without
cause, and the Employee may, by delivering 30 days prior written notice to the
Company, terminate Employee's employment for "Good Reason," as defined below.
If such termination without cause or for Good Reason occurs, Employee shall be
entitled to receive a lump-sum payment equal to the sum of (a) three times the
sum of (i) his Base Salary at the then current rate and (ii) the sum of the
target bonuses under all of the Company's incentive bonus plans applicable to
Employee for the year in which the termination occurs and (b) if termination
occurs in the fourth quarter of a calendar year, the sum of the target bonuses
under all of the Company's incentive bonus plans applicable to Employee for the
year in which the termination occurs prorated daily based on the number of days
from the beginning of the calendar year in which the termination occurs to and
including the date of termination. Employee shall also receive all earned but
unpaid bonuses for the year prior to the year in which the termination occurs
and shall receive (i) for a period of three years following termination of
employment, continuing coverage and benefits comparable to all life, health and
disability insurance plans which the Company from time to time makes available
to its management executives and their families, (ii) a lump-sum payment equal
to three times the stipulated flexible perquisites amount pursuant to Section
2(d), and (iii) three years additional service credit under the current
non-qualified supplemental pension plans, or successors thereto, of the Company
applicable to the Employee on the date of termination. All unvested stock
options held by Employee on the date of the termination shall become
immediately vested and all restrictions on restricted stock then held by the
Employee shall terminate.
For purposes of this Section 5, "Good Reason" shall mean the
occurrence of any of the following events:
(a) Removal, without the consent of Employee in writing, from one
or more of the offices Employee holds on the date of this Agreement or a
material reduction in Employee's authority or responsibility but not
termination of Employee for "cause," as defined below; or
(b) The Company otherwise commits a material breach of this
Agreement.
The Company shall pay any attorney fees incurred by Employee in
reasonably seeking to enforce the terms of this Section 5.
6. Termination upon Death or Disability. If the Employee's
employment is terminated because of death or on account of becoming permanently
disabled (as defined below), the Employee, or his estate, if applicable, shall
be entitled to receive the Employee's Base Salary earned pro rata to the date
of his termination of employment, plus all earned but unpaid bonuses for the
year prior to the year in which the termination occurs. All unvested stock
options held by the Employee on the
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date of termination shall become immediately vested and all restrictions on
restricted stock held by the Employee shall terminate.
For purposes of this Agreement, Employee shall be deemed to be
"permanently disabled" if Employee shall be considered to be permanently and
totally disabled in accordance with the Company's Long-Term Disability Income
Plan. If there should be a dispute between the Company and Employee as to
Employee's physical or mental disability for purposes of this Agreement, the
question shall be settled by the opinion of an impartial reputable physician or
psychiatrist agreed upon by the parties or their representatives, or if the
parties cannot agree within ten calendar days after a request for designation
of such party, then a physician or psychiatrist shall be designated by the San
Antonio, Texas Medical Association. The parties agree to be bound by the final
decision of such physician or psychiatrist.
7. Termination by the Company for Cause. The Company may
terminate this Agreement at any time if such termination is for "cause," as
defined below, by delivering to Employee written notice describing the cause of
termination 30 days before the effective date of such termination and by
granting Employee at least 30 days to cure the cause. In the event the
employment of Employee is terminated for "cause", Employee shall be entitled
only to his Base Salary earned pro rata to his date of termination, with no
entitlement to any base salary continuation payments or benefit continuation
(except as specifically provided by the terms of an employee benefit plan of
the Company). Except as otherwise provided in this Agreement, the
determination of whether Employee is terminated for "cause" shall be made by
the Board of Directors of the Company, in the reasonable exercise of its
business judgment, and shall be limited to the occurrence of the following
events:
(a) Conviction of or a plea of nolo contendere to the charge of a
felony (which, through lapse of time or otherwise, is not
subject to appeal);
(b) Willful refusal without proper legal cause to perform, or
gross negligence in performing, Employee's duties and
responsibilities;
(c) Material breach of fiduciary duty to the Company through the
misappropriation of Company funds or property; or
(d) The unauthorized absence of Employee from work (other than for
sick leave or disability) for a period of 30 working days or
more during a period of 45 working days.
8. Voluntary Termination by Employee. Employee may terminate
this Agreement at any time upon delivering 30 days written notice to the
Company. In the event of such voluntary termination other than for "good
reason", as defined above, Employee shall be entitled to his Base Salary earned
pro rata to the date of his resignation, plus unpaid bonuses for the year prior
to the year in which the termination occurs, but no base salary continuation
payments or benefits continuation (except as specifically provided by the terms
of an employee benefit plan of the
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Company). On or after the date the Company receives notice of Employee's
resignation, the Company may, at its option, pay Employee his Base Salary
through the effective date of his resignation and terminate his employment
immediately.
9. Termination Following Change of Control. Notwithstanding
anything to the contrary contained herein, should Employee at any time within
two years of a change of control cease to be an employee of the Company (or its
successor), by reason of (i) involuntary termination by the Company (or its
successor) other than for "cause" (following a change of control, "cause" shall
be limited to the conviction of or a plea of nolo contendere to the charge of a
felony (which, through lapse of time or otherwise, is not subject to appeal),
or a material breach of fiduciary duty to the Company through the
misappropriation of Company funds or property) or (ii) voluntary termination by
Employee for "good reason upon change of control," (as defined below), the
Company (or its successor) shall pay to Employee within ten days of such
termination the following severance payments and benefits:
(a) A lump-sum payment equal to three times the Base Salary at the
then current rate;
(b) A lump-sum payment equal to the sum of (i) three times the sum
of the target bonuses under all of the Company's incentive
bonus plans applicable to the Employee for the year in which
the termination occurs or the year in which the change of
control occurred, whichever is greater, and (ii) if
termination occurs in the fourth quarter of a calendar year,
the sum of the target bonuses under all of the Company's
incentive bonus plans applicable to Employee for the year in
which the termination occurs prorated daily based on the
number of days from the beginning of the calendar year in
which the termination occurs to and including the date of
termination; and
(c) A lump-sum payment equal to the amount of any earned but
unpaid bonuses to which Employee is entitled under any
incentive bonus plan.
The Company (or its successor) shall also provide (i) for a period of three
years following termination of employment continuing coverage and benefits
comparable to all life, health and disability plans of the Company in effect at
the time a change of control is deemed to have occurred; (ii) a lump-sum
payment equal to three times the stipulated flexible perquisites amount
pursuant to Section 2(d); and (iii) three years additional service credit under
the current non-qualified supplemental pension plans, or successors thereto, of
the Company applicable to the Employee on the date of termination.
The Company agrees that if remuneration or benefits of any form paid
to Employee by the Company or any trust funded by the Company during or after
his employment with the Company are excess parachute payments as defined in
Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), and are
subject to the 20 percent excise tax imposed by Section 4999 of the Code, the
Company shall pay Employee a bonus no later than seven days prior to the due
date for the excise tax return in an amount equal to the excise tax payable as
a result of the excess parachute payment and any additional federal income
taxes (including any additional excise taxes) payable by
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him as a result of the bonus, assuming that he will be subject to federal
income taxes at the highest individual margin rate. It is the intention of the
parties that the bonus be "grossed up" so that the bonus contains sufficient
funds to pay the excise and all additional federal income taxes due as a result
of the bonus payment so that Employee will suffer no detriment from the excise
tax payable as a result of the excess parachute payments.
For purposes of this Agreement, a "change of control" shall be deemed
to have occurred if (i) there shall be consummated (A) any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's Common Stock would be
converted into cash, securities or other property, other than a merger of the
Company where a majority of the Board of Directors of the surviving corporation
are, and for a two-year period after the merger continue to be, persons who
were directors of the Company immediately prior to the merger or were elected
as directors, or nominated for election as director, by a vote of at least two-
thirds of the directors then still in office who were directors of the Company
immediately prior to the merger, or (B) any sale, lease, exchange or transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company, or (ii) the shareholders of the
Company shall approve any plan or proposal for the liquidation or dissolution
of the Company or (iii)(A) any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), other than the Company or a subsidiary thereof or any employee benefit
plan sponsored by the Company or a subsidiary thereof, shall become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company representing 20 percent or more of the combined
voting power of the Company's then outstanding securities ordinarily (and apart
from rights accruing in special circumstances) having the right to vote in the
election of directors, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, and (B) at any time
during a period of two years thereafter, individuals who immediately prior to
the beginning of such period constituted the Board of Directors of the Company
shall cease for any reason to constitute at least a majority thereof, unless
the election or the nomination by the Board of Directors for election by the
Company's shareholders of each new director during such period was approved by
a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such period.
For purposes of this Section 9, "good reason upon change of control"
shall exist if any of the following occurs:
(i) without Employee's express written consent, the
assignment to Employee of any duties inconsistent with the employment
of Employee to the positions set forth in Section 1, or a significant
diminution of Employee's positions, duties, responsibilities or status
with the Company from those immediately prior to a change of control
or a diminution in Employee's titles or offices as in effect
immediately prior to a change of control, or any removal of Employee
from, or any failure to reelect Employee to, any of such positions;
(ii) a reduction by the Company in Employee's Base Salary in
effect immediately prior to a change of control;
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(iii) the failure by the Company to continue in effect any
thrift, stock ownership, pension, life insurance, health, dental and
accident or disability plan in which Employee is participating or is
eligible to participate at the time of the change of control (or plans
providing Employee with substantially similar benefits), except as
otherwise required by the terms of such plans as in effect at the time
of any change of control or the taking of any action by the Company
which would adversely affect Employee's participation in or materially
reduce Employee's benefits under any of such plans or deprive Employee
of any material fringe benefits enjoyed by Employee at the time of the
change of control or the failure by the Company to provide the
Employee with the number of paid vacation days to which Employee is
entitled in accordance with the vacation policies of the Company in
effect at the time of a change of control;
(iv) the failure by the Company to continue in effect any
incentive plan or arrangement (including without limitation, the
Company's Incentive Compensation Plan and similar incentive
compensation benefits) in which Employee is participating at the time
of a change of control (or to substitute and continue other plans or
arrangements providing the Employee with substantially similar
benefits), except as otherwise required by the terms of such plans as
in effect at the time of any change of control;
(v) the failure by the Company to continue in effect any plan
or arrangement with respect to securities of the Company (including,
without limitation, any plan or arrangement to receive and exercise
stock options, stock appreciation rights, restricted stock or grants
thereof or to acquire stock or other securities of the Company) in
which Employee is participating at the time of a change of control (or
to substitute and continue plans or arrangements providing the
Employee with substantially similar benefits), except as otherwise
required by the terms of such plans as in effect at the time of any
change of control or the taking of any action by the Company which
would adversely affect Employee's participation in or materially
reduce Employee's benefits under any such plan;
(vi) the relocation of the Company's principal executive
offices to a location outside the San Antonio, Texas, area, or the
Company's requiring Employee to be based anywhere other than at the
location of the Company's principal executive offices, except for
required travel on the Company's business to an extent substantially
consistent with Employee's present business travel obligations, or, in
the event Employee consents to any such relocation of the Company's
principal executive or divisional offices, the failure by the Company
to pay (or reimburse Employee for) all reasonable moving expenses
incurred by Employee relating to a change of Employee's principal
residence in connection with such relocation and to indemnify Employee
against any loss (defined as the difference between the actual sale
price of such residence and the fair market value thereof as
determined by the highest of three appraisals from Member Appraisal
Institute-approved real estate appraisers reasonably satisfactory to
both Employee and the Company at the time Employee's principal
residence is offered for sale in connection with any such change of
residence);
(vii) any material breach by the Company of any provision of
this Agreement;
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(viii) any failure by the Company to obtain the assumption of
this Agreement by any successor or assign of the Company; or
(ix) any purported termination of Employee's employment by
the Company other than termination for cause fully in compliance with
this Agreement and for purposes of this Agreement, no such purported
termination shall be effective.
In the event of a change of control as "change of control" is defined
in any stock option plan or stock option agreement pursuant to which the
Employee holds options to purchase Common Stock of the Company, Employee shall
retain the rights to all accelerated vesting and other benefits under the terms
of such plans and agreements.
The Company shall pay any attorney's fees incurred by Employee in
reasonably seeking to enforce the terms of this paragraph 9.
10. Exclusivity of Termination Provisions. The termination
provisions of this Agreement regarding the parties' respective obligations in
the event Employee's employment is terminated, are intended to be exclusive and
in lieu of any other rights or remedies to which Employee or the Company may
otherwise be entitled at law, in equity, or otherwise. It is also agreed that,
although the personnel policies and fringe benefit programs of the Company may
be unilaterally modified from time to time, the termination provisions of this
Agreement are not subject to modification, whether orally, impliedly or in
writing, unless any such modification is mutually agreed upon and signed by the
parties.
11. Vacation. Employee shall be entitled to four weeks vacation
annually in accordance with Company policy as in effect from time to time. In
the event Employee does not use his entire vacation time in any year, Employee
shall be entitled to carry over unused vacation into the following year until
his accrued vacation reaches six weeks or such greater period as may be
permitted under the Company's vacation policy for management executives.
12. Nondisclosure. During the term of this Agreement and
thereafter, Employee shall not, without the prior written consent of the Board
of Directors, disclose or use for any purpose (except in the course of his
employment under this Agreement and in furtherance of the business of the
Company) confidential information or proprietary data of the Company (or any of
its subsidiaries), except as required by applicable law or legal process;
provided, however, that confidential information shall not include any
information known generally to the public or ascertainable from public or
published information (other than as a result of unauthorized disclosure by
Employee) or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that conducted by
the Company (or any of its subsidiaries).
13. Noncompetition. The Company and Employee agree that the
services rendered by Employee hereunder are unique and irreplaceable. Employee
hereby agrees that, during the term of this Agreement and for a period of one
year thereafter, he shall not (except in the course of his
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employment under this Agreement and in furtherance of the business of the
Company (or any of its subsidiaries)) (i) engage in as principal, consultant or
employee in any segment of a business of a company, partnership or firm
("Business Segment") that is directly competitive with any significant business
of the Company in one of its major commercial or geographic markets or (ii)
hold an interest (except as a holder of a less than 5 percent interest in a
publicly traded firm or mutual fund, or as a minority stockholder or unitholder
in a firm not publicly traded) in a company, partnership, or firm with a
Business Segment that is directly competitive with the Company, without prior
written consent of the Company.
14. Remedies. Employee acknowledges that irreparable damage would
result to the Company if the provisions of paragraph 12 or 13 above are not
specifically enforced and agrees that the Company shall be entitled to any
appropriate legal, equitable or other remedy, including injunctive relief, in
respect of any failure to comply with such provisions.
15. Miscellaneous.
(a) Complete Agreement. This Agreement constitutes the entire
agreement between the parties and cancels and supersedes all other agreements
between the parties which may have related to the subject matter contained in
this Agreement, including without limitation the Prior Agreement.
(b) Modification; Amendment; Waiver. No modification, amendment
or waiver of any provisions of this Agreement shall be effective unless
approved in writing by both parties. The failure at any time to enforce any of
the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of either party thereafter to
enforce each and every provision hereof in accordance with its terms.
(c) Governing Law; Jurisdiction. This Agreement and performance
under it, and all proceedings that may ensue from its breach, shall be
construed in accordance with and under the laws of the State of Texas.
(d) No Breach of Other Obligations. Employee represents and
warrants to the Company that he has not and shall not bring to the Company, or
use in the performance of his responsibilities to the Company, any materials,
documents or information of a former employer (or other person to whom Employee
may hold a duty of confidentiality) which are not generally available to the
public unless Employee delivers to Company prior written authorization to use
such materials, documents or information.
(e) Employee's Representations. Employee represents and warrants
that he is free to enter into this Agreement and to perform each of the terms
and covenants of it. Employee represents and warrants that he is not
restricted or prohibited, contractually or otherwise, from entering into and
performing this Agreement, and that his execution and performance of this
Agreement is not a violation or breach of any other agreement between Employee
and any other person or entity.
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(f) Company's Representations. Company represents and warrants
that it is free to enter into this Agreement and to perform each of the terms
and covenants of it. Company represents and warrants that it is not restricted
or prohibited, contractually or otherwise, from entering into and performing
this Agreement, and that its execution and performance of this Agreement is not
a violation or breach of any other agreement between Company and any other
person or entity. The Company represents and warrants that this Agreement is a
legal, valid and binding agreement of the Company, enforceable in accordance
with its terms.
The Company further represents and warrants that sufficient shares are
available and will remain available under the Plan to fund stock option awards
under the Prior Agreement and under the Stock Option Agreement entered into in
connection therewith. With respect to such stock options, the Company warrants
that the Plan meets all of the requirements of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended. The Company shall be in
continuous compliance with all applicable registration requirements with
respect to the Company's common stock issued under such Stock Option Agreement.
Upon exercise of such stock options, all shares subject thereto will be fully
paid and non-assessable.
(g) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
(h) Assignment. The rights and obligations of the parties under
this Agreement shall be binding upon and inure to the benefit of their
respective successors, assigns, executors, administrators and heirs, provided,
however, that neither the Company nor Employee may assign any duties under this
Agreement without the prior written consent of the other.
(i) Limitation. This Agreement shall not confer any right or
impose any obligation on the Company to continue the employment of Employee in
any capacity, or limit the right of the Company or Employee to terminate
Employee's employment.
(j) Notices. All notices and other communications under this
Agreement shall be in writing and shall be given in person or by telegraph,
telefax or first class mail, certified or registered with return receipt
requested, and shall be deemed to have been duly given when delivered
personally or three days after mailing or one day after transmission of a
telegram or telefax, as the case may be, to the respective persons named below:
If to the Company: Corporate Secretary
Tesoro Petroleum Corporation
8700 Tesoro Drive
San Antonio, Texas 78217
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If to the Employee: Bruce A. Smith
400 Elizabeth
San Antonio, Texas 78209
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY: TESORO PETROLEUM CORPORATION
/s/ JAMES C. REED, JR.
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James C. Reed, Jr.
Executive Vice President, General
Counsel and Secretary
EMPLOYEE: /s/ BRUCE A. SMITH
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Bruce A. Smith
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EXHIBIT A
Benefits Listing
1. Group Health Plan
2. Group Life and Accidental Death & Dismemberment Plan
3. Short Term Disability Income Plan
4. Long Term Disability Income Plan
5. Business Travel Accident Insurance Plan
6. Tesoro Petroleum Corporation Thrift/401K Plan
7. Tesoro Petroleum Corporation Retirement Plan
8. Tesoro Petroleum Corporation Amended Executive Security Plan
9. Tesoro Petroleum Corporation Funded Executive Security Plan
10. Tax Preparation and Financial Planning