EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") by and among Toreador
Resources Corporation, a Delaware corporation (the "Company"), and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇(the "Purchaser").
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"Securities Purchase Agreement"), to issue and sell to Purchaser shares (the
"Preferred Shares") of the Company's Series A-1 Convertible Preferred Stock, par
value $1.00 per share (the "Preferred Stock"). The Preferred Shares are
convertible pursuant to the Company's Certificate of Designation (the
"Certificate of Designation") into shares (the "Conversion Shares") of the
Company's Common Stock, par value $0.15625 per share (the "Common Stock"). In
order to induce Purchaser to enter into the Securities Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended (the "Securities Act"), and under applicable state
securities laws. Capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Securities Purchase Agreement.
In consideration of Purchaser entering into the Securities Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "Holder" means any person owning or having the right to acquire
Registrable Securities, including initially Purchaser and thereafter any
permitted assignee thereof;
(b) "Register", "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement or statements in
compliance with the Securities Act and pursuant to Rule 415 under the Securities
Act ("Rule 415") or any successor rule providing for the offering of securities
on a continuous or delayed basis ("Registration Statement"), and the declaration
or ordering of effectiveness of the Registration Statement by the Securities and
Exchange Commission (the "Commission"); and
(c) "Registrable Securities" means the Conversion Shares, and any other
shares of Common Stock issuable pursuant to the terms of the Preferred Stock,
whether as a dividend, payment of a redemption price or otherwise, and any
shares of capital stock issued or issuable from time to time (with any
adjustments) in replacement of, in exchange for or otherwise in respect of the
Conversion Shares, including without limitation any securities received by a
Holder in connection with an Exchange Transaction (as defined in the Certificate
of Designation).
2. REGISTRATION.
(a) If at any time prior to the time that registration is no longer
required because the Registrable Securities are eligible for resale pursuant to
the provisions of Rule 144(k) of the Securities Act (the "Registration Period"),
(i) the Company shall determine to register any of its equity securities, either
for its own account or for the account of a security holder or holders, other
than a registration statement relating solely to employee benefit plans or a
registration statement relating solely to a Rule 145 transaction or other merger
transaction or a registration on any registration form which does not permit
secondary sales of Common Stock or does not include substantially the same
information as would be required to be included in a registration statement
covering the resale of Registrable Securities and (ii)
registration statements covering the resale of all of the Registrable Securities
are not then effective and available for sales thereof, the Company will:
(i) promptly give each Holder written notice thereof;
(ii) include in such registration statement (the
"Registration Statement"), and in any underwriting involved therein,
all of the Registrable Securities specified in a written request or
requests made by the Holders within thirty (30) days after receipt of
the written notice from the Company described in clause (i) above,
except as set forth in clause (b) below. Such written request or
requests may specify all or a part of the Holders' Registrable
Securities; provided, however, the aggregate amount of Registrable
Securities specified in such written requests shall not be less than
one-third of the Registrable Securities covered by this Agreement; and
(iii) use its reasonable efforts to keep the Registration
Statement in effect and maintain compliance with all securities laws
for the Registration Period.
(b) The right of each Holder to registration pursuant to this Section 2
shall be conditioned upon such Holder's participation in any underwriting and
the inclusion of such Holder's Registrable Securities in such underwriting to
the extent provided herein. If a Holder wishes to include Registrable Securities
in the Registration Statement and underwriting, if any, such Holder shall
(together with the Company and the other stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with a nationally recognized underwriter selected for
underwriting by the Company. Notwithstanding any other provision of this Section
2, if the underwriter determines that marketing factors require a limitation on
the number of shares to be underwritten, the underwriter may exclude from such
Registration Statement and underwriting up to all of the Registrable Securities
which would otherwise be underwritten pursuant hereto. The Company shall so
advise all holders of securities requesting registration, and the number of
shares of securities that are entitled to be included in the Registration
Statement and underwriting by persons other than the Company shall be allocated
among the Holders as to their Registrable Securities and among all other
stockholders in proportion, as nearly as practicable, to the respective amounts
of securities which they had requested to be included in such Registration
Statement at the time of filing the Registration Statement. If a Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such Registration Statement.
3. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including those
pursuant to Sections 2(a) and 2(b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to any Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of such
Registration Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such Holder
or such Holder's intended method of distribution;
(b) furnish to each Holder such number of copies of the prospectus
included in such Registration Statement, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such Holder may reasonably request in order to facilitate the disposition of
such Holder's Registrable Securities;
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(c) use all commercially reasonable efforts to register or qualify the
Registrable Securities under the securities or "blue sky" laws of such
jurisdictions within the United States as shall be reasonably requested from
time to time by a Holder, and do any and all other acts or things which may be
necessary or advisable to enable such Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions; provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such jurisdiction;
(d) notify each Holder immediately upon the occurrence of any event as
a result of which the prospectus included in such Registration Statement, as
then in effect, contains an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and (except during a Blackout Period) as promptly as practicable, prepare, file
and furnish to each Holder a reasonable number of copies of a supplement or an
amendment to such prospectus as may be necessary so that such prospectus does
not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. For purposes hereof,
"Blackout Period" means such day or days, not to exceed an aggregate of thirty
(30) days during any period of twelve (12) consecutive months, with respect to
which the Board of Directors of the Company determines in good faith (A) that an
amendment or supplement to a Registration Statement or prospectus contained
therein is necessary, in light of subsequent events, in order to correct a
material misstatement made therein or to include information the absence of
which would render such Registration Statement or such prospectus materially
misleading and (B) that the filing of such amendment or supplement would result
in the disclosure of information which the Company has a bona fide business
purpose for preserving as confidential; provided that the Company shall be
entitled to impose no more than three (3) Blackout Periods during any period of
twelve (12) consecutive months;
(e) use all commercially reasonable efforts to prevent the issuance of
any stop order or other order suspending the effectiveness of any Registration
Statement and, if such an order is issued, to obtain the withdrawal thereof at
the earliest possible time and to notify each Holder of the issuance of such
order and the resolution thereof;
(f) furnish to each Holder, on the date that any Registration Statement
becomes effective, a letter, dated such date, of outside counsel representing
the Company (and reasonably acceptable to such Holder) addressed to such Holder,
confirming the effectiveness of the Registration Statement and, to the knowledge
of such counsel, the absence of any stop order;
(g) provide each Holder and its representatives the opportunity to
conduct a reasonable inquiry of the Company's financial and other records during
normal business hours and make available its officers, directors and employees
for questions regarding information which such Holder may reasonably request in
order to fulfill any due diligence obligation on its part; and
(h) permit counsel for each Holder (at such Holder's expense) to review
any Registration Statement and all amendments and supplements thereto a
reasonable period of time prior to the filing thereof with the Commission.
4. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of the Registrable Securities
pursuant to the Registration Statement, each Holder shall:
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(a) furnish to the Company such information regarding itself and the
intended method of disposition of Registrable Securities as the Company shall
reasonably request in order to effect the registration thereof;
(b) upon receipt of any notice from the Company of the happening of any
event of the kind described in Sections 3(d) or 3(e), immediately discontinue
disposition of Registrable Securities pursuant to the Registration Statement
until the filing of an amendment or supplement as described in Section 3(d) or
withdrawal of the stop order referred to in Section 3(e);
(c) to the extent required by applicable law, deliver a prospectus to
each purchaser of Registrable Securities; and
(d) notify the Company when it has sold all of the Registrable
Securities theretofore held by it.
5. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall indemnify and
hold harmless each Holder, the officers, directors, employees, agents and
representatives of such Holder, and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
liabilities or reasonable out-of-pocket expenses (whether joint or several)
(collectively, including legal or other expenses reasonably incurred in
connection with investigating or defending same, "Losses"), insofar as any such
Losses arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Company will reimburse such Holder, and each such
officer, director, employee, agent, representative or controlling person for any
legal or other expenses as reasonably incurred by any such entity or person in
connection with investigating or defending any Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any Loss if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be obligated to
indemnify any person for any Loss to the extent that such Loss arises out of or
is based upon and in conformity with written information furnished by such
person expressly for use in such Registration Statement; and provided, further,
that the Company shall not be required to indemnify any person to the extent
that any Loss results from such person selling Registrable Securities (i) to a
person to whom there was not sent or given, at or prior to the written
confirmation of the sale of such shares, a copy of the prospectus, as most
recently amended or supplemented, if the Company has previously furnished or
made available copies thereof or (ii) during any period following written notice
by the Company to such Holder of an event described in Section 3(d) or 3(e).
(b) To the extent permitted by law, each Holder, acting severally and
not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, against any Losses to the extent (and only to the extent)
that any such Losses arise out of or are based upon and in conformity with
written information furnished by such Holder expressly for use in such
Registration Statement; and such Holder will reimburse any legal or other
expenses as reasonably incurred by the Company and any such officer, director,
employee, agent, representative, or controlling person, in connection with
investigating or defending any such Loss; provided, however, that the
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foregoing indemnity shall not apply to amounts paid in settlement of any such
Loss if such settlement is effected without the consent of such Holder, which
consent shall not be unreasonably withheld; provided, that, in no event shall
any indemnity under this Section 5(b) exceed the net purchase price of
securities sold by such Holder under the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 5, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in and to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the reasonably
incurred fees and expenses of one such counsel to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate under applicable standards of
professional conduct due to actual or potential conflicting interests between
such indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, to the extent
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
5 with respect to such action, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 5 or with respect to any
other action.
(d) In the event that the indemnity provided in subsection (a) or (b)
of this Section 5 is unavailable or insufficient to hold harmless an indemnified
party for any reason, the Company and each Holder agree, severally and not
jointly, to contribute to the aggregate Losses to which the Company or such
Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net purchase
price of securities sold by it under the Registration Statement. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or by such Holder. The
Company and each Holder agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section 5,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of such Holder shall have the same rights to contribution as such
Holder, and each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act and each officer, director, employee,
agent or representative of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this subsection (d).
(e) The obligations of the Company and each Holder under this Section 5
shall survive the conversion or redemption, if any, of the Preferred Shares, the
completion of any offering of Registrable Securities pursuant to a Registration
Statement under this Agreement, or otherwise.
6. REPORTS.
With a view to making available to each Holder the benefits of Rule 144
under the Securities Act ("Rule 144") and any other similar rule or regulation
of the Commission that may at any time permit such Holder to sell securities of
the Company to the public without registration, the Company agrees to:
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(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(c) furnish to such Holder, so long as such Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of Rule 144, the
Securities Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing such Holder of any rule or regulation of the Commission which permits
the selling of any such securities without registration.
7. MISCELLANEOUS.
(a) Expenses of Registration. All expenses, other than underwriting
discounts and commissions and fees and expenses of counsel to each Holder,
incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees and the fees and disbursements
of counsel for the Company shall be borne by the Company.
(b) Amendment; Waiver. Any provision of this Agreement may be amended
only pursuant to a written instrument executed by the Company and Holders of at
least two thirds (2/3) of the Registrable Securities which are covered by the
Agreement and are then issued or issuable. Any waiver of the provisions of this
Agreement may be made only pursuant to a written instrument executed by the
party against whom enforcement is sought. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder, each future
Holder, and the Company. The failure of any party to exercise any right or
remedy under this Agreement or otherwise, or the delay by any party in
exercising such right or remedy, shall not operate as a waiver thereof.
(c) Notices. Any notice, demand or request required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., central time, on a business day or, if such day is not a business
day, on the next succeeding business day, (ii) on the next business day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
third business day after deposit in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid), addressed to the parties as follows:
If to the Company:
Toreador Resources Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III
Chief Executive Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and if to any Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Termination. This Agreement shall terminate on the earlier to occur
of (a) the end of the Registration Period and (b) the date on which all of the
Registrable Securities have been publicly distributed; but any such termination
shall be without prejudice to (i) the parties' rights and obligations arising
from breaches of this Agreement occurring prior to such termination and (ii) the
indemnification and contribution obligations under this Agreement.
(e) Assignment. The rights of a Holder hereunder shall be assigned
automatically to any transferee of the Preferred Shares or Registrable
Securities from such Holder as long as: (i) the Company is, within a reasonable
period of time following such transfer, furnished with written notice of the
name and address of such transferee, (ii) the transferee agrees in writing with
the Company to be bound by all of the provisions hereof and (iii) such transfer
is made in accordance with the applicable requirements of the Securities
Purchase Agreement.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without regard to the conflict of
laws provisions thereof. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in the City
of Dallas, Dallas County, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper.
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date indicated by their signature.
PURCHASER NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Dated: July 26, 2003
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Accepted this 26th day of July 2003.
TOREADOR RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President and Chief Financial Officer
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