EXHIBIT 3.2
CERTIFICATE OF DESIGNATION
OF
SERIES A-1 CONVERTIBLE PREFERRED STOCK
OF
TOREADOR RESOURCES CORPORATION
Pursuant to Section 151 of the
Delaware General Corporation Law
Toreador Resources Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
that the following resolutions were adopted by the Board of Directors of the
Corporation pursuant to authority of the Board of Directors as required by
Section 151 of the Delaware General Corporation Law.
RESOLVED, that pursuant to the authority granted to the Board of
Directors in accordance with the provisions of the Corporation's Restated
Certificate of Incorporation, the Board of Directors hereby authorizes a series
of the Corporation's previously authorized Preferred Stock, par value $1.00 per
share (the "Preferred Stock"), and hereby states the designation and number of
shares, and fixes the relative rights, preferences, privileges and restrictions
thereof as follows:
1. DESIGNATION AND AMOUNT.
The designation of this series, which consists of 160,000 shares (each
such share being referred to herein as a "Preferred Share" and all such shares
being collectively referred to as the "Preferred Shares") of Preferred Stock, is
the Series A-1 Convertible Preferred Stock (the "Series A-1 Preferred Stock")
and the face amount shall be Twenty-Five Dollars ($25.00) per share (the "Stated
Value"). The Preferred Shares will be issued pursuant to the provisions of a
Securities Purchase Agreement by and among the Corporation and the purchasers
named therein (the "Securities Purchase Agreement").
2. DIVIDENDS.
(a) Dividend Rate; Payments. The holders (each, a "Holder" and
collectively, the "Holders") of Preferred Shares shall be entitled to receive,
to the extent permitted by applicable law, (i) in preference to the payment of
any dividend on any class or series of Junior Securities (as defined below) and
(ii) pari passu to the payment of any dividend on any class or series of Parity
Securities (as defined below), cumulative dividends ("Dividends") on each
Preferred Share in an amount equal to, on an annualized basis, the Stated Value
of such Preferred Share times nine percent (9%). Dividends shall accrue and
cumulate on each Preferred Share from the date of the original issuance thereof
(the "Purchase Date") through the earlier to occur of (A) the payment thereof in
accordance with the terms of this Section 2(a) and (B) the redemption or
conversion of such Preferred Share in accordance with the terms hereof.
Dividends shall be paid in cash. Accrued Dividends on each outstanding Preferred
Share shall be payable in four quarterly installments on the last day of March,
June, September and December of each year commencing December 31, 2002 unless
earlier due and payable on a Conversion Date (as defined below) or a Redemption
Date (as defined below) (each, a "Dividend Payment Date"). If, on any date,
Dividends on any outstanding Preferred Shares have not been paid or declared by
the Board of Directors in
accordance with applicable law and set aside for payment with respect to all
Dividend Payment Dates preceding such date, the aggregate amount of such
Dividends shall be fully paid or declared and set aside for payment before any
distribution, whether by way of dividend or otherwise, shall be declared, paid
or set apart with respect to any Junior Securities on or after such date.
(b) Delivery of Dividends. The Corporation shall mail the dividends
declared by check to the Holder or its nominee postmarked no later than three
(3) Business Days (as defined below) following the applicable Dividend Payment
Date.
3. PRIORITY.
(a) Payment upon Dissolution.
(i) Upon the occurrence of (x) any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, commenced by the Corporation or by its
creditors, as such, or relating to its assets or (y) the dissolution or other
winding up of the Corporation whether total or partial, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy proceedings,
or (z) any assignment for the benefit of creditors or any marshalling of the
material assets or material liabilities of the Corporation (each, a "Liquidation
Event"), (i) no distribution shall be made to the holders of any shares of
Junior Securities (as defined below) unless each Holder shall have received the
Liquidation Preference (as defined below) with respect to each Preferred Share
then held by such Holder and (ii) each Holder of the Preferred Shares shall
receive the Liquidation Preference (as defined below) with respect to each
Preferred Share then held by such Holder on a pari passu basis with any
liquidation preference to be received by the holders of any Parity Securities.
In the event that upon the occurrence of a Liquidation Event the assets
available for distribution to the Holders of the Series A-1 Preferred Stock and
the holders of all Parity Securities are insufficient to pay (i) the Liquidation
Preference (as defined below) with respect to all of the outstanding Preferred
Shares and the preferential amounts payable to the Holders and (ii) any
liquidation preference with respect to all of the outstanding Parity Securities
and the preferential amounts payable to such holders of the Parity Securities,
the entire assets of the Corporation shall be distributed ratably among the
outstanding Preferred Shares and the outstanding Parity Securities in proportion
to the ratio that the preferential amount payable on each such share (which
shall be the Liquidation Preference in the case of a Preferred Share and any
liquidation preference per share due to any holders of the Parity Securities)
bears to the aggregate preferential amount payable on all such Preferred Shares
and shares of Parity Securities.
(ii) The "Liquidation Preference" with respect to a Preferred
Share shall mean an amount equal to the Stated Value of such Preferred Share
(subject to ratable adjustment in the event of any stock split or combination of
the Series A-1 Preferred Stock and to equitable adjustment in the event of a
reclassification of the Series A-1 Preferred Stock or other similar event) plus
any accrued and unpaid Dividends thereon. "Junior Securities" shall mean the
Common Stock and all other capital stock of the Corporation, other than the
Series A Convertible Preferred Stock or any other shares of Preferred Stock of
the Corporation then outstanding that by their terms rank senior to or pari
passu with the Series A-1 Preferred Stock as to redemption, the payment of
dividends or distribution of assets upon a Liquidation Event or any other
liquidation, dissolution or winding up of the Corporation. "Parity Securities"
shall mean the Series A Convertible Preferred Stock and any shares of Preferred
Stock of the Corporation then outstanding that by their terms rank pari passu
with the Series A-1 Preferred Stock as to redemption, the payment of dividends
or distribution of assets upon a Liquidation Event or any other liquidation,
dissolution or winding up of the Corporation.
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4. CONVERSION.
(a) Right to Convert. Each Holder shall have the right to convert, at
any time and from time to time from and after the Purchase Date, all or any part
of the Preferred Shares held by such Holder, unless previously redeemed, into
such number of fully paid and non-assessable shares of Common Stock ("Conversion
Shares") as is computed in accordance with the terms hereof (a "Conversion").
(b) Conversion Notice. In order to convert Preferred Shares, a Holder
shall send by facsimile transmission, at any time prior to 5:00 p.m., central
time, on the date on which such Holder wishes to effect such Conversion (the
"Conversion Date"), (i) a notice of conversion (a "Conversion Notice"), in
substantially the form of Exhibit A hereto, to the Corporation and to its
designated transfer agent for the Common Stock (the "Transfer Agent") stating
the number of Preferred Shares to be converted, the applicable Conversion Price
(as defined below) and a calculation of the number of shares of Common Stock
issuable upon such Conversion and (ii) a copy of the certificate or certificates
representing the Preferred Shares being converted. The Holder shall thereafter
send the original of the Conversion Notice and of such certificate or
certificates to the Transfer Agent. The Corporation shall issue a new
certificate for Preferred Shares in the event that less than all of the
Preferred Shares represented by a certificate delivered to the Corporation in
connection with a Conversion are converted. Except as otherwise provided herein,
upon delivery of a Conversion Notice by a Holder in accordance with the terms
hereof, such Holder shall, as of the applicable Conversion Date, be deemed for
all purposes to be record owner of the Common Stock to which such Conversion
Notice relates. In the case of a dispute between the Corporation and a Holder as
to the calculation of the Conversion Price or the number of Conversion Shares or
Dividend Payment Shares issuable upon a Conversion, the Corporation shall
promptly issue to such Holder the number of Conversion Shares and Dividend
Payment Shares that are not disputed and shall submit the disputed calculations
to the Corporation's independent accountant within three (3) Business Days of
receipt of such Holder's Conversion Notice. The Corporation shall cause such
accountant to calculate the Conversion Price as provided herein and to notify
the Corporation and such Holder of the results in writing no later than three
(3) Business Days following the day on which it received the disputed
calculations. The Corporation shall deliver the Conversion Shares and Dividend
Payment Shares, if any, owed to a Holder pursuant to such accountant's
calculations on or before the close of business on the third (3rd) Business Day
following the Corporation's receipt of notice from such accountant of the
results of its calculations. Such accountant's calculation shall be deemed
conclusive absent manifest error. The fees of any such accountant shall be borne
by the party whose calculations were most at variance with those of such
accountant.
(c) Number of Conversion Shares; Conversion Price. The number of
Conversion Shares to be delivered by the Corporation pursuant to a Conversion
shall be determined by dividing the aggregate Stated Value of the Preferred
Shares to be converted by the Conversion Price (as defined herein) in effect on
the applicable Conversion Date. Subject to adjustment as provided in Section 5
below, "Conversion Price" shall mean Four Dollars ($4.00).
(d) Certain Definitions. "Trading Day" shall mean any day on which the
Common Stock is traded on the Nasdaq National Market System or on the principal
securities exchange or market located in the United States on which the Common
Stock is then traded. "Business Day" means any day on which the New York Stock
Exchange and commercial banks located in the City of New York are open for
business.
(e) Delivery of Common Stock Upon Conversion. Upon receipt of a
Conversion Notice from a Holder pursuant to paragraph 4(b) above, the
Corporation shall, no later than the close of business on (A) the later to occur
of (i) the third (3rd) Business Day following the Conversion Date set forth in
such Conversion Notice and (ii) the first Business Day following delivery of the
original certificates, duly
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endorsed, representing the Preferred Shares being converted pursuant thereto and
(B) with respect to Conversion Shares which are disputed as described in
paragraph 4(b) above, and required to be delivered by the Corporation pursuant
to the accountant's calculations described therein, the date for delivery
thereof specified in such paragraph 4(b) (the "Delivery Date"), issue and
deliver or cause to be delivered to such Holder the number of Conversion Shares
as shall be determined as provided herein. The Corporation shall effect delivery
of Conversion Shares by delivering to the Holder or its nominee physical
certificates representing such Conversion Shares, no later than the close of
business on such Delivery Date. If any Conversion would create a fractional
Conversion Share, such fractional Conversion Share shall be disregarded and, at
the Corporation's sole discretion, either the number of Conversion Shares
issuable upon such Conversion, in the aggregate, shall be the next higher number
of Conversion Shares or the Corporation shall pay cash in an amount calculated
by multiplying the amount of the fractional share times the Conversion Price for
such Conversion.
5. ADJUSTMENTS TO CONVERSION PRICE.
(a) Adjustment to Conversion Price Due to Stock Split, Stock Dividend,
Etc. If, prior to the Conversion of all of the Preferred Shares, (A) the number
of outstanding shares of Common Stock is increased by a stock split, a stock
dividend on the Common Stock, a reclassification of the Common Stock, the
distribution to holders of Common Stock as a class of rights or warrants
entitling them to subscribe for or purchase Common Stock at less than the then
current market price thereof (based upon the subscription or exercise price of
such rights or warrants at the time of the issuance thereof) or other similar
event, the Conversion Price shall be proportionately reduced, or (B) the number
of outstanding shares of Common Stock is decreased by a reverse stock split,
combination or reclassification of shares or other similar event, the Conversion
Price shall be proportionately increased. In such event, the Corporation shall
notify the Transfer Agent of such change on or before the effective date
thereof.
(b) Adjustment Due to Merger, Consolidation, Etc. If, prior to the
Conversion of all of the Preferred Shares, there shall be any merger,
consolidation, business combination, tender offer, exchange of shares,
recapitalization, reorganization, redemption or other similar event, as a result
of which shares of Common Stock shall be exchanged for or changed into the same
or a different number of shares of the same or another class or classes of stock
or securities of the Corporation or another entity (an "Exchange Transaction"),
then such Holder shall (A) upon the consummation of such Exchange Transaction,
have the right to receive, with respect to any shares of Common Stock then held
by such Holder, or which such Holder is then entitled to receive pursuant to a
Conversion Notice previously delivered by such Holder, (and without regard to
whether such shares contain a restrictive legend or are freely-tradeable) the
same amount and type of consideration (including without limitation, stock,
securities and/or other assets) and on the same terms as a holder of shares of
Common Stock would be entitled to receive in connection with the consummation of
such Exchange Transaction (the "Exchange Consideration"), and (B) upon the
Conversion of Preferred Shares occurring subsequent to the consummation of such
Exchange Transaction, the Exchange Consideration which such Holder would have
been entitled to receive in connection with such Exchange Transaction had such
shares been converted immediately prior to such Exchange Transaction, and in any
such case appropriate provisions shall be made with respect to the rights and
interests of such Holder to the end that the provisions hereof (including,
without limitation, provisions for the adjustment of the Conversion Price and of
the number of shares issuable upon a Conversion) shall thereafter be applicable
as nearly as may be practicable in relation to any securities thereafter
deliverable upon the Conversion of such Preferred Shares. The Corporation shall
not effect any Exchange Transaction unless (i) it first gives to each Holder
twenty (20) days prior written notice of such Exchange Transaction (an "Exchange
Notice"), and makes a public announcement of such event at the same time that it
gives such notice and (ii) the resulting successor or acquiring entity (if not
the Corporation) assumes by written instrument the obligations of the
Corporation hereunder, including the terms of this subparagraph 5(b), and under
the Securities Purchase Agreement and the Registration Rights Agreement
described in the Securities Purchase Agreement (the "Registration Rights
Agreement").
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(c) Distribution of Assets. If the Corporation shall declare or make
any distribution of cash, evidences of indebtedness or other securities or
assets (other than cash dividends or distributions payable out of earned surplus
or net profits for the current or the immediately preceding year), or any rights
to acquire any of the foregoing, to holders of Common Stock as a partial
liquidating dividend, by way of return of capital or otherwise, including any
dividend or distribution in shares of capital stock of a subsidiary of the
Corporation (collectively, a "Distribution"), then, upon a Conversion by a
Holder occurring after the record date for determining stockholders entitled to
such Distribution, the Conversion Price for Preferred Shares not converted prior
to the record date of a Distribution shall be reduced to a price determined by
decreasing the Conversion Price in effect immediately prior to the record date
of the Distribution by an amount equal to the fair market value of the assets so
distributed with respect to each share of Common Stock, such fair market value
to be determined by an investment banking firm selected by the Corporation.
(d) No Fractional Shares. If any adjustment under this Section would
create a fractional share of Common Stock or a right to acquire a fractional
share of Common Stock, such fractional share shall be disregarded and, at the
Corporation's sole discretion, either the number of shares of Common Stock
issuable upon Conversion shall be the next higher number of shares or the
Corporation shall pay in cash an amount calculated by multiplying the amount of
the fractional share times the Conversion Price for such Conversion.
6. OPTIONAL REDEMPTION BY CORPORATION.
(a) Optional Redemption. Any time on or after November 1, 2007, the
Corporation shall have the right to redeem, in whole or in part, Preferred
Shares outstanding at the Optional Redemption Price (as defined below) (an
"Optional Redemption"), to the extent permitted by applicable law and so long as
(A) the Corporation shall have sufficient cash available on the Optional
Redemption Date to effect such Optional Redemption and (B) the Corporation shall
have delivered to each Holder at least fifteen (15) Trading Days' prior written
notice (an "Optional Redemption Notice") specifying the date on which such
Optional Redemption is to be effected (the "Optional Redemption Date") and the
amount of the Optional Redemption Price payable to such Holder. If the
Corporation should elect to redeem less than all of the Preferred Shares
outstanding, the Corporation shall select those Preferred Shares to be redeemed
by lot. Nothing contained herein shall limit a Holder's right to convert its
Preferred Shares at any time prior to the Optional Redemption Date.
(b) Optional Redemption Price. In the event of an Optional Redemption
on or after November 1, 2007, the Optional Redemption Price to be paid to a
Holder shall be the Liquidation Preference of the Preferred Shares then held by
such Holder multiplied by (i) 1.05 if the Optional Redemption Date is on or
after November 1, 2007 but before November 1, 2008, (iv) 1.04 if the Optional
Redemption Date is on or after November 1, 2008 but before November 1, 2009,
(iii) 1.03 if the Optional Redemption Date is on or after November 1, 2009 but
before November 1, 2010, (iv) 1.02 if the Optional Redemption Date is on or
after November 1, 2010 but before November 1, 2011, (v) 1.01 if the Optional
Redemption Date is on or after November 1, 2011 but before November 1, 2012, or
(vi) 1.00 if the Optional Redemption Date is on or after November 1, 2012, plus
in all cases, accrued and unpaid Dividends through and including the Optional
Redemption Date.
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(c) Payment of Optional Redemption Price. Upon the redemption of a
Preferred Share, payment of the Optional Redemption Price, which shall be in the
form of a Corporation check, to the Holder thereof will be effected
simultaneously with the return of such share by such Holder to the Corporation.
To the extent the Corporation shall redeem less than all of the Preferred Shares
outstanding, the Corporation shall also deliver certificates evidencing the
unredeemed Preferred Shares in addition to the Optional Redemption Price.
7. MISCELLANEOUS.
(a) Transfer of Preferred Shares. A Holder may sell or transfer all or
any portion of the Preferred Shares to any person or entity as long as such sale
or transfer is the subject of an effective registration statement under the
Securities Act or is exempt from registration thereunder and otherwise is made
in accordance with the terms of the Securities Purchase Agreement. From and
after the date of such sale or transfer, the transferee thereof shall be deemed
to be a Holder. Upon any such sale or transfer, the Corporation shall, promptly
following the return of the certificate or certificates representing the
Preferred Shares that are the subject of such sale or transfer, issue and
deliver to such transferee a new certificate in the name of such transferee.
(b) Notices. Except as otherwise provided herein, any notice, demand or
request required or permitted to be given pursuant to the terms hereof, the form
or delivery of which notice, demand or request is not otherwise specified
herein, shall be in writing and shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission 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 an 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 Corporation:
Toreador Resources Corporation
4809 Cole Avenue, Suite 108
Dallas, Texas 75205
Attn.: Chief Executive Officer
Fax: 214-559-3933
and if to any Holder, to such address for such Holder as shall be designated by
such Holder in writing to the Corporation.
(c) Lost or Stolen Certificate. Upon receipt by the Corporation of
evidence of the loss, theft, destruction or mutilation of a certificate
representing Preferred Shares, and (in the case of loss, theft or destruction)
of indemnity or security reasonably satisfactory to the Corporation, and upon
surrender and cancellation of such certificate if mutilated, the Corporation
shall execute and deliver to the Holder a new certificate identical in all
respects to the original certificate.
(d) No Voting Rights. Except as provided by applicable law and
paragraph 7(e) below, the Holders of the Preferred Shares shall have no voting
rights with respect to the business, management or affairs of the Corporation.
The Corporation shall provide each Holder with prior notification of each
meeting of stockholders (and copies of proxy statements and other information
sent to such stockholders).
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(e) Protective Provisions.
(A) So long as shares of Series A-1 Preferred Stock are
outstanding, the Corporation shall not, without first obtaining the approval of
the Holders of a majority of the then outstanding shares of Series A-1 Preferred
Stock:
(i) alter or change the rights, preferences or
privileges of the Series A-1 Preferred Stock or any other capital stock of the
Corporation so as to affect adversely the Series A-1 Preferred Stock;
(ii) create any new class or series of capital stock
having a preference over the Series A-1 Preferred Stock as to redemption, the
payment of dividends or distribution of assets upon a Liquidation Event or any
other liquidation, dissolution or winding up of the Corporation;
(iii) increase the authorized number of shares of
Preferred Stock;
(iv) re-issue any shares of Series A-1 Preferred
Stock which have been converted in accordance with the terms hereof; or
(v) declare, pay or make any provision for any cash
dividend or distribution with respect to the Common Stock of the Corporation.
(B) If the Corporation fails to pay dividends in respect of
four quarterly dividend periods, Holders of a majority of the then outstanding
shares of the Series A-1 Preferred Stock would be entitled, acting separately as
a class, to elect one person to the Board of Directors of the Corporation. Upon
the taking of such action, the maximum authorized number of members of the Board
of Directors shall automatically increase by one person so elected, and the
vacancy so created shall be filled by the person elected pursuant to this
subparagraph (B). A director elected by the holders of Series A-1 Preferred
Stock pursuant to this subparagraph (B) shall serve until his successor is duly
elected and qualified, until his removal or until his term terminates as
provided below. Such a director may be removed without cause at any time by
action, and only by such action, of the holders of shares of Series A-1
Preferred Stock. If the office of a director elected pursuant to this
subparagraph (B) becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office or otherwise, such vacancy may be filled
by the action, and only by such action, of the holders of shares of Series A-1
Preferred Stock. At such time as the event of default giving rise to this right
to elect a director has been cured, such right shall terminate, the term of any
director elected pursuant to this subparagraph (B) shall terminate and the
maximum number of authorized members of the Board of Directors shall decrease
automatically to the maximum number of authorized members of the Board of
Directors in effect immediately before any action was taken pursuant hereto.
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IN WITNESS WHEREOF, the Corporation has executed this Certificate of
Designation as of the 30th day of October, 2002.
TOREADOR RESOURCES CORPORATION
By: /s/ G. Thomas Graves III
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Name: G. Thomas Graves III
Title: President and Chief Executive Officer
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EXHIBIT A
NOTICE OF CONVERSION
The undersigned hereby elects to convert shares of Series A-1 Convertible
Preferred Stock (the "Preferred Stock"), represented by stock certificate No(s).
(the "Preferred Stock Certificates"), into shares of common stock ("Common
Stock") of Toreador Resources Corporation (the "Company") according to the terms
and conditions of the Certificate of Designation relating to the Preferred Stock
(the "Certificate of Designation"), as of the date written below. Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Certificate of Designation.
[ ] (check box if shares of Common Stock have been resold) The undersigned
represents that the shares of Common Stock to be issued by the Company hereby
have been resold or transferred by the undersigned in accordance with the
provisions of the prospectus included in the Registration Statement.
Date of Conversion:
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Number of Shares of
Preferred Stock to be Converted:
--------------------------
Applicable Conversion Price:
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Number of Shares of
Common Stock to be Issued:
--------------------------------
Amount of Dividend
Accrued through the
Conversion Date:
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Name of Holder:
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Address:
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Signature:
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Name:
Title:
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