EXHIBIT 10.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement"), is made and entered
into as of the 18th day of March, 2000, by and among RENTECH, INC., a Colorado
corporation (the "Company"), and FOREST OIL CORPORATION and ANSCHUTZ INVESTMENT
COMPANY (each of whom is individually referred to as a "Purchaser" and all of
whom collectively are referred to as the "Purchasers"). Capitalized terms used
in this Agreement and not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreements (as defined below).
BACKGROUND
In connection with the consummation of the transactions contemplated by
those certain Stock Purchase Agreements (the "Purchase Agreements") of even date
herewith by and between the Company and each of the Purchasers respectively in
connection with a private placement by the Company pursuant to Rule 506 under
Regulation D of the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (the "1933 Act"), the
Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreements, to issue and sell to each of the Purchasers 1,000,000 shares of
Common Stock (the "Purchased Common Shares") and to issue stock options (the
"Options") to each of the Purchasers for the purchase by each Purchaser of an
aggregate of 3,000,000 shares of Common Stock (as the same may be adjusted in
accordance with the agreements governing such options, the "Option Shares").
Collectively, the Purchased Common Shares and the Option Shares are hereinafter
collectively referred to as the "Purchased Securities". To induce Purchasers to
execute and deliver their respective Purchase Agreements, the Company has agreed
to file a Registration Statement covering the Purchased Common Shares and the
Option Shares under the 1933 Act and applicable state securities laws.
For and in consideration of the background circumstances and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchasers hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following capitalized terms are used
with the meanings there after ascribed.
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(a) "Investor" means any Purchaser and any permitted
transferee or assignee thereof to whom any Purchaser assigns its rights
under this Agreement and who agrees to become bound by the provisions
of this Agreement in accordance with Section 9.
(b) "Person" means a corporation, a limited liability company,
an association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof, or a
governmental agency.
(c) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing one or more Registration
Statements in compliance with the 1933 Act and pursuant to Rule 415
under the 1933 Act or any successor rule providing for offering
securities on a continuous basis ("Rule 415"), and the declaration or
ordering of effectiveness of such Registration Statement(s) by the
United States Securities and Exchange Commission (the "SEC").
(d) "Registrable Securities" means the Purchased Common
Shares, and the Option Shares and any shares of capital stock issued or
issuable with respect to the Purchased Securities or the Option Shares
as a result of any sale or issuance of Common Stock by the Company for
less than its then prevailing fair market value, any stock split, stock
dividend, recapitalization, exchange, or similar event.
(e) "Registration Statement" means a registration statement of
the Company filed under the 1933 Act. Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings set
forth in the Purchase Agreement.
SECTION 2. REGISTRATION.
(a) MANDATORY REGISTRATION. (i) The Company shall use its best
efforts to prepare, and, on or before the date that is thirty (30) days
after the date hereof, 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,
which Registration Statement(s), 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 upon the adjustment of
the Options as the result of any sale or issuance of Common Stock by
the Company for less than its then prevailing fair market value or any
stock splits, stock dividends or similar transactions requiring
adjustment of the number of Option Shares issuable upon the exercise or
conversion of the Options in accordance with the Option Agreements.
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(ii) To the extent the Indeterminate Shares for any
reason cannot be registered under the Registration Statement(s)
required under Section 2(a)(i) above, then with respect to such
Indeterminate Shares, the Company shall use its best efforts to
prepare, and, on or before the date that is thirty (30) days after the
Indeterminate Shares become issuable, 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 Indeterminate
Shares) (any of which may contain a combined prospectus with other
registrations by the Company), covering the resale of all of the
Indeterminate Shares.
(iii) A copy of the Registration Statement(s) (and
each amendment or supplement thereto, and each request for acceleration
of effectiveness thereof) shall be provided to (and subject to the
approval of the Investors, which approval shall not be unreasonably
withheld or denied) the Investors and their counsel prior to its filing
or other submission.
(iv) The Company shall use its best efforts to obtain
effectiveness of the Registration Statement(s) as soon as practicable.
(b) MAINTENANCE OF EFFECTIVENESS; REGISTRATION PERIOD. The
Company shall use its best efforts to cause the Registration
Statement(s) relating to the Registrable Securities filed in accordance
with Section 2(a) to become effective as soon as possible after such
filing, but in no event later than the Registration Deadline (as
defined below), and to keep the Registration Statement(s) effective
pursuant to Rule 415 at all times until the earlier of (i) the date on
which all of the Registrable Securities have been sold (and no further
Registrable Securities may be issued in the future) or (ii) the date as
of which the Investors may immediately sell all of the Registrable
Securities without restriction pursuant to Rule 144 promulgated under
the 1933 Act (or successor thereto) or otherwise, not to exceed seven
(7) years from the effective date(s) of the Registration Statement(s),
Provided However that such seven (7) year period shall be extended one
day for each day after the applicable effective date that such
Registration Statement(s) is suspended (the "Registration Period").
(c) 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 Investor who holds
Registrable Securities written notice of the Company's intention to
file a Registration Statement and of such Investor's rights under this
Section 2(c) and, if within twenty (20) days after receipt of such
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notice, such Investor shall so request in writing, the Company shall
include in such Registration Statement all or any part of the
Registrable Securities that such Investor requests to be registered,
subject to the priorities set forth in Section 2(d) below. No right to
registration of Registrable Securities under this Section 2(c) shall be
construed to limit any registration required under Section 2(a) hereof.
The obligations of the Company under this Section 2(c) may be waived by
each individual Investor holding Registrable Securities, in its sole
discretion, without effect to any other Investor. If an offering in
connection with which an Investor is entitled to registration under
this Section 2(c) is an underwritten offering, then each Investor 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.
(d) PRIORITY IN PIGGY-BACK REGISTRATION RIGHTS. If the
registration referred to in Section 2(c) is to be an underwritten
public offering for the account of the Company and the managing
underwriter(s) 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 Investors, pro
rata based on the number of Registrable Shares each has requested to be
included in such registration, and (iv) fourth, the 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.
(e) ELIGIBILITY FOR FORM S-3. The Company represents, warrants
and covenants that it has filed and shall file all reports required to
be filed by the Company with the SEC in a timely manner so as to obtain
and maintain such eligibility for the use of Form S-3. In the event
that Form S-3 is not available for sale by the Investors of the
Registrable Securities, then (i) the Company, with the consent of each
Investor pursuant to Section 2(a), shall register the sale of the
Registrable Securities on another appropriate form, such as Form SB-2,
and (ii) the Company shall undertake to register the Registrable
Securities on Form S-3 as soon as such form is available.
(f) LOCK-UP PERIOD. Each Purchaser agrees (y) not to offer,
sell, contract to sell or otherwise dispose of any of its Purchased
Common Shares during the 90-day period beginning on the date of the
closing of its respective Purchase Agreement, and (z) upon the
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expiration of the aforesaid 90-day period, not to offer, sell, contract
to sell or otherwise dispose of more than 50% of its Purchased Common
Shares for an additional 90-day period beginning on the day following
the expiration of the aforesaid 90-day period.
SECTION 3. RELATED OBLIGATIONS.
Whenever an Investor has requested that any Registrable Securities be
registered pursuant to Section 2(c) hereof, or at such time as the Company is
obligated to file a Registration Statement with the SEC pursuant to Section 2(a)
hereof, the Company will use its best efforts to effect the registration of the
Registrable Securities in accordance with the respective method of disposition
thereof as required by such provisions and, pursuant thereto, and the Company
shall have the following obligations:
(a) The Company shall promptly prepare and file with the SEC a
Registration Statement with respect to the Registrable Securities
within the time provided in Section 2(a) for the registration of
Registrable Securities pursuant to Section 2(a) or Section 2(c), if
applicable, and use its best efforts to cause such Registration
Statement(s) relating to Registrable Securities to become effective as
soon as possible after such filing and in any event within sixty (60)
days after filing with the SEC (the "Registration Deadline") and
PROVIDED FURTHER that the Registration Deadline shall not exceed ninety
(90) days from the date hereof, and keep the Registration Statement(s)
effective pursuant to Rule 415 at all times until the completion of the
Registration Period. The Registration Statement(s) (including any
amendments or supplements thereto and prospectuses contained therein)
shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading.
(b) The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement(s) and the prospectus(es) used in connection
with the Registration Statement(s), which prospectus(es) are to be
filed pursuant to Rule 424 promulgated under the 1933 Act, as may be
necessary to keep the Registration Statement(s) effective at all times
during the Registration Period, and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration
Statement(s) until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in the
Registration Statement(s). In the event the number of shares available
under a Registration Statement filed pursuant to this Agreement is
insufficient to cover all of the Registrable Securities, the Company
shall amend the Registration Statement, or file a new Registration
Statement (on the short form available therefor, if applicable), or
both, so as to cover all of the Registrable Securities, in each case,
as soon as practicable, but in any event within fifteen (15) days after
the necessity therefor arises (based on the market price of the Common
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Stock and other relevant factors on which the Company reasonably elects
to rely) or upon reasonable request therefor by any Investor. The
Company shall use its best efforts to cause such amendment and/or new
Registration Statement to become effective as soon as practicable
following the filing thereof. For purposes of the foregoing provision,
the number of shares available under a Registration Statement shall be
deemed "insufficient to cover all of the Registrable Securities" if at
any time the number of Registrable Securities issued or issuable is in
excess of the number of shares of Common Stock eligible for resale
under the then effective Registration Statement(s) filed to cover the
Registrable Securities in accordance with this Agreement.
(c) The Company shall furnish to each Investor whose
Registrable Securities are included in the Registration Statement(s)
and its legal counsel, without charge, (i) promptly after the same is
prepared and filed with the SEC, at least one copy of the Registration
Statement and any amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference, and all
exhibits, the prospectus(es) included in such Registration Statement(s)
(including each preliminary prospectus) and all correspondence by or on
behalf of the Company to the SEC or the staff of the SEC and all
correspondence from the SEC or the staff of the SEC to the Company or
its representatives, related to such Registration Statement(s), (ii)
upon the effectiveness of any Registration Statement, such number of
copies of the prospectus included in such Registration Statement and
all amendments and supplements thereto as such Investor may reasonably
request, and (iii) such other documents, including any preliminary
prospectus, as such Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Investor.
(d) The Company shall (i) register and qualify the Registrable
Securities covered by the Registration Statement(s) under such other
securities or "blue sky" laws of such jurisdictions in the United
States as any Investor reasonably requests, (ii) prepare and file in
those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as
may be necessary to maintain the effectiveness thereof during the
Registration Period, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all
times during the Registration Period, and (iv) take all other actions
reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions, 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 Section to the contrary notwithstanding with respect to the
bearing of expenses) if any jurisdiction in which the securities shall
be qualified shall require that expenses incurred in connection with
the qualification of the securities in that jurisdiction be borne by
selling shareholders pro rata, to the extent required by such
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jurisdiction. The Company shall promptly notify each Investor who holds
Registrable Securities of the receipt by the Company of any
notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under the
securities or "blue sky" laws of any jurisdiction in the United States
or its receipt of actual notice of the initiation or threatening of any
proceeding for such purpose.
(e) In the event Investors who hold a majority of the
Registrable Securities being offered in the offering select
underwriters for the offering, the Company shall enter into and perform
its obligations under an underwriting agreement, in usual and customary
form, including, without limitation, customary indemnification and
contribution obligations, with the underwriters of such offering.
(f) As promptly as practicable after becoming aware of such
event, the Company shall notify each Investor in writing of the
happening of any event, of which the Company has knowledge, as a result
of which, the prospectus included in a Registration Statement, as then
in effect, includes an untrue statement of a material fact or omission
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, and promptly prepare a supplement or
amendment to the Registration Statement to correct such untrue
statement or omission, and deliver such number of copies of such
supplement or amendment to each Investor as such Investor may
reasonably request. The Company shall also promptly notify each
Investor in writing (i) when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to each Investor
by facsimile by the next business day of such effectiveness and by
overnight mail), (ii) of any request by the SEC for amendments or
supplements to a Registration Statement or related prospectus or
related information, and (iii) of the Company's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(g) The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any
of the Registrable Securities for sale in any jurisdiction and, if such
an order or suspension is issued, to obtain the withdrawal of such
order or suspension at the earliest possible moment, and to notify each
Investor who holds Registrable Securities being sold (and, in the event
of an underwritten offering, the managing underwriters) of the issuance
of such order and the resolution thereof, or its receipt of actual
notice of the initiation, or threatened initiation of any proceeding
for such purpose.
(h) The Company shall permit each Investor a single firm of
counsel or such other counsel as thereafter designated as selling
stockholders' counsel by the Investors who hold a majority of the
Registrable Securities being sold, to review and comment upon the
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Registration Statement(s) and all amendments and supplements thereto at
least seven (7) days prior to their filing with the SEC, and not file
any document in a form to which such counsel reasonably objects. The
Company shall not submit a request for acceleration of the
effectiveness of a Registration Statement(s) or any amendment or
supplement thereto without the prior approval of such counsel, which
consent shall not be unreasonably withheld.
(i) At the request of the Investors who hold a majority of the
Registrable Securities being sold, the Company shall furnish, on the
date that Registrable Securities are delivered to an underwriter, if
any, for sale in connection with the Registration Statement (i) if
required by an underwriter, a letter, dated such date, from the
Company's independent certified public accountants in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering,
addressed to the underwriters, and (ii) an opinion, dated as of such
date, of counsel representing the Company for purposes of such
Registration Statement, in form, scope, and substance as is customarily
given in an underwritten public offering, addressed to the underwriters
and the Investors.
(j) The Company shall make available for inspection by (i) any
Investor, (ii) any underwriter participating in any disposition
pursuant to a Registration Statement, (iii) one firm of attorneys and
one firm of accountants or other agents retained by each Investor, and
(iv) one firm of attorneys retained by all such underwriters
(collectively, the "Inspectors") all pertinent financial and other
records, and pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably deemed
necessary by each Inspector to enable each Inspector to exercise its
due diligence responsibility, and cause the Company's officers,
directors, and employees to supply all information which any Inspector
may reasonably request for purposes of such due diligence; Provided
However, that each Inspector shall hold in strict confidence and shall
not make any disclosure (except to an Investor) or use of any Record or
other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, unless (A) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (B) the release
of such Records is ordered pursuant to a final, non-appealable subpoena
or order from a court or government body of competent jurisdiction, or
(C) the information in such Records has been made generally available
to the public other than by disclosure in violation of this or any
other agreement. Each Investor agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential.
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(k) The Company shall hold in confidence and not make any
disclosure of information concerning an Investor provided to the
Company unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of this
or any other agreement. The Company agrees that it shall, upon learning
that disclosure of such information concerning an Investor is sought in
or by a court or governmental body of competent jurisdiction or through
other means, give prompt written notice to such Investor and allow such
Investor, at the Investor's expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, such
information.
(l) The Company shall use its best efforts to secure the
inclusion for quotation on the Over the Counter Bulletin Board for the
Registrable Securities, and, to arrange for at least two market makers
to register with the National Association of Securities Dealers, Inc.
("NASD") as such with respect to such Registrable Securities. The
Company shall pay all fees and expenses in connection with satisfying
its obligation under this Section 3(l).
(m) The Company shall cooperate with the Investors who hold
Registrable Securities being offered and, to the extent applicable, any
managing underwriter or underwriters, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be offered pursuant
to a Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, as any managing
underwriter or underwriters or the Investors may reasonably request and
registered in such names as the managing underwriter or underwriters,
if any, or the Investors may request. Not later than the date on which
any Registration Statement registering the resale of Registrable
Securities is declared effective, the Company shall deliver to its
transfer agent instructions, accompanied by any reasonably required
opinion of counsel, that permit sales of unlegended securities in a
timely fashion that complies with then mandated securities settlement
procedures for regular way market transactions.
(n) The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Investors of
Registrable Securities pursuant to a Registration Statement.
(o) The Company shall provide a transfer agent and registrar
of all such Registrable Securities not later than the effective date of
such Registration Statement.
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(p) If requested by the managing underwriters or an Investor,
the Company shall promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriters
and the Investors agree should be included therein relating to the sale
and distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being
paid therefor by such underwriters, and with respect to any other terms
of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; make all required
filings of such prospectus supplement or post-effective amendment as
soon as notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment; and supplement or make
amendments to any Registration Statement if requested by a shareholder
or any underwriter of such Registrable Securities.
(q) The Company shall use its best efforts to cause the
Registrable Securities covered by the applicable Registration Statement
to be registered with or approved by such other governmental agencies
or authorities as may be necessary to consummate the disposition of
such Registrable Securities.
(r) The Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the SEC in connection with
any registration hereunder.
SECTION 4. OBLIGATIONS OF THE INVESTORS.
(a) At least seven (7) days prior to the first anticipated
filing date of the Registration Statement(s), the Company shall notify
each Investor in writing of the information the Company requires from
each such Investor if such Investor elects to have any of such
Investor's Registrable Securities included in the Registration
Statement(s). It shall be a condition precedent to the obligations of
the Company to complete the registration pursuant to this Agreement
with respect to the Registrable Securities of a particular Investor
that such Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the
intended method of disposition of the Registrable Securities held by it
as shall be reasonably required to effect the registration of such
Registrable Securities, and shall execute such documents in connection
with such registration as the Company may reasonably request.
(b) Each Investor by such Investor's acceptance of the
Registrable Securities agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation
and filing of the Registration Statement(s) hereunder, unless such
Investor has notified the Company in writing of such Investor's
election to exclude all of such Investor's Registrable Securities from
the Registration Statement(s).
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(c) In the event Investors holding a majority of the
Registrable Securities being registered determine to engage the
services of an underwriter, each Investor agrees to enter into and
perform such Investor's obligations under an underwriting agreement, in
usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing
underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of the Registrable Securities, unless such Investor notifies the
Company in writing of such Investor's election to exclude all of such
Investor's Registrable Securities from the Registration Statement(s).
(d) Each Investor agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in
Section 3(g) or the first sentence of 3(f), such Investor will
immediately discontinue disposition of Registrable Securities pursuant
to the Registration Statement(s) covering such Registrable Securities
until such Investor's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(g) or the first sentence
of 3(f) and, if so directed by the Company, such Investor shall deliver
to the Company (at the expense of the Company) or destroy all copies in
such Investor's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
(e) No Investor may participate in any underwritten
registration hereunder unless such Investor (i) agrees to sell such
Investor's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Investors entitled hereunder
to approve such arrangements, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of
such underwriting arrangements, and (iii) agrees to pay its pro rata
share of all underwriting discounts and commissions.
SECTION 5. EXPENSES OF REGISTRATION.
All expenses incurred in connection with registrations, filings, or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers and printing fees,
accounting fees, and fees and disbursements of counsel for the Company and fees
and disbursements of one counsel for the Investors, shall be borne by the
Company.
SECTION 6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
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(a) The Company will, and hereby does, indemnify, hold
harmless, and defend each Investor who holds such Registrable
Securities, the directors, officers, partners, employees, agents, and
each Person, if any, who controls any Investor within the meaning of
the 1933 Act or the Securities Exchange Act of 1934, as amended (the
"1934 ACT"), and any underwriter (as defined in the 0000 Xxx) for the
Investors, and the directors and officers of, and each Person, if any,
who controls, any such underwriter within the meaning of the 1933 Act
or the 1934 Act (each, an "Indemnified Person"), against any losses,
claims, damages, liabilities, judgments, fines, penalties, charges,
costs, attorneys' fees, amounts paid in settlement or expenses, joint
or several (collectively, "Claims") incurred in investigating,
preparing, or defending any action, claim, suit, inquiry, proceeding,
investigation, or appeal taken from the foregoing by or before any
court or governmental, administrative, or other regulatory agency, body
or the SEC, whether pending or threatened, whether or not an
indemnified party is or may be a party thereto ("Indemnified Damages"),
to which any of them may become subject insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact in a Registration Statement
or any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under the securities
or other "blue sky" laws of any jurisdiction in which Registrable
Securities are offered ("Blue Sky Filing"), or the omission or alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which the statements therein were made, not misleading, (ii) any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the effective
date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under
which the statements therein were made, not misleading, or, (iii) any
violation or alleged violation by the Company of the 1933 Act, the 1934
Act, any other law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or sale
of the Registrable Securities pursuant to a Registration Statement (the
matters in the foregoing clauses (i) through (iii) being, collectively,
"Violations"). Subject to the restrictions set forth in Section 6(d)
with respect to the number of legal counsel, the Company shall
reimburse the Investors and each such underwriter or controlling
person, promptly as such expenses are incurred and are due and payable,
for reasonable legal fees or other expenses incurred by them in
connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not
apply to a Claim arising out of or based upon a Violation which occurs
in reliance upon and in conformity with information furnished in
writing to the Company by any Indemnified Person or underwriter for
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such Indemnified Person expressly for use in connection with the
preparation of the Registration Statement(s) or any such amendment
thereof or supplement thereto, if such prospectus was timely made
available by the Company pursuant to Section 3(c); (ii) with respect to
any preliminary prospectus, shall not inure to the benefit of any such
person from whom the person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the benefit
of any person controlling such person) if the untrue statement or
mission of material fact contained in the preliminary prospectus was
corrected in the prospectus, as then amended or supplemented, if such
prospectus was timely made available by the Company pursuant to Section
3(c), and the Indemnified Person was promptly advised in writing not to
use the incorrect prospectus prior to the use giving rise to a
violation and such Indemnified Person, notwithstanding such advice,
used the incorrect prospectus; (iii) shall not be available to the
extent such Claim is based on a failure of the Investor to deliver or
to cause to be delivered the prospectus made available by the Company;
and (iv) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the
Company, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall
survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9.
(b) The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers, and similar securities
industry professionals participating in any distribution, to the same
extent as provided above, with respect to information such persons so
furnished in writing expressly for inclusion in the Registration
Statement(s).
(c) Promptly after receipt by an Indemnified Person under this
Section 6 of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving a Claim,
such Indemnified Person shall, if a Claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof 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 control of the defense
thereof with counsel mutually satisfactory to the indemnifying party
and the Indemnified Person; Provided However, that an Indemnified
Person shall have the right to retain its own counsel with the fees and
expenses to be paid by the indemnifying party, if, in the reasonable
opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person and the
indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person and any other party
represented by such counsel in such proceeding. The Company shall pay
reasonable fees for only one separate legal counsel for the Investors,
and such legal counsel shall be selected by the Investors holding a
majority in interest of the Registrable Securities included in the
Registration Statement to which the Claim relates. The Indemnified
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Person shall cooperate fully with the indemnifying party in connection
with any negotiation or defense of any such action or claim by the
indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Person which
relates to such action or claim. The indemnifying party shall keep the
Indemnified Person fully apprised at all times as to the status of the
defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action,
claim or proceeding effected without its written consent, Provided
However, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall, without
the consent of the Indemnified Person, consent to entry of any judgment
or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Person of a release from all liability in
respect to such claim or litigation. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to
all rights of the Indemnified Person with respect to all third parties,
firms, or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability
to the Indemnified Person under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such
action.
(d) The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or
Indemnified Damages are incurred.
(e) The indemnity agreements contained herein shall be in
addition to (i) any cause of action or similar right of the Indemnified
Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the
law.
SECTION 7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided however, that:
(i) no contribution shall be made under circumstances where the party against
whom indemnification is otherwise sought would not have been liable for
indemnification under the fault standards set forth in Section 6; (ii) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any seller of Registrable Securities who was not guilty of fraudulent
misrepresentation, and (iii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received by
such seller from the sale of such Registrable Securities.
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SECTION 8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investors the benefits of Rule
144 promulgated under the 1933 Act or any other similar rule or regulation of
the SEC that may at any time permit the investors to sell securities of the
Company to the public without registration ("RULE 144"), the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act
so long as the Company remains subject to such requirements and the
filing of such reports and other documents is required for the
applicable provisions of Rule 144; and
(c) furnish to each Investor so long as such Investor owns
Registrable Securities, promptly upon request, (i) a written statement
by the Company that it has complied with the reporting requirements of
Rule 144, the 1933 Act, and the 1934 Act, (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information
as may be reasonably requested to permit the investors to sell such
securities pursuant to Rule 144 without registration.
SECTION 9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to have the Company register Registrable Securities pursuant
to this Agreement shall be automatically assignable by the Investors to any
permitted transferee of all or any portion of Registrable Securities according
to the provisions of the Purchase Agreements and the Stock Option Agreements if:
(i) the Investor agrees in writing with the transferee or assignee to assign
such rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment; (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (A) the
name and address of such transferee or assignee, and (B) the securities with
respect to which such registration rights are being transferred or assigned;
(iii) immediately following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the 1933
Act and applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence the
29
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein; (v) such transfer shall have been made in
accordance with the applicable requirements of the Purchase Agreements; (vi)
such transferee shall be an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated under the 1933 Act; and (vii) in the event
the assignment occurs subsequent to the date of effectiveness of the
Registration Statement(s) required to be filed pursuant to Section 2(a), the
transferee agrees to pay all reasonable expenses of amending or supplementing
such Registration Statement(s) to reflect such assignment.
SECTION 10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Investors who hold two-thirds of the Registrable Securities. Any amendment
or waiver effected in accordance with this Section 10 shall be binding upon each
Investor and the Company.
SECTION 11. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting
instructions, notices, or elections from two or more persons or
entities with respect to the same Registrable Securities, the Company
shall act upon the basis of instructions, notice, or election received
from the registered owner of such Registrable Securities.
(b) Any notices, consents, waivers, or other communications
required or permitted to be given under the terms of this Agreement
must be in writing and will be deemed to have been delivered (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile, provided a copy is mailed by U.S. certified mail, return
receipt requested; (iii) three (3) days after being sent by U.S.
certified mail, return receipt requested, or (iv) one (1) day after
deposit with a nationally recognized overnight delivery service, in
each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company: RENTECH, INC.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
30
with a copy (which shall not constitute notice) to:
Xxxxx X. Mall, Esq.
Brega & Xxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to a Purchaser, to its address and facsimile
number on the Schedule of Purchasers, with copies to such Purchaser's
counsel as set forth on the Schedule of Purchasers. Each party shall
provide five (5) days prior written notice to the other party of any
change in address or facsimile number.
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
(d) 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. 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) This Agreement, the Purchase Agreements and the Option
Agreements constitute the entire agreement among the parties hereto
with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties, or undertakings, other than those
set forth or referred to herein and therein. This Agreement supersedes
all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
(f) Subject to the requirements of Section 9, this Agreement
shall inure to the benefit and of and be binding upon the permitted
successors and assigns of each of the parties hereto.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(h) This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement, once
executed by a party, may be delivered to the other party hereto by
facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
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(i) 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.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above written.
COMPANY:
RENTECH, INC.
By: /s/ XXXXXX X. XXXXXXXX,
--------------------------------------
Xxxxxx X. Xxxxxxxx, President
FOREST OIL CORPORATION ANSCHUTZ INVESTMENT COMPANY
By: /s/ XXXXX X. XXXXX By: /s/ XXXXXXXX XXXXXX
----------------------------- --------------------------------------
Authorized Agent Authorized Agent
Address:___________________________ Address:_____________________________
Telephone:_________________________ Telephone:___________________________
Facsimile:_________________________ Facsimile:___________________________
33
