SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
This
SECURITIES PURCHASE
AGREEMENT (the “Agreement”), dated as of June
24, 2009, is by and among Rentech, Inc., a Colorado corporation (the “Company”), and the investors
listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively, the
“Buyers”).
RECITALS
A. Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, the number of shares of common stock, par
value $.01 per share, of the Company (the “Common Stock”) set forth
opposite such Buyer’s name on the Schedule of Buyers (which aggregate amount for
all Buyers together shall be 11,000,000 shares of Common Stock and shall
collectively be referred to herein as the “Shares”).
B. The
Company has filed a Registration Statement under the Securities Act of 1933, as
amended (the “1933
Act”), on Form S-3, as amended (Registration Number 333-158256), which
was declared effective by the Securities and Exchange Commission (the “SEC”) on May 20, 2009 (the
“Registration
Statement”). The Company shall issue the Shares pursuant to
the Registration Statement.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each Buyer hereby
agree as follows:
1.
PURCHASE
AND SALE OF SHARES.
(a) Shares. Subject to
the satisfaction (or waiver) of the conditions set forth in Sections 5 and 6
below, the Company shall issue and sell to each Buyer, and each Buyer severally,
but not jointly, shall purchase from the Company on the Closing Date (as defined
below), the number of Shares as is set forth opposite such Buyer’s name on the
Schedule of Buyers, at a purchase price of $0.58 per share.
(b) Closing. The closing
(the “Closing”) of the
purchase of the Shares by the Buyers shall occur at the offices of Xxxxxxxxx
Xxxxxxx, LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The date and
time of the Closing (the “Closing Date”) shall be 10:00
a.m., Boston time, on the first (1st) Business Day on which the conditions to
the Closing set forth in Sections 5 and 6 below are satisfied or waived (or such
later date as is mutually agreed to by the Company and each Buyer). As used
herein “Business Day”
means any day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to remain
closed.
(c) Purchase Price. The
aggregate purchase price for the Shares to be purchased by each Buyer (the
“Purchase Price”) shall
be the amount set forth opposite such Buyer’s name on the Schedule of Buyers.
Each Buyer shall pay its respective Purchase Price for the Shares to be
purchased by such Buyer at the Closing.
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(d) Form of Payment. On
the Closing Date, (i) each Buyer shall pay its respective Purchase Price to the
Company for the Shares to be issued and sold to such Buyer at the Closing, by
wire transfer of immediately available funds in accordance with the Company’s
written wire instructions and (ii) the Company shall deliver to each Buyer
the number of Shares as is set forth opposite such Buyer’s name on the Schedule
of Buyers. The Shares shall not bear any restrictive or other legends
(electronic or otherwise).
2.
BUYER’S
REPRESENTATIONS AND WARRANTIES.
Each
Buyer, severally and not jointly, represents and warrants to the Company with
respect to only itself that:
(a) Organization;
Authority. Such Buyer is an entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization with the
requisite power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder.
(b) Validity;
Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of such Buyer and constitutes the legal, valid
and binding obligations of such Buyer enforceable against such Buyer in
accordance with their respective terms, except as such enforceability may be
limited by general principles of equity or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.
(c) No
Conflicts. The execution, delivery and performance by such
Buyer of this Agreement and the consummation by such Buyer of the transactions
contemplated hereby will not (i) result in a violation of the organizational
documents of such Buyer 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 agreement, indenture or instrument to which such Buyer is a
party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws)
applicable to such Buyer, except in the case of clauses (ii) and (iii) above,
for such conflicts, defaults, rights or violations which would not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on
the ability of such Buyer to perform its obligations hereunder.
(d) Residency. Such Buyer
is a resident of that jurisdiction specified below its address on the Schedule
of Buyers.
(e) Certain Trading
Activities. Such Buyer has not directly or indirectly, nor has
any Person (as defined below) acting on behalf of or pursuant to any
understanding with such Buyer, engaged in any transactions in the securities of
the Company (including, without limitation, any Short Sales involving the
Company’s securities) from June 16, 2009 through the date of this Agreement.
“Short Sales” include,
without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO (“Regulation
SHO”) under the Securities Exchange Act of
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1934, as
amended (the “1934
Act”), and all types of direct and indirect stock pledges, forward sale
contracts, options, puts, calls, swaps and similar arrangements (including on a
total return basis), and sales and other transactions through non-U.S. broker
dealers or foreign regulated brokers (but shall not be deemed to include the
location and/or reservation of borrowable shares of Common
Stock). Notwithstanding the foregoing, in the case of a Buyer that is
a multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Buyer’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Buyer’s assets, the representation set forth
above shall only apply with respect to the portion of assets managed by the
portfolio manager that made the investment decision to purchase the Shares
covered by this Agreement. For purposes of this Agreement, “Person” means an individual, a
limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity and a government or any
department or agency thereof.
3.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to each of the Buyers that:
(a) Organization and
Qualification;
Subsidiaries. Each of the Company and each of its “Subsidiaries” (which for
purposes of this Agreement means any Person in which the Company, directly or
indirectly, owns capital stock or holds an equity or similar interest and which
is a “Subsidiary” as defined in Rule 1-02 of Regulation S-X) are entities duly
organized and validly existing and in good standing under the laws of the
jurisdiction in which they are formed, and have the requisite power and
authorization to own their properties and to carry on their business as now
being conducted and as presently proposed to be conducted. Each of the Company
and its Subsidiaries is duly qualified as a foreign entity to do business and is
in good standing in every jurisdiction in which its ownership of property or the
nature of the business conducted by it makes such qualification necessary,
except to the extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect. As used in this Agreement, “Material Adverse Effect” means
any material adverse effect on (i) the business, properties, assets,
liabilities, operations (including results thereof) or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole, (ii) the
legality, validity or enforceability of the transactions contemplated hereby or
in the other Transaction Documents (as defined below) or (iii) the authority or
ability of the Company to perform its obligations under the Transaction
Documents.
(b) Authorization; Enforcement;
Validity. The Company has the requisite corporate power and authority to
enter into and perform its obligations under this Agreement and the other
Transaction Documents and to issue the Shares in accordance with the terms
hereof and thereof. The execution and delivery of this Agreement and the other
Transaction Documents by the Company, and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without limitation, the
issuance of the Shares) have been duly authorized by the Company’s board of
directors and, other than the filing with the SEC of a final prospectus
supplement relating to the transactions contemplated hereby (the “Prospectus Supplement”), no
further filing, consent or authorization is required by the Company, its board
of directors or its stockholders or other governing body or regulatory
authority. This Agreement and the other Transaction Documents to which the
Company is a party have been (or upon delivery will have been) duly executed and
delivered by the Company and when delivered in accordance with the terms hereof
and thereof, will constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, except as such enforceability may be limited by general principles of
equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies and except as rights to
indemnification and to contribution may be limited by federal or state
securities law. “Transaction
Documents” means, collectively, this Agreement and each of the other
agreements and instruments entered into and/or delivered by the parties hereto
in connection with the transactions contemplated hereby and
thereby.
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(c) Issuance of Shares.
The issuance of the Shares is duly authorized and, when issued and paid for in
accordance with the terms of this Agreement, the Shares shall be validly issued,
fully paid and non-assessable and free from all taxes, liens, charges and other
encumbrances imposed by the Company. The Company has available for
issuance and sale from its duly authorized capital stock the maximum number of
shares of Common issuable pursuant to this Agreement. The Shares are
being issued pursuant to the Registration Statement and the issuance of the
Shares has been registered by the Company under the 1933 Act. The
Registration Statement is effective and available for the issuance of the Shares
thereunder and the Company has not received any notice that the SEC has issued
or intends to issue a stop-order or other order with respect to the Registration
Statement or the Prospectus (as defined below) or that the SEC otherwise has (i)
suspended or withdrawn the effectiveness of the Registration Statement or (ii)
issued any order preventing or suspending the use of the Prospectus, in either
case, either temporarily or permanently, or intends or has threatened in writing
to do so. The “Plan of Distribution” section under the Registration Statement
permits the issuance of the Shares hereunder. Upon issuance in accordance with
the terms of this Agreement, the Shares will be freely tradable on the NYSE Amex
(the “Principal Market”)
without restriction imposed by the Company. At the time the Registration
Statement and any amendments thereto became effective, at the date of this
Agreement and at the Closing Date, the Registration Statement and any amendments
thereto conformed and will conform in all material respects to the requirements
of the 1933 Act and did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the final
prospectus included in the Registration Statement (the “Prospectus”) and any
amendments or supplements thereto, at the time the Prospectus or any amendment
or supplement thereto was issued and at the Closing Date, conformed and will
conform in all material respects to the requirements of the 1933 Act and did not
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
meets all of the requirements for the use of Form S-3 under the 1933 Act for the
offering and sale of the Shares, and the SEC has not notified the Company of any
objection to the use of the form of the Registration Statement pursuant to Rule
401(g)(1) under the 1933 Act.
(d) No Conflicts. The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the issuance of the Shares) will not (i)
result in a violation of the Company’s Articles of Incorporation, as amended and
as in effect on the date hereof, including, without limitation, any certificates
of determination contained therein or attached thereto (the “Articles of Incorporation”),
or the Company’s bylaws, as amended and as in effect on the date hereof (the
“Bylaws”), (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 agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party, or (iii)
subject to the making of the Required Filings by the Company, result in a
violation of any law, rule, regulation, order, judgment or decree (including
foreign, federal and state securities laws and regulations and the rules and
regulations of the Principal Market) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected except, in the case of clause (ii) or (iii)
above, to the extent such violations that could not reasonably be expected to
have a Material Adverse Effect.
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(e) Consents. The
Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court, governmental agency or any
regulatory or self-regulatory agency or any other Person (including, without
limitation, the Financial Industry Regulatory Authority) in order for it to
execute, deliver or perform any of its obligations under or contemplated by the
Transaction Documents, in each case, in accordance with the terms hereof or
thereof, other than (i) the filing with the SEC of the Prospectus Supplement and
(ii) the filing with the SEC of the 8-K Filing (as defined below) (collectively,
“Required Filings”). All
consents, authorizations, orders, filings and registrations which the Company is
required to obtain on or before the Closing Date pursuant to the preceding
sentence have been obtained or effected on or prior to the Closing Date.
Required Filings to be made after the Closing Date shall be made in compliance
with the terms of this Agreement and applicable federal and state securities
laws. The Company is not in violation of the requirements of the
Principal Market and has no knowledge of any facts or circumstances which could
reasonably lead to delisting or suspension of the Common Stock in the
foreseeable future.
(f) Acknowledgment Regarding
Buyer’s Purchase of Shares. The Company acknowledges and agrees that each
Buyer is acting solely in the capacity of an arm’s length purchaser with respect
to the Transaction Documents and the transactions contemplated hereby and
thereby and that no Buyer is (i) an officer or director of the Company or any of
its Subsidiaries, (ii) to its knowledge, an “affiliate” (as defined in Rule 144)
of the Company or any of its Subsidiaries or (iii) to its knowledge, a
“beneficial owner” of more than 10% of the shares of Common Stock (as defined
for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges
that no Buyer is acting as a financial advisor or fiduciary of the Company or
any of its Subsidiaries (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated hereby and thereby, and
any advice given by a Buyer or any of its representatives or agents in
connection with the Transaction Documents and the transactions contemplated
hereby and thereby is merely incidental to such Buyer’s purchase of the Shares.
The Company further represents to each Buyer that the Company’s decision to
enter into the Transaction Documents has been based solely on the independent
evaluation by the Company and its representatives.
(g) Certain Fees. Neither
the Company nor any of its Subsidiaries has engaged any placement agent or other
agent in connection with the sale of the Shares. The Company shall be
solely responsible for and hold each Buyer harmless from the payment of any
placement agent’s fees, financial advisory fees or broker’s commissions owed to
any Person pursuant to any other agreements entered into by the Company relating
to or arising out of the transactions contemplated hereby.
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(h) No Integrated
Offering. None of the Company, the Subsidiaries or any of their
affiliates, nor any Person acting on their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any
security, under circumstances that would cause this offering of the Shares to
require approval of stockholders of the Company under any applicable stockholder
approval provisions, including, without limitation, under the rules and
regulations of any exchange or automated quotation system on which any of the
securities of the Company are listed or designated. Neither the Company, nor any
Person acting on its behalf will take any action or steps referred to in the
preceding sentence that would cause the offering of any of the Shares to be
integrated with other offerings.
(i) Application of Takeover
Protections; Rights Agreement. The Company and its board of directors
have taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision
under the Articles of Incorporation or other organizational documents or the
laws of the jurisdiction of its incorporation or otherwise which is or could
become applicable to any Buyer as a result of the transactions contemplated by
this Agreement, including, without limitation, the Company’s issuance of the
Shares and any Buyer’s ownership of the Shares. The Company and its board of
directors have taken all necessary action, if any, in order to render
inapplicable any stockholder rights plan or similar arrangement relating to
accumulations of beneficial ownership of shares of Common Stock or a change in
control of the Company or any of its Subsidiaries.
(j) SEC Documents. During
the one (1) year prior to the date hereof, 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 1934 Act (all
of the foregoing filed prior to the date hereof and all exhibits included
therein and financial statements, notes and schedules thereto and documents
incorporated by reference therein being referred to herein as 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, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. As of
their respective dates, the financial statements of the Company included in the
SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto as in effect as of the time of filing. Such financial statements
have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments which will not be material, either individually or in the
aggregate).
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(k) Absence of Certain
Changes. Since the date of the Company’s most recent financial statements
contained in its Form 10-Q, except as disclosed in subsequent SEC Documents
filed prior to the date hereof, there has been no event, occurrence or
development that, individually or in the aggregate, has had or would reasonably
be expected to result in a Material Adverse Effect. Since the date of
the Company’s most recent financial statements contained in its Form 10-Q,
except as disclosed in a subsequent SEC Documents filed prior to the date
hereof, neither the Company nor any of its Subsidiaries has (i) declared or paid
any dividends other than by Subsidiaries to the Company or (ii) sold any
material assets, individually or in the aggregate, outside of the ordinary
course of business.
(l) Conduct of Business;
Regulatory Permits. Neither the Company nor any of its Subsidiaries is in
violation of any term of or in default under its Articles of Incorporation, any
certificate of determination of any other outstanding series of preferred stock
of the Company or any of its Subsidiaries or Bylaws or their organizational
charter, certificate of formation or certificate of incorporation or bylaws,
respectively. Neither the Company nor any of its Subsidiaries is in violation of
any judgment, decree or order or any statute, ordinance, rule or regulation
applicable to the Company or any of its Subsidiaries, and neither the Company
nor any of its Subsidiaries will conduct its business in violation of any of the
foregoing, except in all cases for possible violations which could not,
individually or in the aggregate, have a Material Adverse Effect. Without
limiting the generality of the foregoing, the Company is not in violation of any
of the rules, regulations or requirements of the Principal Market and has no
knowledge of any facts or circumstances that could reasonably lead to delisting
or suspension of the Common Stock by the Principal Market in the foreseeable
future. Since January 1, 2007, (i) the Common Stock has been designated for
quotation on the Principal Market, (ii) trading in the Common Stock has not been
suspended by the SEC or the Principal Market and (iii) the Company has received
no communication, written or oral, from the SEC or the Principal Market
regarding the suspension or delisting of the Common Stock from the Principal
Market. Neither the Company nor any of its Subsidiaries is in default under or
in violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of a
claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), except in all cases for possible defaults
or violations which could not, individually or in the aggregate, have a Material
Adverse Effect. The Company and each of its Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate regulatory
authorities necessary to conduct their respective businesses, except where the
failure to possess such certificates, authorizations or permits would not have,
individually or in the aggregate, a Material Adverse Effect, and neither the
Company nor any such Subsidiary has received any written notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit.
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(m) Foreign Corrupt
Practices. Neither the Company nor any of the Subsidiaries nor
any director, officer, agent, employee or other Person acting on behalf of the
Company or any of its Subsidiaries has, in the course of its actions for, or on
behalf of, the Company or any of its Subsidiaries (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any foreign or domestic government official or employee.
(n) Xxxxxxxx-Xxxxx Act.
The Company and each Subsidiary is in material compliance with all applicable
requirements of the Xxxxxxxx-Xxxxx Act of 2002 that are effective as of the date
hereof, and all applicable rules and regulations promulgated by the SEC
thereunder that are effective as of the date hereof.
(o) Transactions With
Affiliates. Except as set forth in the SEC Documents, none of the
officers or directors of the Company is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees,
officers or directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer or director or, to the knowledge of the Company, any entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner, in each case in excess of $120,000 other
than for (i) payment of salary or bonuses for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company, and (iii) other
employee benefits, including stock option agreements under any stock option plan
of the Company and restricted stock agreements under any restricted stock plan
of the Company.
(p) Equity
Capitalization. As of June 19, 2009, there were:
1. 167,414,510
shares of Common Stock issued and outstanding;
2. 14,332,002
shares of Common Stock reserved for issuance pursuant to outstanding convertible
notes, the material terms of which are described in the SEC
Documents;
3. 5,330,052
shares of Common Stock reserved for issuance pursuant to outstanding stock
options, restricted stock units and other equity compensation
arrangements;
4. 16,730,464
shares of Common Stock reserved for issuance pursuant to outstanding warrants;
and
5. 10,951,904
shares of Common Stock available for grant pursuant to future awards under the
Company’s stock option plans.
The
Company has no outstanding preferred stock and no shares of Common Stock are
held in treasury. None of the Company’s or any material Subsidiary’s
capital stock is subject to preemptive rights or any other similar
rights. There are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of
the Shares.
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(q) Absence of
Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by the Principal Market, any court, public board,
government agency, self-regulatory organization or body pending or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’
officers or directors which individually or in the aggregate would reasonably be
expected to have a Material Adverse Effect. There has not been, and
to the knowledge of the Company, there is not pending or contemplated, any
investigation by the SEC involving the Company or any current or former director
or officer of the Company. Since July 1, 2006, the SEC has not issued
any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the 1933 Act or the 1934 Act.
(r) Insurance. The
Company and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
management of the Company believes to be prudent and customary in the businesses
in which the Company and its Subsidiaries are engaged.
(s) Employee
Relations. Except with respect to its union employees at its
subsidiary Rentech Energy Midwest Corporation, neither the Company nor any of
its Subsidiaries is a party to any collective bargaining agreement or employs
any member of a union. The Company believes that its and its Subsidiaries’
relations with their respective employees are good. No executive officer (as
defined in Rule 501(f) promulgated under the 0000 Xxx) or other key employee of
the Company or any of its Subsidiaries has notified the Company or any such
Subsidiary that such officer intends to leave the Company or any such Subsidiary
or otherwise terminate such officer’s employment with the Company or any such
Subsidiary. To the knowledge of the Company, no executive officer or other key
employee of the Company or any of its Subsidiaries is, or is now expected to be,
in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or
any other contract or agreement or any restrictive covenant, and the continued
employment of each such executive officer or other key employee (as the case may
be) does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its
Subsidiaries are in compliance with all federal, state, local and foreign laws
and regulations respecting labor, employment and employment practices and
benefits, terms and conditions of employment and wages and hours, except where
failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(t) Title. Except as
disclosed in the SEC Documents, (i) the Company and its Subsidiaries have good
and marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the business
of the Company and its Subsidiaries, in each case, free and clear of all liens,
encumbrances and defects except such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of
such property by the Company and any of its Subsidiaries, and (ii) any real
property and facilities held under lease by the Company or any of its
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such real property and facilities by the Company and
any of its Subsidiaries.
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(u) Intellectual Property
Rights. The Company and its Subsidiaries own or possess adequate rights
or licenses to use all trademarks, trade names, service marks, service xxxx
registrations, service names, patents, patent rights, copyrights, original
works, inventions, licenses, approvals, governmental authorizations, trade
secrets and other intellectual property rights and all applications and
registrations therefor (“Intellectual Property Rights”)
necessary to conduct their respective businesses as now conducted and as
presently proposed to be conducted, unless failure to own or possess such rights
or licenses would not reasonably be likely to result in a Material Adverse
Effect. None of the Company’s or its Subsidiaries’ Intellectual
Property Rights have expired, terminated or been abandoned, or are expected to
expire, terminate or be abandoned, within three years from the date of this
Agreement, unless such expiration, termination or abandonment would not
reasonably be likely to result in a Material Adverse Effect. The
Company has no knowledge of any infringement by the Company or any of its
Subsidiaries of Intellectual Property Rights of others. There is no
claim, action or proceeding being made or brought, or to the knowledge of the
Company or any of its Subsidiaries, being threatened, against the Company or any
of the Subsidiaries regarding their material Intellectual Property
Rights. The Company is not aware of any facts or circumstances that
reasonably could be expected to give rise to any of the foregoing infringements
or claims, actions or proceedings to the extent such infringements or claims,
actions or proceedings would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company and each of
its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their Intellectual Property Rights, except
where failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(v) Environmental Laws.
The Company and its Subsidiaries (i) are in compliance with all Environmental
Laws (as defined herein), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval where, in each of the foregoing clauses
(i), (ii) and (iii), the failure to so comply could be reasonably expected to
have, individually or in the aggregate, a Material Adverse
Effect. The term “Environmental Laws” means all
federal, state, local or foreign laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into the
environment, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters,
injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations issued, entered, promulgated or approved
thereunder.
(w) Tax Status. Except
for matters that would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, the Company and each of its
Subsidiaries (i) has timely made or filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject, (ii) has timely paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and (iii) has set aside on its books provision reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply.
10
(x) Internal Accounting and
Disclosure Controls. Except as set forth in the Company’s Form 10-K for
the year ended September 30, 2008 and any of the Company’s Form 10-Q’s covering
periods in fiscal 2009, the Company maintains internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the 0000 Xxx) that is
effective to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles, including that (i)
transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset and liability accountability, (iii)
access to assets or incurrence of liabilities is permitted only in accordance
with management’s general or specific authorization and (iv) the recorded
accountability for assets and liabilities is compared with the existing assets
and liabilities at reasonable intervals and appropriate action is taken with
respect to any difference. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the 0000 Xxx) that
are effective in ensuring that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in the
rules and forms of the SEC, including, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is
accumulated and communicated to the Company’s management, including its
principal executive officer or officers and its principal financial officer or
officers, as appropriate, to allow timely decisions regarding required
disclosure. Except as set forth in the Company’s Form 10-K for the year ended
September 30, 2008 and any of the Company’s Form 10-Qs covering periods in
fiscal 2009, neither the Company nor any of its Subsidiaries has received any
notice or correspondence from any accountant or other Person relating to any
potential material weakness or significant deficiency in any part of the
Company’s internal control over financial reporting.
(y) Off Balance Sheet
Arrangements. There is no transaction, arrangement, or other relationship
between the Company or any of its Subsidiaries and an unconsolidated or other
off balance sheet entity that is required to be disclosed by the Company in its
1934 Act filings and is not so disclosed or that otherwise could be reasonably
likely to have a Material Adverse Effect.
(z) Investment Company
Status. The Company is not, and upon consummation of the sale of the
Shares will not be, an “investment company,” an affiliate of an “investment
company,” a company controlled by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment
company” as such terms are defined in the Investment Company Act
of 1940, as amended.
(aa) Manipulation of
Price. Neither the Company nor any of its Subsidiaries has, and, to the
knowledge of the Company, no Person acting on their behalf has, (i) taken,
directly or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the Company or any
of its Subsidiaries to facilitate the sale or resale of any of the Shares, (ii)
sold, bid for, purchased, or paid any compensation for soliciting purchases of,
any of the Shares, or (iii) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company or any of
its Subsidiaries.
11
(bb) Transfer Taxes. On
the Closing Date, all stock transfer or other taxes (other than income or
similar taxes) which are required to be paid in connection with the sale and
transfer of the Shares to be sold to each Buyer hereunder will be, or will have
been, fully paid or provided for by the Company, and all laws imposing such
taxes will be or will have been complied with.
(cc) Disclosure. The
Company confirms that neither it nor any other Person acting on its behalf has
provided any of the Buyers or their agents or counsel with any information that
constitutes or could reasonably be expected to constitute material, nonpublic
information concerning the Company or any of its Subsidiaries, other than the
existence of the transactions contemplated by this Agreement or information
contained in SEC Documents filed prior to the execution of this Agreement. The
Company understands and confirms that each of the Buyers will rely on the
foregoing representations in effecting transactions in securities of the
Company. The Company acknowledges and agrees that no Buyer makes or
has made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 2.
4.
COVENANTS.
(a) Commercially Reasonably Best
Efforts. Each
Buyer, solely as to itself, shall use commercially reasonable best efforts
timely to satisfy each of the conditions to the Company’s obligation to issue
and sell the Shares set forth in Section 5(a). The Company shall use
commercially reasonable best efforts timely to satisfy each of the conditions to
each Buyer’s obligation to purchase its Shares set forth in Section
6(a).
(b) Securities
Compliance. The
Prospectus Supplement, containing all information required by SEC rules and
regulations, shall be filed in accordance with Rule 424 under the 1933
Act. The Company shall take all other necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, for the legal and valid issuance of the Shares (and the issuance of
the Shares pursuant to the Registration Statement) to the Buyers or subsequent
holders. The Company shall, on or before the Closing Date, take such
action as the Company shall reasonably determine is necessary in order to obtain
an exemption for, or to, qualify the Shares for sale to the Buyers at the
Closing pursuant to this Agreement under applicable securities or “Blue Sky”
laws of the states of the United States (or to obtain an exemption from such
qualification), and shall provide evidence of any such action so taken to the
Buyers on or prior to the Closing Date. The Company shall make all
filings and reports relating to the offer and sale of the Shares required under
applicable securities or “Blue Sky” laws of the states of the United States
following the Closing Date.
(c) Listing. The
Company shall promptly secure the listing of all of the Shares upon NYSE Amex.
The Company shall pay all fees and expenses in connection with satisfying its
obligations under this Section 4(c).
12
(d) Fees. The
Company shall pay the reasonable fees and disbursements up to $25,000 of
Xxxxxxxxx Traurig, LLP, counsel on behalf of certain Buyers, incurred in
connection with the transactions contemplated by the Transaction Documents
(including, without limitation, the negotiation, documentation and
implementation of the transactions contemplated by the Transaction Documents and
due diligence in connection therewith), which amount shall be paid by the
Company within two business day of receipt of an invoice (which shall not
contain descriptions of time entries) after the Closing or the termination of
this Agreement so long as such termination did not occur as a result of a
material breach by a Buyer of any of its obligations hereunder (as the case may
be). The Company shall be responsible for the payment of any placement agent’s
fees, financial advisory fees, or broker’s commissions (other than for Persons
engaged by any Buyer) relating to or arising out of the transactions
contemplated hereby incurred by the Company. The Company shall pay, and hold
each Buyer harmless against, any liability, loss or expense (including, without
limitation, attorney’s fees and out-of-pocket expenses) arising in connection
with any claim relating to any such payment. Except as otherwise set forth in
the Transaction Documents, each party to this Agreement shall bear its own
expenses in connection with the sale of the Shares to the Buyers.
(e) Disclosure of Transactions
and Other Material Information. The
Company shall, on or before 8:30 a.m., New York time, on the first (1st)
Business Day after the date of this Agreement, issue a press release (the “Press Release”) reasonably
acceptable to each Buyer disclosing all the material terms of the transactions
contemplated hereby. On or before 8:30 a.m., New York time, on
the second (2nd) Business Day following the date of this Agreement, the Company
shall file a Current Report on Form 8-K describing all the material terms of the
transactions contemplated hereby and attaching this Agreement as an exhibit
(including all attachments, the “8-K Filing”). From and after
the issuance of the Press Release, the Company shall have disclosed all
material, nonpublic information delivered to any of the Buyers by the Company or
any of its Subsidiaries, or any of their respective officers, directors,
employees or agents (if any) in connection with the transactions contemplated by
the Transaction Documents. The Company shall not, and the Company shall cause
each of its Subsidiaries and each of its and their respective officers,
directors, employees and agents not to, provide any Buyer with any material,
nonpublic information regarding the Company or any of its Subsidiaries from and
after the issuance of the Press Release without the express prior written
consent of such Buyer. If a Buyer has, or believes it has, received any
material, nonpublic information regarding the Company or any of its Subsidiaries
in breach of the immediately preceding sentence, such Buyer shall provide the
Company with written notice thereof in which case the Company shall, within one
(1) Trading Day of the receipt of such notice, make a public disclosure of all
such material, nonpublic information so provided. In the event of a
breach of any of the foregoing covenants by the Company, any of its
Subsidiaries, or any of its or their respective officers, directors, employees
and agents (as determined in the reasonable good faith judgment of such Buyer),
in addition to any other remedy provided herein or in the Transaction Documents,
such Buyer shall have the right to make a public disclosure, in the form of a
press release, public advertisement or otherwise, of such material, nonpublic
information without the prior approval by the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees or agents. No
Buyer shall have any liability to the Company, any of the Subsidiaries, or any
of its or their respective officers, directors, employees, stockholders or
agents, for any such disclosure of such information. Subject to the foregoing,
neither the Company, its Subsidiaries nor any Buyer shall issue any press
releases or any other public statements with respect to the transactions
contemplated hereby; provided, however, that the
Company shall be entitled, without the prior approval of any Buyer, to make any
press release or other public disclosure with respect to such transactions (i)
in substantial conformity with the 8-K Filing and contemporaneously therewith
and (ii) as is required by applicable law and regulations (provided that in the
case of clause (i) each Buyer shall be consulted by the Company in connection
with any such press release or other public disclosure prior to its
release). Without the prior written consent of any applicable Buyer,
the Company shall not (and shall cause each of its Subsidiaries and affiliates
to not) disclose the name of such Buyer or its investment adviser in any filing,
announcement, release or otherwise, except (a) as required by federal securities
law in connection with the filing of final Transaction Documents (including
signature pages thereto) with the SEC and (b) to the extent such disclosure is
required by law or Principal Market regulations, in which case the Company shall
provide the applicable Buyers with prior notice of such disclosure permitted
hereunder.
13
(f) Certain Transactions and
Confidentiality. Each Buyer, severally and not jointly with
the other Buyers, covenants that it will not execute any purchases or sales,
including Short Sales of any of the Company’s securities during the period
commencing with the execution of this Agreement and ending at such time that the
transactions contemplated by this Agreement are first publicly announced
pursuant to a press release as described in Section 4(e). Each Buyer,
severally and not jointly with the other Buyers, covenants that until such time
as the transactions contemplated by this Agreement are first publicly disclosed
pursuant to a press release as described in Section 4(e), such Buyer will
maintain the confidentiality of the existence and terms of this
transaction. Notwithstanding the foregoing, and notwithstanding
anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Buyer makes any representation, warranty or
covenant hereby that it will not engage in effecting transactions in any
securities of the Company after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to a press release as
described in Section 4(e), (ii) no Buyer shall be restricted or prohibited from
effecting any transactions in any securities of the Company in accordance with
applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to a press
release as described in Section 4(e) and (iii) no Buyer shall have any duty of
confidentiality to the Company or its Subsidiaries after the issuance of a press
release disclosing all the material terms of the transactions contemplated by
this Agreement as described in Section 4(e). Notwithstanding the
foregoing, in the case of a Buyer that is a multi-managed investment vehicle
whereby separate portfolio managers manage separate portions of such Buyer’s
assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such Buyer’s
assets, the covenant set forth above shall only apply with respect to the
portion of assets managed by the portfolio manager that made the investment
decision to purchase the Shares covered by this Agreement.
(g) Additional Issuance of
Securities. The
Company agrees that for the period commencing on the date hereof and ending
ninety (90) days after the Closing Date (the “Restricted Period”), the
Company shall not directly or indirectly issue, offer, sell, grant any option to
purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant
or any option to purchase or other disposition of) any of its equity or equity
equivalent securities, including, without limitation, any convertible debt,
preferred stock, rights, options, warrants or other instrument that is at any
time and under any circumstances convertible by its terms into or exchangeable
for, or otherwise entitles the holder thereof to receive, capital stock and
other securities of the Company (including, without limitation, any securities
of the Company or any Subsidiary which entitle the holder thereof to acquire
Common Stock at any time, including without limitation, any convertible debt,
preferred stock, rights, options, warrants or other instrument that is at any
time convertible into or exchangeable for, or otherwise entitles the
14
holder
thereof to receive, Common Stock or other securities that entitle the holder to
receive, directly or indirectly, Common Stock) (collectively with such capital
stock or other securities of the Company, “Equivalents”). Notwithstanding
the foregoing, this Section 4(g) shall not apply in respect of the issuance of
(i) shares of Common Stock sold in one or more bona fide capital raising
transactions at a price per share equal to or greater than $0.58 (as adjusted
for any stock dividend, stock split, stock combination or other similar
transaction), (ii) shares of Common Stock or other equity-based compensation
issued to directors, officers, employees or consultants of the Company as
compensation for services provided to the Company or any Subsidiary of Company;
(iii) shares of Common Stock issued upon the conversion or exercise of, or in
exchange for, any equity or debt securities of the Company outstanding on the
date hereof; (iv) shares of Common Stock, or warrants or options to purchase
Common Stock, issued in connection with bona fide acquisitions, mergers or
similar transactions, in each case, the primary purpose of which is not to raise
capital; (v) shares of Common Stock issued or issuable to an entity as a
component of any commercial relationship with such entity for the purpose of
joint venture, technology licensing or development activities or other
arrangements involving corporate partners, in each case, the primary purpose of
which is not to raise capital; (vi) shares of Common Stock, or warrants or
options to purchase Common Stock, issued to lenders as yield enhancement in
connection with bona fide debt financings or amendments or modifications
thereof; and (vii) debt securities that are not convertible into shares of
Common Stock or Equivalents.
5.
CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.
(a) The
obligation of the Company hereunder to issue and sell the Shares to each Buyer
at the Closing is subject to the satisfaction, at or before the Closing Date, 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 their sole discretion by providing each Buyer with prior written
notice thereof:
(i) Such
Buyer shall have executed this Agreement and delivered the same to the
Company.
(ii) Such
Buyer shall have delivered to the Company the Purchase Price for the Shares
being purchased by such Buyer at the Closing by wire transfer of immediately
available funds pursuant to the wire instructions provided by the
Company.
(iii) Each and
every representation and warranty of such Buyer shall be true and correct in all
material respects (except for those representations and warranties which are
qualified as to materiality, in which case such representations and warranties
shall be true and correct in all respects) as of the date when made and as of
the Closing Date as though originally made at that time (except for
representations and warranties that speak as of a specific date, which shall be
true and correct as of such date), and such 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 such Buyer at or prior to the Closing Date.
(iv) Buyers in
the aggregate shall have delivered at least $6.0 million for the purchase of
Shares.
15
6. CONDITIONS
TO EACH BUYER’S OBLIGATION TO PURCHASE.
(a) The
obligation of each Buyer hereunder to purchase its Shares at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these
conditions are for each Buyer’s sole benefit and may be waived by such Buyer at
any time in its sole discretion by providing the Company with prior written
notice thereof:
(i) The
Company shall have duly executed this Agreement and delivered the same to such
Buyer.
(ii) The
Company shall deliver or cause to be delivered to such Buyer a copy of the
irrevocable instructions to the Company’s transfer agent instructing the
transfer agent to deliver via the Depository Trust Company’s Deposit Withdrawal
Agent Commission System (DWAC) the number of Shares as is set forth opposite
such Buyer’s name on the Schedule of Buyers
(iii) Such
Buyer shall have received the opinions of Xxxxxx & Xxxxxxx LLP and Holland
& Xxxx LLP, the Company’s counsel, dated as of the Closing Date, in
substantially the forms attached hereto as Exhibit
A.
(iv) Each and
every representation and warranty of the Company shall be true and correct in
all material respects (except for those representations and warranties which are
qualified as to materiality, in which case such representations and warranties
shall be true and correct in all respects) as of the date when made and as of
the Closing Date as though originally made at that time (except for
representations and warranties that speak as of a specific date, which shall be
true and correct as of such date), and the Company shall have performed,
satisfied and complied with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied in all material respects
with by the Company at or prior to the Closing Date. Such Buyer shall
have received a certificate, executed by the Chief Executive Officer or the
Chief Financial Officer of the Company, dated as of the Closing Date, to the
foregoing effect and as to such other matters as may be reasonably requested by
such Buyer in the form acceptable to such Buyer.
(v) The
Common Stock (I) shall be listed on the Principal Market and (II) shall not have
been suspended, as of the Closing Date, by the SEC or the Principal Market from
trading on the Principal Market nor shall suspension by the SEC or the Principal
Market have been threatened, as of the Closing Date, either (A) in writing by
the SEC or the Principal Market or (B) by falling below the minimum maintenance
requirements of the Principal Market.
(vi) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Shares, including without
limitation, those required by the Principal Market.
16
(vii) The
Company shall have obtained approval of the Principal Market to list the
Shares.
(viii) 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 that prohibits the consummation of any of
the transactions contemplated by this Agreement.
(ix) Since the
date of execution of this Agreement, no event or series of events shall have
occurred that reasonably would have a Material Adverse Effect.
(x) (A) The
Registration Statement shall remain effective at all times up to and including
the Closing Date and the issuance of the Shares to the Buyers may be made
thereunder; (B) neither the Company nor any of the Buyers shall have received
notice that the SEC has issued or intends to issue a stop order with respect to
the Registration Statement or that the SEC otherwise has suspended or withdrawn
the effectiveness of the Registration Statement either, temporarily or
permanently, or intends or has threatened to do so; and (C) no other suspension
of the use or withdrawal of the effectiveness of the Registration Statement or
Prospectus shall exist.
(xi) The
Company shall have delivered to such Buyer the Prospectus and Prospectus
Supplement (which may be delivered in accordance with Rule 172 under the 1933
Act).
7.
TERMINATION.
In the
event that the Closing shall not have occurred with respect to a Buyer on or
before ten (10) days from the date hereof, then such Buyer shall have the right
to terminate its obligations under this Agreement with respect to itself at any
time on or after the close of business on such date without liability of such
Buyer to any other party; provided, however, (i) the right to terminate this
Agreement under this Section 7 shall not be available to such Buyer if the
failure of the transactions contemplated by this Agreement to have been
consummated by such date is the result of such Buyer’s breach of this Agreement
and (ii) the abandonment of the sale and purchase of the Shares shall be
applicable only to such Buyer providing such written notice, provided further,
notwithstanding any such termination the Company shall remain obligated to
reimburse such Buyer for the fees and expenses described in Section 4(d) above.
Nothing contained in this Section 7 shall be deemed to release any party from
any liability for any breach by such party of the terms and provisions of this
Agreement or the other Transaction Documents or to impair the right of any party
to compel specific performance by any other party of its obligations under this
Agreement or the other Transaction Documents..
8.
MISCELLANEOUS.
(a) Governing Law; Jurisdiction;
Jury Trial. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of
New York. Each
17
party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
(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 delivered to the other party. In
the event that any signature is delivered by facsimile transmission or by an
e-mail which contains a portable document format (.pdf) file of an executed
signature page, such signature page shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such signature page were an original
thereof.
(c) Headings;
Gender. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement. Unless the context
clearly indicates otherwise, each pronoun herein shall be deemed to include the
masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of
like import shall be construed broadly as if followed by the words “without
limitation.” The terms “herein,” “hereunder,” “hereof” and words of
like import refer to this entire Agreement instead of just the provision in
which they are found.
(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. The
Transaction Documents, together with the exhibits and schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such subject matter, which the parties acknowledge have been
merged into such documents, exhibits and schedules, provided that the foregoing
shall not have any effect on any agreements that a Buyer has entered into with
the Company or any of its Subsidiaries prior to the date hereof with respect to
any prior investment made by such Buyer in the Company. The Company
confirms that, except as set forth in this Agreement, no Buyer has made any
commitment or promise or has any other obligation to provide any financing to
the Company.
18
(f) Amendments;
Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and all of the Buyers or, in the case of a waiver, by the party
against whom enforcement of any such waived provision is sought. No
waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such
right. No consideration shall be offered or paid to any Buyer to
amend or consent to a waiver or modification of any provision of any of this
Agreement unless the same consideration is also offered to all of the
Buyers.
(g) Notices. 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 confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one (1) Business Day after deposit with an overnight courier service
with next day delivery specified, 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.
00000
Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx
Xxxxxxx, XX 00000
Telephone: (000)
000-0000
Facsimile:
Attention: Chief
Executive Officer
With
copies (for informational purposes only) to:
Rentech,
Inc.
00000
Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Facsimile:
Attention: Xxxxx
X. Xxxxxx, Esq.
and
Xxxxxx
& Xxxxxxx LLP
000 Xxxxx
Xxxxx
Xxxxx
Xxxx, XX 00000
Telephone: (000)
000-0000
Facsimile:
Attention: Xxxxxxx
X. Xxxxxxxx, Esq.
If to a
Buyer, to its address and facsimile number set forth on the Schedule of Buyers,
with copies to such Buyer’s representatives as set forth on the Schedule of
Buyers,
19
with a
copy (for informational purposes only) to:
Xxxxxxxxx
Traurig, LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxxxxxxx, Esq.
or to
such other address and/or facsimile number and/or to the attention of such other
Person as the recipient party has specified by written notice given to each
other party ten (10) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (i), (ii) or (iii) above, respectively.
(h) Successors and
Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written
consent each Buyer, including, without limitation, by way of a merger,
consolidation or similar transaction.
(i) No Third Party
Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, other than the Indemnitees
expressly referred to in Section 8(l).
(j) Survival. The
representations, warranties, agreements and covenants shall survive the Closing.
Each Buyer shall be responsible only for its own representations, warranties,
agreements and covenants hereunder.
(k) Further
Assurances. 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 any 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.
(l) Indemnification.
(i) In
consideration of each Buyer’s execution and delivery of this Agreement and
acquiring the Shares hereunder and in addition to all of the Company’s other
obligations under the Transaction Documents, from and after the Closing the
Company shall defend, protect, indemnify and hold harmless each Buyer and all of
their stockholders, partners, members, officers, directors, employees and direct
or indirect investors and any of the foregoing Persons’ agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by
20
this
Agreement) (collectively, the “Indemnitees”) from and against
any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses reasonably incurred in connection
therewith (irrespective of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), and including reasonable
attorneys’ fees and disbursements (the “Indemnified Liabilities”),
reasonably incurred by any Indemnitee as a result of, or arising out of, or
relating to (a) any material misrepresentation or breach of any representation
or warranty made by the Company in any of the Transaction Documents, (b) any
material breach of any covenant, agreement or obligation of the Company
contained in any of the Transaction Documents or (c) any cause of action, suit
or claim brought or made against such Indemnitee by a third party (including for
these purposes a derivative action brought on behalf of the Company) and arising
out of or resulting from (i) the execution, delivery, performance or enforcement
of any of the Transaction Documents, (ii) any disclosure properly made by such
Buyer pursuant to Section 4(e), or (iii) the status of such Buyer as an investor
in the Company pursuant to the transactions contemplated hereby, except, with
respect to clause (c), to the extent such Indemnified Liability arises solely
from an Indemnitee’s gross negligence, willful misconduct or fraud. The Company
shall reimburse the Indemnitees, promptly as such expenses are incurred and are
due and payable, for any reasonable legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any such
Indemnified Liabilities. To the extent that the foregoing undertaking
by the Company may be unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
(ii) Promptly
after receipt by an Indemnitee under this Section 8(l) of notice of the
commencement of any action or proceeding (including any governmental action or
proceeding) involving an Indemnified Liability, such Indemnitee shall, if a
claim in respect thereof is to be made against the Company under this Section
8(l), deliver to the Company a written notice of the commencement thereof, and
the Company shall have the right to participate in, and, to the extent the
Company so desires, to assume control of the defense thereof with counsel
mutually satisfactory to the Company and the Indemnitee; provided, however, that
an Indemnitee shall have the right to retain its own counsel with the fees and
expenses of such counsel to be paid by the Company if: (i) the Company has
agreed in writing to pay such fees and expenses; (ii) the Company shall have
failed promptly to assume the defense of such Indemnified Liability and to
employ counsel reasonably satisfactory to such Indemnitee in any such
Indemnified Liability; or (iii) the named parties to any such Indemnified
Liability (including any impleaded parties) include both such Indemnitee and the
Company, and such Indemnitee shall have been advised by counsel that a conflict
of interest is likely to exist if the same counsel were to represent such
Indemnitee and the Company (in which case, if such Indemnitee notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, then the Company shall not have the right to assume the defense
thereof and such counsel shall be at the expense of the Company), provided
further, that in the case of clause (iii) above the Company shall not be
responsible for the reasonable fees and expenses of more than one (1) separate
legal counsel for all Indemnitees. The Indemnitee shall reasonably cooperate
with the Company in connection with any negotiation or defense of any such
action or Indemnified Liability by the Company and shall furnish to
21
the
Company all information reasonably available to the Indemnitee which relates to
such action or Indemnified Liability. The Company shall keep the Indemnitee
reasonably apprised at all times as to the status of the defense or any
settlement negotiations with respect thereto. The Company shall not be liable
for any settlement of any action, claim or proceeding effected without its prior
written consent, provided, however, that the Company shall not unreasonably
withhold, delay or condition its consent. The Company shall not, without the
prior written consent of the Indemnitee, 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
Indemnitee of a release from all liability in respect to such Indemnified
Liability or litigation, and such settlement shall not include any admission as
to fault on the part of the Indemnitee; it being understood that such
Indemnitee’s prior written consent is not required for the Company to consent to
entry of any judgment or enter into any settlement or other compromise which (i)
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnitee of a release from all liability in respect to such
Indemnified Liability or litigation and (ii) does not include any admission as
to fault on the part of the Indemnitee. Following indemnification as provided
for hereunder, the Company shall be subrogated to all rights of the Indemnitee
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 Company within a reasonable time of the commencement of any such action
shall not relieve the Company of any liability to the Indemnitee under this
Section 8(l), except to the extent, and only to the extent, that the Company is
adversely prejudiced in its ability to defend such action.
(iii) The
indemnification required by this Section 8(l) 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 Liabilities are incurred in accordance
with this Agreement along with reasonable supporting documentation.
(iv) The
indemnity agreement contained herein shall be in addition to (A) any cause of
action or similar right of the Indemnitee against the Company or others, and (B)
any liabilities the Company may be subject to pursuant to the law.
(m) Construction. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against any party. For clarification purposes, the Recitals are part
of this Agreement and are hereby incorporated by reference.
(n) Remedies. Each
Buyer shall have all rights and remedies set forth herein and all rights and
remedies which such holders have been granted at any time under any other
agreement or contract and all of the rights which such holders have under any
law. Any Person having any rights under any provision of this Agreement shall be
entitled to enforce such rights specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. Furthermore, the
Company recognizes that in the event that it fails to perform, observe, or
discharge any or all of its obligations under the Transaction Documents, any
remedy at law may prove to be inadequate relief to the Buyers. The Company
therefore agrees that the Buyers shall be entitled to seek specific performance
and/or temporary, preliminary and permanent injunctive or other equitable relief
from any court of competent jurisdiction in any such case without the necessity
of proving actual damages and without posting a bond or other
security.
22
(o) Withdrawal
Right.
Notwithstanding anything to the contrary contained in (and without limiting any
similar provisions of) the Transaction Documents, whenever any Buyer exercises a
right, election, demand or option under a Transaction Document and the Company
does not timely perform its related obligations within the periods therein
provided, then such Buyer may rescind or withdraw, in its sole discretion from
time to time upon written notice to the Company, any relevant notice, demand or
election in whole or in part without prejudice to its future actions and
rights
(p) Payment Set
Aside. To the
extent that the Company makes a payment or payments to any Buyer hereunder or
pursuant to any of the other Transaction Documents or any of the Buyers enforce
or exercise their rights hereunder or thereunder, and such payment or payments
or the proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or are required to be refunded, repaid or otherwise
restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, foreign, state or federal
law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or setoff had not occurred.
(q) Independent Nature of
Buyers’ Obligations and Rights. The
obligations of each Buyer hereunder are several and not joint with the
obligations of any other Buyer, and no Buyer shall be responsible in any way for
the performance of the obligations of any other Buyer under this
Agreement. Nothing contained herein, and no action taken by any Buyer
pursuant hereto, shall be deemed to constitute the Buyers as, and the Company
acknowledges that the Buyers do not so constitute, a partnership, an
association, a joint venture or any other kind of group or entity, or create a
presumption that the Buyers are in any way acting in concert or as a group or
entity with respect to such obligations or the transactions contemplated by this
Agreement or any matters, and the Company acknowledges that the Buyers are not
acting in concert or as a group, and the Company shall not assert any such
claim, with respect to such obligations or the transactions contemplated by this
Agreement. The decision of each Buyer to purchase Shares pursuant to this
Agreement has been made by such Buyer independently of any other Buyer. Each
Buyer acknowledges that no other Buyer has acted as agent for such Buyer in
connection with such Buyer making its investment hereunder and that no other
Buyer will be acting as agent of such Buyer in connection with monitoring such
Buyer’s investment in the Shares or enforcing its rights under this Agreement.
Each Buyer shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement, and it
shall not be necessary for any other Buyer to be joined as an additional party
in any proceeding for such purpose. It is expressly understood and agreed that
each provision contained in this Agreement and in each other Transaction
Document is between the Company and a Buyer, solely, and not between the Company
and the Buyers collectively and not between and among the Buyers.
[signature pages
follow]
23
IN WITNESS WHEREOF, each Buyer
and the Company have caused their respective signature page to this Agreement to
be duly executed as of the date first written above.
| COMPANY: | |||
| RENTECH, INC. | |||
|
|
By:
|
/s/ X. Xxxx Ramsbottom | |
| Name: X. Xxxx Ramsbottom | |||
| Title: President and CEO | |||
24
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| WMP (Australia) Global Smaller Companies Equity Portfolio | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
25
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Telstra Superannuation Scheme | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
26
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| JBWere Global Small Companies Pooled Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
27
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| TELUS Foreign Equity Active Beta Pool | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
28
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| TELUS Foreign Equity Active Alpha Pool | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
29
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Talvest Global Small Cap Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
30
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Province of British Columbia | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
31
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Wellington Management Portfolios (Dublin) - Global Smaller Companies Equity Portfolio | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
32
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| The SEI U.S. Small Companies Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
33
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| UBS Multi Manager Access - Global Smaller Companies | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
34
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Fonds voor Gemene Rekening Beroepsvervoer | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
35
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Xxxxxxxx Global Smaller Companies Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
36
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Small/Mid Cap Diversified Alpha Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
37
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| SEI Institutional Managed Trust - Small Cap Growth Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
38
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| SEI Institutional Investments Trust - Small Cap Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
39
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Radian Group Inc. | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
40
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
|
Retirement
Plan for Employees of Union Carbide Corporation and its Participating
Subsidiary Companies
|
|||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
41
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
|
The
Central States, Southeast and Southwest Areas Pension Fund
|
|||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
42
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| SEI Institutional Investments Trust - Small/Mid Cap Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
43
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| New York State Nurses Association Pension Plan | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
44
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Dow Employees' Pension Plan | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
45
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Vantagepoint Discovery Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
46
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
|
Wellington
Trust Company, National Association Multiple Common Trust Funds Trust,
Emerging Companies Portfolio
|
|||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
47
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Oregon Public Employees Retirement Fund | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
48
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
| Lockheed Xxxxxx Corporation Master Retirement Trust | |||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
49
IN WITNESS WHEREOF, Buyer and
the Company have caused their respective signature page to this Agreement to be
duly executed as of the date first written above.
| BUYER: | |||
|
Wellington
Trust Company, National Association Multiple Collective Investment Funds
Trust, Emergin Companies Portfolio
|
|||
|
|
By:
|
Wellington
Management Company, LLP,
as Investment Advisor
|
|
| /s/ Xxxxxx X. Xxxxx | |||
| By: Xxxxxx X. Xxxxx | |||
| Its: Vice President and Counsel | |||
50
SCHEDULE
OF BUYERS
|
SHARES
|
||||
|
WMP
(Australia) Global Smaller Companies Equity
Portfolio
|
11,000 | |||
|
Telstra
Superannuation Scheme
|
96,000 | |||
|
JBWere
Global Small Companies Pooled Fund
|
108,500 | |||
|
TELUS
Foreign Equity Active Beta Pool
|
6,000 | |||
|
TELUS
Foreign Equity Active Alpha Pool
|
13,000 | |||
|
Talvest
Global Small Cap Fund
|
40,000 | |||
|
Province
of British Columbia
|
678,500 | |||
| Wellington Management Portfolios (Dublin) - Global Smaller Companies Equity Portfolio | 72,000 | |||
|
The
SEI U.S. Small Companies Fund
|
132,000 | |||
|
UBS
Multi Manager Access - Global Smaller Companies
|
12,500 | |||
|
Fonds
voor Gemene Rekening Beroepsvervoer
|
180,000 | |||
|
Xxxxxxxx
Global Smaller Companies Fund
|
6,000 | |||
|
Small/Mid
Cap Diversified Alpha Fund
|
21,000 | |||
|
SEI
Institutional Managed Trust - Small Cap Growth Fund
|
120,500 | |||
| SEI Institutional Investments Trust - Small Cap Fund | 202,500 | |||
|
Radian
Group Inc.
|
258,000 | |||
|
Retirement
Plan for Employees of Union Carbide Corporation and its Participating
Subsidiary Companies
|
281,500 | |||
|
The
Central States, Southeast and Southwest Areas Pension
Fund
|
354,500 | |||
| SEI Institutional Investments Trust - Small/Mid Cap Fund | 374,000 | |||
|
New
York State Nurses Association Pension Plan
|
382,000 | |||
|
Dow
Employees' Pension Plan
|
699,000 | |||
|
Vantagepoint
Discovery Fund
|
800,000 | |||
|
Wellington
Trust Company, National Association Multiple Common Trust Funds Trust,
Emerging Companies Portfolio
|
826,500 | |||
|
Oregon
Public Employees Retirement Fund
|
1,150,000 | |||
|
Lockheed
Xxxxxx Corporation Master Retirement
Trust
|
1,975,000 | |||
| Wellington Trust Company, National Association Multiple Collective Investment Funds Trust, Emerging Companies Portfolio | 2,200,000 | |||
|
TOTAL
|
11,000,000 |
51
Exhibit
A
Form of Holland & Xxxx
LLP Legal Opinion
|
1.
|
The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Colorado (the “State”) and has the
requisite corporate power and authority to conduct its business as
described in the Prospectus.
|
|
2.
|
The
Company has the requisite corporate power and authority to execute,
deliver and perform its obligations under the Securities Purchase
Agreement and to issue the Shares in accordance with the terms thereof.
The execution and delivery of the Securities Purchase Agreement by the
Company, and the consummation by the Company of the transactions
contemplated thereby (including, without limitation, the issuance of the
Shares) have been duly authorized by all necessary corporate action of the
Company and no further consent or authorization of the Company, its board
of directors, stockholders or any State governmental body or regulatory
agency is required. (Qualifications will include that Colorado
counsel does not express an opinion with respect to any consent or
authorization of any State governmental body or regulatory agency that may
be required under the Colorado Securities Act, as amended, or with respect
to any consent or authorization of any State governmental body or
regulatory agency that may be required as a result of the Company’s
properties or the nature of the business conducted by the
Company.)
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3.
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The
execution, delivery and performance of the Securities Purchase Agreement
by the Company and the consummation by the Company of the transactions
contemplated thereby (including, without limitation, the issuance of the
Shares) do not and will not result in a violation of (i) the Articles of
Incorporation or the Bylaws or (ii) the Colorado Business Corporation
Act.
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4.
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When
issued pursuant to the terms of the Securities Purchase Agreement, the
Shares will be duly authorized and validly issued, fully paid and
nonassessable, and free of any all liens and charges imposed by the
Articles of Incorporation, the Bylaws or the Colorado Business Corporation
Act and preemptive or similar rights contained in the Articles of
Incorporation, the Bylaws or the Colorado Business Corporation
Act.
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5.
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No
approval, consent, order or authorization of, filing with, notice to or
registration with, any governmental authority on the part of the Company
is required under the Colorado Business Corporation Act (i) for the
Company to enter into and perform its obligations under the Securities
Purchase Agreement, (ii) for the issuance and sale by the Company of the
Shares as contemplated by the Securities Purchase Agreement or (iii) for
the exercise by Buyers of any rights and remedies under the Securities
Purchase Agreement.
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52
Form of Xxxxxx &
Xxxxxxx, LLP Legal Opinion
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1.
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The
Securities Purchase Agreement has been duly executed and delivered by the
Company, and is the legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its
terms.
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2.
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The
execution and delivery of the Securities Purchase Agreement and the
issuance and sale of the Shares by the Company to you pursuant to the
Securities Purchase Agreement do not on the date
hereof:
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(i) result
in the breach of or a default under any of the Specified Agreements;
or
(ii) violate
any federal statute, rule or regulation applicable to the Company.
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3.
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The
Registration Statement has become effective under the Act. With
your consent, based solely on a telephonic confirmation by a member of the
Staff of the Commission on June __, 2009, we confirm that, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceedings
therefor have been initiated by the Commission. The Prospectus
and Prospectus Supplement have been filed in accordance with Rule 424(b)
under the Act.
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4.
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The
Company is not, and immediately after giving effect to the sale of the
Shares in accordance with the Securities Purchase Agreement and the
application of the proceeds as described in the Prospectus Supplement
under the caption “Use of Proceeds,” will not be required to be,
registered as an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
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53
