EXHIBIT 10.1
EXECUTION COPY
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is made as of March 18, 2000,
by and between RENTECH, INC., a corporation organized under the laws of the
State of Colorado, with headquarters located at 0000 00xx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 (the "Company") and ANSCHUTZ INVESTMENT COMPANY, a
corporation organized under the laws of the State of Colorado, with headquarters
located at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the "Buyer").
BACKGROUND CIRCUMSTANCES.
A. The Company and the Buyer are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D") as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "1933 Act");
B. The Buyer desires to purchase from the Company, and the Company
desires to sell to the Buyer, for the amount and upon the terms and conditions
stated in this Agreement, in a closing or closings as herein described,
1,000,000 shares of the Company's common stock, par value $.01 per share
("Common Stock"), an option to purchase 2,000,000 shares of Common Stock having
an exercise price of $1.25 per share and expiring December 31, 2001, and an
option to purchase 1,000,000 shares of Common Stock having an exercise price of
$5.00 per share and expiring December 31, 2004. The options are granted in
separate agreements executed by the parties concurrently with this Agreement
(the "Option Agreements").
NOW, THEREFORE, in consideration of their respective promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the Company and the Buyer hereby
agree as follows:
SECTION 1. PURCHASE AND SALE OF SECURITIES.
(a) PURCHASE. The Buyer hereby agrees to purchase from the Company, and
the Company agrees to sell to the Buyer, 1,000,000 shares of Common Stock
("Stock"), an option to purchase 2,000,000 shares of Common Stock having an
exercise price of $1.25 per share and expiring December 31, 2001 ("2001
Option"), and an option to purchase 1,000,000 shares of Common Stock having an
exercise price of $5.00 per share and expiring December 31, 2004 ("2004 Option"
and, together with the Stock and the 2001 Option, the "Securities"). The 2001
Option and the 2004 Option (collectively, the "Options") shall be subject to the
terms and conditions of the Option Agreements.
(b) PURCHASE PRICE. The purchase price for the Stock and the 2001
Option is $600,000. The purchase price for the 2004 Option is $50,000. The
aggregate purchase price for the Securities is $650,000 (the "Purchase Price").
(c) THE CLOSING. The date of the Closing shall be March 20, 2000. The
Purchase Price shall be delivered to the Company by cashier's check or by wire
transfer of immediately available funds in United States Dollars. At the
Closing, the Company shall deliver certificates representing the Stock, duly
issued and executed by the authorized officers on behalf of the Company, to the
Buyer, and the Company and Buyer shall sign and the Company shall deliver to
Buyer the Option Agreements and the Registration Rights Agreement (as defined
below).
SECTION 2. BUYER'S REPRESENTATIONS AND WARRANTIES.
The Buyer understands, agrees with, and represents and warrants to the
Company with respect to its purchase hereunder, that:
(a) INVESTMENT PURPOSES; COMPLIANCE WITH 1933 ACT. The Buyer is
purchasing the Securities for its own account for investment only and not with a
view towards, or in connection with, the public sale or distribution thereof,
except pursuant to sales registered under or exempt from the 0000 Xxx. The Buyer
is not purchasing the Securities for the purpose of covering short sale
positions in Common Stock established on or prior to the date of the Closing.
The Buyer agrees to offer, sell or otherwise transfer the Securities only (i) in
accordance with the terms of this Agreement and the Option Agreements, as the
same may be applicable, and (ii) pursuant to registration under the 1933 Act or
to a transaction for which registration under the 1933 Act is not required.
Except as set forth in Section 2(f) of that certain Registration Rights
Agreement dated as of the date hereof by and among the Company, Buyer and
Anschutz Investment Company (the "Registration Rights Agreement") the Buyer does
not by its representations contained in this Section 2(a) agree to hold the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time pursuant to a registration statement or in
accordance with an exemption from registration under the 1933 Act, in all cases
in accordance with applicable state and federal securities laws.
(b) ACCREDITED INVESTOR STATUS. The Buyer is an "accredited investor"
as that term is defined in Rule 501(a) of Regulation D. The Buyer has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment made pursuant to this
Agreement. The Buyer is aware that it may be required to bear the economic risk
of an investment made pursuant to this Agreement for an indefinite period of
time, and is able to bear such risk for an indefinite period.
(c) RELIANCE ON EXEMPTIONS. The Buyer understands the Securities are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of the applicable United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and the Buyer's compliance with, the representations, warranties,
acknowledgments, understandings, agreements and covenants of the Buyer set forth
herein in order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Securities.
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(d) INFORMATION. The Buyer and its advisors, if any, have been
furnished with the Company's Form 10-KSB as filed with the SEC for the fiscal
year ended September 30, 1999, the Company's Form 10-QSB for the fiscal quarter
ended December 31, 1999, and the Company's private placement memorandum dated
October 12, 1999 that was not prepared for the offer and sale of the Securities.
The Buyer and its advisors, if any, have been afforded the opportunity to ask
questions of the Company and have received complete and satisfactory answers to
any such inquiries. The Buyer understands that its investment in the Securities
involves a high degree of risk. The Buyer has sought such accounting, legal and
tax advice as it has considered necessary to an informed investment decision
with respect to the investment made pursuant to this Agreement.
(e) NO GOVERNMENT REVIEW. The Buyer 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.
(f) TRANSFER OR RESALE. The Buyer understands that: (i) the Securities
have not been and are not being registered under the 1933 Act or any state
securities laws, and that the Stock may not be offered for sale, sold, assigned
or transferred unless either (x) subsequently registered thereunder or (y) the
Buyer shall have delivered to the Company, if so requested by the Company, a
legal opinion reasonably satisfactory to the Company's outside counsel to the
effect that the securities to be sold, assigned or transferred may be sold,
assigned or transferred pursuant to an exemption from such registration, (ii)
the sale, assignment or transfer of the Options or any shares of Common Stock
issuable upon the exercise thereof are subject to certain restrictions as set
forth in the Option Agreements and (iii) except as set forth in the Registration
Rights Agreement, neither the Company nor any other person is under any
obligation to register such securities under the 1933 Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder.
(g) LEGEND. The Buyer understands that unless the resale of the shares
of the Stock or Common Stock underlying the Options (collectively, the "Subject
Shares") has been registered under the 1933 Act or may be sold by the Buyer
pursuant to paragraph (k) of Rule 144 (as amended, or any applicable rule which
operates to replace said Rule) promulgated under the 1933 Act ("Rule 144"), the
stock certificates representing the Common Stock will bear a restrictive legend
(the "Legend") in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED,
SOLD, OFFERED FOR SALE, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
REGISTRATION UNDER OR EXEMPTION FROM SUCH ACT AND ALL APPLICABLE STATE
SECURITIES LAWS.
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The Legend will be removed and the Company will issue certificates without the
Legend to the transferee of the applicable Subject Shares upon which the Legend
is stamped, if, unless otherwise required by state securities laws, (a) such
Subject Shares were resold pursuant to and in accordance with the registration
of same under the 1933 Act, or (b) in connection with a resale transaction, such
holder provides the Company an opinion by counsel reasonably acceptable to the
Company's outside counsel, to the effect that a public sale, assignment or
transfer of the Common Stock may be made without registration under the 1933
Act.
(h) AUTHORIZATION; ENFORCEMENT. This Agreement has been duly and
validly authorized, executed and delivered by the Buyer and is a valid and
binding agreement of the Buyer enforceable against Buyer in accordance with its
terms, subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium, and other similar laws affecting the
enforcement of creditors' rights generally.
(i) NO BROKERS; NO GENERAL SOLICITATION. Buyer has taken no action that
would give rise to any claim by any person for brokerage commissions, finder's
fees or similar payments relating to this Agreement and the transactions
contemplated hereby. Buyer acknowledges that no broker was involved with respect
to the transactions contemplated hereby.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company understands, agrees with, and represents and warrants to
the Buyer that:
(a) ORGANIZATION AND QUALIFICATION: REPORTING COMPANY STATUS. The
Company and its subsidiaries are corporations duly organized and existing in
good standing under the laws of the respective jurisdictions in which they are
incorporated and have the requisite corporate power to own their properties and
to carry on their business as now being conducted. Each of the Company and its
subsidiaries are duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary. The Company has registered
its Common Stock pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the "1934 Act") and sales of its Common Stock are reported by the
National Quotation Bureau, Inc. on the Over the Counter Bulletin Board.
(b) AUTHORIZATION; ENFORCEMENT. (i) The Company has the requisite
corporate power and authority to enter into and perform this Agreement and the
other agreements contemplated hereby or referred to herein (collectively, the
"Agreements") and to issue and sell the Securities in accordance with the terms
hereof, (ii) the execution, delivery and performance of the Agreements by the
Company and the consummation by it of the transactions contemplated hereby have
been duly authorized by the Company's Board of Directors and no further consent
or authorization of the Company, its Board of Directors, or its stockholders is
required, (iii) the Agreements and, on the date of the Closing, the Securities
sold at the Closing, have been duly and validly authorized, executed and
delivered by the Company, and (iv) the Agreements constitute the valid and
binding obligations of the Company enforceable against the Company in accordance
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with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting, generally, the enforcement of creditors'
rights and remedies or by other equitable principles of general application. The
Company (and its legal counsel) have examined this Agreement and is satisfied in
its sole discretion that this Agreement and the accompanying Exhibits, Schedules
and the Addenda, if any, are in accordance with Regulation D.
(c) CAPITALIZATION. As of December 31, 1999, the authorized Common
Stock of the Company consists of 100,000,000 shares of Common Stock of which
52,619,372 shares were issued and outstanding. All of such outstanding shares
have been validly issued and are fully paid and nonassessable. No shares of
Common Stock are subject to preemptive rights or any other similar rights or any
liens or encumbrances, whether or not contingent. Except as disclosed in the
Company's Form 10-KSB for the year ended September 30, 1999, and its Form 10-QSB
for the fiscal quarter ended December 31, 1999, (i) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its subsidiaries, or
arrangements by which the Company or any of its subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of its
subsidiaries, and (ii) there are no outstanding debt securities. The Company has
made available to the Buyer true and correct copies of the Company's Articles of
Incorporation, as amended, as in effect on the date hereof ("Certificate of
Incorporation"), and the Company's Bylaws, as in effect on the date hereof
("Bylaws").
(d) ISSUANCE OF SECURITIES. The Stock is all duly authorized and
reserved for issuance, and shall be validly issued, fully paid and
non-assessable, free from all taxes, liens and charges with respect to the issue
thereof, and will not be subject to preemptive rights or other similar rights of
stockholders of the Company.
(e) NO REGISTRATION REQUIREMENTS. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances which would prevent the parties hereto from
consummating the sale contemplated hereby pursuant to an exemption from
registration under the 1933 Act and specifically in accordance with the
provisions of Regulation D. The sale contemplated hereby is exempt from the
registration requirements of the 1933 Act, assuming the accuracy of the
representations and warranties contained herein of the Buyer.
(f) NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby will not (i) result in a violation of the Articles of
Incorporation or Bylaws or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, indenture or instrument to which the
Company or any of its subsidiaries is a party, or result in a violation of any
law, rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations) applicable to the Company or any of its
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subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected. Neither the Company nor any of its
subsidiaries is in violation of its Articles of Incorporation or other
organizational documents, and neither the Company nor any of its subsidiaries
are in default (and no event has occurred which, with notice or lapse of time or
both, would put the Company or any of its subsidiaries in default) under, nor
has there occurred any event giving others (with notice or lapse of time or
both) any rights of termination, amendment, acceleration or cancellation of, any
material agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party. The business of the Company and its subsidiaries is not
being conducted, and shall not be conducted so long as the Buyer owns any of the
Securities, in violation of any law, ordinance or regulation of any governmental
entity. Except as specifically contemplated by this Agreement and as required
under the 1933 Act and any applicable state securities laws, the Company is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement, in accordance
with the terms hereof.
(g) SEC DOCUMENTS; FINANCIAL STATEMENTS. Since January 1, 1997, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "1934 Act")
(all of the foregoing filed prior to the date hereof and all exhibits included
therein and financial statements and schedules hereto and documents (other than
exhibits) incorporated by reference therein, being hereinafter referred to as
the "SEC Documents"). The Company has made available to the Buyer true and
complete copies of the SEC Documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the 1934
Act and the rules and regulations of the SEC promulgated thereunder applicable
to the SEC Documents. Except as set forth in the financial statements of the
Company included in the SEC Documents and a finder's fee claim by Xxxx X. Xxxx
XX, the Company has no liabilities, contingent or otherwise, other than (i)
liabilities subsequent to the date of such financial statements incurred in the
ordinary course of business and consistent with past practice and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and consistent with past practice and not required under generally
accepted accounting principles to be reflected in such financial statements, in
each case of clause (i) and (ii) next above which, individually or in the
aggregate, are not material to the financial condition, business, operations,
properties, operating results or prospects of the Company. Except for the
finder's fee claim of Xxxx X. Xxxx XX, the SEC Documents contain a description
of the general nature of all material undischarged written and oral contracts,
agreements, leases or other instruments to which the Company or any subsidiary
is a party or by which the Company or any subsidiary is subject (each a
"Contract"). None of the Company, its subsidiaries or, to the best of the
Company's knowledge, any of the other parties thereto, is in breach or violation
of any Contract. No event, occurrence or condition exists which, with the lapse
of time, the giving of notice, or both, or the happening of any further event or
condition, would become a default by the Company or its subsidiaries thereunder
which would, individually or in the aggregate with any other such defaults by
the Company or its subsidiaries, have a Material Adverse Effect. "Material
Adverse Effect" means any material adverse effect on the operations, properties
or financial condition of the Company and its subsidiaries taken as a whole.
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(h) ABSENCE OF CERTAIN CHANGES. Since December 31, 1999, there has been
no material adverse change and no material adverse development in the business,
properties, operation, financial condition, results of operations or prospects
of the Company.
(i) ABSENCE OF LITIGATION. Except as specifically disclosed in the SEC
Documents, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board or body pending or, to the knowledge of the
Company, threatened against or affecting the Company.
(j) NO BROKERS; NO GENERAL SOLICITATION. The Company has taken no
action that would give rise to any claim by any person for brokerage
commissions, finder's fees or similar payments relating to this Agreement and
the transactions contemplated hereby. The Company acknowledges that no broker
was involved with respect to the transactions contemplated hereby.
(k) INTELLECTUAL PROPERTY. (i) As used herein, "Intellectual Property"
shall mean all inventions (whether patentable or unpatentable and whether or not
reduced to practice), all improvements thereto, and all patents, patent
applications and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions and reexaminations
thereof, trademarks, service marks, trade dress, logos, trade names and
corporate names, together with all translations, adaptations, derivations and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations and renewals in connection therewith, copyrightable
works, all copyrights and all applications, registrations and renewals in
connection therewith, mask works and all applications, registrations and
renewals in connection therewith, trade secrets and confidential business
information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier lists, pricing
and cost information and business and marketing plans and proposals),
proprietary software, proprietary rights and copies and tangible embodiments
thereof (in whatever form or medium).
(ii) Except as set forth on SCHEDULE 3(K)(II) hereto, the Company and
its subsidiaries own or are licensed or otherwise have the right to use, without
payment to any other person, the Intellectual Property used in or necessary for
each of their businesses, as presently conducted. Neither the Company nor any of
its subsidiaries has entered into any agreement that restricts or affects its
use and/or location of use of any of its Intellectual Property.
(iii) Without limiting the scope of the Company's warranty and
representation in sub-paragraph (ii) above, (w) each trademark registration
included in the Intellectual Property exists and is owned by the Company or any
of its subsidiaries and has been maintained in good standing; (x) each patent
and application included in the Intellectual Property exists, is owned by or
licensed to the Company or one of its subsidiaries, and has been maintained in
good standing; (y) each copyright registration included in the Intellectual
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Property exists and is owned by the Company or one of it subsidiaries; and (z)
to the Company's knowledge, no other firm, corporation, association or person
claims the right to use in connection with similar or related goods and in any
geographic area, any xxxx, logo, name, symbol, device, or slogan which is
identical or confusingly similar to any of the trademarks included in the
Intellectual Property or which could serve to dilute the distinctiveness of such
trademarks.
(iv) The Company and its subsidiaries' ownership and/or use of
Intellectual Property in their businesses, as presently conducted, does not
conflict with, or result in any violation of, or default (with or without notice
or lapse of time or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation, or result in any loss of a
material benefit under, or the creation of any lien in or upon any of the
properties or assets of the Company or its subsidiaries under, any contract
between the Company and any person or, to the Company's knowledge, any other
intellectual property rights of any other person, except for any such conflict,
violation, default, right of termination, cancellation acceleration, loss of
material benefit or creation of any lien which would not have a material adverse
effect with respect to the Company.
(v) The Company has not received any communications alleging
that the Company or one of its subsidiaries has violated or, by conducting its
business, would infringe upon the intellectual property rights of any other
person. The Company is not aware of any infringement or misappropriation by
others of any of its or its subsidiaries' Intellectual Property.
(l) PERMITS AND LICENSES. The Company holds all material licenses,
permits and other authorizations of any agency, public, regulatory or other
governmental authority necessary to conduct its business as now being conducted
or, under currently applicable statutes, rules, ordinances, regulations or other
laws, to continue to conduct its business as now being conducted. Such licenses,
permits and other authorizations held by the Company are valid and in full force
and effect, and there are no legal actions pending or, to the knowledge of the
Company, threatened that could result in the termination, impairment or
nonrenewal thereof.
(m) OTHER INFORMATION. No representation or warranty of the Company in
this Agreement, nor any statement, certificate or other document furnished or to
be furnished by the Company to the Buyer pursuant to this Agreement, nor any
exhibits or schedules hereto, contains any untrue statement of a material fact,
or omits 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.
SECTION 4. COVENANTS.
(a) BEST EFFORTS. Each party shall use its best efforts timely to
satisfy each of the conditions to be satisfied by it as provided in Sections 6
and 7 of this Agreement.
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(b) SECURITIES LAWS. The Company agrees to timely file a Form D (or
equivalent form required by applicable state law) with respect to the Securities
if and as required under Regulation D and applicable state securities laws. The
Company shall, on or before the date of the Closing, take such action as is
necessary to sell the Securities being sold to the Buyer under applicable
securities laws of the United States, and shall if specifically so requested
provide evidence of any such action so taken to the Buyer on or prior to the
Closing Date.
(c) REPORTING STATUS. So long as the Buyer beneficially owns any of the
Securities, the Company shall file all reports required to be filed with the SEC
pursuant to the 1934 Act on a timely basis, and the Company shall not terminate
its status as an issuer required to file reports under the 1934 Act even if the
1934 Act or the rules and regulations hereunder would permit such termination.
(d) USE OF PROCEEDS. The Company will use the proceeds from the sale of
the Securities for the Company's internal working capital purposes, including
costs and expenses of the Company's business operations and payment of certain
outstanding obligations of the Company, research and development, and to the
extent deemed advisable by the Company, for the purchase of new technologies for
use by the Company and its subsidiaries, and for the purchase of additional
subsidiaries and the development and marketing of their technologies.
(e) RESERVATION OF SHARES. The Company shall at all times have
authorized, and reserved for the purpose of issuance, a sufficient number of
shares of Common Stock to provide for the issuance of the Securities and any
Common Stock issuable upon the exercise or conversion thereof.
(f) PROSPECTUS DELIVERY REQUIREMENT. The Buyer understands that the
1933 Act requires under certain circumstances the delivery of a prospectus
relating to the Common Stock in connection with any resale thereof, and the
Buyer shall comply with any applicable prospectus delivery requirements of the
1933 Act in connection with any such sale.
(g) INTENTIONAL ACTS OR OMISSIONS. Neither party shall intentionally
perform any act which if performed, or omit to perform any act which if omitted
to be performed, would prevent or excuse the performance of this Agreement or
any of the transactions contemplated hereby.
SECTION 5. REMOVAL OF LEGEND.
The Legend will be removed and the Company will issue certificates
without the Legend to the transferee of the applicable Subject Shares upon which
the Legend is stamped, if, unless otherwise required by state securities laws,
(a) such Subject Shares were resold pursuant to and in accordance with the
registration of same under the 1933 Act, or (b) in connection with a resale
transaction, such holder provides the Company an opinion by counsel reasonably
acceptable to the Company's outside counsel, to the effect that a public sale,
assignment or transfer of the Common Stock may be made without registration
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under the 1933 Act. The Buyer agrees that its resale of all Common Stock, shall
be made only pursuant to an effective registration statement and to deliver a
prospectus in connection with such sale, or in a transaction in which
registration is not required under the registration requirements of the 1933
Act. In the event the Legend is removed from any certificate for Common Stock or
any Common Stock is issued without the Legend and thereafter the effectiveness
of a registration statement covering the sales of such Common Stock is suspended
or the Company determines that a supplement or amendment thereto is required by
applicable securities laws, then upon reasonable advance notice to the holder of
such Security, the Company shall be entitled to require that the Legend be
placed upon any such Security which cannot then be sold pursuant to an effective
registration statement or with respect to which the opinion referred to in
clause (b) next above has not been rendered, which Legend shall be removed when
such Common Stock may be sold pursuant to an effective registration statement or
at such time as such holder provides the opinion with respect thereto described
in clause (b) next above.
SECTION 6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to sell the Securities at the
Closing is subject to the satisfaction, on or before the date of the Closing as
described herein, of each of the following conditions, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion:
(a) The parties shall have executed this Agreement, and the parties
shall have delivered executed originals of the documents to the other party.
(b) The Buyer shall have delivered to the Company the Purchase Price
for the Securities, as provided in this Agreement.
(c) The representations and warranties of the Buyer shall be true and
correct in all material respects as of the date made and as of the date of the
Closing as though made at that time (except for representations and warranties
that refer to a specific date), and the Buyer shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Buyer at or prior to the date of the Closing.
(d) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self regulatory
organization having authority over the matters contemplated hereby which
restricts or prohibits the consummation of any of the transactions contemplated
herein.
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SECTION 7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer to purchase the Securities is subject to
the satisfaction, on or before the date of the Closing, of each of the following
conditions, provided that these conditions are for the sole benefit of the Buyer
and may be waived by the Buyer at any time in its sole discretion:
(a) The parties shall have executed this Agreement and the Registration
Rights Agreement, and the parties shall have delivered executed originals of the
respective documents to the other party.
(b) The Company shall have delivered to the Buyer the Securities
(including the Option Agreements executed on behalf of the Company), as provided
in this Agreement.
(c) The representations and warranties of the Company shall be true and
correct in all material respects as of the date made and as of the date of the
Closing as though made at that time (except for representations and warranties
that refer to a specific date), and the Company shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the date of the Closing. The Buyer may
require a certificate, executed by the Chief Executive Officer or a Vice
President of the Company, dated as of the date of the Closing, to the foregoing
effect.
(d) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self regulatory
organization having authority over the matters contemplated hereby which
restricts or prohibits the consummation of any of the transactions contemplated
herein.
(e) An opinion of counsel to the Company, in form and substance
acceptable to the Buyer.
SECTION 8. GOVERNING LAW; MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Colorado without regard to the
principles of conflict of laws. In the event of any litigation regarding the
interpretation or application of this Agreement, the parties irrevocably consent
to jurisdiction in any of the state or federal courts located in the State of
Colorado and waive their rights to object to venue in any such court, regardless
of the convenience or inconvenience thereof to any party. Service of process in
any civil action relating to or arising out of this Agreement (including also
all Exhibits or Addenda hereto, if any), or the transactions contemplated herein
may be accomplished in any manner provided by law. The parties hereto agree that
a final, non-appealable judgment in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on such judgment
or in any other lawful manner.
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(b) COUNTERPARTS. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and signature pages from such counterparts have been delivered to the
other party. In the event any signature page is delivered by facsimile
transmission (which the parties agree is an acceptable form of delivery), the
party using such means of delivery shall cause two (2) additional originally
executed signature pages to be physically delivered to the other party within
three (3) business days of the execution and delivery hereof.
(c) HEADINGS; GENDER, ETC. The headings of this Agreement are for
convenience of reference and shall not form a part of, or affect the
interpretation of this Agreement. As used herein, the masculine shall refer to
the feminine and neuter, the feminine to the masculine and neuter, and the
neuter to the masculine and feminine, as the context may require. As used
herein, unless the context clearly requires otherwise, the words "herein,"
"hereunder" and "hereby," shall refer to this entire Agreement and not only to
the Section or paragraph in which such word appears. If any date specified
herein falls upon a Saturday, Sunday or public or legal holidays, the date shall
be construed to mean the next business day following such Saturday, Sunday or
public or legal holiday. For purposes of this Agreement, a "business day" is any
day other than a Saturday, Sunday or public or legal holiday.
(d) SEVERABILITY. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
(e) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
(f) NOTICES. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by U. S. Mail or delivered personally or
by courier or via facsimile (if via facsimile, to be followed within three (3)
business days by an original of the notice document via U.S. Mail or courier)
and shall be effective five (5) days after being placed in the mail, if mailed,
certified or registered, return receipt requested, or upon receipt, if delivered
personally or by courier or by facsimile, in each case properly addressed to the
party to receive the same. The addresses for such communications shall be:
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If to the Company: Rentech, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxx, Vice President & COO
If to the Buyer, at the address on the signature page of this Agreement. Each
party shall provide written notice to the other party of any change in address.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors. Neither
party shall assign this Agreement or any rights or obligations hereunder without
the prior written consent of the other party (which consent shall not be
unreasonably withheld or delayed), except that Buyer may assign its rights
hereunder in whole or in part to (i) any entity or person that directly, or
indirectly through one or more intermediaries, is controlled by, or is under
common control with Buyer (an "Affiliate") or (ii) any director, officer,
employee, representative or agent of Buyer or any of its Affiliates. Any
assignee of the Buyer shall be an "accredited investor" as that term is defined
in Rule 501(a) of Regulation D, and no assignment shall be made by the Buyer
unless it is made in accordance with any applicable securities laws.
(h) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
permitted assigns, and is not for the benefit of, nor may any provision hereof
be enforced by, any other person.
(i) SURVIVAL. The representations and warranties of the Company and the
Buyer contained in Sections 2 and 3 and the agreements and covenants set forth
in Sections 4 shall survive the Closing of the purchase and sale of Securities
purchased and sold hereby.
(j) FURTHER ASSURANCE. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) REMEDIES. No provision of this Agreement providing for any specific
remedy to a party shall be construed to limit such party to the specific remedy
described, and any other remedy that would otherwise be available to such party
at law or in equity shall be so available. Nothing in this Agreement shall limit
any rights a party may have with any applicable federal or state securities laws
with respect to the transactions contemplated hereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Buyer and the Company have caused this Stock
Purchase Agreement to be duly executed as of the date first written above.
Rentech, Inc.
Anschutz Investment Company
By: /s/ XXXXXX X. XXXXXXXX /s/ XXXXXXXX XXXXXX
---------------------- -------------------
Xxxxxx X. Xxxxxxxx Authorized Agent
President
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(Address)
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