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