PLACEMENT AGENCY
AGREEMENT
Brean Murray,
Carret & Co., LLC
570 Lexington Avenue
New York, NY 10022
Rentech, Inc., a
Colorado corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell up to 11,111,000 shares (the “ Shares
”) of the Company’s common stock, par value $0.01 per
share (the “ Common Stock ”) directly to various
investors (the “ Investors ”) in a transaction
in which Brean Murray, Carret & Co., LLC (the “
Placement Agent ”) will act as placement
agent.
The Company and
the Placement Agent hereby confirm their agreement as
follows:
1. Agreement to Act as Placement Agent .
On the basis of the representations, warranties and agreements of
the Company herein contained, and subject to all the terms and
conditions of this Agreement, the Placement Agent shall serve as
the exclusive placement agent in connection with the issuance and
sale by the Company of the Shares from the Registration Statement
(as defined in Section 2 below), with the terms of such
offering (the “ Offering ”) to be subject to
market conditions and negotiations between the Company, the
Placement Agent and the Investors. The Placement Agent shall act on
a best efforts basis and does not guarantee that it will be able to
sell the Shares in the prospective Offering. As compensation for
services rendered, on the Closing Date (as defined below), the
Company shall pay to the Placement Agent an aggregate amount equal
to 3.5% of the gross proceeds received by the Company from the sale
of such Shares. The purchase price to the Investors for each Share
is US$1.80 (the “ Offering Price ”). The term of
the Placement Agent’s exclusive engagement will be five
(5) days from the date hereof (the “ Exclusive
Term ”). The Placement Agent will be entitled to collect
all fees earned through termination.
2. Registration Statement and Final Prospectus .
The Company has prepared and filed with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on Form S-3 (File No. 333-158256) under the
Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations (the “
Rules and Regulations ”) of the Commission thereunder,
and such amendments to such registration statement (including any
post-effective amendments) as may have been required to the date of
this Agreement. Such registration statement, as amended (including
any post-effective amendments), has been declared effective by the
Commission. Such registration statement, as amended (including any
post-effective amendments), the exhibits and any schedules thereto
and the documents and information otherwise deemed to be a part
thereof or included therein by the Securities Act or otherwise
pursuant to the Rules and Regulations, is herein called the “
Registration Statement .” If the Company has filed or
files an abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the “ Rule 462 Registration
Statement ”), then any reference herein to the term
Registration Statement shall include such Rule 462
Registration Statement. The Company will
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file with the
Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement relating to the Shares to the form of
prospectus included in the Registration Statement. Such prospectus
in the form in which it appears in the Registration Statement is
hereinafter called the “ Base Prospectus ,” and
the final prospectus supplement as filed, along with the Base
Prospectus, is hereinafter called the “ Final
Prospectus .”
For purposes of
this Agreement, all references to the Registration Statement, the
Rule 462 Registration Statement, the Base Prospectus, the
Final Prospectus, or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Interactive Data Electronic Applications
system. All references in this Agreement to amendments or
supplements to the Registration Statement, the Rule 462
Registration Statement, the Base Prospectus, or the Final
Prospectus shall be deemed to mean and include the subsequent
filing of any document under the Securities Exchange Act of 1934,
as amended (the “ Exchange Act ”), that is
deemed to be incorporated therein by reference or otherwise deemed
by the Rules and Regulations to be a part thereof.
3. Representations and Warranties Regarding the
Offering.
(a) The
Company represents and warrants to, and agrees with, the Placement
Agent, as of the date hereof and as of the Closing Date, except as
otherwise indicated, as follows:
(i)
At the time of effectiveness, at the date hereof and at the Closing
Date, the Registration Statement complied or will comply in all
material respects with the requirements of the Securities Act and
the Rules and Regulations and did not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. The Time of Sale Disclosure
Package (as defined below) as of the date hereof and at the Closing
Date, and the Final Prospectus, as amended or supplemented, at the
time of filing pursuant to Rule 424(b) under the Securities Act and
at the Closing Date, did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth
in the two immediately preceding sentences shall not apply to
statements in or omissions from the Registration Statement or any
post-effective amendment thereto or the Final Prospectus in
reliance upon, and in conformity with, written information
furnished to the Company by the Placement Agent specifically for
use in the preparation thereof. The Registration Statement contains
all exhibits and schedules required to be filed by the Securities
Act or the Rules and Regulations. No order preventing or suspending
the effectiveness or use of the Registration Statement or the Final
Prospectus is in effect and no proceedings for such purpose have
been instituted or are pending, or, to the knowledge of the
Company, are threatened in writing by the Commission.
(ii)
The documents incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act,
as
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applicable,
were filed on a timely basis with the Commission and none of such
documents, when they were filed (or, if amendments to such
documents were filed, when such amendments were filed), contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Any further documents so filed and incorporated by
reference in the Registration Statement, the Time of Sale
Disclosure Package or the Final Prospectus, when such documents are
filed with the Commission, will conform in all material respects to
the requirements of the Exchange Act, and will not contain an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. As used
in this paragraph and elsewhere in this Agreement, “ Time
of Sale Disclosure Package ” means the Final Prospectus,
any subscription agreement between the Company and the Investors,
and any issuer free writing prospectus as defined in Rule 433
of the Act (each, an “ Issuer Free Writing Prospectus
”), if any, identified in Schedule I hereto, that
the parties hereto shall hereafter expressly agree in writing to
treat as part of the Disclosure Package.
(iii)
The financial statements of the Company, together with the related
notes, included or incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus comply in all material respects with the requirements of
the Securities Act and the Exchange Act and fairly present in all
material respects the financial condition of the Company as of the
dates indicated and the results of operations and changes in cash
flows for the periods therein specified in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved; and the supporting schedules
included in the Registration Statement present fairly in all
material respects the information required to be stated therein. No
other financial statements or schedules are required to be included
in the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus. To the Company’s knowledge, Ehrhardt
Keefe Steiner & Hottman P.C. and PricewaterhouseCoopers LLP are
independent public accounting firms with respect to the Company
within the meaning of the Securities Act and the Rules and
Regulations.
(iv)
The Company had a reasonable basis for, and made in good faith,
each “forward-looking statement” (within the meaning of
Section 27A of the Act or Section 21E of the Exchange
Act) contained or incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package or the Final
Prospectus.
(v)
All statistical or market-related data included or incorporated by
reference in the Registration Statement, the Time of Sale
Disclosure Package or the Final Prospectus are based on or derived
from sources that the Company reasonably believes to be reliable
and accurate, and the Company has obtained the written consent to
the use of such data from such sources, to the extent
required.
(vi)
To the knowledge of the Company, there is no action pending to
delist the Common Shares from NYSE Amex LLC (“ NYSE
Amex ”), nor has the Company received any written
notification that NYSE Amex is currently contemplating terminating
such listing. When issued, the Shares will be listed on NYSE
Amex.
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(vii)
The Shares have been or will be qualified for sale under the
securities laws of such United States jurisdictions as the
Placement Agent reasonably determines, or are or will be exempt
from the qualification requirements of such jurisdictions; provided
that the Company shall not be required to (A) qualify as a
foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to
so qualify, (B) file any general consent to service of process
in any such jurisdiction, or (C) subject itself to taxation in
any such jurisdiction if it is not otherwise so subject.
(viii)
The Company has not taken, directly or indirectly, any action that
is designed to or that has constituted or that would reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale of
the Shares.
(ix)
The Company is not an “ ineligible issuer ,” as
defined in Rule 405 of the Securities Act. Subject to Section
6(d) below, the Company represents and warrants that it has not
prepared or had prepared on its behalf or used or referred to any
Issuer Free Writing Prospectus in connection with the Offering.
Subject to Section 6(d) below, the Company has not distributed and
the Company will not distribute, prior to the completion of the
distribution of the Shares, any offering material in connection
with the Offering other than subscription agreements between the
Company and the Investors and the Base Prospectus, the Final
Prospectus, the Registration Statement, and copies of the
documents, if any, incorporated by reference therein.
(x)
The Company is not and, after giving effect to the offering and
sale of the Shares, will not be required to register as an
“investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
(b) Any
certificate signed by any officer of the Company and delivered to
the Placement Agent or to the Placement Agent’s counsel in
connection with this Offering shall be deemed a representation and
warranty by the Company to the Placement Agent as to the matters
covered thereby.
4. Representations and Warranties Regarding the
Company.
(a) The
Company represents and warrants to and agrees with, the Placement
Agent, except as set forth in the Registration Statement, the Time
of Sale Disclosure Package and the Final Prospectus, as
follows:
(i)
The Company and each of its subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. The Company and each of
its subsidiaries has the corporate power and authority to own its
properties and conduct its business as currently being carried on
and as described in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus, and is duly qualified
to do business as a foreign corporation in good standing in each
jurisdiction in which it owns or leases real property or in which
the conduct of its business makes such qualification necessary and
in which the failure to so
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qualify would
have or is reasonably likely to result in a material adverse effect
upon the business, properties, operations, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, or in its ability to perform its
obligations under this Agreement (“ Material Adverse
Effect ”).
(ii)
The Company has the corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid, legal and
binding obligation of the Company, enforceable in accordance with
its terms, except as rights to indemnity hereunder may be limited
by federal or state laws and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity.
(iii)
The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not
(A) result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any law, rule or
regulation to which the Company or any subsidiary is subject, or by
which any property or asset of the Company or any subsidiary is
bound or affected, (B) conflict with, result in any violation
or breach of, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to
others any right of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of,
any agreement, lease, credit facility, debt, note, bond, mortgage,
indenture or other instrument or binding obligation or other
binding understanding (the “ Contracts ”) to
which the Company or any subsidiary is a party of by which any
property or asset of the Company or any subsidiary is bound or
affected, or (C) result in a breach or violation of any of the
terms and provisions of, or constitute a default under, the
Company’s charter or bylaws, except in the case of clauses
(A) and (B) such breaches, violations, defaults, or
conflicts which do not individually or in the aggregate be
reasonably likely to result in a Material Adverse
Effect.
(iv)
All consents, approvals, orders, authorizations and filings
required on the part of the Company and its subsidiaries in
connection with the execution, delivery or performance of this
Agreement have been obtained or made, other than such consents,
approvals, orders and authorizations the failure of which to make
or obtain is not reasonably likely to result in a Material Adverse
Effect.
(v)
All of the issued and outstanding shares of capital stock of the
Company are duly authorized and validly issued, fully paid and
nonassessable, and have been issued in material compliance with all
applicable securities laws, and conform in all material respects to
the description thereof in the Registration Statement, the Time of
Sale Disclosure Package and the Final Prospectus. Except for the
issuances of options or restricted stock or restricted stock units
in the ordinary course of business, since the respective dates as
of which information is provided in the Registration Statement, the
Time of Sale Disclosure Package or the Final Prospectus, the
Company has not entered into or granted any convertible or
exchangeable securities, options, warrants, agreements, contracts
or other rights in existence to purchase or acquire from the
Company any shares of the capital stock of the Company. The Shares,
when issued, will be duly authorized
5
and validly
issued, fully paid and nonassessable, issued in material compliance
with all applicable securities laws, and free of preemptive,
registration or similar rights.
(vi)
Except as set forth in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus and except for SilvaGas
Corporation, the Company does not own, directly or indirectly, a
majority of the capital stock or other ownership interest in any
partnership, corporation, business trust, limited liability
company, limited liability partnership, joint stock company, trust,
unincorporated association, joint venture or other
entity.
(vii)
Each of the Company and its subsidiaries has filed all foreign,
federal, state and local returns (as hereinafter defined) required
to be filed with taxing authorities prior to the date hereof or has
duly obtained extensions of time for the filing thereof. Each of
the Company and its subsidiaries has paid all taxes (as hereinafter
defined) shown as due on such returns that were filed and has paid
all taxes imposed on or assessed against the Company or such
respective subsidiary. The term “ taxes ” mean
all federal, state, local, foreign, and other net income, gross
income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, lease, service, service use,
withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, windfall profits, customs, duties or
other taxes, fees, assessments, or charges of any kind whatever,
together with any interest and any penalties, additions to tax, or
additional amounts with respect thereto. The term “
returns ” means all returns, declarations, reports,
statements, and other documents required to be filed in respect to
taxes.
(viii)
Since the respective dates as of which information is given in the
Registration Statement, the Time of Sale Disclosure Package or the
Final Prospectus, (a) neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations,
direct or contingent, required to be reflected on a balance sheet
in accordance with generally accepted accounting principles, or
entered into any material transactions other than in the ordinary
course of business, (b) the Company has not declared or paid
any dividends or made any distribution of any kind with respect to
its capital stock; (c) there has not been any change in the
capital stock of the Company or any of its subsidiaries (other than
a change in the number of outstanding shares of Common Stock due to
the issuance of shares upon the exercise of outstanding options or
warrants or the issuance of restricted stock awards or restricted
stock units under the Company’s existing stock awards plan,
or any new grants thereof in the ordinary course of business),
(d) there has not been any material change in the
Company’s long-term or short-term debt, and (e) there
has not been the occurrence of any Material Adverse
Effect.
(ix)
There is not pending or, to the knowledge of the Company,
threatened, any action, suit or proceeding to which the Company or
any of its subsidiaries is a party or of which any property or
assets of the Company is the subject before or by any court or
governmental agency, authority or body, or any arbitrator or
mediator, which is reasonably likely to result in a Material
Adverse Effect.
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(x)
The Company and each of its subsidiaries holds, and is in
compliance with, all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders (“
Permits ”) of any governmental or self-regulatory
agency, authority or body required for the conduct of its business,
and all such Permits are in full force and effect, in each case
except where the failure to hold, or comply with, any of them is
not reasonably likely to result in a Material Adverse
Effect.
(xi)
The Company and its subsidiaries have good and marketable title to
all property (whether real or personal) described in the
Registration Statement, the Time of Sale Disclosure Package and the
Final Prospectus as being owned by them that are material to the
business of the Company, in each case free and clear of all liens,
claims, security interests, other encumbrances or defects, except
those that are not reasonably likely to result in a Material
Adverse Effect. The property held under lease by the Company and
its subsidiaries is held by them under valid, subsisting and
enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with
the conduct of the business of the Company or its
subsidiaries.
(xii)
The Company and each of its subsidiaries owns or possesses or has
valid right to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, inventions, trade secrets and
similar rights (“ Intellectual Property ”)
necessary for the conduct of the business of the Company and its
subsidiaries as currently carried on and as described in the
Registration Statement, the Time of Sale Disclosure Package and the
Final Prospectus, except those the absence of which are not
reasonably likely to result in a Material Adverse Effect. To the
knowledge of the Company, no action or use by the Company or any of
its subsidiaries will involve or give rise to any infringement of,
or license or similar fees for, any Intellectual Property of
others, except where such action, use, license or fee is not
reasonably likely to result in a Material Adverse Effect. Neither
the Company nor any of its subsidiaries has received any written
notice alleging any such material infringement or fee.
(xiii)
The Company and each of its subsidiaries has complied with, is not
in violation of, and has not received any written notice of
violation relating to any applicable law, rule or regulation
relating to the conduct of its business, or the ownership or
operation of its property and assets, including, without limitation
(to the extent applicable), (A) the Currency and Foreign
Transactions Reporting Act of 1970, as amended, or any money
laundering laws, rules or regulations, (B) any laws, rules or
regulations related to health, safety or the environment, including
those relating to the regulation of hazardous substances,
(C) the Sarbanes-Oxley Act and the rules and regulations of
the Commission thereunder, (D) the Foreign Corrupt Practices
Act of 1977 and the rules and regulations thereunder, and
(E) the Employment Retirement Income Security Act of 1974 and
the rules and regulations thereunder, in each case except where the
failure to be in compliance is not reasonably likely to result in a
Material Adverse Effect.
(xiv)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, employee,
representative, agent or
7
affiliate of
the Company or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“ OFAC
”);
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