Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof as of the date hereof and as of the Closing Date as though then made and the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions: (a) On or prior to the date of the Subscription Agreements, the Placement Agent shall have received a letter, dated the date of delivery thereof, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C. substantially in the form of Exhibit B-1 hereto. (b) On or prior to the date of the Subscription Agreements, the Placement Agent shall have received a letter, dated the date of delivery thereof, of KPMG LLP substantially in the form of Exhibit B-2 hereto. (c) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Placement Agent, shall be contemplated by the Commission. (d) Subsequent to the execution of the Subscription Agreements, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of the Placement Agent, is material and adverse and makes it impractical or inadvisable to proceed with completion of the sale of and payment for by the Purchasers of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Placement Agent, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Securities in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on either the New York Stock Exchange or the Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Placement Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the sale of and payment by the Purchasers for the Securities. (e) The Placement Agent shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that: (i) Based on certificates from public officials, the Company is qualified to do business in California; (ii) Based solely on a certificate of an officer of the Company as to factual matters and a review of a list of specified agreements attached as an exhibit to such opinion (the “Specified Agreements”), the Company is not a party to any agreement that would require the inclusion in either Registration Statement of Common Stock or other securities owned by any person or entity other than the Company, other than such Specified Agreements for which the Company has a written waiver from the other party to such agreement waiving its rights to require the inclusion of its Common Stock or other securities in each Registration Statement; (iii) The Company is not, and immediately after giving effect to the sale of the Securities in accordance with the Subscription Agreements and the application of the proceeds as described in the General Disclosure Package and in the Prospectus 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; (iv) The execution and delivery of the this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the Securities by the Company to the Purchasers pursuant to the Subscription Agreements on the date hereof do not: (A) result in the breach of or a default under any of the Specified Agreements; or (B) violate any federal or New York statute, rule or regulation applicable to the Company; or (C) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company that have not been obtained or made; (v) The Registration Statements have become effective under the Securities Act. Based solely on a telephonic confirmation by a member of the Staff of the Commission on the Closing Date, such counsel confirms that no stop order suspending the effectiveness of the Registration Statement, or any part thereof, has been issued under the Securities Act and no proceedings therefor have been initiated or are pending by the Commission. Any required filing of the Prospectus pursuant to Rule 424 under the Securities Act has been made in accordance with Rule 424 under the Securities Act; (vi) Each Registration Statement, as of the date of the Prospectus, and the Prospectus, as of its date, appeared on their face to be appropriately responsive in all material respects to the requirements for registration statements on Form S-3 under the Securities Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel expresses no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in each Registration Statement and the Prospectus are correct and complete; (vii) Based solely upon a certificate of an officer of the Company as to factual matters, there are no contracts or documents of a character required to be described in the Registration Statements or Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed; (viii) The statements in the Prospectus under the caption “Description of the Warrants” are accurate in all material respects; (ix) Based on the participation, review and reliance as described by such counsel in the letter it delivers to the Placement Agent, such counsel shall advise the Placement Agent that no facts came to their attention that caused them to believe that: (A) the Registration Statements, on the date of the Prospectus, including the information deemed to be a part of the applicable Registration Statement pursuant to Rule 430B under the Securities Act (together with the incorporated documents at that time), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Statutory Prospectus, as of the Applicable Time (together with the incorporated documents at that date), when taken together with the pricing information listed in Annex A to such letter, 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; or (C) the Prospectus, as of its date or as of the date hereof, (together with the incorporated documents at that those dates), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express a belief with respect to the financial statements, schedules, or other financial data included or incorporated by reference in, or omitted from, the Registration Statements, any Statutory Prospectus, the pricing information listed in Annex A to such counsel’s letter, the Prospectus, or the Incorporated Documents. (f) The Placement Agent shall have received an opinion, dated the Closing Date, of Holland & ▇▇▇▇ LLP, counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) Each of Rentech Services Corporation and Rentech Development Corporation has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus and the Officers’ Certificate. Sand Creek Energy, LLC has been duly formed and is an existing limited liability company in good standing under the laws of the State of Colorado, with the limited liability company power and authority to own its properties and conduct its business as described in the Manager’s Certificate; (iii) The shares of Common Stock described in the introductory paragraph of this Agreement have been duly authorized and, when such shares are delivered and paid for in accordance with the Subscription Agreements on the Closing Date, such shares will be validly issued, fully paid and nonassessable; such shares will be accompanied by the Rights; and the shareholders of the Company have no preemptive rights with respect to such shares offered pursuant to the Prospectus under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act; (iv) The shares of Common Stock initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such exercise in accordance with the Warrants, will be validly issued, fully paid and nonassessable; as of the date hereof, such shares would be accompanied by the Rights; and as of the date hereof, the shareholders of the Company have no preemptive rights with respect to the Warrants or such shares, under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act; (v) The statements in the Prospectus under the captions “Description of Common Stock” and “Certain Provisions of Colorado Law and Our Charter and Bylaws,” to the extent that they purport to describe or summarize certain provisions of the Articles of Incorporation or Bylaws or Colorado law referred to therein, are accurate descriptions or summaries in all material respects; (vi) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the sale of the shares described in (iii) and (iv) above and the Warrants will not result in a breach or violation of the Articles of Incorporation or bylaws of the Company, and the Company has full corporate power and authority to authorize, issue and sell such shares and Warrants as contemplated by this Agreement, the Warrants and the Subscription Agreements; (vii) This Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements have been duly authorized, executed and delivered by the Company; (viii) The issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants does not require any consent, approval, or authorization to be obtained by the Company from, or any registrations or filings to be made by the Company with, any governmental authority under any Colorado statute, rule or regulation applicable to the Company, except such as may be required under the Colorado Securities Act, as amended, and except with respect to any consent, approval, authorization, registrations or filings as may be required as a result of the Company’s properties and the nature of the business as conducted by the Company; and (ix) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants will not result in a breach or violation of any statute, rule or regulation of the State of Colorado, except that no opinion need be expressed as to securities registration requirements or as to any statute, rule or regulation that applies as a result of the properties of the Company or its subsidiaries or the nature of the business as conducted by the Company or its subsidiaries. (g) The Placement Agent shall have received from Proskauer Rose LLP, counsel for the Placement Agent, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Registration Statements, the General Disclosure Package, the Prospectus and other related matters as the Placement Agent may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (h) The Placement Agent shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state, on behalf of the Company, that: (i) the representations and warranties of the Company in this Agreement are true and correct; (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission; (iv) subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate; and (v) such other information as the Placement Agent may reasonably request. (i) The Placement Agent shall have received a letter, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection. (j) The Placement Agent shall have received a letter, dated the Closing Date, of KPMG LLP which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three d
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder to place the Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company herein set forth in Section 2 hereof as of the date hereof and as of the First Closing Date or the Second Closing Date, as though then made and the case may be, to the accuracy of the statements of officers of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) On or The Registration Statement shall have become effective either prior to the date execution of this Agreement or not later than 2:00 P.M., New York City Time, on the Subscription Agreements, the Placement Agent shall have received a letter, dated first full business day after the date of delivery thereofthis Agreement, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C. substantially or such later time as shall have been consented to by you but in no event later than 2:00 P.M., New York City Time, on the form of Exhibit B-1 hereto.
(b) On or third full business day following the date hereof; and prior to the date of First Closing Date or the Subscription AgreementsSecond Closing Date, as the Placement Agent shall have received a lettercase may be, dated the date of delivery thereof, of KPMG LLP substantially in the form of Exhibit B-2 hereto.
(c) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No no stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company or the Placement Agentyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A and/or Rule 434, the information concerning the initial public offering price of the Shares and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) within the prescribed period and the Company will provide evidence satisfactory to the Placement Agent of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky laws of such states as shall have been specified by the Placement Agent.
(c) The legality and sufficiency of the authorization, issuance and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Placement Agent exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact that, in the opinion of counsel for the Placement Agent, is material or omits to state a fact that, in the opinion of such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of the Subscription Agreementsthis Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in or affecting particularly the condition (financial business or other)properties of the Company, whether or not arising in the ordinary course of business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of the Placement Agent, is material and adverse and makes it impractical or inadvisable to proceed with completion of the sale of and payment for by the Purchasers of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Placement Agent, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Securities in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on either the New York Stock Exchange or the Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Placement Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the sale public offering or placement of and payment by the Purchasers for the SecuritiesShares as contemplated hereby.
(ef) The Placement Agent There shall have received an opinion, dated been furnished to you on the First Closing Date or the Second Closing Date, as the case may be, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, P.A., counsel for the Company, addressed to the Placement Agent and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(i1) Based on certificates from public officials, the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with corporate power and authority to own its properties and conduct its business as described in the Prospectus; and the Company has been duly qualified to do business as a foreign corporation under the corporation law of, and is in Californiagood standing as such in, each of the jurisdictions specified in Schedule B, except where the failure so to qualify would not have a material adverse effect upon the condition (financial or otherwise) or results of operations of the Company;
(ii2) Based solely on a certificate the authorized capital stock of an officer the Company, of which there is outstanding the amount set forth in the Registration Statement and Prospectus (except for subsequent issuances, if any, pursuant to stock options or other rights referred to in the Prospectus), conforms as to legal matters in all material respects to the description thereof in the Registration Statement and Prospectus;
(3) the issued and outstanding capital stock of the Company as to factual matters has been duly authorized and a review of a list of specified agreements attached as an exhibit to such opinion (the “Specified Agreements”), the Company validly issued and is not a party to any agreement that would require the inclusion in either Registration Statement of Common Stock or other securities owned by any person or entity other than the Company, other than such Specified Agreements for which the Company has a written waiver from the other party to such agreement waiving its rights to require the inclusion of its Common Stock or other securities in each Registration Statementfully paid and nonassessable;
(iii4) The Company is notthe certificates for the Shares to be delivered hereunder are in due and proper form, and immediately after giving effect when duly countersigned by the Company's transfer agent and delivered to the sale you or upon your order against payment of the Securities agreed consideration therefor in accordance with the Subscription Agreements and the application provisions of the proceeds as described in the General Disclosure Package and in the Prospectus 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;
(iv) The execution and delivery of the this Agreement, the WarrantsShares represented thereby will be duly authorized and validly issued, the Escrow Agreement fully paid and the Subscription Agreements and the issuance and sale of the Securities by the Company to the Purchasers pursuant to the Subscription Agreements on the date hereof do not:
(A) result in the breach of or a default under any of the Specified Agreements; or
(B) violate any federal or New York statute, rule or regulation applicable to the Company; or
(C) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company that have not been obtained or madenonassessable;
(v5) The the Registration Statements have Statement has become effective under the Securities 1933 Act. Based solely on a telephonic confirmation by a member , and, to the best knowledge of the Staff of the Commission on the Closing Datesuch counsel, such counsel confirms that no stop order suspending the effectiveness of the Registration Statement, or any part thereof, Statement has been issued under the Securities Act and no proceedings therefor for that purpose have been initiated instituted or are pending by the Commission. Any required filing of the Prospectus pursuant to Rule 424 or contemplated under the Securities Act has been made in accordance with Rule 424 under the Securities 1933 Act;
(vi) Each Registration Statement, as of the date of the Prospectus, and the Prospectus, as of its date, appeared on their face to be appropriately responsive in all material respects to the requirements for registration statements on Form S-3 under the Securities Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel expresses no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in each Registration Statement and the Prospectus are correct and complete;
(vii) Based solely upon a certificate of an officer of the Company as to factual matters, there are no contracts or documents of a character required to be described in the Registration Statements or Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed;
(viii) The statements in the Prospectus under the caption “Description of the Warrants” are accurate in all material respects;
(ix) Based on the participation, review and reliance as described by such counsel in the letter it delivers to the Placement Agent, such counsel shall advise the Placement Agent that no facts came to their attention that caused them to believe that:
(A) the Registration Statements, on the date of the Prospectus, including the information deemed to be a part of the applicable Registration Statement at the time of effectiveness pursuant to Rule 430B under 430A(b) and/or Rule 434, if applicable), the Securities Act Prospectus and each amendment or supplement thereto (together except for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the incorporated documents requirements of the 1933 Act;
(6) such counsel have no reason to believe that either the Registration Statement (including the information deemed to be part of the Registration Statement at that timethe time of effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) or the Prospectus, or the Registration Statement or the Prospectus as amended or supplemented (except as aforesaid), as of their respective effective or issue dates, contained an any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(B) misleading or that the Statutory ProspectusProspectus as amended or supplemented, if applicable, as of the Applicable Time (together with First Closing Date or the incorporated documents at that date)Second Closing Date, when taken together with as the pricing information listed in Annex A to such lettercase may be, contained an any untrue statement of a material fact or omitted to state a any material fact necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made; provided, not misleading; or
(C) the Prospectushowever, as of its date or as of the date hereof, (together with the incorporated documents at that those dates), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any opinion as to the financial statements or other statistical or financial data included in the Registration Statement or Prospectus;
(7) the statements in the Registration Statement and the Prospectus, as amended or supplemented, summarizing statutes, rules and regulations are accurate and fairly and correctly present the information required to be presented by the 1933 Act or the rules and regulations thereunder, in all material respects and such counsel does not know of any statutes, rules and regulations required to be described or referred to in the Registration Statement or the Prospectus that are not described or referred to therein as required; and such counsel does not know of any legal or governmental proceedings pending or threatened required to be described in the Prospectus that are not described as required, nor of any contracts or documents of a belief character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed, as required;
(8) the statements under the captions "Management—2000 Stock Compensation Plan," "Management—Stock Option Plan for Nonemployee Directors," "Certain Relationships and Related Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" in the Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present, in all material respects, the information called for with respect to such documents and matters;
(9) this Agreement and the financial statementsperformance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, schedulesand is a legal, valid and binding agreement of the Company, except as enforceability of the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights and by the exercise of judicial discretion in accordance with general principles applicable to equitable and similar remedies and except as to those provisions relating to indemnities for liabilities arising under the 1933 Act as to which no opinion need be expressed; and no approval, authorization or consent of any public board, agency, or instrumentality of the United States or of any state or other jurisdiction is necessary in connection with the issue or sale of the Shares by the Company pursuant to this Agreement (other than under the 1933 Act, applicable blue sky laws and the rules of the NASD) or the consummation by the Company of any other transactions contemplated hereby;
(10) the execution and performance of this Agreement will not contravene any of the provisions of, or result in a default under, any agreement, franchise, license, indenture, mortgage, deed of trust, or other financial data included or incorporated by reference in, or omitted from, the Registration Statements, any Statutory Prospectus, the pricing information listed in Annex A instrument known to such counsel’s letter, of the Company or by which any of its property is bound and which contravention or default would be material to the Company; or violate any of the provisions of the articles of incorporation or bylaws of the Company or, so far as is known to such counsel, violate any statute, order, rule or regulation of any regulatory or governmental body having jurisdiction over the Company;
(11) to such counsel's knowledge, based solely on certificates of responsible officers of the Company as to the facts concerning such offers and sales, all offers and sales of the Company's capital stock since September 30, 1999 were at all relevant times exempt from the registration requirements of the 1933 Act and were duly registered or the subject of an available exemption from the registration requirements of the applicable state securities or blue sky laws;
(12) the Company is not an "investment company" or a person "controlled by" an "investment company" within the meaning of the Investment Company Act. In rendering such opinion, such counsel may state that they are relying upon the certificate of ▇▇▇▇▇ Fargo Shareowner Services, the Prospectustransfer agent for the Common Stock, as to the number of shares of Common Stock at any time or times outstanding, and that insofar as their opinion under clause (6) above relates to the Incorporated Documentsaccuracy and completeness of the Prospectus and Registration Statement, it is based upon a general review with the Company's representatives and independent accountants of the information contained therein, without independent verification by such counsel of the accuracy or completeness of such information. Such counsel may also rely upon the opinions of other competent counsel and, as to factual matters, on certificates of officers of the Company and of state officials, in which case their opinion is to state that they are so doing and copies of said opinions or certificates are to be attached to the opinion unless said opinions or certificates (or, in the case of certificates, the information therein) have been furnished to the Placement Agent in other form.
(fii) The Placement Agent shall have received an opinion, dated the Closing Date, Such opinion or opinions of Holland Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the CompanyPlacement Agent, to dated the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under First Closing Date or the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) Each of Rentech Services Corporation and Rentech Development Corporation has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus and the Officers’ Certificate. Sand Creek Energy, LLC has been duly formed and is an existing limited liability company in good standing under the laws of the State of Colorado, with the limited liability company power and authority to own its properties and conduct its business as described in the Manager’s Certificate;
(iii) The shares of Common Stock described in the introductory paragraph of this Agreement have been duly authorized and, when such shares are delivered and paid for in accordance with the Subscription Agreements on the Second Closing Date, such shares will be validly issued, fully paid and nonassessable; such shares will be accompanied by as the Rights; and the shareholders of the Company have no preemptive rights with respect to such shares offered pursuant to the Prospectus under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(iv) The shares of Common Stock initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such exercise in accordance with the Warrants, will be validly issued, fully paid and nonassessable; as of the date hereof, such shares would be accompanied by the Rights; and as of the date hereof, the shareholders of the Company have no preemptive rights with respect to the Warrants or such shares, under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(v) The statements in the Prospectus under the captions “Description of Common Stock” and “Certain Provisions of Colorado Law and Our Charter and Bylaws,” to the extent that they purport to describe or summarize certain provisions of the Articles of Incorporation or Bylaws or Colorado law referred to therein, are accurate descriptions or summaries in all material respects;
(vi) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the sale of the shares described in (iii) and (iv) above and the Warrants will not result in a breach or violation of the Articles of Incorporation or bylaws of the Company, and the Company has full corporate power and authority to authorize, issue and sell such shares and Warrants as contemplated by this Agreement, the Warrants and the Subscription Agreements;
(vii) This Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements have been duly authorized, executed and delivered by the Company;
(viii) The issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants does not require any consent, approval, or authorization to be obtained by the Company from, or any registrations or filings to be made by the Company with, any governmental authority under any Colorado statute, rule or regulation applicable to the Company, except such as case may be required under the Colorado Securities Act, as amended, and except with respect to any consent, approval, authorization, registrations or filings as may be required as a result of the Company’s properties and the nature of the business as conducted by the Company; and
(ix) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants will not result in a breach or violation of any statute, rule or regulation of the State of Colorado, except that no opinion need be expressed as to securities registration requirements or as to any statute, rule or regulation that applies as a result of the properties of the Company or its subsidiaries or the nature of the business as conducted by the Company or its subsidiaries.
(g) The Placement Agent shall have received from Proskauer Rose LLP, counsel for the Placement Agent, such opinion or opinions, dated the Closing Datebe, with respect to the incorporation of the Company, the validity of the SecuritiesShares to be sold by the Company, the Registration Statements, the General Disclosure Package, Statement and the Prospectus and other related matters as the Placement Agent you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(hiii) The Placement Agent shall have received a certificate, dated the Closing Date, A certificate of the President or any Vice President chief executive officer and a the principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state, on behalf of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(i1) the representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct;
(ii) correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date;; and
(iii2) the Commission has not issued an order preventing or suspending the use of the Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated by under the Commission;1933 Act. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (1) and (2) of this subparagraph to be set forth in said certificate.
(iv) subsequent to At the date time the effectiveness of the most recent financial statements in Registration Statement and also on the General Disclosure Package, there has been no material adverse change, nor any development First Closing Date or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate; and
(v) such other information as the Placement Agent may reasonably request.
(i) The Placement Agent shall have received a letter, dated the Second Closing Date, as the case may be, there shall be delivered to you a letter addressed to you from each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ PC which meets LTD, independent accountants, the requirements first one to be dated the date of subsection the effectiveness of the Registration Statement, the second one to be dated the First Closing Date and the third one (ain the event of a second closing) of this Sectionto be dated the Second Closing Date, except that to the effect set forth in Schedule A. There shall not have been any change or decrease specified date in the letters referred to in such subsection will be a date not more than three days prior this subparagraph which makes it impractical or inadvisable in the judgment of the Placement Agent to proceed with the Closing Date for public offering or placement of the purposes of this subsectionShares as contemplated hereby.
(jv) The Placement Agent shall have received a letterA certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, verifying the truth and accuracy of KPMG LLP any statistical or financial figure included in the Prospectus which meets has not been otherwise verified by the requirements of subsection (b) of this Section, except that the specified date letters referred to in clause (iv) above, such subsection verification to include the provision of documentary evidence supporting any such statistical or financial figure
(vi) Such further certificates and documents as you may reasonably request. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to you and to Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Placement Agent, which approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any condition to the Placement Agent's obligations hereunder to be satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will be a date not more than three dterminate upon notification to the Company without liability on the part of Placement Agent or the C
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent, and the closing of the sale of the Placement Agent Securities hereunder shall be are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company set forth contained herein and in Section 2 hereof as of the date hereof and as of the Closing Date as though then made and the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofPurchase Agreement, to the timely performance by the Company of its covenants obligations hereunder and other obligations hereunderin the Purchase Agreement, and to each of the following additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent:
(a) On or prior A. All corporate proceedings and other legal matters incident to the date authorization, form, execution, delivery and validity of the Subscription Agreementseach of this Agreement, the Placement Agent shall have received a letterSecurities, dated and all other legal matters relating to this Agreement and the date of delivery thereof, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C. substantially in the form of Exhibit B-1 hereto.
(b) On or prior transactions contemplated hereby with respect to the date of the Subscription Agreements, the Placement Agent shall have received a letter, dated the date of delivery thereof, of KPMG LLP substantially in the form of Exhibit B-2 hereto.
(c) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Placement Agent, Securities shall be contemplated by the Commission.
(d) Subsequent to the execution of the Subscription Agreements, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of the Placement Agent, is material and adverse and makes it impractical or inadvisable to proceed with completion of the sale of and payment for by the Purchasers of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Placement Agent, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Securities in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on either the New York Stock Exchange or the Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Placement Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the sale of and payment by the Purchasers for the Securities.
(e) The Placement Agent shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) Based on certificates from public officials, the Company is qualified to do business in California;
(ii) Based solely on a certificate of an officer of the Company as to factual matters and a review of a list of specified agreements attached as an exhibit to such opinion (the “Specified Agreements”), the Company is not a party to any agreement that would require the inclusion in either Registration Statement of Common Stock or other securities owned by any person or entity other than the Company, other than such Specified Agreements for which the Company has a written waiver from the other party to such agreement waiving its rights to require the inclusion of its Common Stock or other securities in each Registration Statement;
(iii) The Company is not, and immediately after giving effect to the sale of the Securities in accordance with the Subscription Agreements and the application of the proceeds as described in the General Disclosure Package and in the Prospectus 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;
(iv) The execution and delivery of the this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the Securities by the Company to the Purchasers pursuant to the Subscription Agreements on the date hereof do not:
(A) result in the breach of or a default under any of the Specified Agreements; or
(B) violate any federal or New York statute, rule or regulation applicable to the Company; or
(C) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company that have not been obtained or made;
(v) The Registration Statements have become effective under the Securities Act. Based solely on a telephonic confirmation by a member of the Staff of the Commission on the Closing Date, such counsel confirms that no stop order suspending the effectiveness of the Registration Statement, or any part thereof, has been issued under the Securities Act and no proceedings therefor have been initiated or are pending by the Commission. Any required filing of the Prospectus pursuant to Rule 424 under the Securities Act has been made in accordance with Rule 424 under the Securities Act;
(vi) Each Registration Statement, as of the date of the Prospectus, and the Prospectus, as of its date, appeared on their face to be appropriately responsive reasonably satisfactory in all material respects to the requirements for registration statements on Form S-3 under the Securities Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel expresses no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in each Registration Statement and the Prospectus are correct and complete;
(vii) Based solely upon a certificate of an officer of the Company as to factual matters, there are no contracts or documents of a character required to be described in the Registration Statements or Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed;
(viii) The statements in the Prospectus under the caption “Description of the Warrants” are accurate in all material respects;
(ix) Based on the participation, review and reliance as described by such counsel in the letter it delivers to the Placement Agent, such counsel shall advise the Placement Agent that no facts came to their attention that caused them to believe that:
(A) the Registration Statements, on the date of the Prospectus, including the information deemed to be a part of the applicable Registration Statement pursuant to Rule 430B under the Securities Act (together with the incorporated documents at that time), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(B) the Statutory Prospectus, as of the Applicable Time (together with the incorporated documents at that date), when taken together with the pricing information listed in Annex A to such letter, 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; or
(C) the Prospectus, as of its date or as of the date hereof, (together with the incorporated documents at that those dates), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express a belief with respect to the financial statements, schedules, or other financial data included or incorporated by reference in, or omitted from, the Registration Statements, any Statutory Prospectus, the pricing information listed in Annex A to such counsel’s letter, the Prospectus, or the Incorporated Documents.
(f) The Placement Agent shall have received an opinion, dated the Closing Date, of Holland & ▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) Each of Rentech Services Corporation and Rentech Development Corporation has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus and the Officers’ Certificate. Sand Creek Energy, LLC has been duly formed and is an existing limited liability company in good standing under the laws of the State of Colorado, with the limited liability company power and authority to own its properties and conduct its business as described in the Manager’s Certificate;
(iii) The shares of Common Stock described in the introductory paragraph of this Agreement have been duly authorized and, when such shares are delivered and paid for in accordance with the Subscription Agreements on the Closing Date, such shares will be validly issued, fully paid and nonassessable; such shares will be accompanied by the Rights; and the shareholders of the Company have no preemptive rights with respect to such shares offered pursuant to the Prospectus under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(iv) The shares of Common Stock initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such exercise in accordance with the Warrants, will be validly issued, fully paid and nonassessable; as of the date hereof, such shares would be accompanied by the Rights; and as of the date hereof, the shareholders of the Company have no preemptive rights with respect to the Warrants or such shares, under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(v) The statements in the Prospectus under the captions “Description of Common Stock” and “Certain Provisions of Colorado Law and Our Charter and Bylaws,” to the extent that they purport to describe or summarize certain provisions of the Articles of Incorporation or Bylaws or Colorado law referred to therein, are accurate descriptions or summaries in all material respects;
(vi) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the sale of the shares described in (iii) and (iv) above and the Warrants will not result in a breach or violation of the Articles of Incorporation or bylaws of the Company, and the Company has full corporate power and authority to authorize, issue and sell such shares and Warrants as contemplated by this Agreement, the Warrants and the Subscription Agreements;
(vii) This Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements have been duly authorized, executed and delivered by the Company;
(viii) The issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants does not require any consent, approval, or authorization to be obtained by the Company from, or any registrations or filings to be made by the Company with, any governmental authority under any Colorado statute, rule or regulation applicable to the Company, except such as may be required under the Colorado Securities Act, as amended, and except with respect to any consent, approval, authorization, registrations or filings as may be required as a result of the Company’s properties and the nature of the business as conducted by the Company; and
(ix) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants will not result in a breach or violation of any statute, rule or regulation of the State of Colorado, except that no opinion need be expressed as to securities registration requirements or as to any statute, rule or regulation that applies as a result of the properties of the Company or its subsidiaries or the nature of the business as conducted by the Company or its subsidiaries.
(g) B. The Placement Agent shall have received from Proskauer Rose LLP, outside US counsel for to the Company each such counsel’s written opinion with respect to the Placement AgentAgent Securities, such opinion or opinions, addressed to the Placement Agent and dated as of the Closing Date, with respect in form and substance reasonably satisfactory to the validity of the Securities, the Registration Statements, the General Disclosure Package, the Prospectus and other related matters as the Placement Agent may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such mattersAgent.
(h) C. The Placement Agent shall have received customary certificates of the Company’s executive officers, as to the accuracy of the representations and warranties contains in the Purchase Agreement, and a certificatecertificate of the Company’s secretary certifying that the Company’s charter documents are true and complete, dated have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Placement are in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company.
D. The Common Shares shall be registered under the Exchange Act and, as of the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state, on behalf of the Company, that:
(i) the representations and warranties of the Company in this Agreement are true and correct;
(ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission;
(iv) subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate; and
(v) such other information as the Placement Agent may reasonably request.
(i) The Placement Agent shall have received a letterapproval to list or quote all Shares sold in the offering on the Trading Markets for which such approvals are required, dated and the Common Shares and shares issuable upon exercise of the Warrants shall be listed and admitted and authorized for trading on the Trading Markets for which such admission and authorizations are required, and satisfactory evidence of such action shall have been provided to the Placement Agent. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common Shares under the Exchange Act or delisting or suspending from trading the Common Shares from the applicable Trading Markets, nor has the Company received any information suggesting that the Commission or the applicable Trading Markets are contemplating terminating such registration or listings.
E. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC which meets the requirements Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business or operations of subsection (a) the Company; and no injunction, restraining order or order of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date for which would prevent the purposes issuance or sale of the Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business or operations of the Company.
F. The Company shall have entered into a Purchase Agreement with each of the Purchasers of the Placement Agent Securities and such agreements shall be in full force and effect and shall contain representations, warranties and covenants of the Company as agreed upon between the Company and the Purchasers.
G. FINRA shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this subsection.
(j) The Agreement. In addition, the Company shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, any filing with the FINRA Corporate Financing Department pursuant to the applicable FINRA Rules with respect to the offering and pay all filing fees required in connection therewith. If any of the conditions specified in this Section 8 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement Agent shall have received a letterhereunder may be cancelled by the Placement Agent at, dated or at any time prior to, the Closing Date, . Notice of KPMG LLP which meets such cancellation shall be given to the requirements of subsection (b) of this Section, except that the specified date referred to Company in writing or orally. Any such subsection will oral notice shall be a date not more than three dconfirmed promptly thereafter in writing.
Appears in 1 contract
Sources: Placement Agency Agreement (Village Farms International, Inc.)
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall will be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof as of the date hereof and as of the Closing Date as though then made and Issuers herein, to the accuracy of the statements of officers of the Company Issuers made in any certificates pursuant to the provisions hereof, to the timely performance by the Company Issuers of its covenants and other their respective obligations hereunder, hereunder and to each of the following additional conditionsconditions precedent and conditions subsequent:
(a) On or prior to the date of the Subscription Agreements, the The Placement Agent shall have received a letter, dated the Closing Date and satisfactory to the Placement Agent and the purchasers of Securities, of PriceWaterhouseCoopers LLP addressed to the Placement Agent, the Parent, the Company and the purchasers of the Securities pursuant to this Agreement confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("Rules and Regulations") and to the effect that:
(i) in their opinion the financial statements and schedules examined by them and included in the Offering Document comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on the unaudited financial statements included in the Offering Document;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Parent and the Company, and of all subsidiaries of the Company for which such interim financial statements are provided, inquiries of officials of the Parent, the Company, and of such subsidiaries, who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the Offering Document do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements for them to be in conformity with generally accepted accounting principles;
(B) at the date of delivery thereofthe latest available balance sheet read by such accountants, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C. substantially or at a subsequent specified date not more than three business days prior to the Closing Date, there was any change in the capital stock or any material increase in long-term debt of the Parent or the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets, as compared with amounts shown on the latest balance sheet included in the Offering Document, or
(C) for the period from the closing date of the latest income statement included in the Offering Document to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Offering Document, in consolidated net sales, net operating income or in the total or per share amounts of consolidated income before extraordinary items or net income; except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Offering Document disclose have occurred or may occur or which are described in such letter;
(iv) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review on pro forma financial information as described in Statement on Standards for Attestation Engagement No. 1, Reporting on Pro Forma Financial Statements, on the pro forma financial statements included in the Offering Document;
(v) on the basis of the review referred to in clause (iv) above, nothing came to their attention that caused them to believe that the pro forma financial statements included in the Offering Document do not comply as to form in all material respects with the applicable accounting requirements of Exhibit B-1 heretothe Securities Act and the related published Rules and Regulations or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; and
(vi) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Document (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Parent or the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(vii) the presentation of Management's Discussion and Analysis of Financial Condition and Results of Operations in the Offering Document includes, in all material respects, the required elements of the rules and regulations adopted by the Commission; the historical financial amounts included therein have been accurately derived, in all material respects, from the Company's financial statements; and the underlying information, determination, estimates and assumptions of the Company provide a reasonable basis for the disclosures contained therein.
(b) On or prior to the date of the Subscription Agreements, the Placement Agent shall have received a letter, dated the date of delivery thereof, of KPMG LLP substantially in the form of Exhibit B-2 hereto.
(c) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Placement Agent, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of the Subscription Agreementsthis Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Placement Agent, be likely to prejudice materially the success of the proposed issue and sale of the Notes and the Series A Shares, whether in the primary market or in respect of dealings in the secondary market, or (ii) (A) any change, or any development or event involving a prospective change, in the condition (financial or other), businessbusiness prospects, properties or results of operations of the Company Parent and its subsidiaries taken as one enterprise a whole, which, in the reasonable judgment of the Placement Agent, is material and adverse to the Parent and its subsidiaries taken as a whole and makes it impractical or inadvisable to proceed with completion of the issuance or the sale of and payment for by the Purchasers of the Securities; (iiB) any downgrading in the rating of any debt securities of the Parent, the Company or any of their subsidiaries by any “"nationally recognized statistical rating organization” " (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization organization has under surveillance or review its rating of any debt securities of the Parent, the Company or any of their subsidiaries (other than an announcement with positive implications implications of a possible upgrading, and no implication of a possible downgradingdowngrading, of such rating) or any announcement that the Company has been placed on negative outlook); (iiiC) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Placement Agent, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Securities in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on either the New York Stock Exchange or the Stock ExchangeNasdaq National Market, or any setting of minimum prices for trading on such exchange; (v) , or any suspension of trading of any securities of the Parent, the Company or any of their subsidiaries on any exchange or in the over-the-counter market; (viD) any banking moratorium declared by U.S. Federal or New York authorities; or (viiE) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of major hostilities or act of terrorism involving in which the United StatesStates is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Placement Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the issuance or sale of and payment by the Purchasers for the SecuritiesNotes and the Series A Shares.
(ec) The Placement Agent shall have received an opinionopinion or opinions, dated the such Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the CompanyIssuers, substantially to the effect that:
(i) Based on certificates from public officialsEach of the Parent, the Company is qualified to do business in California;
(ii) Based solely on a certificate of an officer and each subsidiary of the Company as to factual matters and a review of a list of specified agreements attached as an exhibit to such opinion (the “Specified Agreements”), the Company is not a party to any agreement that would require the inclusion in either Registration Statement of Common Stock or other securities owned by any person or entity other than the Company, other than such Specified Agreements for which the Company has a written waiver from the other party to such agreement waiving its rights to require the inclusion of its Common Stock or other securities in each Registration Statement;
(iii) The Company is not, and immediately after giving effect to the sale of the Securities in accordance with the Subscription Agreements and the application of the proceeds as described in the General Disclosure Package and in the Prospectus 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;
(iv) The execution and delivery of the this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the Securities by the Company to the Purchasers pursuant to the Subscription Agreements on the date hereof do not:
(A) result in the breach of or a default under any of the Specified Agreements; or
(B) violate any federal or New York statute, rule or regulation applicable to the Company; or
(C) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company that have not been obtained or made;
(v) The Registration Statements have become effective under the Securities Act. Based solely on a telephonic confirmation by a member of the Staff of the Commission on the Closing Date, such counsel confirms that no stop order suspending the effectiveness of the Registration Statement, or any part thereof, has been issued under the Securities Act and no proceedings therefor have been initiated or are pending by the Commission. Any required filing of the Prospectus pursuant to Rule 424 under the Securities Act has been made in accordance with Rule 424 under the Securities Act;
(vi) Each Registration Statement, as of the date of the Prospectus, and the Prospectus, as of its date, appeared on their face to be appropriately responsive in all material respects to the requirements for registration statements on Form S-3 under the Securities Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel expresses no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in each Registration Statement and the Prospectus are correct and complete;
(vii) Based solely upon a certificate of an officer of the Company as to factual matters, there are no contracts or documents of a character required to be described in the Registration Statements or Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed;
(viii) The statements in the Prospectus under the caption “Description of the Warrants” are accurate in all material respects;
(ix) Based on the participation, review and reliance as described by such counsel in the letter it delivers to the Placement Agent, such counsel shall advise the Placement Agent that no facts came to their attention that caused them to believe that:
(A) the Registration Statements, on the date of the Prospectus, including the information deemed to be a part of the applicable Registration Statement pursuant to Rule 430B under the Securities Act (together with the incorporated documents at that time), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(B) the Statutory Prospectus, as of the Applicable Time (together with the incorporated documents at that date), when taken together with the pricing information listed in Annex A to such letter, 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; or
(C) the Prospectus, as of its date or as of the date hereof, (together with the incorporated documents at that those dates), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express a belief with respect to the financial statements, schedules, or other financial data included or incorporated by reference in, or omitted from, the Registration Statements, any Statutory Prospectus, the pricing information listed in Annex A to such counsel’s letter, the Prospectus, or the Incorporated Documents.
(f) The Placement Agent shall have received an opinion, dated the Closing Date, of Holland & ▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) The Company has been was duly incorporated and is an existing corporation in good standing under the laws of the State its jurisdiction of Coloradoincorporation, with corporate power and authority to own its properties and conduct its business businesses as described in the Prospectus;Offering Document.
(ii) Each of Rentech Services Corporation and Rentech Development Corporation has been duly incorporated and is an existing corporation in good standing under the laws of Transaction Documents (except for the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus and the Officers’ Certificate. Sand Creek Energy, LLC has been duly formed and is an existing limited liability company in good standing under the laws of the State of Colorado, with the limited liability company power and authority to own its properties and conduct its business as described in the Manager’s Certificate;
(iii) The shares of Common Stock described in the introductory paragraph of this Agreement have been duly authorized and, when such shares are delivered and paid for in accordance with the Subscription Agreements on the Closing Date, such shares will be validly issued, fully paid and nonassessable; such shares will be accompanied by the Rights; and the shareholders of the Company have no preemptive rights with respect to such shares offered pursuant to the Prospectus under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(iv) The shares of Common Stock initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such exercise in accordance with the Warrants, will be validly issued, fully paid and nonassessable; as of the date hereof, such shares would be accompanied by the Rights; and as of the date hereof, the shareholders of the Company have no preemptive rights with respect to the Warrants or such shares, under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(v) The statements in the Prospectus under the captions “Description of Common Stock” and “Certain Provisions of Colorado Law and Our Charter and Bylaws,” to the extent that they purport to describe or summarize certain provisions of the Articles of Incorporation or Bylaws or Colorado law referred to therein, are accurate descriptions or summaries in all material respects;
(vi) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Envirotest Agreement and the Subscription Agreements and the sale of the shares described in (iiiTranservice Agreement) and (iv) above and the Warrants will not result in a breach or violation of the Articles of Incorporation or bylaws of the Company, and the Company has full corporate power and authority to authorize, issue and sell such shares and Warrants as contemplated by this Agreement, the Warrants and the Subscription Agreements;
(vii) This Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements have been duly authorized, executed and delivered by each of the Company;Parent, the Company and their subsidiaries (to the extent each is a party thereto); each of the Transaction Documents conforms to the description thereof contained in the Offering Document (to the extent described therein); and each of the Transaction Documents (other than this Agreement and the Subscription Agreement) constitutes valid and legally binding obligations of each of the Parent, the Company and their subsidiaries (to the extent each is a party thereto) enforceable in accordance with its respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and, as to rights of indemnification and contribution, to principles of public policy and federal and state securities laws relating thereto.
(iii) The Notes, the Guarantees and the Series A Shares conform in all material respects to the description thereof in the Offering Document.
(iv) The Notes and the Guarantees have been duly authorized and executed by the Company and the Guarantors, respectively, and, when the Notes are authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, the Notes and the Guarantees will constitute valid and binding obligations of the Company and the Guarantors, respectively, enforceable against the Company and the Guarantors, respectively, in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles and, as to rights of indemnification and contribution, to principles of public policy and federal and state securities laws relating thereto.
(v) The Series A Shares have been duly authorized and, when issued and delivered to and paid for by the purchasers thereof in accordance with the terms of the Subscription Agreement, will have been validly issued and fully paid and nonassessable.
(vi) [Intentionally omitted.]
(vii) To our knowledge, there are no preemptive rights or similar rights that have not been waived to subscribe for or purchase the Securities upon their issuance and sale by the Issuers pursuant to this Agreement and the Subscription Agreement. To our knowledge, no securityholder of any Issuer has any right that has not been waived to require such Issuer to register the sale of any securities owned by such securityholder under the Securities Act in the offering and sale contemplated by this Agreement and the Subscription Agreement.
(viii) The issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants does not require any consent, approval, or authorization to be obtained by the Company from, or any registrations or filings to be made by the Company with, any governmental authority under any Colorado statute, rule or regulation applicable to the Company, except such as may be required under the Colorado Securities Act, as amended, and except with respect to any consent, approval, authorization, registrations or filings as may be required as a result of the Company’s properties and the nature of the business as conducted by the Company; and
(ix) The execution, delivery of, and performance by each of this Agreementthe Parent, the Warrants, Company and their subsidiaries (to the Escrow Agreement and extent each is a party thereto) of its obligations under each of the Subscription Agreements and Transaction Documents (including the issuance and sale of the shares described in (iiiSecurities) and (iv) above compliance with the terms and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants provisions thereof will not result in a breach or violation of any statute, rule or regulation of the State of Coloradoterms and provisions of, except that no opinion need be expressed as to securities registration requirements or as to constitute a default under, any statute, rule any rule, regulation or regulation that applies as a result order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the properties Parent, the Company or any subsidiary of the Company or its subsidiaries any of their respective properties, or the nature charter or by-laws of the business as conducted by Parent, the Company or its subsidiariesany such subsidiary, any agreement or instrument set forth on Schedule B attached hereto or the Transaction Documents, and each of the Issuers has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement and the Subscription Agreement.
(gix) The Placement Agent shall have received from Proskauer Rose LLPEach of the Issuers is not and, counsel after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Offering Document and the consummation of the other Transactions, will not, be an "investment company" as defined in the Investment Company Act.
(x) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Parent, the Company or any subsidiary of the Parent or the Company for the Placement Agent, such opinion consummation of the Transactions or opinions, dated otherwise in connection with the Closing Date, with respect to the validity issuance and sale of the Securities, other than those consents, approvals, authorizations, orders or filings that have been made or obtained and such as may be required by the Securities Act (including Regulation D thereunder) and securities or blue sky laws of any state of the United States or of any foreign jurisdiction in connection with the offer and sale of the Securities and as may be required under the Securities Act in connection with the Registration StatementsRights Agreement and the Investors Agreement.
(xi) It is not necessary in connection with the offer, sale and delivery of the General Disclosure Package, Securities by the Prospectus and other related matters as the Placement Agent may require, Parent and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them purchasers thereof pursuant to pass upon such mattersthis Agreement and the Subscription Agreement to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act.
(hxii) The Placement Agent shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state, on behalf of the Company, that:
(i) the representations and warranties of the Company in this Agreement are true and correct;
(ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission;
(iv) subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except Except as set forth in the General Disclosure Package Offering Document, all outstanding shares of the capital stock of the Parent, the Company and each of their subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the Offering Document; the Parent is the record owner of all of the issued and outstanding capital stock of the Company. The Company, directly or as described in such certificate; and
(v) such other information as through subsidiaries, is the Placement Agent may reasonably requestrecord owner of all of the issued and outstanding capital stock of each subsidiary of the Company, and the securityholders of the Parent, the Company and their subsidiaries have no preemptive rights with respect to the Securities.
(ixiii) The Placement Agent shall have received Except as set forth in the Offering Document or any Transaction Document, there are no contracts, agreements or understandings known to such counsel between the Parent, the Company or any of their subsidiaries and any person granting such person the right to require the Parent, the Company or any of their subsidiaries to file a letterregistration statement under the Securities Act with respect to any securities of the Parent, dated the Closing DateCompany or any of their subsidiaries owned or to be owned by such person or to require the Parent, the Company or any of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC which meets their subsidiaries to include such securities in any registration statement filed by the requirements Parent, the Company or any of subsection (a) of this Section, except that their subsidiaries under the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsectionSecurities Act.
(jxiv) The Placement Agent shall have received statements under the captions "Business--Legal Proceedings," "Description of Other Indebtedness," "Description of the Notes," "Description of Capital Stock" and "Certain United States Federal Income Tax Considerations" in the Offering Document, insofar as such statements constitute a lettersummary of the legal matters, dated the Closing Date, of KPMG LLP which meets the requirements of subsection (b) of this Section, except that the specified date documents or proceedings referred to therein, fairly present in all material respects the information called for with respect to such subsection will be legal matters, documents and proceedings as if such Offering Document were a date not more than three dprospectus included in a registration statement on Form S-1.
Appears in 1 contract
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder to offer and deliver the Units on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company herein set forth in Section 2 hereof as of the date hereof and as of the Closing Date as though then made and Date, to the accuracy of the statements of officers of the Company made in any certificates pursuant to the provisions hereof, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) On or The Registration Statement shall have become effective, and prior to the date of the Subscription AgreementsClosing Date, the Placement Agent shall have received a letter, dated the date of delivery thereof, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C. substantially in the form of Exhibit B-1 hereto.
(b) On or prior to the date of the Subscription Agreements, the Placement Agent shall have received a letter, dated the date of delivery thereof, of KPMG LLP substantially in the form of Exhibit B-2 hereto.
(c) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No no stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company or the Placement Agentyou, shall be contemplated by the Commission. If the Company has elected to rely upon Rule 430A, the information concerning the offering price of the Units and price-related information shall have been transmitted to the Commission for filing pursuant to Rule 424(b) in the manner and within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company will provide evidence satisfactory to the Placement Agent of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b).
(b) The Units shall have been qualified for sale under the blue sky laws of such states as shall have been agreed to by the Placement Agent and the Company.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Units hereunder, the validity and form of the certificates representing the Units, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement, the Disclosure Package, and the Prospectus (except financial statements) shall have been approved by counsel for the Placement Agent exercising reasonable judgment.
(d) Subsequent to the execution of the Subscription Agreements, there You shall not have occurred (i) any changeadvised the Company that the Registration Statement, the Disclosure Package, the Prospectus or any development amendment or event involving a prospective changesupplement thereto contains an untrue statement of fact, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment opinion of counsel for the Placement Agent, is material and adverse and makes it impractical or inadvisable omits to proceed with completion of the sale of and payment for by the Purchasers of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of state a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as wouldfact which, in the judgment opinion of the Placement Agentsuch counsel, be likely to prejudice materially the success of the proposed issue, sale or disposition of the Securities in the secondary market; (iv) any is material suspension or material limitation of trading in securities generally on either the New York Stock Exchange or the Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Placement Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the sale of and payment by the Purchasers for the Securities.
(e) The Placement Agent shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) Based on certificates from public officials, the Company is qualified to do business in California;
(ii) Based solely on a certificate of an officer of the Company as to factual matters and a review of a list of specified agreements attached as an exhibit to such opinion (the “Specified Agreements”), the Company is not a party to any agreement that would require the inclusion in either Registration Statement of Common Stock or other securities owned by any person or entity other than the Company, other than such Specified Agreements for which the Company has a written waiver from the other party to such agreement waiving its rights to require the inclusion of its Common Stock or other securities in each Registration Statement;
(iii) The Company is not, and immediately after giving effect to the sale of the Securities in accordance with the Subscription Agreements and the application of the proceeds as described in the General Disclosure Package and in the Prospectus 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;
(iv) The execution and delivery of the this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the Securities by the Company to the Purchasers pursuant to the Subscription Agreements on the date hereof do not:
(A) result in the breach of or a default under any of the Specified Agreements; or
(B) violate any federal or New York statute, rule or regulation applicable to the Company; or
(C) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company that have not been obtained or made;
(v) The Registration Statements have become effective under the Securities Act. Based solely on a telephonic confirmation by a member of the Staff of the Commission on the Closing Date, such counsel confirms that no stop order suspending the effectiveness of the Registration Statement, or any part thereof, has been issued under the Securities Act and no proceedings therefor have been initiated or are pending by the Commission. Any required filing of the Prospectus pursuant to Rule 424 under the Securities Act has been made in accordance with Rule 424 under the Securities Act;
(vi) Each Registration Statement, as of the date of the Prospectus, and the Prospectus, as of its date, appeared on their face to be appropriately responsive in all material respects to the requirements for registration statements on Form S-3 under the Securities Act and the rules and regulations of the Commission thereunder; it being understood, however, that such counsel expresses no opinion with respect to Regulation S-T or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, such counsel may assume that the statements made in each Registration Statement and the Prospectus are correct and complete;
(vii) Based solely upon a certificate of an officer of the Company as to factual matters, there are no contracts or documents of a character required to be described in the Registration Statements or Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed;
(viii) The statements in the Prospectus under the caption “Description of the Warrants” are accurate in all material respects;
(ix) Based on the participation, review and reliance as described by such counsel in the letter it delivers to the Placement Agent, such counsel shall advise the Placement Agent that no facts came to their attention that caused them to believe that:
(A) the Registration Statements, on the date of the Prospectus, including the information deemed to be a part of the applicable Registration Statement pursuant to Rule 430B under the Securities Act (together with the incorporated documents at that time), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;.
(Be) Subsequent to the Statutory Prospectusexecution and delivery of this Agreement, as there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Applicable Time (together with Company or its subsidiaries, whether or not arising in the incorporated documents at that date)ordinary course of business, when taken together with the pricing information listed in Annex A to such letter, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements thereinwhich, in the light judgment of the circumstances under which they were madePlacement Agent, not misleading; or
(C) the Prospectus, as of its date makes it impractical or as of the date hereof, (together inadvisable to proceed with the incorporated documents at that those dates), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express a belief with respect to the financial statements, schedules, or other financial data included or incorporated by reference in, or omitted from, the Registration Statements, any Statutory Prospectus, the pricing information listed in Annex A to such counsel’s letter, the Prospectus, or the Incorporated DocumentsOffering as contemplated hereby.
(f) The Placement Agent There shall have received an opinionbeen furnished to you, dated as Placement Agent, on the Closing Date, except as otherwise expressly provided below:
(i) An opinion of Holland & Brown, Winick, Graves, Gross, B▇▇▇▇▇▇▇▇▇▇ LLPand S▇▇▇▇▇▇▇▇▇, P.L.C., counsel for the Company, addressed to the effect that:
(i) The Company has been duly incorporated Placement Agent and is an existing corporation in good standing under dated the laws of the State of ColoradoClosing Date, with corporate power and authority to own its properties and conduct its business as described in the Prospectus;set forth on Exhibit D.
(ii) Each Such opinion or opinions of Rentech Services Corporation and Rentech Development Corporation has been duly incorporated and is an existing corporation in good standing under the laws of the State of Colorado, with corporate power and authority to own its properties and conduct its business as described in the Prospectus and the Officers’ Certificate. Sand Creek Energy, LLC has been duly formed and is an existing limited liability company in good standing under the laws of the State of Colorado, with the limited liability company power and authority to own its properties and conduct its business as described in the Manager’s Certificate;
(iii) The shares of Common Stock described in the introductory paragraph of this Agreement have been duly authorized and, when such shares are delivered and paid for in accordance with the Subscription Agreements on the Closing Date, such shares will be validly issued, fully paid and nonassessable; such shares will be accompanied by the Rights; and the shareholders of the Company have no preemptive rights with respect to such shares offered pursuant to the Prospectus under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(iv) The shares of Common Stock initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon exercise of the Warrants and, when issued upon such exercise in accordance with the Warrants, will be validly issued, fully paid and nonassessable; as of the date hereof, such shares would be accompanied by the Rights; and as of the date hereof, the shareholders of the Company have no preemptive rights with respect to the Warrants or such shares, under the Articles of Incorporation, Bylaws or pursuant to the Colorado Business Corporation Act;
(v) The statements in the Prospectus under the captions “Description of Common Stock” and “Certain Provisions of Colorado Law and Our Charter and Bylaws,” to the extent that they purport to describe or summarize certain provisions of the Articles of Incorporation or Bylaws or Colorado law referred to therein, are accurate descriptions or summaries in all material respects;
(vi) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the sale of the shares described in (iii) and (iv) above and the Warrants will not result in a breach or violation of the Articles of Incorporation or bylaws of the Company, and the Company has full corporate power and authority to authorize, issue and sell such shares and Warrants as contemplated by this Agreement, the Warrants and the Subscription Agreements;
(vii) This Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements have been duly authorized, executed and delivered by the Company;
(viii) The issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants does not require any consent, approval, or authorization to be obtained by the Company from, or any registrations or filings to be made by the Company with, any governmental authority under any Colorado statute, rule or regulation applicable to the Company, except such as may be required under the Colorado Securities Act, as amended, and except with respect to any consent, approval, authorization, registrations or filings as may be required as a result of the Company’s properties and the nature of the business as conducted by the Company; and
(ix) The execution, delivery and performance of this Agreement, the Warrants, the Escrow Agreement and the Subscription Agreements and the issuance and sale of the shares described in (iii) and (iv) above and the Warrants and the issuance of the shares initially issuable upon exercise of the Warrants will not result in a breach or violation of any statute, rule or regulation of the State of Colorado, except that no opinion need be expressed as to securities registration requirements or as to any statute, rule or regulation that applies as a result of the properties of the Company or its subsidiaries or the nature of the business as conducted by the Company or its subsidiaries.
(g) The Placement Agent shall have received from Proskauer Rose M▇▇▇▇▇▇ ▇▇▇▇ & Friedrich LLP, counsel for the Placement Agent, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the SecuritiesUnits, the Registration StatementsStatement, the General Disclosure Package, the Prospectus Package and other related matters as the Placement Agent you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(hiii) The Placement Agent shall have received a certificateA certificate of the chief executive officer and the principal financial officer of the Company, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state, on behalf of the Company, effect that:
(i1) the representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct;
(ii) correct as of the date of this Agreement and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iii2) the Commission has not issued an order preventing or suspending the use of the Prospectus or any preliminary prospectus filed as a part of the Registration Statement, or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued issued; and to the best knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated by under the Commission;1933 Act; and
(iv3) subsequent to the date of the most recent financial statements included in the General Disclosure PackageRegistration Statement and Prospectus, and except as set forth or contemplated in the Prospectus, (A) none of the Company and its consolidated subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and (B) there has not been no any change that has had or would have a material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of effect upon the Company and its subsidiaries taken as a whole except or any material change in their short-term debt or long-term debt. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses to be set forth in the General Disclosure Package or as described in such said certificate; and
(v) such other information as the Placement Agent may reasonably request.
(iiv) The On the Closing Date, there shall be delivered to you a letter addressed to you, as Placement Agent shall have received a letterAgent, from C▇▇▇▇▇▇▇▇▇▇▇ & Associates, PLLP, an independent registered public accounting firm, dated the Closing Date, to the effect set forth in Exhibit E. There shall not have been any change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of ▇▇the Placement Agent to proceed with the offering or purchase of the Units as contemplated hereby.
(v) A certificate of the chief executive officer and the principal financial officer of the Company, dated the Closing Date, verifying the truth and accuracy of such statistical or financial figures regarding the Company included in the Prospectus which you may reasonably request and which have not been otherwise verified by the letters referred to in clause (iv) above, such verification to include the provision of documentary evidence supporting any such statistical or financial figure.
(vi) Such further certificates and documents as you may reasonably request. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to you and to M▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC Friedrich LLP, counsel for the Placement Agent, which meets approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any condition to the requirements of subsection (a) of this Section, except that the specified date referred Placement Agent’s obligations hereunder to in such subsection will be a date not more than three days satisfied prior to or at the Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company without liability on the part of you, as Placement Agent, or the Company, except for the purposes of this subsectionexpenses to be paid or reimbursed by the Company pursuant to Sections 5 and 7 hereof and except to the extent provided in Section 9 hereof.
(j) The Placement Agent shall have received a letter, dated the Closing Date, of KPMG LLP which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three d
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Sources: Placement Agency Agreement (Amaizing Energy Holding Company, LLC)