Attached files
| file | filename |
|---|---|
| 8-K/A - Triangle Petroleum Corp | v168207_8ka.htm |
| EX-99.4 - Triangle Petroleum Corp | v168207_ex99-4.htm |
Exhibit
99.5
SEPARATION
AGREEMENT
THIS SEPARATION AGREEMENT (as
the same may be amended, modified or supplemented from time to time, the
“Agreement”) is made and entered into this 30th day of November, 2009
(the “Effective Date”), by and between Triangle Petroleum Corporation, a Nevada
corporation (including its successors, the “Corporation”), and Mark Gustafson
(“MG”).
WHEREAS, MG, is the
Corporation’s Chief Executive Officer and Chairman of the Board of
Directors;
WHEREAS, the Corporation has
entered into a Memorandum of Understanding with MG and Palo Alto Global Energy
Master Fund, L.P., dated November 30th, 2009 (the “MOU”);
WHEREAS, pursuant
to the MOU, the Corporation will effect a change in the management and a
majority of the Board of Directors;
WHEREAS, pursuant to the MOU,
the Corporation and MG are entering into this Agreement;
NOW, THEREFORE, in
consideration of the premises and mutual covenants and agreements hereinafter
contained, the parties hereto agree as follows:
1. Resignation. The
parties hereby agree that the employment arrangement between MG and the
Corporation pursuant to which MG serves as the Corporation’s Chief Executive
Officer is terminated as of the Effective Date. Except as expressly provided in
this Agreement, all rights and obligations of MG and the Corporation with
respect to MG’s employment with the Corporation are duly and effectively
terminated as of the Effective Date. As of the Effective Date, MG
resigns from the Corporation’s Board of Directors and as an officer and director
of the Corporation’s subsidiaries. After the Effective Date, MG
agrees to cooperate with the Corporation as is reasonably necessary to assist on
transitional issues. As of the Effective Date, MG agrees that he
shall not represent to any third party that he is acting as an officer or
director of the Corporation.
2. Treatment of
Options. As of the Effective Date, the options granted to MG
under the 2005 stock option plan shall be cancelled and the options granted to
MG during calendar year 2009 shall immediately vest and be exercisable by MG for
a period of one year from the Effective Date.
3. Benefits. Except
as provided or referenced herein, or under applicable law, MG will not be
eligible for any compensation or employer-sponsored benefits after the Effective
Date.
4. Payment to MG. On the
Effective Date, the Corporation shall pay MG the sum of $250,000, which
represents severance payment and all accrued but unused vacation and
sick/personal time, which shall be delivered to MG pursuant to wiring
instructions provided by MG to the Corporation.
5. Corporation Property.
MG warrants that he has returned to the Corporation; or will return to the
Corporation on or before the Effective Date, all credit cards, computers,
telecommunications equipment and keys.
6. Mutual
Non-Disparagement. MG, solely on behalf of himself and his
estate, and the Corporation, for itself and on behalf of its officers,
directors, partners, managers, members, employees, agents, and attorneys, with
regard to MG and his employment with the Corporation and his service to the
Corporation, expressly acknowledge, agree, and covenant that they will not make
any statements, comments, or communications that could constitute disparagement
of one another or that may be considered to be derogatory or detrimental to the
good name or business reputation of one another; provided, however, that the
terms of this Section shall not apply to communications between MG and his
spouse, mental health professional, clergy, or attorneys, to any statement,
testimony or response he is asked to provide in any legal or arbitral proceeding
or investigation or to any statement he makes to enforce or defend his rights
under this Agreement. Similarly, the terms of this Section shall not
apply to communications between the Corporation and its attorneys, to any
statement, testimony or response any of its agents is asked to provide in any
legal or arbitral proceeding or investigation or to any statement any of its
agents makes to enforce or defend the Corporation’s rights under this
Agreement. Where applicable, this mutual non-disparagement covenant
applies to any public or private statements, comments, or communications in any
form, whether oral, written, or electronic. The parties further agree that they
will not in any way solicit any such statements, comments, or
communications.
7. Mutual
Release.
a. MG, for
himself and his estate, forever releases and discharges the Corporation and the
Corporation’s, executors, administrators, parent company, holding company,
subsidiaries, successors, predecessors, officers, directors, principals,
partners, members, shareholders, agents, control persons, past and present
employees, insurers, and assigns (collectively the “Corporation’s Parties”) from
all actions, cause of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, against
the Corporation’s Parties other than MG’s rights and the Corporation’s
obligations under this Agreement that MG or his heirs, executors,
administrators, or agents and assigns ever had, now have or hereafter can, shall
or may, have for, upon, or by reason of any matter, cause or thing whatsoever,
whether or not known or unknown, from the beginning of the world to the day of
the date of this Agreement.
MG
EXPRESSLY ACKNOWLEDGES THAT THE CONSIDERATION SET FORTH IN THIS AGREEMENT
CONSTITUTES ADEQUATE AND SUFFICIENT CONSIDERATION FOR THE FOREGOING
RELEASE.
b. The
Corporation and its subsidiaries forever releases and discharges MG and his
executors, administrators, agents and assigns (collectively the “MG Parties”)
from all actions, cause of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, against
the MG Parties other than the Corporation’s rights and MG’s obligations under
this Agreement that the Corporation ever had, now have or hereafter can, shall
or may, have for, upon, or by reason of any matter, cause or thing whatsoever,
whether or not known or unknown, from the beginning of the world to the day of
the date of this Agreement.
8. Confidentiality.
a. The
parties hereto agree that the terms and conditions of this Agreement are
confidential and further agree that they shall not divulge the terms of this
Agreement to third parties generally, except as required by applicable law or to
enforce this Agreement or to defend against a claim related thereto and except
that the parties may reveal such terms to their respective accountants, legal
counsel and other professional advisors. In the event this covenant of
confidentiality is breached, the Corporation and MG may pursue legal remedies
for any damage arising from a breach of this provision. The parties agree that
any press release or other public disclosure relating to the contents of this
Agreement shall be mutually acceptable to both parties hereto. Notwithstanding
the foregoing, the Corporation shall be under no obligation to reach agreement
with MG on the contents of any such public announcement or disclosure required
by applicable law, rule or regulation, including, but not limited to, any public
announcement or disclosure required by federal or state securities laws, rules
or regulations. Notwithstanding the above, the parties may make any
disclosure required by law, subpoena, regulation or governing authority,
including disclosure required by a self-regulatory organization such as the NASD
or the Securities and Exchange Commission and to their respective lawyers and
accountants. MG hereby authorizes the Corporation to disclose the
terms and conditions of this Agreement in any filings it makes with the
Securities and Exchange Commission and authorizes the Corporation to file this
Agreement as an exhibit to any filings it makes with the Securities and Exchange
Commission.
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b. MG
possesses and will continue to possess information that has been created,
discovered, or developed by, or otherwise become known to, MG (including,
without limitation, information created, discovered, developed or made known by
MG during the period of or arising out of MG’s affiliation with the Corporation,
whether before or after the date hereof) or in which property rights have been
or may be assigned or otherwise conveyed to the Corporation, information which
has commercial value in the business in which the Corporation is engaged and is
treated by the Corporation as confidential. All such information is
hereafter called “Proprietary Information”, which term, as used herein, shall
also include, but shall not be limited to, systems, processes, formulae, data,
functional specifications, computer programs, know-how, improvements,
discoveries, developments, designs, inventions, techniques, marketing plans,
strategies, forecasts, unpublished financial statements, budgets, projections,
licenses, prices, costs, customer and supplier lists, oil and gas prospects,
prospect leads and exploration strategies consisting of maps, written material,
leasehold schedules, engineering analysis, seismic data processing, geological
and geophysical data, maps, models and interpretations, notes, memoranda,
records, analyses, test results, surveys and applications for governmental
approvals. Proprietary Information has been obtained and developed by
the Corporation at its sole expense and is the sole and exclusive property of
the Corporation. MG neither has nor shall have any right, title or interest
herein. MG hereby assigns to the Corporation any rights he may have
or acquire in Proprietary Information. MG agrees that at all times
after the Effective Date he will not, directly or indirectly, use, divulge,
furnish or make accessible to anyone, for any purpose whatsoever, any
Proprietary Information of the Corporation, unless and to the extent that the
Proprietary Information becomes generally know to and available for use by the
public other than as a result of MG’s acts or omissions to act.
9. Cooperation.
a. MG
agrees to give reasonable cooperation, at the Corporation's request, in any
pending or future litigation, regulatory proceeding or arbitration brought
against the Corporation or any of its affiliates and in any investigation the
Corporation or any of its affiliates may conduct. The Corporation shall
reimburse MG for all expenses reasonably incurred by him in compliance with this
Section but shall not reimburse MG for his time spent in compliance with this
Section. Furthermore, MG agrees, in the event he receives a court or
administrative order, subpoena, request for interview or similar demand
regarding the Corporation, including, but not limited to, from a regulatory or
law enforcement agency, he shall, except to the extent he is advised not to do
so by his legal counsel, immediately inform the Corporation in writing of his
receipt of such subpoena request or similar demand.
b. The
Corporation agrees to cause its employees, officers, directors, agents and other
representatives to give reasonable cooperation, at MG’s request, in any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative, formal or informal investigative or other), whether
instituted by the any governmental agency, the NASD, NYSE, SEC, stockholder of
the Corporation, or any other party, or any inquiry or investigation that
MG in good faith believes might lead to the institution of any such
action, suit or proceeding (“Claims”) brought against MG.
10. Acknowledgement of
Consideration. MG acknowledges that the only consideration that he has
received for executing this Agreement is the consideration set forth in this
Agreement and that no other promise, inducement, threat, agreement or
understanding of any kind or description has been made with or to MG by the
Corporation to cause him to agree to the terms of this Agreement. MG
acknowledges that other than as specifically set forth herein he has no claims
for money due from the Corporation.
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11. Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (i) on the date of
service if served personally on the party to whom notice is to be given; (ii) on
the day of transmission if sent via facsimile transmission to the facsimile
number given below, and telephonic confirmation of receipt is obtained promptly
after completion of transmission; (iii) on the day after delivery to Federal
Express or similar overnight courier or the Express Mail service maintained by
the United States Postal Service; or (iv) on the fifth day after mailing, if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid and properly addressed, to the party as
follows:
If to the
Corporation to:
Triangle
Petroleum Corporation
Suite
1250, 521 - 3 Avenue SW
Calgary,
Alberta, T2P 3T3
Canada
Attention: Chief Executive
Officer
Fax No.
403-262-4472
If to MG: Mark
Gustafson
or at
such other place as may be designated by a party in writing by like
notice.
12. Further
Assurances Each of the parties hereto shall execute and
deliver any and all additional papers, documents, and other assurances, and
shall do any and all acts and things reasonably necessary in connection with the
performance of their obligations hereunder and to carry out the intent of the
parties hereto.
13. Headings The section
headings contained herein are for convenience only and shall not be deemed to
control or affect the meaning or construction of any provision of this
Agreement.
14. Counterparts. This
Agreement may be executed in counterparts, it being understood that such
counterparts, taken together, shall constitute but one and the same
agreement. A facsimile signature shall constitute an original
signature.
15. Governing Law, Venue, Waiver
of Jury Trial This Agreement shall be governed by and
construed and enforced in accordance with the laws of the state of New York
(regardless of the laws that might be applicable under principles of conflicts
of law) as to all matters, including but not limited to, matters of validity,
construction, effect and performance. The parties hereto hereby consent to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York, and waive any contention that such court is an improper
venue for the enforcement of this Agreement. Each of the parties
irrevocably waives any right it may have to a trial by jury in any such action,
suit or proceeding.
16. Entire
Agreement This Agreement sets forth the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements or understandings among the parties pertaining to the subject
matter hereof, whether oral, implied or written. There are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as specifically set forth or
incorporated herein.
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17. Interpretation. The
division of this Agreement into Sections, and subsections and the insertion of
headings are for convenience of reference only and will not affect its
construction or interpretation. Terms of gender will be deemed interchangeable,
as will singular and plural terms, in each case, unless the context otherwise
requires.
19. No
Amendment/Waiver. This Agreement may not be amended or
modified in any manner nor may any of its provisions be waived except by written
amendment executed by the parties expressly indicating the parties’ intention to
so amend or modify this Agreement. Any such amendment, modification
or waiver shall be effective only in the specific instance and for the purpose
for which it was given.
20. Non-Assignability. The
obligations of MG and the Corporation hereunder are personal and may not be
assigned or transferred in any manner whatsoever, nor are such obligations
subject to involuntary alienation, assignment or transfer.
21. Severability. The
various Sections of this Agreement are severable, and if any Sections or an
identifiable part thereof is held to be invalid or unenforceable by any court of
competent jurisdiction, then such invalidity or unenforceability shall not
affect the validity or enforceability of the remaining Sections or identifiable
parts thereof in this Agreement, and the parties hereto agree that the portion
so held invalid, unenforceable or void shall, if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this Agreement, to the extent
required for the purposes of the validity and enforcement hereof.
22. No Strict
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event any
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by all parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
23. Third Party
Beneficiaries. MG’s estate and heirs are intended third
party beneficiaries of MG’s rights and the Corporation’s obligations
hereunder.
SIGNATURE
PAGE FOLLOWS
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
| TRIANGLE PETROLEUM CORPORATION | |||
|
|
By:
|
/s/ SHAUN TOKER | |
| Name: Shaun Toker | |||
| Title: Chief Financial Officer | |||
| /s/ MARK GUSTAFSON | |||
| Mark Gustafson | |||
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