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EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 1, 2000
BY AND BETWEEN
TOREADOR RESOURCES CORPORATION
AND
EARL E. ROSSMAN, JR., AS REPRESENTATIVE
OF THE HOLDERS (AS DEFINED HEREIN)
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TABLE OF CONTENTS
ARTICLE I.........................................................................................................1
Section 1.01. Definitions............................................................................1
ARTICLE II........................................................................................................2
Section 2.01. Merger Registration....................................................................2
Section 2.02. Contingent Registration................................................................3
Section 2.03. Registration Procedures................................................................3
Section 2.04. Expenses...............................................................................5
Section 2.05. Obligations of Holders and Others in Registration......................................5
Section 2.06. Indemnification........................................................................6
ARTICLE III.......................................................................................................8
Section 3.01. Communications.........................................................................8
Section 3.02. Counterparts...........................................................................8
Section 3.03. Headings...............................................................................8
Section 3.04. Governing Law..........................................................................8
Section 3.05. Severability of Provisions.............................................................8
Section 3.06. Entire Agreement.......................................................................8
Section 3.07. Attorneys' Fees........................................................................9
Section 3.08. Amendment..............................................................................9
Section 3.09. Successors and Assigns.................................................................9
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and
entered into as of August 1, 2000, by and between Toreador Resources
Corporation, a Delaware corporation (the "Company"), and Earl E. Rossman, Jr.,
the Representative of the Holders (as defined below).
This Agreement is made pursuant to the Agreement and Plan of
Merger by and among the Company, Toreador Acquisition Corporation, a
wholly-owned subsidiary of the Company (the "Merger Sub"), and Texona Petroleum
Corporation ("Texona") dated as of August 1, 2000 (the "Agreement and Plan of
Merger"). Pursuant to the terms of the Agreement and Plan of Merger, the Company
has agreed to provide the registration and other rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
Closing (as defined in the Agreement and Plan of Merger) under the Agreement and
Plan of Merger.
The parties agree as follows:
ARTICLE I
Section 1.01. Definitions. Capitalized terms used and not
otherwise defined herein which are defined in the Agreement and Plan of Merger
are used herein as so defined. The terms set forth below are used herein as so
defined:
"Contingent Registrable Securities" means (i) the Contingent
Shares (as defined below) and (ii) any shares of common stock of the Company,
$0.15625 par value (the "Common Stock") issued or issuable at any time or from
time to time prior to the filing of the Contingent Registration Statement (as
defined below) in respect of the Contingent Shares upon a stock split, stock
dividend, recapitalization or other similar event involving the Company.
"Contingent Registration Statement" means a registration
statement or statements on a form available to the Company to register for sale
all of the Contingent Registrable Securities to the extent beneficially owned by
the Holders on the date of filing such registration statement pursuant to a
non-underwritten offering.
"Contingent Shares" means any shares of Common Stock obtained
pursuant to the Merger (as defined below) which are subject to issuance on or
prior to June 1, 2001 in accordance with the terms of the Agreement and Plan of
Merger.
"Holder" means the record holder of (i) any Merger Shares,
(ii) any Contingent Shares, (iii) any Merger Registrable Securities (as defined
below), or (iv) any Contingent Registrable Securities.
"Merger" means the merger of the Merger Sub with and into
Texona.
"Merger Date" means the date the closing of the transactions
contemplated by the Agreement and Plan of Merger occurs, except for the issuance
of the Contingent Shares.
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"Merger Registrable Securities" means (i) the Merger Shares
and (ii) any shares of Common Stock issued or issuable at any time or from time
to time prior to the filing of the Merger Registration Statement (as defined
below) in respect of the Merger Shares upon a stock split, stock dividend,
recapitalization or other similar event involving the Company.
"Merger Registration Statement" means a registration statement
or statements on a form then available to the Company to register for resale all
of the Merger Registrable Securities to the extent beneficially owned by the
Holders on the date of filing of the registration statement pursuant to a
non-underwritten offering.
"Merger Shares" means any shares of Common Stock obtained on
the Merger Date pursuant to the Merger.
"Representative of the Holders" means Earl E. Rossman, Jr.
with all the powers as set forth in Section 3.4 of the Agreement and Plan of
Merger.
ARTICLE II
Section 2.01. Merger Registration. (a) Any time on or after
November 1, 2000 and prior to December 31, 2000 (the "Merger Registration Filing
Period"), the Company shall file under the Securities Act of 1933, as amended
(the "Securities Act"), the Merger Registration Statement so that the Merger
Registrable Securities may be sold in such manner as the Holders thereof shall
determine.
(b) As expeditiously as reasonably practicable after filing,
the Company shall use its reasonable best efforts to have declared effective the
Merger Registration Statement. Notwithstanding anything to the contrary
contained herein, the Company may delay the filing or effectiveness of the
Merger Registration Statement for up to 180 days after the end of the Merger
Registration Filing Period (i) if the Company is engaged in or contemplating
within the Merger Registration Filing Period a public underwritten offering of
its securities and the Company reasonably believes that the filing or
effectiveness of the Merger Registration Statement could adversely affect the
offering covering the Merger Registrable Securities or (ii) the Board of
Directors of the Company determines in its reasonable judgment and in good faith
that the filing or effectiveness of the Merger Registration Statement or the
making of any required disclosure in connection therewith would have a material
adverse effect on the Company or substantially interfere with a significant
transaction in which the Company is then engaged.
(c) The Company shall be entitled to include in the Merger
Registration Statement filed pursuant to this Section 2.01, securities of the
Company to be sold by the Company for its own account. Any Person other than a
Holder entitled to piggy-back registration rights with respect to the Merger
Registration Statement filed pursuant to this Section 2.01 may include
securities of the Company with respect to which such rights apply in the Merger
Registration Statement for sale.
(d) The Company hereby agrees to use its best reasonable
efforts to keep the Merger Registration Statement effective for a period of at
least one hundred eighty (180) days
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following its effectiveness (unless all of the Merger Registrable Securities are
sold or otherwise disposed of prior thereto (the "Merger Registration Period")).
Section 2.02. Contingent Registration. (a) Within 180 days
following issuance of the Contingent Registrable Shares (the "Contingent
Registration Filing Period"), the Company shall file under the Securities Act,
the Contingent Registration Statement so that the Contingent Registrable
Securities may be sold in such manner as the Holders thereof shall determine.
(b) As expeditiously as reasonably practicable after filing,
the Company shall use its reasonable best efforts to have declared effective the
Contingent Registration Statement. Notwithstanding anything to the contrary
contained herein, the Company may delay the filing or effectiveness of the
Contingent Registration Statement for up to 180 days after the end of the
Contingent Registration Filing Period (i) if the Company is engaged in or
contemplating within the Contingent Registration Filing Period a public
underwritten offering of its securities and the Company reasonably believes that
the filing or effectiveness of the Contingent Registration Statement could
adversely affect the offering covering the Contingent Registrable Securities or
(ii) the Board of Directors of the Company determines in its reasonable judgment
and in good faith that the filing or effectiveness of the Contingent
Registration Statement or the making of any required disclosure in connection
therewith would have a material adverse effect on the Company or substantially
interfere with a significant transaction in which the Company is then engaged.
(c) The Company shall be entitled to include in the Contingent
Registration Statement filed pursuant to this Section 2.02, securities of the
Company to be sold by the Company for its own account. Any Person other than a
Holder entitled to piggy-back registration rights with respect to the Contingent
Registration Statement filed pursuant to this Section 2.02 may include
securities of the Company with respect to which such rights apply in the
Contingent Registration Statement for sale.
(d) The Company hereby agrees to use its best reasonable
efforts to keep the Contingent Registration Statement effective for a period of
at least one hundred eighty (180) days following its effectiveness (unless all
of the Contingent Registrable Securities are sold or otherwise disposed of prior
thereto (the "Contingent Registration Period")).
Section 2.03. Registration Procedures. When the Company is
required pursuant to this Agreement to effect the registration of the Merger
Registrable Securities or the Contingent Registrable Securities under the
Securities Act, the Company will:
(a) as expeditiously as reasonably practicable, prepare and
file with the Commission such amendments and supplements to the Merger
Registration Statement and the Contingent Registration Statement and the
prospectus used in connection therewith as may be necessary to keep the Merger
Registration Statement and the Contingent Registration Statement effective (i)
until, with respect to the Merger Registration Statement, the earlier of the end
of the Merger Registration Period or the sale or disposition of all of the
Merger Registrable Securities, (ii) until, with respect to the Contingent
Registration Statement, the earlier of the end of the Contingent Registration
Period or the sale or disposition of all of the Contingent Registrable
Securities, (iii) as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition
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of the Merger Registrable Securities covered by the Merger Registration
Statement in accordance with the intended method of disposition set forth in
such Merger Registration Statement for such period, and (iv) as may be necessary
to comply with the provisions of the Securities Act with respect to the
disposition of the Contingent Registrable Securities covered by the Contingent
Registration Statement in accordance with the intended method of disposition set
forth in such Contingent Registration Statement for such period,
(b) as expeditiously as reasonably practicable, furnish to
each Holder such number of copies of the prospectus and the preliminary
prospectus in conformity with the requirements of the Securities Act, and such
other documents as the Holders may reasonably request, in order to facilitate
the public sale or disposition of the Merger Registrable Securities and
Contingent Registrable Securities; provided, however, that the obligation of the
Company to deliver copies of prospectuses or preliminary prospectuses to the
Holders shall be subject to the receipt by the Company of reasonable assurances
from the Holders that they will comply with the applicable provisions of the
Securities Act and of such other securities laws as may be applicable in
connection with any use by them of any prospectus or preliminary prospectus;
(c) as expeditiously as reasonably practicable, use its
reasonable best efforts to register or qualify (i) the Merger Registrable
Securities covered by the Merger Registration Statement and (ii) the Contingent
Registrable Securities covered by the Contingent Registration Statement under
the securities or blue sky laws of such jurisdictions as the Holders shall
reasonably request (considering the nature and size of the offering) and do any
and all other acts and things which may be necessary or desirable to enable the
Holders to consummate the public sale or other disposition in such jurisdictions
of the Merger Registrable Securities and/or the Contingent Registrable
Securities; provided, however, that the Company will not be required to qualify
to transact business as a foreign corporation in any jurisdiction in which it
would otherwise not be required to be so qualified or to take any action which
would subject it to general service of process in any jurisdiction in which it
is not then so subject;
(d) as expeditiously as reasonably practicable, notify each
Holder, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus contained in the Merger Registration Statement or the
Contingent Registration Statement, as appropriate, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and as promptly as
practicable amend the Merger Registration Statement or Contingent Registration
Statement or supplement the prospectus or take other appropriate action so that
the prospectus does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; provided, however, that, in the case of a shelf registration, the
Company, on one occasion, may delay taking such action for a period of 45 days,
during which time the Holders shall not sell any Merger Registrable Securities
or Contingent Registrable Securities, as appropriate, if the Board of Directors
determines in its reasonable judgment and in good faith that the making of any
required disclosure in connection therewith would have a material adverse effect
on the Company or substantially interfere with a significant transaction in
which the Company is then engaged;
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(e) during the Merger Registration Period and the Contingent
Registration Period, use its reasonable best efforts to keep effective and
maintain a registration, qualification, approval or listing obtained to cover
the Merger Registrable Securities and the Contingent Registrable Securities, as
appropriate, as may be necessary for the Holders to dispose thereof and shall
from time to time amend or supplement any prospectus used in connection
therewith to the extent necessary in order to comply with applicable law;
(f) use its reasonable best efforts to cause the Merger
Registrable Securities and the Contingent Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the Holders to consummate the disposition of such Merger Registrable
Securities and Contingent Registrable Securities; and
(g) enter into customary agreements and take such other
actions as are reasonably requested by the Holders in order to expedite or
facilitate the disposition of such Merger Registrable Securities and Contingent
Registrable Securities.
Section 2.04. Expenses. (a) All expenses incident to the
Company's performance under or compliance with this Agreement, including without
limitation, all registration and filing fees, blue sky fees and expenses,
printing expenses, listing fees, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, but excluding any Selling Expenses (as defined below), are herein
called "Registration Expenses." All brokerage and selling commissions allocable
to the sale of the Merger Registrable Securities and the Contingent Registrable
Securities and fees and expenses of counsel for the Holders applicable to the
sales by the Holders in connection with any such registration are herein called
"Selling Expenses."
(b) The Company will pay all Registration Expenses in
connection with the Merger Registration Statement and Contingent Registration
Statement filed pursuant to this Agreement, whether or not the Merger
Registration Statement or Contingent Registration Statement becomes effective,
and the Holders shall pay Selling Expenses in connection with any Merger
Registrable Securities and any Contingent Registrable Securities registered
pursuant to this Agreement.
Section 2.05. Obligations of Holders and Others in
Registration. Each Holder agrees to furnish such information regarding such
Holder and the Merger Registrable Securities and the Contingent Registrable
Securities owned by such Holder and to take such other action as the Company may
reasonably request in connection with the registration, qualification or listing
of the Merger Registrable Securities and Contingent Registrable Securities. The
Company may exclude from the Merger Registration Statement and Contingent
Registration Statement, as appropriate, any Holder that timely fails to comply
with the provisions of the preceding sentence. Each Holder agrees not to affect
the sale of securities under the Merger Registration Statement or Contingent
Registration Statement until such Holder has received a prospectus, as needed,
and notice of the effectiveness of the Merger Registration Statement or
Contingent Registration Statement, as appropriate, of which the prospectus forms
a part.
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Section 2.06. Indemnification. (a) In the event of the
registration of any Merger Registrable Securities or any Contingent Registrable
Securities under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless each Holder thereunder and each Person, if any, who
controls the Holders within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities (including reasonable
attorneys' fees) or actions in respect thereof ("Losses"), joint or several, to
which such Holder or controlling Person may become subject under the Securities
Act, or otherwise, insofar as such Losses, arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Merger Registration Statement or the Contingent Registration Statement on
the effective date thereof under which such Merger Registrable Securities or
Contingent Registrable Securities, as appropriate, were registered under the
Securities Act pursuant to this Agreement, any preliminary prospectus
distributed with the consent of the Company or final prospectus contained
therein, or any amendment or supplement thereof, including the documents
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each such Holder and each such controlling Person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Loss; provided, however, that the Company will not be
liable in any such case if and to the extent that any such Loss arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by such Holder
or such controlling Person in writing specifically for use in the Merger
Registration Statement or the Contingent Registration Statement, preliminary
prospectus, final prospectus or such amendment or supplement thereof, including
all documents incorporated by reference therein.
(b) In the event of the registration of any Merger Registrable
Securities or Contingent Registrable Securities under the Securities Act
pursuant to the Agreement, the Holders, jointly and severally, agree to
indemnify and hold harmless the Company, its directors, officers, employees and
agents, and each Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act against any and all such Losses to which the
Company or such directors, officers, employees, agents or controlling Persons
may become subject under the Securities Act or otherwise, and will reimburse the
Company, each such director, officer, employee, agent and controlling Person for
any legal or any other expenses reasonably incurred by such party in connection
with investigating or defending any such Loss, if (a) such Loss arises out of or
is based upon any untrue statement or alleged untrue statement of any material
fact contained in the Merger Registration Statement or the Contingent
Registration Statement, preliminary prospectus, final prospectus or such
amendment or supplement thereof, including all documents incorporated by
reference therein or arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and any such statement
or omission of a material fact was made in reliance upon and in conformity with
the written information furnished to the Company by or on behalf of the Holders
specifically for use in connection with the preparation of the Merger
Registration Statement or the Contingent Registration Statement, preliminary
prospectus, final prospectus or such amendment or supplement thereof, including
all documents incorporated by reference therein, or (b) such Loss arises out of
or is based upon the Holder's failure to deliver any required prospectus or
otherwise comply with applicable laws regarding the same; provided, however,
that the liability of such Holder shall not be greater in amount than the dollar
amount of the proceeds (net of any Selling Expenses) received by such Holder
from
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the sale of the Merger Registrable Securities or Contingent Registrable
Securities giving rise to such indemnification.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 2.06. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 2.06 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, (i) if the indemnifying party has failed to assume the defense
and employ counsel or (ii) if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel to the indemnified
party shall have concluded that there may be reasonable defenses available to
the indemnified party that are different from or additional to those available
to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, then the indemnified party shall have the right to select a separate
counsel and to assume such legal defense and otherwise to participate in the
defense of such action, with the expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the
indemnifying party as incurred, provided that such fees and expenses shall be
reimbursed for only one counsel for all indemnified parties in addition to any
local counsel.
(d) If the indemnification provided for in this Section 2.06
is unavailable to the Company or the Holders or is insufficient to hold them
harmless in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then each such indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities and
expenses as between the Company on the one hand and each Holder on the other, in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and of each Holder on the other in connection with the
statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and each Holder on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statements of a material fact
or the omission or alleged omission to state a material fact has been made by,
or relates to, information supplied by such party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
No person 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.
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ARTICLE III
Section 3.01. Communications. All notices and other
communications provided for or permitted hereunder shall be made in writing by
telecopy, courier service or personal delivery:
(a) if to a Holder, to the Representative of the Holders at
the address set forth in the Agreement and Plan of Merger; and
(b) if to the Company, initially at its address set forth in
the Agreement and Plan of Merger and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 3.01.
All such notices and communications shall be deemed to have
been received at the time delivered by hand, if personally delivered; when
receipt acknowledged, if telecopied; and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery.
Section 3.02. Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
Section 3.03. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 3.04. Governing Law. (a) The laws of the State of
Texas shall govern this Agreement without regard to principles of conflict of
laws.
(b) Any dispute, controversy or claim arising out of or
relating to this Agreement, or any breach of this Agreement, shall be settled by
binding arbitration as the exclusive and sole dispute resolution mechanism. The
arbitration shall be held in accordance with the Commercial Arbitration Rules
(the "Rules") of the American Arbitration Association ("AAA") by one or more
arbitrators selected in accordance with the Rules. The arbitration shall be held
in Dallas, Texas. The award and all decisions of the arbitrator(s) shall be
final and binding on all the parties.
Section 3.05. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.
Section 3.06. Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company to the Holders.
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Section 3.07. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement, the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
Section 3.08. Amendment. This Agreement may be amended only by
means of a written amendment signed by the Company and by the Representative of
the Holders.
Section 3.09. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, except that the rights of any Holder under this Agreement may
not be assigned to any Person without the written consent of the Company. If the
Company consents to such an assignment, the assignee must agree to be bound by
the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TOREADOR RESOURCES CORPORATION
By: /s/ G. THOMAS GRAVES III
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Name: G. Thomas Graves III
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Title: Chief Executive Officer and President
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and
THE REPRESENTATIVE OF THE HOLDERS
/s/ EARL E. ROSSMAN, JR.
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Earl E. Rossman, Jr.
Representative of the Holders
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