EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") by and among Toreador
Resources Corporation, a Delaware corporation (the "Company"), and each of the
persons listed on the Schedule of Purchasers attached hereto (each referred to
herein as a "Purchaser" and, collectively, as the "Purchasers").
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 each 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 the Purchasers 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 each 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) "Final Closing" shall have the meaning set forth in the Securities
Purchase Agreement;
(b) "Holder" means any person owning or having the right to acquire
Registrable Securities, including initially each Purchaser and thereafter any
permitted assignee thereof;
(c) "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
(d) "Registrable Securities" means the Preferred Shares, Conversion
Shares, and any other Preferred Shares or 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 Preferred Shares or 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) After the Final Closing, the Company shall promptly file under the
Securities Act of 1933, as amended (the "Securities Act"), the Registration
Statement so that the Registrable Securities may be sold in such manner as the
Holders thereof shall determine. In addition, the Company may elect to register
on the Registration Statement for resale shares of Common Stock and preferred
stock held by other holders. The Registration Statement shall state, to the
extent permitted by Rule 416 under the Securities Act, that it also covers such
indeterminate number of shares of Common Stock or preferred stock as may be
required to effect conversion of the Preferred Shares, to prevent dilution
resulting from stock splits, stock dividends or similar events, or by reason of
changes in the Conversion Price in accordance with the terms of the Certificate
of Designation.
(b) The Company shall take all reasonable action necessary to cause the
Registration Statement to be declared effective as soon as practicable after
filing, but in no event later than 270 days after the initial filing and shall
maintain the effectiveness of the Registration Statement until the earlier to
occur of (i) the date on which all of the Registrable Securities have been sold
pursuant to the Registration Statement and (ii) the date on which all of the
remaining Registrable Securities (in the reasonable opinion of counsel to the
Company) may be immediately sold to the public without registration and without
regard to the amount of Registrable Securities which may be sold by a Holder
thereof at a given time (the "Registration Period").
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 the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of the
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;
(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
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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 the 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 the 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 such 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 such 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
such 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:
(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(f) 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
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(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 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
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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:
(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
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(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 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. Provided, however, that upon the issuance of additional shares of
Series A-1 Preferred Stock subsequent to the date hereof and in accordance with
the Securities Purchase Agreement, without any further consent or acknowledgment
of the Holders party hereto, the Company may add additional holders of Series
A-1 Preferred Stock to this Agreement from time to time. Any such additional
holders joining this Agreement shall execute a signature page to this Agreement,
which signature page shall be countersigned by the Company and the original
appended to this Agreement. A photocopy of such appended signature page shall be
sent to each prior Holder party to this Agreement as soon as practicable
following the Final Closing.
(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
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn.: Chief Executive Officer
Fax: 000-000-0000
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with a copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Xxxxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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: X. X. Xxxxxxx, Xx. Dated: October 28, 2002
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By: /s/ X. X. Xxxxxxx, Xx.
----------------------------------------------
Name: X. X. Xxxxxxx, Xx.
Title:
Address: 000 XX 0000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Accepted this 1st day of November, 2002.
TOREADOR RESOURCES CORPORATION
By: /s/ G. Xxxxxx Xxxxxx III
----------------------------------------------
Name: G. Xxxxxx Xxxxxx III
Title: President and Chief Executive Officer
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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: Xxxx Xxxx XxXxxxxxxx Dated: October 29, 2002
--------------------------- ----
By: /s/ Xxxx Xxxx XxXxxxxxxx
----------------------------------------------
Name: Xxxx Xxxx XxXxxxxxxx
Title:
Address: 0000 Xxxxxxxx Xxx #000
Xxx Xxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
Accepted this 1st day of November, 2002.
TOREADOR RESOURCES CORPORATION
By: /s/ G. Xxxxxx Xxxxxx III
----------------------------------------------
Name: G. Xxxxxx Xxxxxx III
Title: President and Chief Executive Officer
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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: Xxxxxxx X. Xxx Dated: October 29, 2002
--------------------------- ----
By: /s/ Xxxxxxx X. Xxx
----------------------------------------------
Name: Xxxxxxx X. Xxx
Title:
Address: 0000 Xxxx Xxx.
Xxxxxx, Xxxxx 00000
Facsimile:
Accepted this 1st day of November, 2002.
TOREADOR RESOURCES CORPORATION
By: /s/ G. Xxxxxx Xxxxxx III
----------------------------------------------
Name: G. Xxxxxx Xxxxxx III
Title: President and Chief Executive Officer
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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: Xxxxxxx and Xxxxxxx Xxxxxx 1992 Trust Dated: October 25, 2002
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By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
Address:
Facsimile:
Accepted this 1st day of November, 2002.
TOREADOR RESOURCES CORPORATION
By: /s/ G. Xxxxxx Xxxxxx III
----------------------------------------------
Name: G. Xxxxxx Xxxxxx III
Title: President and Chief Executive Officer
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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: Xxxxxxx X. Xxxxxx Dated: October 25, 2002
--------------------------- ----
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
Address:
Facsimile:
Accepted this 1st day of November, 2002.
TOREADOR RESOURCES CORPORATION
By: /s/ G. Xxxxxx Xxxxxx III
----------------------------------------------
Name: G. Xxxxxx Xxxxxx III
Title: President and Chief Executive Officer
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