EXHIBIT 10.8
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement") dated and accepted as
of the date set forth on the signature page hereof, by and among Toreador
Resources Corporation, a Delaware corporation (the "Company"), and Xxxxx X.
Xxxxxxxx(the "Purchaser").
The Company wishes to sell to the Purchaser, and the Purchaser wishes
to buy, on the terms and subject to the conditions set forth in this Agreement,
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 terms of a Certificate of
Designation relating to the Preferred Stock, the form of which is attached
hereto as Exhibit A (the "Certificate of Designation") into shares (the
"Conversion Shares") of the Company's Common Stock, par value $0.15625 per share
(the "Common Stock"). Dividends on the Preferred Shares are payable, subject to
the terms and conditions of the Certificate of Designation, in cash. The
Preferred Shares and the Conversion Shares are collectively referred to herein
as the "Securities".
The sale of the Preferred Shares by the Company to the Purchaser will
be effected in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act").
The Company and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED SHARES.
1.1 Agreement to Purchase and Sell. Upon the terms set forth
herein, the Company agrees to sell and the Purchaser agrees to purchase 20,000
Preferred Shares at a purchase price equal to Twenty-Five Dollars ($25.00) per
Preferred Share (cumulatively, the "Purchase Price"). The Purchaser shall pay
the Purchase Price at the closing (the "Closing") by check or wire transfer of
immediately available funds pursuant to wire transfer instructions provided by
the Company.
1.2 Certain Definitions. When used herein, (A) "business day"
shall mean any day on which the New York Stock Exchange and commercial banks in
the city of New York are open for business, (B) an "affiliate" of a party shall
mean any person or entity controlling, controlled by or under common control
with that party and (C) "control" shall mean, with respect to an entity, the
ability to direct the business, operations or management of such entity, whether
through an equity interest therein or otherwise.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby makes the following representations and warranties
to the Company and agrees with the Company that, as of the date of this
Agreement:
2.1 Authorization; Enforceability. This Agreement and the
Registration Rights Agreement have been duly and validly executed and delivered
by the Purchaser. This Agreement constitutes the Purchaser's valid and legally
binding obligation, enforceable in accordance with its terms.
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2.2 Accredited Investor; Investment Intent. The Purchaser is an
accredited investor as that term is defined in Rule 501(a) of Regulation D, and
is acquiring the Preferred Shares solely for Purchaser's own account for
investment purposes as a principal and not with a present view to the public
resale or distribution of all or any part thereof, except pursuant to sales that
are exempt from the registration requirements of the Securities Act and/or sales
registered under the Securities Act; provided, however, that in making such
representation, the Purchaser does not agree to hold the Securities for any
minimum or specific term and reserves the right to sell, transfer or otherwise
dispose of the Securities at any time in accordance with the provisions of this
Agreement and with Federal and state securities laws applicable to such sale,
transfer or disposition.
2.3 Information. The Company has provided the Purchaser with
information regarding the business, operations and financial condition of the
Company, and has granted to the Purchaser the opportunity to ask questions of
and receive answers from representatives of the Company, its officers,
directors, employees and agents concerning the Company and materials relating to
the terms and conditions of the purchase and sale of the Preferred Shares
hereunder. The Purchaser understands that the investment in the Preferred Shares
involves a high degree of risk. The Purchaser has sought such accounting, legal
and tax advice as the Purchaser has deemed necessary to make an informed
investment decision with respect to the acquisition of the Preferred Shares.
2.4 Limitations on Disposition. The Purchaser acknowledges that,
except as provided in the Registration Rights Agreement, the Securities have not
been and are not being registered under the Securities Act and may not be
transferred or resold without registration under the Securities Act or unless
pursuant to an exemption therefrom.
2.5 Legend. The Purchaser understands that the certificates
representing the Securities will bear at issuance a restrictive legend in
substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, and
may not be offered or sold unless a registration statement
under the Securities Act and applicable state securities laws
shall have become effective with regard thereto, or an
exemption from registration under the Securities Act and
applicable state securities laws is available in connection
with such offer or sale. Such securities are issued subject to
the provisions of (i) the Certificate of Designation relating
to the Series A-1 Convertible Preferred Stock of Toreador
Resources Corporation (the "Company"), (ii) a Securities
Purchase Agreement by and among the Company and the Purchaser
signatory thereto (the "Purchaser") and (iii) a Registration
Rights Agreement by and among the Company and the Purchaser."
Notwithstanding the foregoing, it is agreed that, as long as (A) the
resale or transfer (including without limitation a pledge) of any of the
Securities is registered pursuant to an effective registration statement, (B)
such Securities can be sold pursuant to Rule 144 under the Securities Act ("Rule
144") and a registered broker dealer provides to the Company a customary
broker's Rule 144 letter and the Purchaser delivers to the Company a customary
seller's representation letter and a copy of any Form 144 which may have been
required to be filed by such Holder pursuant to Rule 144, or (C) such Securities
are eligible for resale under Rule 144(k), such Securities shall be issued
without any legend or other restrictive language and, with respect
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to Securities upon which such legend is stamped, the Company shall issue new
certificates without such legend to the holder upon request.
2.6 No Governmental Review. The Purchaser understands that no
United States Federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities
or the fairness or suitability of the investment in the Securities nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
2.7 Residency. The Purchaser is a resident of that state or
jurisdiction specified on the Purchaser's signature page to this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties
to the Purchaser and agrees with the Purchaser that, as of the date of this
Agreement:
3.1 Organization, Good Standing and Qualification. Each of the
Company and its subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
and has all requisite corporate power and authority to carry on its business as
now conducted. Each of the Company and its subsidiaries is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on the consolidated
business or financial condition of the Company and its subsidiaries taken as a
whole. The term "subsidiaries" shall mean entities in which the Company has an
equity interest of 50% or greater.
3.2 Authorization; Consents. The Company has the requisite
corporate power and authority to enter into and perform its obligations under
(i) this Agreement, (ii) the Registration Rights Agreement and (iii) all other
agreements, documents, certificates or other instruments delivered by the
Company contemporaneously herewith (the instruments described in (i), (ii) and
(iii) being collectively referred to herein as the "Transaction Documents"), to
execute and perform its obligations under the Certificate of Designation, to
issue and sell the Preferred Shares to such Purchaser in accordance with the
terms hereof, and to issue the Conversion Shares upon conversion of the
Preferred Shares in accordance with the Certificate of Designation. All
corporate action on the part of the Company by its officers, directors and
stockholders necessary for (A) the authorization, execution and delivery of, and
the performance by the Company of its obligations under, the Transaction
Documents and (B) the authorization, execution and filing of, and the
performance by the Company of its obligations under, the Certificate of
Designation has been taken, and no further consent or authorization of the
Company, its Board of Directors, its stockholders, any governmental agency or
organization (other than such approval as may be required under the Securities
Act and applicable state securities laws in respect of the Registration Rights
Agreement), or any other person or entity is required (pursuant to any rule of
the National Association of Securities Dealers, Inc., other than with respect to
the listing of the Conversion Shares on the Nasdaq National Market System, or
otherwise).
3.3 Enforcement. The Transaction Documents and the Certificate of
Designation constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, except as such
enforcement may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights generally, (ii) general principles of equity
and (iii) as to
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indemnification under the Securities Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), principles of public policy.
3.4 Disclosure Documents; Agreements; Financial Statements; Other
Information. The Company has filed with the Commission: (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 2002, as amended, (ii)
Quarterly Report on Form 10-Q for the quarter ended Xxxxx 00, 0000, (xxx) all
Current Reports on Form 8-K required to be filed with the Commission since
December 31, 2002 and (iv) the Company's definitive Proxy Statement for its 2003
Annual Meeting of Stockholders (collectively, the "Disclosure Documents"). Each
Disclosure Document, as of the date of the filing thereof with the Commission,
conformed in all material respects to the requirements of the Exchange Act, and
the rules and regulations thereunder and, as of the date of such filing, such
Disclosure Document did 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, in light of the circumstances under which they were made,
not misleading. As of their respective dates, the financial statements of the
Company included in the Disclosure Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the Commission with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles
consistently applied at the times and during the periods involved (except (i) as
may be otherwise indicated in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end adjustments).
3.5 Valid Issuance. The Preferred Shares are duly authorized and,
when issued, sold and delivered in accordance with the terms hereof, (i) will be
duly and validly issued, fully paid and nonassessable, free and clear of any
taxes, liens, claims, preemptive or similar rights or encumbrances imposed by or
through the Company, (ii) based in part upon the representations of such
Purchaser in this Agreement, will be issued, sold and delivered in compliance
with all applicable Federal and state securities laws and (iii) will be entitled
to all of the rights, preferences and privileges set forth in the Certificate of
Designation. The Conversion Shares are duly authorized and reserved for issuance
and, when issued upon conversion of the Preferred Shares in accordance with the
terms of the Certificate of Designation, will be duly and validly issued, fully
paid and nonassessable, free and clear of any taxes, liens, claims, preemptive
or similar rights or encumbrances imposed by or through the Company. As of the
date hereof, there are 37,000 shares of Preferred Stock issued and outstanding.
3.6 No Conflict with Other Instruments. Neither the Company nor
any of its subsidiaries is in violation of any provisions of its charter, bylaws
or any other governing document as amended and in effect on and as of the date
hereof or in default (and no event has occurred which, with notice or lapse of
time or both, would constitute a default) under any provision of any instrument
or contract to which it is a party or by which it is bound, or of any provision
of any Federal or state judgment, writ, decree, order, statute, rule or
governmental regulation applicable to the Company, which would have a material
adverse effect on the consolidated business or financial condition of the
Company and its subsidiaries taken as a whole. The (i) execution, delivery and
performance of this Agreement and the other Transaction Documents and (ii)
consummation of the transactions contemplated hereby and thereby (including
without limitation, the issuance of the Preferred Shares, and the reservation
for issuance and issuance of the Conversion Shares) will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a
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default under any such provision, instrument or contract or an event which
results in the creation of any lien, charge or encumbrance upon any assets of
the Company or of any of its subsidiaries, which violation, conflict, default,
lien, charge or encumbrance would have a material adverse affect on the
consolidated business or financial condition of the Company and its subsidiaries
taken as a whole, or the triggering of any preemptive or anti-dilution rights or
rights of first refusal or first offer on the part of holders of the Company's
securities.
4. COVENANTS OF THE COMPANY.
4.1 Corporate Existence. The Company shall, so long as the
Purchaser or any affiliate of the Purchaser beneficially owns any Securities,
maintain its corporate existence in good standing and shall pay all taxes owed
by it when due except for taxes which the Company reasonably disputes or as to
which the failure to pay could not reasonably be expected to have a material
adverse effect on the consolidated business or financial condition of the
Company and its subsidiaries taken as a whole.
4.2 Provision of Information. Upon written request, the Company
shall provide the Purchaser with copies of its annual reports on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K and proxy statements
and other materials sent to stockholders, in each such case promptly after the
filing thereof with the Commission, until the conversion or redemption of all of
the Preferred Shares held by the Purchaser.
4.3 Form D; Blue-Sky Qualification. The Company agrees to file a
Form D with respect to the Securities as required under Regulation D. The
Company shall, on or before the Closing, take such action as is necessary to
qualify the Preferred Shares for sale under applicable state or "blue-sky" laws
or obtain an exemption therefrom.
4.4 Reporting Status. As long as the Purchaser or any affiliate of
the Purchaser beneficially owns any Securities and until the date on which any
of the foregoing may be sold to the public pursuant to Rule 144(k) (or any
successor rule or regulation), (i) the Company shall timely file with the
Commission all reports required to be so filed pursuant to the Exchange Act and
(ii) the Company shall not terminate its status as an issuer required by the
Exchange Act to file reports thereunder even if the Exchange Act or the rules or
regulations thereunder would permit such termination.
4.5 Reservation of Common Stock. The Company shall at all times
have authorized and reserved for issuance, free from any preemptive rights,
solely for the purpose of effecting conversions of the Preferred Shares
hereunder, such number of its shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all of the Preferred Shares in full.
4.6 Use of Proceeds. The Company shall use the proceeds from the
sale of the Preferred Shares for general corporate purposes only, in the
ordinary course of its business and consistent with past practice and shall not
use such proceeds to make a loan to any employee, officer or director of the
Company or to repurchase or pay a dividend on shares of Common Stock.
4.7 Quotation on Nasdaq. The Company shall (i) promptly following
the closing, take such action as may be necessary to include the Conversion
Shares on the Nasdaq National Market System, and (ii) use its best efforts to
maintain the designation and quotation, or listing, of the Common Stock on the
Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock
Exchange or the American Stock Exchange.
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5. MISCELLANEOUS.
5.1 Survival; Severability. The representations, warranties,
covenants and indemnities made by the parties herein shall survive the closing
of this Agreement notwithstanding any due diligence investigation made by or on
behalf of the party seeking to rely thereon, provided that the representations
and warranties contained herein shall survive for two (2) years following the
date of this Agreement. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that in such case the parties shall negotiate
in good faith to replace such provision with a new provision which is not
illegal, unenforceable or void, as long as such new provision does not
materially change the economic benefits of this Agreement to the parties.
5.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. The Purchaser may assign such
Purchaser's rights and obligations hereunder, in connection with any private
sale or transfer of the Preferred Shares in accordance with the terms hereof, as
long as, as a condition precedent to such transfer, the transferee executes an
acknowledgment agreeing to be bound by the applicable provisions of this
Agreement, in which case the term "Purchaser" shall be deemed to refer to such
transferee as though such transferee were an original signatory hereto. The
Company may not assign it rights or obligations under this Agreement.
5.3 No Reliance; Representations by Purchaser. Each party
acknowledges that (i) it has such knowledge in business and financial matters as
to be fully capable of evaluating this Agreement, the other Transaction
Documents and the transactions contemplated hereby and thereby, (ii) it is not
relying on any advice or representation of the other party in connection with
entering into this Agreement, the other Transaction Documents or such
transactions (other than the representations made in this Agreement or the other
Transaction Documents), (iii) it has not received from such party any assurance
or guarantee as to the merits (whether legal, regulatory, tax, financial or
otherwise) of entering into this Agreement or the other Transaction Documents or
the performance of its obligations hereunder and thereunder, and (iv) it has
consulted with its own legal, regulatory, tax, business, investment, financial
and accounting advisors to the extent that it has deemed necessary, and has
entered into this Agreement and the other Transaction Documents based on its own
independent judgment and on the advice of its advisors as it has deemed
necessary, and not on any view (whether written or oral) expressed by such
party.
5.4 Injunctive Relief. The Company acknowledges that a breach by
it of its obligations hereunder will cause irreparable harm to the Purchaser and
that the remedy or remedies at law for any such breach will be inadequate and
agrees, in the event of any such breach, in addition to all other available
remedies, to an injunction restraining any breach and requiring immediate and
specific performance of such obligations without the necessity of showing
economic loss.
5.5 Governing Law; Jurisdiction. This Agreement shall be governed
by and construed under 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
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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.
5.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
5.7 Headings. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
5.8 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
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 the Purchaser, to such address for the Purchaser as shall appear on
the signature page hereof executed by the Purchaser, or as shall be designated
by the Purchaser in writing to the Company.
5.9 Expenses. The Company and the Purchaser shall pay all costs
and expenses that it incurs in connection with the negotiation, execution,
delivery and performance of this Agreement.
5.10 Entire Agreement; Amendments. This Agreement and the other
Transaction Documents constitute the entire agreement between the parties with
regard to the subject matter hereof and thereof, superseding all prior
agreements or understandings, whether written or oral, between or among the
parties. Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended except pursuant to a written instrument executed by
the Company and the Purchaser, and no provision hereof may be waived other than
by a written instrument signed by the party against whom enforcement of any such
waiver is sought.
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SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
PURCHASER NAME: Xxxxx X. Xxxxxxxx
By: /s/ XXXXX X. XXXXXXXX Dated July 26, 2003
----------------------------------------
Name:
Title:
ADDRESS:
0000 Xxxx Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Dollar Amount of Series A-1 Preferred Stock to be Purchased: $500,000
Accepted this 26th day of July 2003.
TOREADOR RESOURCES CORPORATION
By: /s/ XXXXXXX X. XXXX
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and Chief Financial Officer
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SCHEDULE OF PURCHASERS
PURCHASE PRICE OF
PURCHASER NAME ADDRESS SERIES A-1 PREFERRED STOCK
-------------- ------- --------------------------
Xxxxx X. Xxxxxxxx 0000 Xxxx Xxxxxxx Xx. $500,000
Xxxxxxxx, XX 00000
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EXHIBIT A
SERIES A-1 CONVERTIBLE PREFERRED STOCK
CERTIFICATE OF DESIGNATIONS
Attached
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