Exhibit 10.1





Exhibit 10.1




EQUITY DISTRIBUTION PROGRAM

Amended and Restated Distribution Agreement




February 9, 2011




Knight Capital Americas, L.P.

320 Park Avenue, 15th Floor

New York, NY 10022




Ladies and Gentlemen:



Rentech, Inc., a Colorado corporation (the “Company”), confirms its agreement with
Knight Capital Americas, L.P, successor in interest to Knight Capital Markets LLC, as agent
(“you” or “KCA”), to amend and restate the Distribution Agreement dated February 2,
2010 (the “Original Distribution Agreement”) as provided herein with respect to the
issuance and sale from time to time by the Company, in the manner and subject to the terms and
conditions described below, of up to an aggregate number of shares of common stock, $0.01 par value
per share (the “Common Stock”), of the Company having a aggregate gross sales price of up
to $50,000,000 (the “Maximum Number of Shares”), including for the avoidance of doubt, the
shares of Common Stock issued and sold pursuant to the Original Distribution Agreement. Such
shares are hereinafter collectively referred to as the “Shares.” The Shares are described
in the Prospectus referred to below.



The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-164654) (the “registration statement”) for the
registration of at least the Maximum Number of Shares, under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder (collectively, the
“Act”), which sets forth certain of the terms of the offering and sale of the Shares and
additional information concerning the Company and its business. Except where the context otherwise
requires, “Registration Statement,” as used herein, means the registration statement, as
amended at the time of such registration statement’s effectiveness for purposes of Section 11 of
the Act, as such section applies to KCA, including (1) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (2) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the
Act, to be part of the registration statement at the effective time, and (3) any registration
statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act.
Except where the context otherwise requires, as used herein, (1) “Basic Prospectus”
means the prospectus filed as part of the Registration Statement, together with any amendments
or supplements thereto as of the date of this Agreement; (2) “Prospectus Supplement” means
the final prospectus supplement dated February 9, 2011, relating to the Shares, filed by the
Company with the Commission pursuant to Rule 424(b) under the Act on or before the second business
day after the date hereof (or such earlier time as may be required under the Act), in the form
furnished by the Company to KCA in connection with the offering of the Shares; (3)
“Prospectus” means the Prospectus Supplement together with the Basic Prospectus; (4)
“Permitted Free Writing Prospectuses” means the

 


 









 





 documents listed on Exhibit G
hereto and any other “issuer free writing prospectus” (as defined in Rule 433 of the Act) that
relates to the Shares and which the Company and KCA reasonably agree from time to time is a
Permitted Free Writing Prospectus. Any reference herein to the registration statement, the
Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall, unless stated otherwise, be deemed to refer to and include
the documents, if any, incorporated by reference, or deemed to be incorporated by reference,
therein (the “Incorporated Documents”), including, unless the context otherwise requires,
the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the
Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall, unless stated otherwise, be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “Exchange Act”), on or after the initial effective date of
the Registration Statement, or the date of Basic Prospectus, the Prospectus Supplement, the
Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.




The Company and KCA agree as follows:




1. Issuance and Sale.




	 	(a)	 	Upon the basis of the representations and warranties and
subject to the terms and conditions set forth herein, on any Exchange Business
Day (as defined below) selected by the Company, the Company and KCA shall enter
into an agreement in accordance with Section 3 hereof regarding the
number of Shares to be placed by KCA as agent for the Company and the manner in
which and other terms upon which such placement is to occur (each such
transaction being referred to as a “Transaction”). As used in this
Agreement, (i) the “Term” shall be the period commencing on the date
hereof and ending on the earliest of (x) February 9, 2012, (y) the date on
which the Maximum Number of Shares have been issued and sold pursuant to this
Agreement, and (z) the termination of this Agreement pursuant to Sections
9 or 10 hereof (the “Termination Date”), (ii) an
“Exchange Business Day” means any day during the Term that is a trading
day for the Exchange other than a day on which trading on the Exchange is
scheduled to close prior to its regular weekday closing time, and (iii)
“Exchange” means NYSE Amex LLC.






	 	(b)	 	Subject to the terms and conditions set forth below, the
Company appoints KCA as agent in connection with the offer and sale of Shares
in any Transactions entered into hereunder. KCA will use commercially
reasonable efforts to sell such Shares in accordance with the terms and
conditions hereof and of the applicable Transaction Notice (as defined below).
Neither the Company nor KCA shall have any obligation to enter into a
Transaction. The Company shall be obligated to issue and sell through KCA, and
KCA shall be obligated to use commercially reasonable
efforts, as provided herein and in the applicable Transaction Notice, to
place Shares issued by the Company only if and when a Transaction Notice
related to such a Transaction has been delivered by KCA and accepted by the
Company as provided in Section 3 hereof. KCA shall have the right,
in its sole discretion, to reject any offer to purchase Shares, as a whole
or in part, by persons solicited by KCA and any such rejection shall not be
deemed a breach of KCA’s agreement herein. The Company may accept or reject
any proposed offer to purchase Shares, as a whole or in part, and no such
rejection shall be deemed a breach of the Company’s agreement herein.




 


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	 	(c)	 	KCA covenants and agrees not to make any sales of the Shares on
behalf of the Company, pursuant to this Agreement, other than (A) by means of
ordinary brokers’ transactions between members of the Exchange that qualify for
delivery of a Prospectus to the Exchange in accordance with Rule 153 under the
Act and meet the definition of an “at the market” offering under Rule 415(a)(4)
under the Act (such transactions are hereinafter referred to as
“At-the-Market-Offerings”) and (B) such other sales of the Shares on
behalf of the Company in its capacity as agent of the Company as shall be
agreed by the Company and KCA in writing. The Company acknowledges and agrees
that in the event a sale of the Shares on behalf of the Company would
constitute the sale of a “block” under Rules 10b-18(a)(5) under the Exchange
Act or a “distribution” within the meaning of Rule 100 of Regulation M under
the Exchange Act or KCA reasonably believes it may be deemed an “underwriter”
under the Act in a transaction that is not an At-the-Market Offering, KCA will
have no obligation to sell such Shares hereunder.






	 	(d)	 	Any obligation of KCA to use its commercially reasonable
efforts to sell the Shares on behalf of the Company shall be subject to the
continuing accuracy of the representations and warranties of the Company herein
in all material respects, to the performance in all material respects by the
Company of its covenants in Sections 5 and 7 hereof and
elsewhere in this Agreement and to the continuing satisfaction of the
additional conditions specified in Sections 6 and 8 hereof.






	 	(e)	 	If the Company shall default on its obligation to deliver
Shares to a purchaser whose offer it has accepted, the Company shall (i) hold
KCA harmless against any loss, claim or damage arising from or as a result of
such default by the Company and (ii) notwithstanding such default, pay to KCA
any fee to which it would otherwise be entitled in connection with such sale.






	 	(f)	 	Notwithstanding anything to the contrary in this Agreement,
either the Company or KCA may, upon written notice to the other party, suspend
the offering of Shares during any period this Agreement is in effect (a
“Suspension Period”); provided, however, that such
suspension shall not
affect or impair the parties respective obligations with respect to the
Shares sold hereunder prior to the giving of such notice.




 


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2. No Purchases as Principal. Neither the Company nor KCA shall enter into, or have
any obligation to enter into, any transaction in which KCA would be obligated to purchase Shares as
a principal pursuant to this Agreement.




3. Transaction Notices and Sales Process.




	 	(a)	 	The Company may, from time to time during the Term, propose to
KCA that they enter into a Transaction to be executed on a specified Exchange
Business Day. If KCA agrees to the terms of such proposed Transaction or if
the Company and KCA agree to modified terms for such proposed Transaction, then
KCA shall promptly send to the Company a notice, substantially in the form of
Exhibit A hereto (each, a “Transaction Notice”), confirming the
agreed terms of such proposed Transaction. If the Company wishes such proposed
Transaction to become a binding agreement between it and KCA, the Company shall
promptly indicate its acceptance thereof by countersigning and returning such
Transaction Notice to KCA or sending a written notice to KCA (by any means
permissible under Section 12 hereof) indicating its acceptance. The
terms reflected in a Transaction Notice shall become binding on KCA and the
Company only if accepted by the Company no later than the times specified in
Section 3(b) hereof. Each Transaction Notice shall specify, among
other things:






	 	(i)	 	the Exchange Business Day on which the Shares
subject to such Transaction are intended to be sold (the “Purchase
Date”);






	 	(ii)	 	the number of Shares that the Company intends
to sell (the “Specified Number of Shares”) on such Purchase
Date, which shall be no less than 5% and no more than 25% of the
average daily trading volume (as defined by Rule 100 of Regulation M
under the Exchange Act, the “ADTV”) in the Common Stock on the
Exchange for 30 Exchange Business Days preceding the date of delivery
of the Transaction Notice, or as otherwise agreed between the Company
and KCA and set forth in the Transaction Notice; and provided that the
gross sales price of such Shares, together with the gross sales price
of all other Shares sold prior to such Purchase Date, shall not exceed
the Maximum Number of Shares; and






	 	(iii)	 	the lowest price (if any) at which the Company
shall be obligated to sell Shares in such Transaction (a “Floor
Price”).




 


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A Transaction Notice shall not set forth a Specified Number of Shares
that, when added to the aggregate gross sales price of Shares
previously purchased and to be purchased pursuant to pending
Transaction Notices (if any) hereunder, results in a total that exceeds the
Maximum Number of Shares. The Company shall have responsibility for
maintaining records with respect to the aggregate gross sales price of
Shares sold, or for otherwise monitoring the availability of Shares for sale
under the Registration Statement. There shall be no more than one
Transaction Notice and one related Transaction with respect to any Purchase
Date. A Transaction Notice conforming to the foregoing requirements, once
accepted by the Company, shall be irrevocable, and (i) the Company shall be
obligated, subject to the terms of, and satisfaction of the conditions set
forth in, this Agreement and such Transaction Notice, including, but not
limited to, Section 3(c) hereof, to sell the Specified Number of
Shares and (ii) KCA shall be obligated, subject to the terms of, and
satisfaction of the conditions set forth in, this Agreement and such
Transaction Notice, including, but not limited to, Sections 1(c),
(d) and (e) and Section 3(e) hereof, to use its
commercially reasonable efforts to solicit offers for the Shares.
Notwithstanding the foregoing, if the terms of any Transaction contemplate
that Shares shall be sold on more than one Purchase Date, then the Company
and KCA shall agree to such additional terms and conditions as they deem
necessary in respect of such multiple Purchase Dates, and such additional
terms and conditions shall be set forth in the relevant Transaction Notice
and be binding to the same extent as any other terms contained therein.




	 	(b)	 	The Purchase Date in respect of the Shares deliverable pursuant
to any Transaction Notice shall be the Exchange Business Day next following the
date on which such Transaction Notice is accepted if such acceptance occurs by
4:30 p.m. (New York time) on such acceptance date; provided that if a
Transaction Notice is accepted prior to 8:30 a.m. (New York time) on an
Exchange Business Day (or by such later time as KCA may agree in its sole
discretion), the Purchase Date in respect of such Shares shall be such date of
acceptance. KCA’s commission for Transactions shall be 1.5% of the actual
sales price of the Shares (the “Gross Sale Price” and the difference
between the Gross Sales Price and the commission payable to KCA is defined
herein as the “Net Sales Price”).






	 	(c)	 	If Shares are to be sold in a Transaction that is an
At-the-Market Offering, KCA will confirm in writing to the Company the number
of Shares sold on any Exchange Business Day and the related Gross Sales Price
and Net Sales Price no later than the opening of trading on the immediately
following Exchange Business Day.




 


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	 	(d)	 	Payment of the Net Sales Price for Shares sold by the Company
on any Purchase Date pursuant to a Transaction Notice shall be made to the
Company by federal funds wire transfer to:






Bank:

Address




ABA #:

Account name:

Account #:

Bank contact:




against delivery of such Shares to the accounts specified in writing by KCA.
Such payment and delivery shall be made at or about 10:00 a.m., local time
in New York, New York, on the third Exchange Business Day (or such other day
as may, from time to time, become standard industry practice for settlement
of such a securities issuance) following each Purchase Date (the
“Closing Date”). If the Company fails for any reason to make timely
delivery of such Shares after receiving payment therefor, the Company shall
indemnify KCA and its successors and assigns and hold them harmless from and
against any loss, damage, expense, liability or claim that KCA may incur as
a result of such failure.




	 	(e)	 	If, as provided in the related Transaction Notice, a Floor
Price has been agreed to by the parties with respect to a Transaction, and KCA
thereafter determines and notifies the Company that the Gross Sales Price for
such Transaction would not be at least equal to such Floor Price, then the
Company shall not be obligated to issue and sell to or through KCA, and KCA
shall not be obligated to purchase or place, the Specified Number of Shares for
such Transaction.






	 	(f)	 	If either party has reason to believe that the exemptive
provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act
are not satisfied with respect to the Shares, it shall promptly notify the
other party and sales of the Shares under this Agreement and any Transaction
Notice shall be suspended until that or another exemptive provision shall have
been satisfied in the judgment of each party. KCA and the Company shall each
calculate the ADTV of the Common Stock on the 15th day and the last day of each
month, or if such day is not an Exchange Business Day, the immediately
succeeding Exchange Business Day.




 


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4. Representations and Warranties of the Company. The Company represents and warrants
to KCA, on and as of (i) the date hereof, (ii) each date on which the Company accepts a Transaction
Notice (a “Time of Acceptance”), (iii) each Purchase Date or Time of Sale (as defined below
(if different) and (iv) each Closing Date, each such date listed in (i) through (iv), a
“Representation Date”) that, except as set forth in the Registration Statement and the
Prospectus:




	 	(a)	 	At the time of effectiveness, at the date hereof and at each
Closing Date, the Registration Statement complied or will comply in all
material respects with the requirements of the Act and the rules and
regulations thereunder
and did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as of its date
and at each Closing Date did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties set forth in the two immediately preceding
sentences shall not apply to statements in or omissions from the
Registration Statement or any post-effective amendment thereto or the
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by KCA specifically for use in the preparation
thereof. The Registration Statement contains all exhibits and schedules
required to be filed by the Act or the rules and regulations thereunder. No
order preventing or suspending the effectiveness or use of the Registration
Statement or the Prospectus is in effect and no proceedings for such purpose
have been instituted or are pending, or, to the knowledge of the Company,
are threatened in writing by the Commission.






	 	(b)	 	The documents incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, were filed on a
timely basis with the Commission and none of such documents, when they were
filed (or, if amendments to such documents were filed, when such amendments
were filed), contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Any further
documents so filed and incorporated by reference in the Registration Statement
or the Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act, and
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.






	 	(c)	 	The financial statements of the Company, together with the
related notes, included or incorporated by reference in the Registration
Statement and the Prospectus comply in all material respects with the
requirements of the Act and the Exchange Act and fairly present in all material
respects the financial condition of the Company as of the dates indicated and
the results of operations and changes in cash flows for the periods therein
specified in conformity with generally accepted accounting principles
consistently applied throughout the periods involved; and the supporting
schedules included in the Registration Statement present fairly in all material
respects the information required to be stated therein. No other financial
statements or schedules are required to be included in the
Registration Statement or the Prospectus. To the Company’s knowledge,
Ehrhardt Keefe Steiner & Hottman P.C. and PricewaterhouseCoopers LLP are
independent public accounting firms with respect to the Company within the
meaning of the Act and the rules and regulations thereunder.




 


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	 	(d)	 	The Company had a reasonable basis for, and made in good faith,
each “forward-looking statement” (within the meaning of Section 27A of the Act
or Section 21E of the Exchange Act) contained or incorporated by reference in
the Registration Statement or the Prospectus.






	 	(e)	 	All statistical or market-related data included or incorporated
by reference in the Registration Statement or the Prospectus are based on or
derived from sources that the Company reasonably believes to be reliable and
accurate, and the Company has obtained the written consent to the use of such
data from such sources, to the extent required.






	 	(f)	 	To the knowledge of the Company, there is no action pending to
delist the Common Stock from the Exchange, nor has the Company received any
written notification that the Exchange is currently contemplating terminating
such listing. When issued, the Shares will be listed on the Exchange.






	 	(g)	 	The Shares have been or will be qualified for sale under the
securities laws of such United States jurisdictions as KCA reasonably
determines, or are or will be exempt from the qualification requirements of
such jurisdictions; provided that the Company shall not be required to qualify
as a foreign corporation, become a dealer of securities, or become subject to
taxation in, or to consent to the service of process under the laws of, any
such state (except service of process with respect to the offering and sale of
the Shares).






	 	(h)	 	The Company has not taken, directly or indirectly, any action
that is designed to or that has constituted or that would reasonably be
expected to cause or result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Shares;
provided that nothing herein shall prevent the Company from filing or
submitting reports under the Exchange Act or the issuance of press releases in
the ordinary course of business.






	 	(i)	 	The Company is not an “ineligible issuer,” as defined
in Rule 405 of the Act. Subject to Section 5(a) below, the Company
represents and warrants that it has not prepared or had prepared on its behalf
or used or referred to any “issuer free writing prospectus” (as defined in Rule
433 of the Act) that relates to the Shares. Subject to Section 5(a)
below, the Company has not distributed and the Company will not distribute,
prior to the completion of the sale of the Shares, any offering material in
connection with the sale of the Shares other than the Prospectus, the
Registration
Statement, and copies of the documents, if any, incorporated by reference
therein.




 


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	 	(j)	 	The Company is not and, after giving effect to the sale of the
Shares, will not be required to register as an “investment company,” as such
term is defined in the Investment Company Act of 1940, as amended.






	 	(k)	 	The Company and each of its subsidiaries set forth on
Schedule I hereto (each a “Subsidiary” and, collectively, the
“Subsidiaries”) has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation. The Company and each of its Subsidiaries has the corporate power
and authority to own its properties and conduct its business as currently being
carried on and as described in the Registration Statement and the Prospectus,
and is duly qualified to do business as a foreign corporation in good standing
in each jurisdiction in which it owns or leases real property or in which the
conduct of its business makes such qualification necessary and in which the
failure to so qualify would have or is reasonably likely to result in a
material adverse effect upon the business, properties, operations, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries, taken as a whole, or in its ability to perform its obligations
under this Agreement (“Material Adverse Effect”).






	 	(l)	 	The Company has the corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to general
principles of equity.






	 	(m)	 	The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated will not (i) result in
a breach or violation of any of the terms and provisions of, or constitute a
default under, any law, rule or regulation to which the Company or any
Subsidiary is subject, or by which any property or asset of the Company or any
Subsidiary is bound or affected, (ii) conflict with, result in any violation or
breach of, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, lease, credit facility, debt, note,
bond, mortgage, indenture or other instrument or binding obligation or other
binding understanding (the “Contracts”) to which the Company or any
Subsidiary is a party of by which any property or asset of the Company or any
Subsidiary is bound or affected, or (iii) result in a breach or violation of
any of the terms and provisions of, or
constitute a default under, the Company’s charter or bylaws, except in the
case of clauses (i) and (ii) such breaches, violations, defaults, or
conflicts which do not individually or in the aggregate be reasonably likely
to result in a Material Adverse Effect.




 


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	 	(n)	 	All consents, approvals, orders, authorizations and filings
required on the part of the Company and its Subsidiaries in connection with the
execution, delivery or performance of this Agreement have been obtained or
made, other than such consents, approvals, orders and authorizations the
failure of which to make or obtain is not reasonably likely to result in a
Material Adverse Effect.






	 	(o)	 	The Company has an authorized capitalization as set forth in
the Registration Statement and the Prospectus. All of the issued and
outstanding shares of capital stock of the Company are duly authorized and
validly issued, fully paid and nonassessable, and have been issued in material
compliance with all applicable securities laws, and conform in all material
respects to the description thereof in the Registration Statement and the
Prospectus. None of the outstanding shares of capital stock of the Company was
issued in violation of any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase securities of the Company. Except
for the issuances of options, warrants or restricted stock or restricted stock
units in the ordinary course of business, since the respective dates as of
which information is provided in the Registration Statement or the Prospectus,
the Company has not entered into or granted any convertible or exchangeable
securities, options, warrants, agreements, contracts or other rights in
existence to purchase or acquire from the Company any shares of the capital
stock of the Company. The Shares, when issued, will be duly authorized and
validly issued, fully paid and nonassessable, issued in material compliance
with all applicable securities laws, and free of preemptive, registration or
similar rights.






	 	(p)	 	Except as set forth in the Registration Statement and the
Prospectus, the Company does not own, directly or indirectly, a majority of the
capital stock or other ownership interest in any partnership, corporation,
business trust, limited liability company, limited liability partnership, joint
stock company, trust, unincorporated association, joint venture or other
entity.






	 	(q)	 	Each of the Company and its Subsidiaries has filed all foreign,
federal, state and local returns (as hereinafter defined) required to be filed
with taxing authorities prior to the date hereof or has duly obtained
extensions of time for the filing thereof. Each of the Company and its
Subsidiaries has paid all taxes (as hereinafter defined) shown as due on such
returns that were filed and has paid all taxes imposed on or assessed against
the Company or such respective Subsidiary. The term “taxes” mean all
federal, state, local, foreign, and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or
other taxes, fees, assessments, or charges of any kind whatever, together
with any interest and any penalties, additions to tax, or additional amounts
with respect thereto. The term “returns” means all returns,
declarations, reports, statements, and other documents required to be filed
in respect to taxes.




 


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	 	(r)	 	Since the respective dates as of which information is given in
the Registration Statement or the Prospectus, (i) other than in the ordinary
course of business, neither the Company nor any of its Subsidiaries has
incurred any material liabilities or debt obligations, direct or contingent,
required to be reflected on a balance sheet in accordance with generally
accepted accounting principles, or entered into any material transactions, (ii)
the Company has not declared or paid any dividends or made any distribution of
any kind with respect to its capital stock; (iii) there has not been any change
in the capital stock of the Company or any of its Subsidiaries (other than a
change in the number of outstanding shares of Common Stock due to the issuance
of shares upon the exercise of outstanding options or warrants or the issuance
of restricted stock awards or restricted stock units under the Company’s
existing stock awards plan, or any new grants thereof in the ordinary course of
business), (iv) other than in the ordinary course of business, there has not
been any material change in the Company’s long-term or short-term debt, and (v)
there has not been the occurrence of any Material Adverse Effect.






	 	(s)	 	There is not pending or, to the knowledge of the Company,
threatened, any action, suit or proceeding to which the Company or any of its
Subsidiaries is a party or of which any property or assets of the Company is
the subject before or by any court or governmental agency, authority or body,
or any arbitrator or mediator, which is reasonably likely to result in a
Material Adverse Effect.






	 	(t)	 	The Company and each of its Subsidiaries holds, and is in
compliance with, all franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders (“Permits”) of any
governmental or self-regulatory agency, authority or body required for the
conduct of its business, and all such Permits are in full force and effect, in
each case except where the failure to hold, or comply with, any of them is not
reasonably likely to result in a Material Adverse Effect.






	 	(u)	 	The Company and its Subsidiaries have good and marketable title
to all property (whether real or personal) described in the Registration
Statement and the Prospectus as being owned by them that are material to the
business of the Company, in each case free and clear of all liens, claims,
security interests, other encumbrances or defects, except those that are not
reasonably likely to result in a Material Adverse Effect. The property held
under lease by the Company and its Subsidiaries is held by them under valid,
subsisting and enforceable leases with only such exceptions with respect to
any particular lease as do not interfere in any material respect with the
conduct of the business of the Company or its Subsidiaries.




 


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	 	(v)	 	The Company and each of its Subsidiaries owns or possesses or
has valid right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses, inventions, trade secrets and similar rights
(“Intellectual Property”) necessary for the conduct of the business of
the Company and its Subsidiaries as currently carried on and as described in
the Registration Statement and the Prospectus, except those the absence of
which are not reasonably likely to result in a Material Adverse Effect. To the
knowledge of the Company, no action or use by the Company or any of its
subsidiaries will involve or give rise to any infringement of, or license or
similar fees for, any Intellectual Property of others, except where such
action, use, license or fee is not reasonably likely to result in a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries has received
any written notice alleging any such material infringement or fee.






	 	(w)	 	The Company and each of its Subsidiaries has complied with, is
not in violation of, and has not received any written notice of violation
relating to any applicable law, rule or regulation relating to the conduct of
its business, or the ownership or operation of its property and assets,
including, without limitation (to the extent applicable), (i) the Currency and
Foreign Transactions Reporting Act of 1970, as amended, or any money laundering
laws, rules or regulations, (ii) any laws, rules or regulations related to
health, safety or the environment, including those relating to the regulation
of hazardous substances, (iii) the Sarbanes-Oxley Act and the rules and
regulations of the Commission thereunder, (iv) the Foreign Corrupt Practices
Act of 1977 and the rules and regulations thereunder, and (v) the Employment
Retirement Income Security Act of 1974 and the rules and regulations
thereunder, in each case except where the failure to be in compliance is not
reasonably likely to result in a Material Adverse Effect.






	 	(x)	 	Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, employee, representative,
agent or affiliate of the Company or any of its Subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the sale of the Shares
contemplated hereby, or lend, contribute or otherwise make available such
proceeds to any person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.




 


12









 







	 	(y)	 	The Company and each of its Subsidiaries carries, or is covered
by, insurance in such amounts and covering such risks as is customary for
companies engaged in similar businesses in similar industries.






	 	(z)	 	No labor dispute with the employees of the Company or any of
its Subsidiaries exists or, to the knowledge of the Company, is imminent that
is reasonably likely to result in a Material Adverse Effect.






	 	(aa)	 	Neither the Company nor any of its Subsidiaries is in
violation, breach or default under its certificate of incorporation, bylaws or
other equivalent organizational or governing documents.






	 	(bb)	 	Neither the Company, its Subsidiaries nor, to its knowledge,
any other party is in violation, breach or default of any Contract that is
reasonably likely to result in a Material Adverse Effect.






	 	(cc)	 	No supplier, customer, distributor or sales agent of the
Company has notified the Company that it intends to discontinue or decrease the
rate of business done with the Company, except where such discontinuation or
decrease is not reasonably likely to result in a Material Adverse Effect.






	 	(dd)	 	There are no claims, payments, issuances, arrangements or
understandings for services in the nature of a finder’s, consulting or
origination fee with respect to the introduction of the Company to KCA or the
sale of the Shares hereunder or any other arrangements, agreements,
understandings, payments or issuances with respect to the Company to which the
Company is a party that, to the knowledge of the Company, will affect KCA’s
compensation, as determined by FINRA.






	 	(ee)	 	Except as disclosed to KCA in writing or in the Registration
Statement or Prospectus, the Company has not made any direct or indirect
payments (in cash, securities or otherwise) to (i) any person, as a finder’s
fee, investing fee or otherwise, in consideration of such person raising
capital for the Company or introducing to the Company persons who provided
capital to the Company, (ii) any FINRA member, or (iii) any person or entity
that has any direct or indirect affiliation or association with any FINRA
member within the 12-month period prior to the date on which the Registration
Statement was filed with the Commission (“Filing Date”) or thereafter.






	 	(ff)	 	To the Company’s knowledge, no (i) officer or director of the
Company or its Subsidiaries, (ii) owner of 5% or more of the Company’s
unregistered securities or that of its Subsidiaries or (iii) owner of any
amount of the Company’s unregistered securities acquired within the 180-day
period prior to the Filing Date, has any direct or indirect affiliation or
association with any FINRA member.








	 	(gg)	 	Other than KCA, no person has the right to act as an agent,
underwriter or as a financial advisor in connection with the sale of the Shares
contemplated hereby.





 


13









 







5. Certain Covenants of the Company. The Company hereby agrees with KCA:




	 	(a)	 	During any period of time in which a prospectus relating to the
Shares is required to be delivered under the Act (a “Prospectus Delivery
Period”), before using or filing any Permitted Free Writing Prospectus and
before amending or supplementing the Registration Statement or the Prospectus
(in each case other than due to the filing of an Incorporated Document or any
amendment or supplement that does not relate to the Shares), to furnish to KCA
a copy of each such proposed Permitted Free Writing Prospectus, amendment or
supplement within a reasonable period of time before filing any such Permitted
Free Writing Prospectus, amendment or supplement with the Commission, and the
Company will not use, or file any such Permitted Free Writing Prospectus or
file any such proposed amendment or supplement to which KCA promptly and
reasonably objects, unless the Company’s legal counsel has advised the Company
that filing such document is required by law.






	 	(b)	 	To prepare the Prospectus Supplement and to file such
Prospectus Supplement pursuant to, and within the time periods required by,
Rule 424(b) and Rules 430B or 430C under the Act and to file any Permitted Free
Writing Prospectus to the extent required by Rule 433 under the Act and to
provide copies of the Prospectus and such Prospectus Supplement and each
Permitted Free Writing Prospectus (to the extent not previously delivered or
filed and available on EDGAR) to KCA via e-mail in “.pdf” format on such filing
date to an e-mail account designated by KCA and, at KCA’s reasonable request,
to also furnish copies of the Prospectus and such Prospectus Supplement as may
be required by the rules or regulations of the Exchange.






	 	(c)	 	To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act during each
Prospectus Delivery Period, and during such same period to advise KCA, promptly
after the Company receives notice thereof, (i) of the time when any amendment
to the Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any Permitted Free Writing Prospectus or any
amended Prospectus has been filed with the Commission (in each case other than
due to the filing of an Incorporated Document or any amendment or supplement
that does not relate to the Shares), (ii) the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any prospectus
relating to the Shares or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Act, (iii) the suspension of the qualification of the




 


14









 







 Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, (iv) of
any request by the Commission for the amendment of the Registration
Statement or the amendment or supplementation of the Prospectus or for
additional information with respect thereto and (v) of the occurrence of any
event as a result of which the Prospectus or any Permitted Free Writing
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Basic Prospectus, the
Prospectus or any such Permitted Free Writing Prospectus is delivered to a
purchaser, not misleading.




	 	(d)	 	In the event of the issuance of any such stop order or of any
such order preventing or suspending the use of the Prospectus or suspending any
such qualification during each Prospectus Delivery Period referred to above, to
use promptly its commercially reasonable efforts to obtain its withdrawal.






	 	(e)	 	To furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities
or blue sky laws of such states as KCA may reasonably designate and to maintain
such qualifications in effect so long as required for the distribution of the
Shares; provided that the Company shall not be required to qualify as a foreign
corporation, become a dealer of securities, or become subject to taxation in,
or to consent to the service of process under the laws of, any such state
(except service of process with respect to the offering and sale of the
Shares); and to promptly advise KCA of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation of any proceeding for such
purpose.






	 	(f)	 	To make available to KCA at its offices in New York, New York
(or as designated by KCA), without charge, as soon as practicable after the
date of this Agreement, and thereafter from time to time to furnish to KCA, as
many copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto and
documents incorporated by reference therein after the effective date of the
Registration Statement) and each Permitted Free Writing Prospectus as KCA may
reasonably request during each Prospectus Delivery Period; and during each such
period, the Company will prepare and file promptly, subject to Section
5(a) hereof, such amendment or amendments to the Registration Statement,
the Prospectus, the Prospectus Supplement or any Permitted Free Writing
Prospectus as may be necessary to comply with the requirements of Section
10(a)(3) of the Act.




 


15









 











	 	(g)	 	To furnish or make available to KCA during each Prospectus
Delivery Period, copies of all annual, quarterly and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may
be designated by the Commission, in each case as soon as such reports,
communications, documents or information becomes available or promptly upon the
request of KCA, as applicable; provided, that so long as the Company is subject
to the reporting requirements of either Section 13 or Section 15(d) of the
Exchange Act and is timely filing reports with the Commission on EDGAR, it is
not required to furnish such reports or statements to KCA.






	 	(h)	 	If, at any time during a Prospectus Delivery Period, any event
shall occur or condition shall exist as a result of which it is necessary in
the reasonable opinion of counsel for KCA or counsel for the Company, to
further amend or supplement the Prospectus or any Permitted Free Writing
Prospectus as then amended or supplemented in order that the Prospectus or any
such Permitted Free Writing Prospectus will not include an untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, in
the light of the circumstances existing at the time the Prospectus or any such
Permitted Free Writing Prospectus is delivered to a purchaser, or if during
such period it shall be necessary, in the reasonable opinion of either such
counsel, to amend or supplement the Registration Statement, the Prospectus or
any Permitted Free Writing Prospectus in order to comply with the requirements
of the Act, prompt notice shall be given, and confirmed in writing, to KCA to
cease the solicitation of offers to purchase the Shares, and the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the Act, the Exchange Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement, the Prospectus or any such Permitted Free Writing
Prospectus comply with such requirements.






	 	(i)	 	To generally make available to its security holders as soon as
reasonably practicable, an earnings statement (in form complying with the
provisions of Section 11(a) of the Act and Rule 158 under the Act) covering the
12 month period beginning not later than the first day of the Company’s fiscal
quarter next following the “effective date” (as defined in such Rule 158) of
the Registration Statement with respect to each sale of Shares.






	 	(j)	 	To furnish to KCA one conformed copy of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto, (excluding all exhibits thereto) and all documents incorporated by
reference therein.






	 	(k)	 	To apply the net proceeds from the sale of the Shares in the
manner described in the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus under the caption “Use
of Proceeds.”




 


16









 











	 	(l)	 	The Company will not, and will cause its Subsidiaries not to,
take, directly or indirectly, any action designed to cause or result in, or
that constitutes or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares; provided that nothing herein shall
prevent the Company from filing or submitting reports under the Exchange Act or
the issuance of press releases in the ordinary course of business.






	 	(m)	 	Except as otherwise agreed between the Company and KCA, to pay
all costs, expenses, fees and taxes in connection with (i) the preparation and
filing of the Registration Statement, any Basic Prospectus, the Prospectus, any
Permitted Free Writing Prospectus, each Preliminary Prospectus, and any
amendments or supplements thereto, and the printing and furnishing of copies of
each thereof to KCA and to dealers (including costs of mailing and shipment),
(ii) the registration, issue and delivery of the Shares, (iii) the producing,
word processing and/or printing of this Agreement, any powers of attorney and
any closing documents (including compilations thereof) and the reproduction
and/or printing and furnishing of copies of each thereof to KCA (including
costs of mailing and shipment), (iv) the listing of the Shares on the Exchange
and any registration thereof under the Exchange Act, (v) the fees and
disbursements of counsel to the Company, (vi) the documented, reasonable fees
and disbursements of outside counsel to KCA in connection with the negotiation
and completion of this Agreement (which shall include all matters required to
be completed as conditions precedent to the parties agreeing to and executing
this Agreement) up to a maximum of $5,000 for all such fees and disbursements,
(vii) the documented, reasonable fees and disbursements of outside counsel to
KCA in connection with each review of the “comfort” letters and other documents
referred to in Section 7(b) other than the initial such review, up to a maximum
of $5,000 per review for all such fees and disbursements and (viii) any other
costs and expenses of the Company incident to the performance of the Company’s
other obligations hereunder.






	 	(n)	 	With respect to the offering(s) of Shares contemplated hereby,
the Company will not distribute any offering material in connection with the
offer and sale of the Shares, other than the Registration Statement, any Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus and other
materials permitted by the Act or the rules and regulations promulgated
thereunder.




 


17









 











	 	(o)	 	During each period beginning with the date of the Transaction
Notice and ending after the close of business on the Purchase Date for the
related Transaction (an “Applicable Offering Period”), the Company will
not (i)
offer, pledge, announce the intention to sell, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of its Common Stock or any
securities convertible into or exercisable or exchangeable for such shares
or (ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of such shares,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares or such other securities, in cash or
otherwise, without the prior written consent of KCA other than (i) the
Shares sold hereunder; (ii) any shares of Common Stock of the Company issued
upon the conversion or exercise of any securities outstanding at the
beginning of the Applicable Offering Period; and (iii) any securities issued
pursuant to stock-based compensation plans existing at the beginning of the
Applicable Offering Period.






	 	(p)	 	The Company will, pursuant to reasonable procedures developed
in good faith, retain copies of each Permitted Free Writing Prospectus that is
not filed with the Commission in accordance with Rule 433 under the Act.






	 	(q)	 	That it consents to KCA trading in the Common Stock for KCA’s
own account and for the account of its clients at the same time as sales of the
Shares occur pursuant to this Agreement, so long as such trading complies with
the “plan of distribution” in the Registration Statement and the Prospectus.






	 	(r)	 	To advise KCA promptly after it shall have received notice or
obtain knowledge thereof, of any information or fact that would alter or affect
any opinion or certificate provided to KCA pursuant to this Agreement.






	 	(s)	 	To use its reasonable best efforts to cause the Shares to be
listed on the Exchange promptly after the execution and delivery of this
Agreement, subject only to notice of issuance at or before the time of purchase
on the relevant Purchase Date, and to provide evidence thereof reasonably
satisfactory to KCA and its counsel.





6. Execution of Agreement. KCA’s obligations under this Agreement shall be subject to
the satisfaction of the following conditions in connection with the execution of this Agreement:




	 	(a)	 	KCA shall have received the following deliveries not later than
five days after the date of this Agreement:






	 	(i)	 	an officers’ certificate signed by two of its
executive officers certifying as to the matters set forth in
Exhibit B hereto;






	 	(ii)	 	an opinion of Latham & Watkins LLP, counsel for
the Company, addressed to KCA and dated the date of this Agreement, as
to the
matters set forth in Exhibit C hereto, with only such
departures from such form as Morrison & Foerster LLP, counsel for
KCA, shall have reasonably approved;




 


18









 











	 	(iii)	 	an opinion of Holland & Hart LLP, Colorado
counsel to the Company, addressed to KCA and dated the date of this
Agreement, as to the matters set forth in Exhibit D hereto,
with only such departures from such form as Morrison & Foerster LLP,
counsel to KCA, shall have reasonably approved;






	 	(iv)	 	so long as KCA provides such independent
auditors with any representation letters they reasonably request in
accordance with customary practice, a “comfort” letter from each of
Ehrhardt Keefe Steiner & Hottman P.C. and PricewaterhouseCoopers LLP
dated the date of this Agreement and addressed to KCA, in a form
reasonably satisfactory to KCA and its counsel consistent with
customary practice for such letters;






	 	(v)	 	evidence reasonably satisfactory to KCA and its
counsel that the Registration Statement has become effective;






	 	(vi)	 	evidence reasonably satisfactory to KCA and its
counsel that the Shares have been approved for listing on the Exchange,
subject only to notice of issuance at or before the time of purchase on
the relevant Purchase Date;






	 	(vii)	 	resolutions duly adopted by the Company’s
board of directors, and certified by an officer of the Company,
authorizing the Registration Statement, Company’s execution of this
Agreement and the consummation by the Company of the transactions
contemplated hereby, including the issuance of the Shares and such
other matters as are customary for the transactions contemplated
hereby; and






(viii) such other documents as KCA shall reasonably request; and




	 	(b)	 	KCA shall have received the following deliveries from Morrison
& Foerster LLP not later than five days after the date of this Agreement: (i) a
favorable opinion, as to the matters set forth in Exhibit E hereto, and
(ii) a letter with respect to Rule 10b-5 of the Exchange Act, as to the matters
set forth in Exhibit F hereto.




 


19









 










7. Additional Covenants of the Company. The Company further covenants and agrees with
KCA as follows:




	 	(a)	 	Each acceptance of a Transaction Notice by the Company shall be
deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate delivered to
	 
	 	 	 	KCA pursuant hereto are true and correct at the Time of Acceptance, and an
undertaking that such representations and warranties will be true and
correct on any Closing Date, as though made at and as of each such time, in
each case, except for representations and warranties that address matters
only as of a certain date, which need only be true and correct as of such
certain date (it being understood that such representations and warranties
shall relate to the Registration Statement, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as amended and
supplemented to the time of such Transaction Notice).






	 	(b)	 	Each time that the Registration Statement, the Prospectus or
any Permitted Free Writing Prospectus shall be amended or supplemented after
the date of this Agreement (including, except as noted in the proviso at the
end of this Section 7(b), by the filing of any Incorporated Document,
but excluding any prospectus supplement filed pursuant to Section 5(b)
hereof or any prospectus supplement filed pursuant to Rule 424(b) of the Act
that does not relate to the Shares), the Company shall furnish or cause to be
furnished to KCA promptly, but not later than five business days after the date
of such amendment or supplement or such filing, as applicable (except for the
“comfort” letters referred to in Section 7(b)(iv) below, which the
Company shall furnish or cause to be furnished to KCA not later than five
business days after the date of the delivery by KCA to the Company of a “circle
up” for the applicable comfort letter), the following, each dated the date of
filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, in form and substance reasonably satisfactory to KCA
and its counsel:






(c)




	 	(i)	 	a certificate certifying as to the matters set
forth in Exhibit B hereto at the time of the filing or
effectiveness of such amendment or supplement, as applicable, as though
made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus as amended and supplemented to such
time);






	 	(ii)	 	an opinion of Latham & Watkins LLP, counsel for
the Company, addressed to KCA, as to the matters set forth in
Exhibit C hereto, with only such departures from such form as
Morrison & Foerster LLP, counsel for KCA, shall have reasonably
approved; or, in lieu of such opinion, counsel last furnishing such
opinion to KCA shall furnish KCA with a letter substantially to the
effect that KCA may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate
to the Registration Statement, the Prospectus or any Permitted Free
Writing
Prospectus as amended and supplemented to the time of delivery of
such letters authorizing reliance);




 


20









 











	 	(iii)	 	an opinion of Holland & Hart LLP, Colorado
counsel to the Company, addressed to KCA and dated the date of this
Agreement, as to the matters set forth in Exhibit D hereto,
with only such departures from such form as Morrison & Foerster LLP,
counsel to KCA, shall have reasonably approved; or, in lieu of such
opinion, counsel last furnishing such opinion to KCA shall furnish KCA
with a letter substantially to the effect that KCA may rely on such
last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such last
opinion shall be deemed to relate to the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus as amended and
supplemented to the time of delivery of such letters authorizing
reliance);






	 	(iv)	 	so long as KCA provides such independent
auditors with any representation letters they reasonably request in
accordance with customary practice, a “comfort” letter from each of
Ehrhadt Keefe Steiner & Hottman P.C. and PricewaterhouseCoopers LLP,
addressed to KCA, in a form reasonably satisfactory to KCA and its
counsel of the same tenor as the letter referred to in Section
6(a)(iv) hereof but modified to relate to the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus as
amended and supplemented to the date of such letter consistent with
customary practice for such letters;






	 	(v)	 	such other documents as KCA shall reasonably
request;






provided, however, that (A) the Company will not be required
to furnish any of such certificates, opinions, letters or other documents to
KCA in connection with the filing of a Current Report on Form 8-K unless (i)
such Current Report on Form 8- K is filed at any time during which either a
Transaction Notice is in effect or a prospectus relating to the Shares is
required to be delivered under the Act and (ii) KCA has requested such
certificates, opinions, letters or other documents based upon the event or
events reported in such Current Report on Form 8-K and (B) the obligations
of the Company under this Section 7(b) shall be deferred during any
Suspension Period under Section 1(f) and shall recommence upon the
termination of such Suspension Period.




	 	(d)	 	To disclose in its Quarterly Reports on Form 10-Q and in its
Annual Report on Form 10-K the number of the Shares sold through KCA under this
Agreement, the net proceeds to the Company from the sale of the Shares and the
compensation paid by the Company with respect to sales of the Shares pursuant
to this Agreement during the relevant period.




 


21









 










8. Conditions of KCA’s Obligation with Respect to Sale of the Shares. KCA’s
obligation to solicit purchases on an agency basis for the Shares pursuant to a Transaction Notice
that has been accepted by the Company shall be subject to the satisfaction of the following
conditions at the Time of Acceptance, the time of the commencement of trading on the Exchange on
the Purchase Date and at the time of closing on the Closing Date:




	 	(a)	 	The representations and warranties on the part of the Company
herein contained or contained in any certificate of an officer or officers of
the Company delivered pursuant to the provisions hereof shall be true and
correct in all material respects, except that representations and warranties
that address matters only as of a certain date need only be true and correct as
of such certain date.






	 	(b)	 	The Company shall have performed and observed its covenants and
other obligations hereunder in all material respects.






	 	(c)	 	From the date of delivery of the Transaction Notice until the
Closing Date, trading in the Common Stock on the Exchange shall not have been
suspended.






	 	(d)	 	Subsequent to the date of the applicable Transaction Notice, no
Material Adverse Effect shall have occurred which is not described in any
Permitted Free Writing Prospectus (excluding any amendment or supplement
thereto made after the date of such Transaction Notice) or the Prospectus
(excluding any amendment or supplement thereto made after the date of such
Transaction Notice) and the effect of which in the reasonable judgment of KCA
makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the Closing Date on the terms and in the manner
contemplated by this Agreement, any Free Writing Prospectus and the Prospectus.






	 	(e)	 	The Shares to be issued pursuant to the Transaction Notice
shall have been approved for listing on the Exchange, subject only to notice of
issuance.






	 	(f)	 	No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal,
state or foreign governmental or regulatory authority that would, as of the
Closing Date, prevent the issuance or sale of the Shares; and no injunction or
order of any federal, state or foreign court shall have been issued that would,
as of the Closing Date, prevent the issuance or sale of the Shares.






	 	(g)	 	The Company shall have furnished evidence reasonably
satisfactory to KCA and its counsel that the Registration Statement remains
effective.






	 	(h)	 	On or prior to the Closing Date, the Company shall have
furnished to KCA such further certificates and documents as KCA may reasonably
request.




 


22









 











9. Termination by KCA.




	 	(a)	 	This Agreement and the obligations of KCA hereunder may be
terminated, in the sole and absolute discretion of KCA, if at any time (i) any
of the conditions specified in Section 8 hereof shall not have been
fulfilled when and as required by this Agreement to be fulfilled; (ii) after
delivery of a fully executed Transaction Notice and prior to the applicable
Closing Date, any Material Adverse Effect that is not described in any
Permitted Free Writing Prospectus (excluding any amendment or supplement
thereto made after the date of such Transaction Notice) or the Prospectus
(excluding any amendment or supplement thereto made after such date); (iii)
there has since the date hereof occurred an outbreak or escalation of
hostilities, any change in the financial markets or any other national or
international calamity or crisis the effect of which, in the judgment of KCA,
is material and adverse and makes it impracticable or inadvisable to market or
deliver the Shares or enforce contracts for the sale of the Shares; (iv)
trading in any securities of the Company has been suspended by the Commission
or by the Exchange or trading generally on the Exchange has been suspended
(including automatic halt in trading pursuant to market-decline triggers other
than those in which solely program trading is temporarily halted), or
limitations on prices for trading (other than limitations on hours or numbers
of days of trading) have been fixed, or maximum ranges for prices for
securities have been required, by such Exchange or FINRA or by order of the
Commission or any other governmental authority; (v) any federal or state
statute, regulation, rule or order of any court or other governmental authority
has been enacted, published, decreed or otherwise promulgated that in the
reasonable opinion of KCA has or will have a Material Adverse Effect; (vi) any
action has been taken by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in the reasonable opinion of
KCA has a material and adverse effect on the securities markets in the United
States; or (vii) a general moratorium on commercial banking activities has been
declared by federal or New York authorities.






	 	(b)	 	If KCA elects to terminate this Agreement as provided in
Section 9(a), KCA shall promptly notify the Company of such termination
by telephone, promptly confirmed by facsimile or email stating in reasonable
detail the basis therefor. If a Transaction Notice is pending at the time of
such termination, such Transaction Notice shall be void.






	 	(c)	 	If the solicitation of purchases on an agency basis as
contemplated by this Agreement, is not carried out by KCA for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply in all material respects with any of the
terms of this Agreement, the Company shall not be under any obligation or
liability
under this Agreement (except to the extent provided in Sections 5(m)
and 11 hereof) and KCA shall be under no obligation or liability to
the Company under this Agreement (except to the extent provided in
Section 11 hereof).




 


23









 











	 	(d)	 	KCA may terminate this Agreement for any reason upon prior
notice to the Company; provided, however, that if such
termination shall occur prior to the Closing Date for any sale of the Shares,
such sale shall settle in accordance with the provisions of this Agreement.
Any such termination shall be without liability of any party to any other party
except that the provisions of Sections 5(m) and 11 hereof shall
remain in full force and effect notwithstanding such termination and KCA shall
be under no obligation or liability to the Company under this Agreement (except
to the extent provided in Section 11 hereof).





10. Termination by Company. The Company may terminate this Agreement in its sole
discretion from and after February 9, 2011 upon prior written notice to KCA; provided, however,
that if such termination shall occur prior to the Closing Date for any sale of the Shares, such
sale shall settle in accordance with the provisions of this Agreement. Any such termination shall
be without liability of any party to any other party except that the provisions of Sections
5(m) and 11 hereof shall remain in full force and effect notwithstanding such
termination and KCA shall be under no obligation or liability to the Company under this Agreement
(except to the extent provided in Section 11 hereof).




11. Indemnity and Contribution.




	 	(a)	 	The Company agrees to indemnify and hold harmless KCA, its
affiliates, directors and officers and each person, if any, who controls KCA
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable, documented, out of pocket legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), that
arise out of, or are based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, not
misleading, or (ii) or any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement
thereto), any Permitted Free Writing Prospectus (or any amendment or supplement
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, in each case
except insofar as such losses, claims, damages or liabilities arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to KCA furnished to the Company in writing by KCA expressly for use therein, it
being understood and agreed that the only such information furnished by KCA
consists of the information described as such in Section 11(b)
hereof.




 


24









 











	 	(b)	 	KCA agrees to indemnify and hold harmless the Company, its
directors, its officers who signed the Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to KCA furnished to the Company in
writing by KCA expressly for use in the Registration Statement, the Basic
Prospectus, the Prospectus (or any amendment or supplement thereto), any
Permitted Free Writing Prospectus, it being understood and agreed upon that the
only such information furnished by KCA consists of the information in the
Prospectus as specified in Exhibit H hereto.






	 	(c)	 	If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnification may be sought pursuant to either
Sections 11(a) or 11(b) hereof, such person (the
“Indemnified Person”) shall promptly notify the person against whom
such indemnification may be sought (the “Indemnifying Person”)
in writing; provided that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have under this Section
11 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person (who
shall not, without the consent of the Indemnified Person, not to be
unreasonably withheld, be counsel to the Indemnifying Person) to represent the
Indemnified Person in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary or (ii) the Indemnifying Person has failed
within a reasonable time after notice from the Indemnified Person to retain
counsel reasonably satisfactory to the Indemnified Person, in either which case
the Indemnifying Person will pay the reasonable, documented, out of pocket fees
and expenses of such outside counsel. It is understood and agreed that the




 


25









 







Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and that all such reasonable, documented, out
of pocket fees and expenses shall be paid or reimbursed as they are
incurred. Any such separate firm for KCA, its affiliates, directors and
officers and any control persons of KCA shall be designated in writing by
KCA and any such separate firm for the Company, its directors, its officers
who signed the Registration Statement and any control persons of the Company
shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment subject to the other terms and conditions of this
Section 11. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request, (ii) the Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior
to the date of such settlement and (iii) such reimbursement is not subject
to a bona fide dispute between the parties. Notwithstanding the immediately
preceding sentence, an Indemnifying Person may, without the written consent
of the Indemnified Person but upon three days’ prior written notice to such
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnified Person is a party, if such
settlement (x) includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such proceeding
and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.




	 	(d)	 	If the indemnification provided for in Sections 11(a)
and 11(b) hereof is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and KCA, on the
other, from the offering of the Shares or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative




 


26









 







 fault of the Company, on the one hand, and KCA, on the other, in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on
the one hand, and KCA, on the other, shall be deemed to be in the same
respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Shares and the total discounts
and commissions received by KCA in connection therewith, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate
offering price of the Shares. The relative fault of the Company, on the one
hand, and KCA, on the other, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by KCA, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.




	 	(e)	 	The Company and KCA agree that it would not be just and
equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 11(d)
hereof. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in Section 11(d)
hereof shall be deemed to include, subject to the limitations set forth above,
any reasonable, documented, out of pocket legal or other expenses incurred by
such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 11, in no event shall
KCA be required to contribute any amount in excess of the amount by which the
total discounts and commissions received by KCA with respect to the offering of
the Shares exceeds the amount of any damages that KCA has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.






	 	(f)	 	The remedies provided for in this Section 11 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Person at law or in equity.





12. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form
of communication, and if to KCA, shall be sufficient in all respects if delivered to Knight Capital
Americas, L.P., 320 Park Avenue, New York, New York 10012, with separate copies to the attention of
William Kelly, Managing Director, wkelly@knight.com, and Joshua Jedwab, Managing Director — Legal &
Compliance Dept, jjedwab@knight.com, Facsimile No. 914.251.5812, and if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at:




Rentech, Inc.

10877 Wilshire Boulevard, Suite 600

Los Angeles, CA 90024

Fax: 310.571.9799

Attention: Dan J. Cohrs, Executive Vice President and Chief Financial Officer


 


27









 






with a copy to (which shall not constitute notice),




Latham & Watkins LLP

140 Scott Drive

Menlo Park, CA 94025

Fax: 650.463.2600

Attention: Anthony J. Richmond



Notwithstanding the foregoing, Transaction Notices shall be delivered by facsimile or “.pdf” email
format as follows:




To the Company:

Facsimile: 310.571.9799

email: dcohrs@rentk.com

Attn: Dan J. Cohrs, Executive Vice President and Chief Financial Officer

Tel. Confirm: 310.571.9831




To KCA of the Acceptance of Transaction Notice:

Facsimile: 201.748.5554

email: kmaxdesk@knight.com

Attn: William Kelly

Tel. Confirm: 212.209.1494



13. No Fiduciary Relationship. The Company acknowledges and agrees that KCA is acting
solely in the capacity of an arm’s length contractual counterparty to the Company with respect to
the offering of Shares contemplated hereby (including in connection with determining the terms of
the offering) and not as a financial advisor or a fiduciary to the Company or any other person.
Additionally, KCA is not advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and KCA shall have no
responsibility or liability to the Company with respect thereto. Any review by KCA of the Company,
the transactions contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of KCA and shall not be on behalf of the Company.



14. Adjustments for Stock Splits. The parties acknowledge and agree that all share
related numbers contained in this Agreement and any Transaction Notice shall be adjusted to take
into account any stock split effected with respect to the Shares after the date hereof.


 


28









 





15. KCA as Market Maker. KCA and one or more of its affiliates may make markets in
the Common Stock or other securities of the Company, in connection with which they may buy and
sell, as agent or principal, for long or short account, shares of Common Stock or other securities
of the Company, at the same time that KCA is acting as agent pursuant to this Agreement; provided
that KCA acknowledges and agrees that any such transactions are not being, and shall not be deemed
to have been, undertaken at the request or direction of, or for the account of, the Company, and
that the Company has and shall have no control over any decision by KCA and its affiliates to enter
into any such transactions.



16. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York, other than rules governing choice of applicable law. The
section headings in this Agreement have been inserted as a matter of convenience of reference and
are not a part of this Agreement.



17. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have exclusive jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with respect thereto.
Each of KCA and the Company, on its behalf and, to the extent permitted by applicable law, on
behalf of its affiliates, waives all right to trial by jury in any action, proceeding or
counterclaim, whether based upon contract, tort or otherwise, in any way arising out of or relating
to this Agreement. The Company agrees that a final and non-appealable judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and binding upon the
Company and may be enforced in any other courts in the jurisdiction of which the Company is or may
be subject, by suit upon such judgment.



18. Parties in Interest. This Agreement herein set forth has been and is made solely
for the benefit of KCA and the Company and to the extent provided in Section 11 hereof the
controlling persons, directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such purchaser, from
KCA) shall acquire or have any right under or by virtue of this Agreement.



19. Successors and Assigns. This Agreement shall be binding upon KCA and the Company
and their successors and assigns and any successor or assign of any substantial portion of the
Company’s and KCA’s respective businesses and/or assets.



20. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and KCA contained in this Agreement or made by or on
behalf of the Company or KCA pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation made by or on behalf
of the Company or KCA.


 


29









 





21. Certain Defined Terms. For purposes of this Agreement, except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under Act.



22. Amendments or Waivers. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by the parties hereto.



23. Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.



[The remainder of this page is intentionally left blank.]



 


30









 





If the foregoing correctly sets forth the understanding among the Company and KCA, please so
indicate in the space provided below for the purpose, whereupon this letter and your acceptance
shall constitute a binding agreement between the Company and KCA.



	 	 	 	 	 
	 	Very truly yours,



RENTECH, INC.

 	 
	 	By:  	/s/ Dan J. Cohrs
 	 
	 	 	Name:  	 Dan J. Cohrs	 
	 	 	Title:  	Executive Vice President and Chief   

Financial Officer 	 




Accepted and agreed to as of the

date first above written:



KNIGHT CAPITAL AMERICAS, L.P.



	 	 	 	 	 
	By:

	 	/s/ William Kelly
 

Name: William Kelly 

Title:   Managing Director, Head of Equity Capital Markets
	 	 






 


 









 





Schedule I




Subsidiaries of the Company




Rentech Development Corporation, a Colorado corporation



Rentech Energy Midwest Corporation, a Delaware corporation



Rentech Energy Technology Center, LLC, a Colorado limited liability company

formerly named Sand Creek Energy, LLC, a Colorado limited liability company



Rentech Services Corporation, a Colorado corporation



GCSEC Holdings, LLC, a Delaware limited liability company

formerly named RSFC, LLC, a Delaware limited liability company



Gulf Coast Synthetic Energy Center, LLC, a Delaware limited liability company

formerly named RSFC Land Management, a Delaware limited liability company



Rentech SilvaGas LLC, a Delaware limited liability company



SilvaGas Corporation, a Delaware corporation



RREC Holdings, LLC, a Delaware limited liability company



Rialto Renewable Energy Center, LLC, a Delaware limited liability company



Rialto Power, LLC, a Delaware limited liability company



RTK Acquisition Sub, Inc, a Hawaii corporation




 


 









 







Exhibit A




[KCA Letterhead]




                    , 201[__]




Rentech, Inc.

10877 Wilshire Boulevard, Suite 600

Los Angeles, CA 90024

Attention: Dan J. Cohrs, Executive Vice President and Chief Financial Officer




VIA FACSIMILE




TRANSACTION NOTICE




Dear Dan:



This Notice sets forth the terms of the agreement of Knight Capital Americas, L.P. (“KCA”) with
Rentech, Inc., a Colorado corporation (the “Company”), relating the issuance of shares of the
Company’s common stock, par value $0.01 per share pursuant to the Amended and Restated Distribution
Agreement between the Company and KCA, dated February [___], 2011 (the “Agreement”). Unless
otherwise defined below, capitalized terms defined in the Agreement shall have the same meanings
when used herein.



By countersigning or otherwise indicating in writing the Company’s acceptance of this Notice (an
“Acceptance”), the Company shall have agreed with KCA to engage in the following agency
transaction:



	 	 	 	 	 
	Number of Shares to be Sold:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Minimum Price at which Shares may be Sold: (“Floor Price”)
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Average Daily Trading Volume (“ADTV”)1 for the 30
Exchange Business Days preceding the date of delivery of is
Notice:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Date(s) on which Shares may be Sold: (“Purchase
Date”)2
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Manner in which Shares are to be Sold:

	 	At-the-market	 	 






The Transaction set forth in this Notice will not be binding on the Company or KCA unless and until
the Company delivers its Acceptance; provided, however, that neither the Company nor KCA will be
bound by the terms of this Notice unless the Company delivers its Acceptance by                      am/pm (New
York time) on [the date hereof/                    , 201_].



The Transaction, if it becomes binding on the parties, shall be subject to all of the
representations, warranties, covenants and other terms and conditions of the Agreement, except to
the extent amended or modified hereby, all of which are expressly incorporated herein by reference.
Each of the representations and warranties set forth in the Agreement shall be deemed to have been
made at and as of the date of the Company’s acceptance and on any Purchase Date and any Closing
Date, except for representations and warranties that address matters only as of a certain date.


 





	 	 	 
	1	 	Determined in accordance with Regulation M.
	 
	2	 	See Section 3(b) of the Agreement for determination of
Purchase Date.



 


A - 1









 






Exhibit A



If the foregoing conforms to your understanding of our agreement, please so indicate by providing
your Acceptance in the manner contemplated by the Agreement.



	 	 	 	 	 
	 	Very truly yours,



KNIGHT CAPITAL AMERICAS, L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




ACCEPTED as of the date

first above written



RENTECH, INC.



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 
Name: Dan J. Cohrs

Title:   Executive Vice President and Chief Financial Officer	 	 






[Note: The Company’s acceptance may also be evidenced by a separate written acceptance
referencing this Notice and delivered in accordance with the Agreement]




 


A - 2