Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into as of _______________,
2002, between RENTECH, INC., a Colorado corporation (ACompany@) and the
persons who are listed on and who sign the Investor Signature Pages
attached to this Agreement (each of whom is referred to as an AInvestor@
and all of whom collectively are referred to as the AInvestors@).
In consideration of the mutual covenants contained herein, the
parties agree as follows:
1. DEFINITIONS.
(a) The term ACommission@ means the Securities and Exchange
Commission.
(b) The term A1933 Securities Act@ means the Securities Act
of 1933, as amended;
(c) The terms Aregister,@ Aregistered,@ and Aregistration@
refer to a registration effected by preparing and filing a registration
statement in compliance with the 1933 Act and the declaration or
ordering of effectiveness of such registration statement by the United
States Securities and Exchange Commission.
(d) The term ARegistrable Securities@ means (i) up to
4,500,000 shares of Common Stock of the Company issuable or issued to
those Investors who purchase the Company=s shares of Common Stock
through its private placement offering pursuant to its Private
Placement Memorandum dated January 10, 2002 (the AOffering=) and who
have signed this Agreement, (ii) shares of Common Stock acquired from
the Company by exercise of stock purchase warrants issued by the
Company, as partial compensation, to the Company=s placement agents and
consultants who participate in the Offering (the AHolders@), and (iii)
any Common Stock of the Company issued as a dividend or other
distribution with respect to, or in exchange or in replacement of, such
Common Stock.
(e) The term ARegistration Statement@ means a registration
statement of the Company filed under the Act.
(f) The term A1934 Exchange Act@ means the Securities
Exchange Act of 1934, as amended.
2. REGISTRATION.
(a) Mandatory Registration. (i) The Company shall use its
best efforts to prepare, and, on or before the date that is sixty (60)
days after the closing of the Offering, file with the SEC a
Registration Statement or Registration Statements (as necessary) on
Form S-3 (or, if such form is unavailable for such a registration, on
such other form as is available for such a registration of all of the
Registrable Securities) (any of which may contain a combined prospectus
with other registrations by the Company), covering the resale of all of
the Registrable Securities held by the Investors, which Registration
Statements, to the extent allowable under the 1933 Act and the rules
promulgated thereunder (including without limitation Rule 416), shall
state that such Registration Statement(s) also covers such
indeterminate number of additional shares (the "Indeterminate Shares")
of Common Stock as may become issuable as a dividend or other
distribution with respect to, or in exchange or in replacement of, such
Common Stock.
(b) Piggy-back Registrations. If at any time prior to the
expiration of the Registration Period the Company proposes to file with
the SEC a Registration Statement relating to an offering for its own
account or the account of others under the 1933 Act of any of its
securities (other than on Form S-4 or Form S-8 or their then
equivalents relating to securities to be issued solely in connection
with any
acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans) the
Company shall promptly send to each of the Holders written notice of
the Company's intention to file a Registration Statement and of such
Holder=s rights under this Section 2(b). If within twenty (20) days
after receipt of such notice, a Holder shall so request in writing, the
Company shall include in such Registration Statement all or any part of
the Registrable Securities that the Holder requests to be registered,
subject to the priorities set forth in Section 2(c) below. No right to
registration of Registrable Securities under this Section 2(b) shall be
construed to limit any registration required under Section 2(a) hereof.
The
obligations of the Company under this Section 2(b) may be waived by
each individual Holder holding Registrable Securities, in its sole
discretion, without effect to any other Holder. If an offering in
connection with which a Holder is entitled to registration under this
Section 2(b) is an underwritten offering, then each Holder whose
Registrable Securities are included in such Registration Statement
shall, unless otherwise agreed by the Company, offer and sell such
Registrable Securities in an
underwritten offering using the same underwriter or underwriters and,
subject to the provisions of this Agreement, on the same terms and
conditions as other shares of Common Stock included in such
underwritten offering.
(c) Priority in Piggy-back Registration Rights. If the
registration referred to in Section 2(b) is to be an underwritten
public offering for the account of the Company and the managing
underwriter or underwriters advise the Company in writing that, in
their reasonable good faith opinion, marketing or other factors dictate
that a limitation on the number of shares of Common Stock which may be
included in the
Registration Statement is necessary to facilitate and not adversely
affect the proposed offering, then the Company shall include in such
registration: (i) first, all securities the Company proposes to sell
for its own account, (ii) second, up to the full number of securities
proposed to be registered for the account of the holders of securities
entitled to inclusion of their securities in the Registration Statement
by reason of demand registration rights, (iii) third, the securities
requested to be registered by the Holders, pro rata based on the number
of Registrable Shares each has requested to be included in such
registration, and (iv) fourth, the securities held by other holders of
securities entitled to participate in the registration, drawn from them
pro rata based on the number each has requested to be included in such
registration.
3. OBLIGATIONS OF THE COMPANY. In the case of a mandatory
registration pursuant to Section 2(a) and a piggy-back registration
pursuant to Section 2(b), the Company will, as expeditiously as
practical:
(a) Prepare and file with the Securities and Exchange
Commission a registration statement on Form S-3 with respect to such
Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective; provided,
however, that the Company shall in no event be obligated to cause any
such
registration to remain effective for more than the earlier of sale of
all Registrable Securities covered thereby or two years after the date
which the registration statement was declared or ordered effective.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Investors and Holders such numbers of
copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act, and such other
documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by the registration statement under the securities
or blue sky laws of such other jurisdictions as is reasonably
appropriate for the distribution of the securities covered by the
registration statement, provided that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or
jurisdictions, and further provided that (anything in this Agreement to
the contrary notwithstanding with respect to the bearing of expenses)
if any jurisdiction in which the securities are to be qualified
requires that expenses incurred in connection with the qualification of
the securities in that jurisdiction be borne by selling shareholders
pro rata, each selling Investor or Holder shall pay such costs pro rata
to the extent required by such jurisdiction.
4. FURNISH INFORMATION. It shall be a condition precedent to the
Company=s obligations to take any action that the Investor shall first
furnish to the Company such information regarding them, the Registrable
Securities held by them, and the intended method of disposition of
their securities as the Company shall reasonably request and as is
required in connection with the action to be taken by the Company.
5. EXPENSES OF REGISTRATION.
(a) All expenses incurred in connection with a registration
pursuant to Section 2(a) (excluding underwriters= or securities
broker-dealers= discounts, commissions and expenses), including, without
limitation, all registration and qualification fees, printers= and
accounting fees, and fees and disbursements of counsel for the Company,
shall be borne by the Company.
(b) In the case of any registration effected pursuant to Section
2(b), the Holders shall bear any additional registration and
qualification fees and expenses (including underwriters' discounts,
commissions and expenses), and any additional costs and disbursements
of counsel for the Company that result from the inclusion of securities
held by the Holders in such registration. These additional expenses of
the registration shall be borne by all Holders pro rata on the basis of
the amount of securities so registered; provided, however, if any such
cost or expense is attributable solely to one selling Holder and does
not constitute a normal cost or expense of such a registration, such
cost or expense shall be allocated to that selling Holder. In
addition, each selling Holder shall bear the fees and costs of its own
counsel.
6. UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of Common Stock being issued by the
Company or being sold by persons (the "Initial Sellers") other than the
Holders exercising demand registration rights, the Company shall not be
required under Section 2(b) to include any of the Holders' Registrable
Securities in the underwriting unless they accept the terms of the
underwriting as agreed upon between the Company or the Initial Sellers
and the underwriters selected by it or them, and then only in such
quantity as will not, in the written opinion of the underwriters,
jeopardize the success of the offering by the Company or the Initial
Sellers. If the total amount of securities that all Holders request to
be included in the offering exceeds the amount of securities that the
underwriters reasonably believe compatible with the success of the
offering, the Company shall only be required to include in the offering
so many of the securities of the selling Holders as the underwriters
believe will not jeopardize the success of the offering (the securities
so included to be apportioned pro rata among the selling Holders
according to the total amount of securities owned by them, or in such
other proportions as agreed to by the selling Holders); provided that
no such reduction shall be made with respect to any securities offered
by the Company or the Initial Sellers for its or their own account.
7. DELAY OF REGISTRATION. No Holder shall have any right to take
any action to restrain, enjoin, or otherwise delay any registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
8. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Investor and Holder requesting or joining in a
registration, any underwriter (as defined in the 1933 Securities Act)
for it, and each such person, if any, who controls the Investor or
Holder or underwriter within the meaning of the 1933 Securities Act,
against any losses, claims, damages, or liabilities, joint or several,
to which they may become subject under the 1933 Securities Act or
otherwise, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based on any untrue or
alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading; and will
reimburse each such Investor and Holder, such underwriter, or
controlling person for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld) nor shall
the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in connection with such registration
statement, preliminary prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written
information furnished expressly for use in connection with such
registration by any such Investor or Holder, underwriter, or
controlling person.
(b) To the extent permitted by law, each Investor and Holder
requesting or joining in a registration will indemnify and hold
harmless the Company, each of its directors, each of its officers who
have signed the registration statement, each person, if any, who
controls the Company within the meaning of the 1933 Securities Act, and
each agent and any underwriter for the Company (within the meaning of
the 1933 Securities Act) against any losses, claims, damages, or
liabilities to which the Company or any such director, officer,
controlling person, agent, or underwriter may become subject, under the
1933 Securities Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such registration statement,
preliminary or final prospectus, or amendments or supplements thereto,
in reliance upon and in conformity with written information furnished
by the Investor or Holder expressly for use in connection with such
registration; and each Investor or Holder will reimburse any legal or
other expenses reasonably incurred by the Company or any such director,
officer, controlling person, agent, or underwriter in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in
this paragraph 8(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, or action if such settlement
is effected without the consent of such Investor or Holder (which
consent shall not be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, the indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this paragraph, notify the indemnifying party
in writing of the commencement of the claim and the indemnifying party
shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section, but the omission to so notify the indemnifying party will not
relieve him of any liability that he may have to any indemnified party
otherwise than under this Section.
9. TERMINATION OF THE COMPANY'S OBLIGATIONS. The Company shall
have no obligations pursuant to Section 2(b) with respect to any
request or requests made by any Holder more than two years after the
date of this Agreement, nor shall the Company have any obligation under
Section 2(b) as to any Holder after the Company has offered to include
or has included Registrable Securities in a registration relating to an
initial public offering.
10. REPORTS UNDER EXCHANGE ACT. When the Company is required to
file reports pursuant to the Exchange Act, and with a view to making
available to the Investors or Holders the benefits of Rule 144
promulgated under the 1933 Securities Act and any other rule or
regulation of the Commission that may at any time permit an Investor or
a Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the 1933 Securities Act
and the 1934 Exchange Act; and
(c) furnish to any Holder so long as such Holder owns any of the
Registrable Securities forthwith upon request a written statement by
the Company that it has complied with the reporting requirements of
Rule 144 and of the 1933 Securities Act and the 1934 Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed by the Company as may be
reasonably requested in availing any Investor or Holder of any rule or
regulation of the Commission permitting the selling of any such
securities without registration.
11. LOCKUP AGREEMENT. In consideration for the Company agreeing
to its obligations under this Agreement, each Holder agrees in
connection with any registration of the Company's securities that, upon
the request of the Company or the underwriters managing any
underwritten offering of the Company's securities, not to sell, make
any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those
included in the registration) without the prior written consent of the
Company or such underwriters, as the case may be, for such period of
time (not to exceed ninety (90) days) from the effective date of such
registration as the Company or the underwriters may specify.
12. TRANSFER BY A HOLDER OF REGISTRATION RIGHTS. The
registration rights of a Holder under this Agreement may be transferred
only to those persons to whom the warrants may be transferred, as
described in Section (d) of the stock purchase warrants issued by the
Company in connection with the Offering, and then only if: (i) the
Company is given written notice at the time of the transfer stating the
name and address of the transferee and identifying the securities with
respect to which the rights under this Agreement are being assigned,
and (ii) at or before the time the Company receives the written notice
contemplated by clause (i) of this sentence, the transferee agrees in
writing with the Company to be bound by all of the provisions contained
herein.
13. MISCELLANEOUS.
(a) Entire Agreement. This Agreement the documents referred to
herein, and the placement agent and consulting agreements applicable to
Holders, constitute the entire agreement among the parties and no party
shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set
forth herein or therein. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any third party any
rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
(b) Governing Law. This Agreement shall be governed by and
construed under the laws of the state of Colorado.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(d) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and
shall be personally delivered, transmitted via facsimile or overnight
courier service or mailed first-class postage prepaid, registered or
certified mail. The addresses and facsimile numbers for such
communications shall be:
To the Company: Rentech, Inc.
1331 17th Street, Suite 720
Denver, CO 80202
If to an Investor or Holder, to their address and facsimile number
set forth on that person=s signature page.
Such notices and other communications shall for all purposes of
this Agreement be treated as being effective or having been given on
the date when personally delivered or when transmitted by facsimile (if
confirmation of facsimile receipt has been given), on the date after
being deposited with an overnight courier service, or, if sent by mail,
three days after deposit in the United States mail, postage prepaid.
Any party may change its address for notice by notifying the other
party pursuant to the above notice provisions.
(f) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively), with the written consent of the Company and the
holders of at least seventy percent (70%) of the outstanding shares of
the Registrable Securities. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Investor and
Holder, each future holder of all such securities, and the Company.
(g) Effect of Amendment or Waiver. Each Investor and Holder
acknowledges that by the operation of Section 13(f) hereof, the holders
of seventy percent (70%) of the Registrable Securities will have the
right and power to diminish or eliminate all rights of an Investor or
Holder under this Agreement.
(h) Rights of Investors and Holders. Each Investor and Holder
shall have the absolute right to exercise or refrain from exercising
any right or rights that they may have by reason of this Agreement,
including, without limitation, the right to consent to the waiver of
any obligation of the Company under this Agreement and to enter into an
agreement with the Company for the purpose of modifying this Agreement
or any agreement effecting any such modification. No Investor or
Holder shall incur any liability to any other Investors or Holders with
respect to exercising or refraining from exercising any of these
rights.
(i) Time of Essence. Time is of the essence regarding
performance of all terms, provisions and conditions contained in this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
COMPANY:
RENTECH, INC.
By:
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