Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into as of _______________,
2002, between RENTECH, INC., a Colorado corporation ((Company() and the
persons who are listed on and who sign the Investor Signature Pages
attached to this Agreement (each of whom is referred to as an
"Investor( and all of whom collectively are referred to as the
"Investors().
In consideration of the mutual covenants contained herein, the
parties agree as follows:
1. DEFINITIONS.
(a) The term (Commission( means the Securities and Exchange
Commission.
(b) The term (1933 Securities Act( means the Securities Act
of 1933, as amended;
(c) The terms (register,( (registered,( and (registration(
refer to a registration effected by preparing and filing a
registration statement in compliance with the 1933 Act and the
declaration or ordering of effectiveness of such registration
statement by the United States Securities and Exchange Commission.
(d) The term (Registrable Securities( means (i) up to
4,500,000 shares of Common Stock of the Company issuable or issued to
those Investors who purchase the Company(s shares of Common Stock
through its private placement offering pursuant to its Private
Placement Memorandum dated January 10, 2002 (the (Offering() and who
have signed this Agreement, (ii) shares of Common Stock acquired
from the Company by exercise of stock purchase warrants issued by the
Company, as partial compensation, to the Company(s placement agents
and consultants who participate in the Offering (the (Holders(), and
(iii) any Common Stock of the Company issued as a dividend or other
distribution with respect to, or in exchange or in replacement of,
such Common Stock.
(e) The term (Registration Statement( means a registration
statement of the Company filed under the Act.
(f) The term (1934 Exchange Act( means the Securities
Exchange Act of 1934, as amended.
2. REGISTRATION.
(a) Mandatory Registration. (i) The Company shall use its
best efforts to prepare, and, on or before the date that is sixty
(60) days after the closing of the Offering, file with the SEC a
Registration Statement or Registration Statements (as necessary) on
Form S-3 (or, if such form is unavailable for such a registration, on
such other form as is available for such a registration of all of the
Registrable Securities) (any of which may contain a combined
prospectus with other registrations by the Company), covering the
resale of all of the Registrable Securities held by the Investors,
which Registration Statements, to the extent allowable under the 1933
Act and the rules promulgated thereunder (including without
limitation Rule 416), shall state that such Registration Statement(s)
also covers such indeterminate number of additional shares (the
"Indeterminate Shares") of Common Stock as may become issuable as a
dividend or other distribution with respect to, or in exchange or in
replacement of, such Common Stock.
(b) Piggy-back Registrations. If at any time prior to the
expiration of the Registration Period the Company proposes to file
with the SEC a Registration Statement relating to an offering for its
own account or the account of others under the 1933 Act of any of its
securities (other than on Form S-4 or Form S-8 or their then
equivalents relating to securities to be issued solely in connection
with any acquisition of any entity or business or equity securities
issuable in connection with stock option or other employee benefit
plans) the Company shall promptly send to each of the Holders written
notice of the Company's intention to file a Registration Statement
and of such Holder(s rights under this Section 2(b). If within twenty
(20) days after receipt of such notice, a Holder shall so request in
writing, the Company shall include in such Registration Statement all
or any part of the Registrable Securities that the Holder requests to
be registered, subject to the priorities set forth in Section 2(c)
below. No right to registration of Registrable Securities under this
Section 2(b) shall be construed to limit any registration required
under Section 2(a) hereof. The obligations of the Company under this
Section 2(b) may be waived by each individual Holder holding
Registrable Securities, in its sole discretion, without effect to any
other Holder. If an offering in connection with which a Holder is
entitled to registration under this Section 2(b) is an underwritten
offering, then each Holder whose Registrable Securities are included
in such Registration Statement shall, unless otherwise agreed by the
Company, offer and sell such Registrable Securities in an
underwritten offering using the same underwriter or underwriters and,
subject to the provisions of this Agreement, on the same terms and
conditions as other shares of Common Stock included in such
underwritten offering.
(c) Priority in Piggy-back Registration Rights. If the
registration referred to in Section 2(b) is to be an underwritten
public offering for the account of the Company and the managing
underwriter or underwriters advise the Company in writing that, in
their reasonable good faith opinion, marketing or other factors
dictate that a limitation on the number of shares of Common Stock
which may be included in the Registration Statement is necessary to
facilitate and not adversely affect the proposed offering, then the
Company shall include in such registration: (i) first, all securities
the Company proposes to sell for its own account, (ii) second, up to
the full number of securities proposed to be registered for the
account of the holders of securities entitled to inclusion of their
securities in the Registration Statement by reason of demand
registration rights, (iii) third, the securities requested to be
registered by the Holders, pro rata based on the number of
Registrable Shares each has requested to be included in such
registration, and (iv) fourth, the securities held by other holders of
securities entitled to participate in the registration, drawn from
them pro rata based on the number each has requested to be included
in such registration
3. OBLIGATIONS OF THE COMPANY. In the case of a mandatory
registration pursuant to Section 2(a) and a piggy-back registration
pursuant to Section 2(b), the Company will, as expeditiously as
practical:
(a) Prepare and file with the Securities and Exchange
Commission a registration statement on Form S-3 with respect to such
Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective; provided,
however, that the Company shall in no event be obligated to cause any
such registration to remain effective for more than the earlier of
sale of all Registrable Securities covered thereby or two years after
the date which the registration statement was declared or ordered
effective.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Investors and Holders such numbers of
copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act, and such other
documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by the registration statement under the securities
or blue sky laws of such other jurisdictions as is reasonably
appropriate for the distribution of the securities covered by the
registration statement, 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 states or jurisdictions, and further provided that (anything
in this Agreement to the contrary notwithstanding with respect to the
bearing of expenses) if any jurisdiction in which the securities are
to be qualified requires that expenses incurred in connection with
the qualification of the securities in that jurisdiction be borne by
selling shareholders pro rata, each selling Investor or Holder shall
pay such costs pro rata to the extent required by such jurisdiction
4. FURNISH INFORMATION. It shall be a condition precedent to
the Company(s obligations to take any action that the Investor shall
first furnish to the Company such information regarding them, the
Registrable Securities held by them, and the intended method of
disposition of their securities as the Company shall reasonably
request and as is required in connection with the action to be taken
by the Company.
5. EXPENSES OF REGISTRATION.
(a) All expenses incurred in connection with a registration
pursuant to Section 2(a) (excluding underwriters( or securities
broker-dealers( discounts, commissions and expenses), including,
without limitation, all registration and qualification fees, printers(
and accounting fees, and fees and disbursements of counsel for the
Company, shall be borne by the Company.
(b) In the case of any registration effected pursuant to Section
2(b), the Holders shall bear any additional registration and
qualification fees and expenses (including underwriters' discounts,
commissions and expenses), and any additional costs and disbursements
of counsel for the Company that result from the inclusion of
securities held by the Holders in such registration. These additional
expenses of the registration shall be borne by all Holders pro rata
on the basis of the amount of securities so registered; provided,
however, if any such cost or expense is attributable solely to one
selling Holder and does not constitute a normal cost or expense of
such a registration, such cost or expense shall be allocated to that
selling Holder. In addition, each selling Holder shall bear the fees
and costs of its own counsel.
6. UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of Common Stock being issued by
the Company or being sold by persons (the "Initial Sellers") other
than the Holders exercising demand registration rights, the Company
shall not be required under Section 2(b) to include any of the
Holders' Registrable Securities in the underwriting unless they
accept the terms of the underwriting as agreed upon between the
Company or the Initial Sellers and the underwriters selected by it or
them, and then only in such quantity as will not, in the written
opinion of the underwriters, jeopardize the success of the offering
by the Company or the Initial Sellers. If the total amount of
securities that all Holders request to be included in the offering
exceeds the amount of securities that the underwriters reasonably
believe compatible with the success of the offering, the Company
shall only be required to include in the offering so many of the
securities of the selling Holders as the underwriters believe will
not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling Holders
according to the total amount of securities owned by them, or in such
other proportions as agreed to by the selling Holders); provided that
no such reduction shall be made with respect to any securities
offered by the Company or the Initial Sellers for its or their own account.
7. DELAY OF REGISTRATION. No Holder shall have any right to
take any action to restrain, enjoin, or otherwise delay any
registration as the result of any controversy that might arise with
respect to the interpretation or implementation of this Agreement.
8. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Investor and Holder requesting or joining in a
registration, any underwriter (as defined in the 1933 Securities Act)
for it, and each such person, if any, who controls the Investor or
Holder or underwriter within the meaning of the 1933 Securities Act,
against any losses, claims, damages, or liabilities, joint or
several, to which they may become subject under the 1933 Securities
Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based
on any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, 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 Investor and Holder, such
underwriter, or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
Section 8(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not
be unreasonably withheld) nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
connection with such registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance
upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Investor or
Holder, underwriter, or controlling person.
(b) To the extent permitted by law, each Investor and Holder
requesting or joining in a registration will indemnify and hold
harmless the Company, each of its directors, each of its officers who
have signed the registration statement, each person, if any, who
controls the Company within the meaning of the 1933 Securities Act,
and each agent and any underwriter for the Company (within the
meaning of the 1933 Securities Act) against any losses, claims,
damages, or liabilities to which the Company or any such director,
officer, controlling person, agent, or underwriter may become
subject, under the 1933 Securities Act or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements
thereto, 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,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in such registration statement, preliminary or final
prospectus, or amendments or supplements thereto, in reliance upon
and in conformity with written information furnished by the Investor
or Holder expressly for use in connection with such registration; and
each Investor or Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer,
controlling person, agent, or underwriter in connection with
investigating or defending any such loss, claim, damage, liability,
or action; provided, however, that the indemnity agreement contained
in this paragraph 8(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of such Investor or Holder
(which consent shall not be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, the indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this paragraph, notify the indemnifying
party in writing of the commencement of the claim and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties. The failure to
notify an indemnifying party promptly of the commencement of any such
action, if prejudicial to his ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified
party under this Section, but the omission to so notify the
indemnifying party will not relieve him of any liability that he may
have to any indemnified party otherwise than under this Section.
9. TERMINATION OF THE COMPANY'S OBLIGATIONS. The Company shall
have no obligations pursuant to Section 2(b) with respect to any
request or requests made by any Holder more than two years after the
date of this Agreement, nor shall the Company have any obligation
under Section 2(b) as to any Holder after the Company has offered to
include or has included Registrable Securities in a registration
relating to an initial public offering.
10. REPORTS UNDER EXCHANGE ACT. When the Company is required to
file reports pursuant to the Exchange Act, and with a view to making
available to the Investors or Holders the benefits of Rule 144
promulgated under the 1933 Securities Act and any other rule or
regulation of the Commission that may at any time permit an Investor
or a Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the 1933 Securities Act
and the 1934 Exchange Act; and
(c) furnish to any Holder so long as such Holder owns any of the
Registrable Securities forthwith upon request a written statement by
the Company that it has complied with the reporting requirements of
Rule 144 and of the 1933 Securities Act and the 1934 Exchange Act, a
copy of the most recent annual or quarterly report of the Company,
and such other reports and documents so filed by the Company as may
be reasonably requested in availing any Investor or Holder of any
rule or regulation of the Commission permitting the selling of any
such securities without registration.
11. LOCKUP AGREEMENT. In consideration for the Company agreeing
to its obligations under this Agreement, each Holder agrees in
connection with any registration of the Company's securities that,
upon the request of the Company or the underwriters managing any
underwritten offering of the Company's securities, not to sell, make
any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those
included in the registration) without the prior written consent of
the Company or such underwriters, as the case may be, for such period
of time (not to exceed ninety (90) days) from the effective date of
such registration as the Company or the underwriters may specify.
12. TRANSFER BY A HOLDER OF REGISTRATION RIGHTS. The
registration rights of a Holder under this Agreement may be
transferred only to those persons to whom the warrants may be
transferred, as described in Section (d) of the stock purchase
warrants issued by the Company in connection with the Offering, and
then only if: (i) the Company is given written notice at the time of
the transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under
this Agreement are being assigned, and (ii) at or before the time the
Company receives the written notice contemplated by clause (i) of
this sentence, the transferee agrees in writing with the Company to
be bound by all of the provisions contained herein.
13. MISCELLANEOUS.
(a) Entire Agreement. This Agreement the documents referred to
herein, and the placement agent and consulting agreements applicable
to Holders, constitute the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by
any warranties, representations, or covenants except as specifically
set forth herein or therein. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any third
party any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.
(b) Governing Law. This Agreement shall be governed by and
construed under the laws of the state of Colorado.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument
(d) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.
(e) Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and
shall be personally delivered, transmitted via facsimile or overnight
courier service or mailed first-class postage prepaid, registered or
certified mail. The addresses and facsimile numbers for such
communications shall be:
To the Company: Rentech, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to an Investor or Holder, to their address and facsimile
number set forth on that person(s signature page.
Such notices and other communications shall for all purposes of
this Agreement be treated as being effective or having been given on
the date when personally delivered or when transmitted by facsimile
(if confirmation of facsimile receipt has been given), on the date
after being deposited with an overnight courier service, or, if
sent by mail, three days after deposit in the United States mail,
postage prepaid. Any party may change its address for notice by
notifying the other party pursuant to the above notice provisions.
(f) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the
Company and the holders of at least seventy percent (70%) of the
outstanding shares of the Registrable Securities. Any amendment or
waiver effected in accordance with this paragraph shall be binding
upon each Investor and Holder, each future holder of all such
securities, and the Company.
(g) Effect of Amendment or Waiver. Each Investor and Holder
acknowledges that by the operation of Section 13(f) hereof, the
holders of seventy percent (70%) of the Registrable Securities will
have the right and power to diminish or eliminate all rights of an
Investor or Holder under this Agreement.
(h) Rights of Investors and Holders. Each Investor and Holder
shall have the absolute right to exercise or refrain from exercising
any right or rights that they may have by reason of this Agreement,
including, without limitation, the right to consent to the waiver of
any obligation of the Company under this Agreement and to enter into
an agreement with the Company for the purpose of modifying this
Agreement or any agreement effecting any such modification. No
Investor or Holder shall incur any liability to any other Investors or
Holders with respect to exercising or refraining from exercising any
of these rights.
(i) Time of Essence. Time is of the essence regarding
performance of all terms, provisions and conditions contained in this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
COMPANY:
RENTECH, INC.
By:
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[SIGNATURES OF INVESTORS AND HOLDERS APPEAR ON FOLLOWING PAGES]
