REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION
RIGHTS AGREEMENT
(the
“Agreement”),
dated
as of April 14, 2006, is made by and among Xethanol Corporation., a Delaware
corporation (the “Company”),
Crestview Capital Master, LLC (“Crestview”), and TOIBB Investment, LLC
(“TOIBB”)
(each
of Crestview and TOIBB are referred to herein as a “Holder”).
Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed to them in the Investment Agreement (as defined
below).
RECITALS
WHEREAS,
the Holder has entered into that certain Investment Agreement (the “Investment
Agreement”), dated of even date herewith, by and among H2Diesel, Inc., a
Delaware corporation (“H2”), certain other persons and the Company, whereby the
Holder may become the owner of shares of the Company’s common stock par value,
$0.0001 per share (the “Common Stock”), in the event that the Holder elects to
exercise its Put Right in accordance with the terms and conditions of the
Investment Agreement; and
WHEREAS,
if the Holder acquires shares of the Common Stock pursuant to the Investment
Agreement, the Company desires to provide to the Holder rights to registration
under the Securities Act (as defined below) of Registrable Securities (as
defined below), on the terms and subject to the conditions set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing recitals and of the mutual promises
hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
1. Definitions.
As used
in this Agreement, the following capitalized terms have the following respective
meanings:
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any similar federal statute
then in effect, and a reference to a particular section thereof is deemed to
include a reference to the comparable section, if any, of any such similar
federal statute.
“Person”
means
any individual, corporation, partnership, limited partnership, limited liability
company, syndicate, trust, association or other entity.
“Prior
Agreements”
means
a
Securities Purchase Agreement among the Company and certain investors and a
Registration Rights among the same parties, each of which is dated April 3,
2006.
“Prior
Registration Statement”
means
a
registration statement filed with the Securities and Exchange Commission
pursuant to the Prior Agreements.
“Registrable
Securities”
means
any shares of Common Stock acquired by the Holder pursuant to the Investment
Agreement and any shares of Common Stock which may be issued or distributed
in
respect thereof by way of stock dividend or stock split or other distribution,
recapitalization or reclassification. Any particular Registrable Securities
that
are issued will cease to be Registrable Securities when (i) a registration
statement with respect to the sale by the Holder of such securities becomes
effective under the Securities Act and such securities have been disposed of
in
accordance with such registration statement, (ii) such securities have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (iii) all of the Registrable Securities then owned
by
such Holder could be sold pursuant to Rule 144(k), or (iv) such securities
have
ceased to be outstanding.
“Registration
Expenses”
means
any and all expenses incident to performance of or compliance with this
Agreement, including, without limitation, (i) all SEC and stock exchange or
National Association of Securities Dealers, Inc. (the “NASD”)
registration and filing fees (including, if applicable, the fees and expenses
of
any “qualified independent underwriter,” as such term is defined in NASD conduct
rule 2720, and of its counsel), (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for
the
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all
fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange pursuant to clause (vi) of Section
4
and all
rating agency fees, (v) the fees and disbursements of counsel for the Company
and of its independent public accountants, including the expenses of any special
audits and/or “cold comfort” letters required by or incident to such performance
and compliance, (vi) the reasonable fees and disbursements of counsel selected
pursuant to Section 7
hereof
by the Holder in connection with each such registration and (vii) other
reasonable out-of-pocket expenses of Holder (provided
that
such expenses will not include expenses of counsel other than those provided
for
in clause (vi) above).
“Securities
Act”
means
the Securities Act of 1933, as amended, or any similar federal statute then
in
effect, and a reference to a particular section thereof will be deemed to
include a reference to the comparable section, if any, of any such similar
federal statute.
“SEC”
means
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act or the Exchange Act.
“Selling
Expenses”
means
underwriting discounts and commissions and transfer taxes, if any, applicable
to
the sale of Registrable Securities.
2. Incidental
Registrations.
(a) Right
to Include Registrable Securities.
If the
Company, at any time after the Holder owns any Registrable Securities, proposes
to register shares of its stock under the Securities Act (other than (i) a
registration statement on Form S-4 or S-8, or any successor or other forms
promulgated for similar purposes, or (ii) a registration statement with respect
to corporate reorganizations or other transactions under Rule 145 of the
Securities Act or any successor rule promulgated for similar purposes or (iii)
the registration statement contemplated by the Prior Agreements), whether or
not
for sale for its own account (including, without limitation, any registration
effected pursuant to Section 3
hereof),
in a manner which would permit registration of Registrable Securities for sale
to the public under the Securities Act, it will, at each such time, give prompt
written notice to the Holder of its intention to do so and will afford each
the
Holder an opportunity to include in such registration all or part of the
Registrable Securities held by the Holder. Upon the written request of the
Holder made within fifteen (15) days after the receipt of any such notice (which
request will specify the Registrable Securities intended to be disposed of
by
the Holder), the Company will, subject to Section 2(c)
below,
use its reasonable best efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to
register by the Holder to the extent requisite to permit the disposition of
the
Registrable Securities so to be registered; provided that (i) if, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company determines for any reason not to proceed
with the proposed registration of the securities to be sold by it, the Company
may, at its election, give written notice of such determination to the Holder
and, thereupon, will be relieved of its obligation to register any Registrable
Securities in connection with such registration, and (ii) if such registration
involves an underwritten offering, the Holder requesting to be included in
the
Company’s registration must sell its Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply to the Company
(including entering into an underwriting agreement in customary form with the
underwriter or underwriters selected for such offering by the Company), as
may
be customary or appropriate in combined primary and secondary offerings. If
a
registration requested pursuant to this Section 2(a)
involves
an underwritten public offering, the Holder may elect, in writing at least
thirty (30) days prior to the effective date of the registration statement
filed
in connection with such registration, not to register such securities in
connection with such registration.
2
(b) Expenses.
The Company will pay all Registration Expenses incurred in connection with
each
registration of Registrable Securities pursuant to this Section 2.
Each
Holder will pay all Selling Expenses incurred in connection with the sale of
its
of Registrable Securities.
(c) Priority
in Incidental Registrations. If a registration pursuant to this Section
2
involves
an underwritten offering and the managing underwriter determines in good faith
that marketing factors require a limitation on the number of securities to
be
underwritten, the number of securities that may be included will be limited
to
the number of securities that, in the opinion of such underwriter, should be
included and the securities to be included in the registration will be allocated
first, to the Company, and second, to other holders of the Company’s securities
(including the Holder), pro rata based on the number of shares requested by
the
Holder to be included.
(d) If
the
Incidental Registration is made pursuant to another registration rights
agreement with subsequent purchasers of the Company’s securities, then the
Holders shall be deemed to have the same rights as such other purchasers under
such other registration rights agreement.
3. Registration
on Request.
(a) At
anytime after the Holder acquires the Registrable Securities, upon the written
request of the Holder (the “Demand Party”) requesting that the Company effect
the registration under the Securities Act of all or part of the Registrable
Securities held by the Holder (a “Demand”); and specifying the amount and
intended method of disposition thereof, the Company thereupon will, as
expeditiously as possible, subject to the limitations of this Section
3,
use its
reasonable best efforts to effect the registration under the Securities Act
of
(i) such Registrable Securities which the Company has been so requested to
register by the Demand Party, and (ii) any shares of Company stock that the
Company desires to include in such registration, in each case, to the extent
necessary to permit the disposition (in accordance with the intended method
thereof as aforesaid) of the Registrable Securities so to be
registered.
(b) Expenses.
The Company will pay all Registration Expenses incurred in connection with
each
registration of Registrable Securities pursuant to this Section 3.
Each
Holder will pay all Selling Expenses incurred in connection with the sale of
its
Registrable Securities pursuant.
(c) Priority
in Requested Registrations. If a requested registration pursuant to this Section
3
involves
an underwritten offering and the managing underwriter determines in good faith
that marketing factors require a limitation on the number of securities to
be
underwritten, the number of securities that may be included will be limited
to
the number of securities that, in the opinion of such managing underwriter,
should be included and the securities to be included in the registration will
be
allocated first, to the Demand Party, and second, to the Company.
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(d) Limitation
on Registration on Request. Notwithstanding anything in this Section
3
to the
contrary, (i) the Company will not be obligated to take any action to effect
any
registration pursuant to this Section 3
if the
Company has previously effected a number of registrations upon the request
of a
Demand Party pursuant to this Section 3
equaling
or exceeding two (2) registrations, in the case of the Demand Party, and (ii)
the Company will not be obligated to effect more than two (2) registrations
pursuant to this Section 3
in any
year; provided, however, that no registration effected pursuant to this Section
3
will
count towards the foregoing numerical limits on the number of registrations
that
may be requested by the Demand Party pursuant to this Section 3
if the
Registrable Securities proposed to be sold by the Demand Party in such
registration were cut back from an earlier registration request pursuant
to Section 3(c).
(e) Postponements
in Requested Registrations. (i) If the Company at any time furnishes to the
Demand Party a certificate signed by its chairman of the board, chief executive
officer, president or any other of its authorized officers stating that the
filing of such registration statement would be materially detrimental to the
Company or its stockholders, the Company may postpone the filing of a
registration statement required by this Section 3
for up
to one hundred twenty (120) days and (ii) if the Board of Directors of the
Company determines in its good faith judgment that the registration and offering
otherwise required by this Section 3
would
have an adverse effect on a then contemplated public offering of the Company’s
stock, the Company may postpone the filing of a registration statement required
by this Section 3,
during
the period starting with the sixtieth (60th)
day
immediately preceding the date of the anticipated filing of, and ending on
a
date one hundred eighty (180) days following the effective date of, the
registration statement relating to such other public offering. The Company
will
promptly give the Demand Party requesting registration thereof pursuant to
this
Section 3
written
notice of any postponement made in accordance with the preceding sentence.
(f) Coordination
of Registrations.
Regardless of when a Demand is made pursuant to this Section 4, the Company
shall not be required to file a Registration Statement with respect to the
Registrable Securities until after Prior Registration Statement is declared
effective by the Securities and Exchange Commission. If a Demand is made and
the
registration statement required by this Section 3 is not filed on or before
the
day that is thirty (30) days after the later of the date of the Demand or the
date that the Prior Registration Statement is declared effective by the
Securities and Exchange Commission (the “Required
Filing Date”),
or if
such registration statement is not declared effective by the Securities and
Exchange Commission on or before the day that is ninety (90) days after the
later of such dates (the “Required
Effective Date”),
then
the Company shall pay to the Holder which gave the Demand an amount equal to
(i)
the dollar amount invested by such Holder in H2Diesel, Inc. pursuant to the
Prior Agreements, multiplied by (ii) a fraction, the number of which is the
number of shares of Common Stock to which the Demand relates and the denominator
of which is the number of shares of Common Stock acquired by such party pursuant
to the Investment Agreement, multiplied by (iii) the sum of the number of full
calendar months beyond the Required Filing Date on which the required
registration is filed and the number of full calendar months beyond the Required
Effective Date on which the required registration statement is declared
effective, but not more than 9 (provided, that for these purposes neither the
Required Filing Date nor the Required Effective Date shall be extended if the
filing of the registration statement can be, and is, delayed pursuant to the
provisions of Section 3(g)), multiplied by (iv) 0.02.
4. Registration
Procedures.
If and
whenever the Company is required to use its reasonable best efforts to effect
or
cause the registration of any Registrable Securities under the Securities Act
as
provided in this Agreement, the Company will (to the extent not relieved of
such
obligation as provided in Section 2
hereof),
as expeditiously as possible:
4
(a) prepare
and, in any event within sixty (60) days after the end of the period within
which a request for registration may be given to the Company pursuant to Section
2
or
3,
file
with the SEC a registration statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such registration
statement to become effective and, upon the request of the Holder, keep such
Registration Statement effective for up to one hundred eighty (180) days or,
if
earlier, until the Holder has completed the distribution described in the
registration statement related thereto;
(b) prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to
keep such registration statement effective for the period set forth in paragraph
(i) above and to comply with the provisions of the Securities Act, the Exchange
Act and the rules and regulations of the SEC thereunder with respect to the
disposition of all securities covered by such registration statement during
such
period in accordance with the intended methods of disposition by the seller
or
sellers thereof set forth in such registration statement;
(c) furnish
to the Holder such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the Securities Act, and
such
other documents as the Holder may reasonably request in order to facilitate
its
disposition of the Registrable Securities;
(d) use
its
reasonable best efforts to register or qualify such Registrable Securities
covered by such registration under such other securities or blue sky laws in
such jurisdictions as the Holder reasonably requests, except that the Company
will not for any such purpose be required to qualify generally to do business
as
a foreign corporation in any jurisdiction where, but for the requirements of
this clause (iv), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service
of
process in any such jurisdiction;
(e) notify
the Holder, at any time when a prospectus relating to its Registrable Securities
is required to be delivered under the Securities Act within the appropriate
period mentioned in clause (i) of this Section 4,
of the
Company’s becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;
(f) use
its
reasonable best efforts to list such Registrable Securities on any securities
exchange or electronic market on which the Company’s stock is then listed if
such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange or electronic market;
(g) in
the
event of an underwritten public offering, enter into an underwriting agreement
in usual and customary form with the managing underwriter(s) of such
offering;
(h) in
the
event of an underwritten public offering, use its reasonable best efforts to
furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale, a “cold comfort” letter from the Company’s independent
public accounts in form and substance as is customarily given by independent
public accountants to underwriters in an underwritten public
offering;
(i) in
the
event of an underwritten public offering, use its reasonable best efforts to
furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale, an opinion of counsel for the Company, dated as of such
date, in form and substance as is customarily given to underwriters in an
underwritten public offering; and
5
(j) cooperate
and assist with any filings required to be made with the NASD.
The
Company may require the Holder to furnish the Company with such information
regarding itself and pertinent to the disclosure requirements relating to the
registration and the distribution of such securities as the Company may from
time to time reasonably request.
The
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in clause (v) of this Section 4,
the
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the registration statement covering such Registrable Securities until the
Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by clause (v) of this Section 4,
and, if
so directed by the Company, the Holder will deliver to the Company (at the
Company’s expense) all copies of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company gives any such notice, the period mentioned in clause (i) of this
Section 4
will be
extended by the number of days during the period from and including the date
of
the giving of such notice pursuant to clause (v) of this Section 4
and to
and including the date when the Holder’s Registrable Securities covered by such
registration statement receives the copies of the supplemented or amended
prospectus contemplated by clause (v) of this Section 4.
5. Indemnification.
(a) Indemnification
by the Company. In
the
event of any registration of any securities of the Company under the Securities
Act pursuant to Sections 2
or
3
hereof,
the Company will indemnify and hold harmless, to the extent permitted by law,
the seller of any Registrable Securities covered by such registration statement,
each affiliate of such seller and their respective directors and officers,
stockholders, members or general and limited partners (including any director,
officer, affiliate, employee, agent and controlling Person of any of the
foregoing), each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who controls such
seller or any such underwriter within the meaning of the Securities Act, against
any and all losses, claims, damages or liabilities, joint or several, and
expenses (including reasonable attorney’s fees and reasonable expenses of
investigation) to which such indemnified party may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof, whether or not
such indemnified party is a party thereto) arising out of or are based upon
(a)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered under
the Securities Act, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, or (b) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in light
of the circumstances under which they were made) not misleading, and the Company
will reimburse such indemnified party for any legal or any other expenses
reasonably incurred by it in connection with investigating or defending against
any such loss, claim, liability, action or proceeding; provided that the Company
will not be liable to any indemnified party in any such case to the extent
that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus or a document incorporated by reference
into any of the foregoing in reliance upon and in conformity with written
information furnished to the Company by such seller specifically for use in
the
preparation thereof; and provided, further, that the Company will not be liable
to any indemnified person under the indemnity agreement in this Section
5(a)
with
respect to any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such indemnified person results
from the fact that an underwriter sold Registrable Securities to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to such underwriter.
6
(b) Indemnification
by the Seller. In the event of any registration of any securities of the Company
under the Securities Act pursuant to Sections 2
or
3
hereof,
each seller of Registrable Securities included in such registration will
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 5(a))
the
Company, each affiliate of the Company and their respective directors, officers,
stockholders, members or general and limited partners (including any director,
officer, affiliate, employee, agent and controlling Person of any of the
foregoing), each other Person who participates as an underwriter in the offering
or sale of such securities and all other sellers of Registrable Securities
covered by such registration statement, each affiliate of such seller and their
respective directors, officers, stockholders, members or general and limited
partners (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing) and each other Person, if any,
who
controls the Company or such underwriter or such seller within the meaning
of
the Securities Act, with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from such registration statement,
any preliminary, final or summary prospectus contained therein, or any amendment
or supplement, to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such seller
specifically for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. In no event will
the liability of any seller of Registrable Securities hereunder be greater
in
amount than the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Notices
of Claims, Etc. Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding with respect
to
which a claim for indemnification may be made pursuant to this Section
5,
such
indemnified party will, if a claim in respect thereof is to be made against
an
indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of the indemnified party to give notice
as provided herein will not relieve the indemnifying party of its obligations
under this Section 5,
except
to the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party.
No indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include, as an unconditional term thereof, the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Contribution.
If the indemnification provided for in this Section 5
from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein,
then
the indemnifying party, in lieu of indemnifying such indemnified party, will
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion
as
is appropriate to reflect the relative fault of the indemnifying party and
such
indemnified party in connection with the actions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
such
indemnified party will be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact,
has
been made by, or relates to information supplied by, such indemnifying party
or
indemnified parties, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 5(d)
as a
result of the losses, claims, damages, liabilities and expenses referred to
above will be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or
proceeding.
7
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d)
were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
6. Rule
144
.With
a
view to making available the benefits of certain rules and regulations of the
SEC which may permit the sale of restricted securities to the public without
registration, the Company agrees to:
(a) use
its
reasonable best efforts to make and keep public information available as those
terms are understood and defined in Rule 144 under the Securities Act (“Rule
144”), at all times from and after ninety (90) days following the effective date
of the IPO;
(b) use
its
reasonable best efforts to file with the SEC in a timely manner all reports
and
other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and
(c) so
long
as the Holder owns any Registrable Securities, furnish to the Holder upon
request, (x) a written statement by the Company as to the status of its
compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the IPO, and of the
Securities Act and the Exchange Act (at any time after it has become subject
to
such reporting requirements), (y) a copy of the most recent annual or quarterly
report of the Company, and (z) such other reports and documents so filed as
the
Holder may reasonably request in availing itself of any rule or regulation
of
the SEC allowing the Holder to sell any such securities without
registration.
7. Selection
of Counsel.
In
connection with any registration of Registrable Securities pursuant to Sections
2
or
3
hereof,
the Holder may select one counsel to represent it in connection with the
Registrable Securities covered by such registration.
8. Miscellaneous.
(a) Amendments
and Waivers.
This
Agreement may be amended and the Company may take any action herein prohibited,
or omit to perform any act herein required to be performed by it, only if the
Company has obtained the written consent to such amendment, action or omission
to act, of the Holder.
(b) Successors,
Assigns and Transferees. This Agreement will not be assigned; provided that
(i)
the Holder may assign all or part of its rights and obligations under this
Agreement to any bona fide partner or officer of the Holder who has acquired
Registrable Securities from the Holder, to the extent that such transferee
agrees in writing to be bound by the terms of this Agreement. Subject to the
foregoing restrictions, this Agreement will be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
8
(c) Notices.
All notices and other communications provided for or permitted hereunder will
be
in writing and will be deemed to have been duly given and received when
delivered by overnight courier or hand delivery, when sent by telecopy, or
five
days after mailing if sent by registered or certified mail (return receipt
requested) postage prepaid, to the Holder at the following address.
(i) If
to the
Holder(s) at:
Crestview
Capital Master, LLC
c/o
Crestview Capital Master, LLC
00
Xxxxxx
Xxxxx, Xxxxx X
Xxxxxxxxxx,
XX
Telephone:
000-000-00000
Fax:
000-000-0000
XXXXX
Xxxxx
Investment LLC
0000
Xxxxxxx Xxxxxx Xxxx # 000
Xxxxxxxx
Xxxxx, XX 00000
Telephone:
000-000-0000
Fax:
000-000-0000
With
a
copy to (which will not constitute notice):
Xxxxxx
X.
Xxxxx
Xxxxxxx
Xxxxxxxxx, LLP
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Tel:
000-000-0000
Fax:
000-000-0000
(ii) If
to the
Company at:
Xethanol
Corporation
1185
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone
(000) 000-0000
Fax:
(000)
000-0000
Attention:
Xxxxxxxxxxx x'Xxxxxx-Xxxxxx, CEO
With
a
copy to (which will not constitute notice):
Boylan,
Brown, Code, Xxxxxx & Xxxxxx, LLP
0000
Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
9
(d) Descriptive
Headings.
The
headings in this Agreement are for convenience of reference only and will not
limit or otherwise affect the meaning of terms contained herein.
(e) Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(f) Counterparts.
This Agreement may be executed in any number of counterparts, each of which
will
be an original, but all of which together will constitute one instrument. This
Agreement may be executed by facsimile signature(s).
(g) Governing
Law. This Agreement will be governed by, and construed in accordance with,
the
laws of the State of Delaware (without giving effect to the choice of law
principles therein).
(h) Specific
Performance; Submission to Jurisdiction.
The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties will be entitled to an injunction or injunctions to prevent breaches
of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in Court of Chancery or other courts of the State of Delaware, this
being in addition to any other remedy to which such party is entitled at law
or
in equity. In addition, each of the parties hereto (i) consents to submit itself
to the personal jurisdiction of the Court of Chancery or other courts of the
State of Delaware in the event any dispute arises out of this Agreement or
any
of the transactions contemplated by this Agreement, (ii) agrees that it will
not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from such court, (iii) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than the Court of Chancery or other courts of
the
State of Delaware and (iv) to the fullest extent permitted by Law, consents
to
service being made through the notice procedures set forth in Section
8(c).
Each
party hereto hereby agrees that, to the fullest extent permitted by Law, service
of any process, summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 8(c)
will be
an effective service of process for any suit or proceeding in connection with
this Agreement or the transactions contemplated hereby. EACH OF THE PARTIES
HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION
OR
OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY. NO PARTY HAS AGREED WITH OR REPRESENTED TO
ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED
IN
ALL INSTANCES.
(i) Further
Assurances. At any time or from time to time after the date hereof, the parties
agree to cooperate with each other, and at the request of any other party,
to
execute and deliver any further instruments or documents and to take all such
further action as the other party may reasonably request in order to evidence
or
effectuate the consummation of the transactions contemplated hereby and to
otherwise carry out the intent of the parties hereunder.
(j) Termination.
The provisions of this Agreement (other than Section 5)
will
terminate (A) with respect to the Holder, at such time as all of the Registrable
Securities then owned by the Holder could be sold pursuant to Rule 144(k),
(B)
upon execution of a written agreement of the Holder to terminate this Agreement
or (C) at such time as there are no Registrable Securities
outstanding.
10
(k) Entire
Agreement. This Agreement (including any and all exhibits, schedules and other
instruments contemplated thereby) constitutes the entire agreement of the
Parties with respect to the subject matter hereof.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused
this Agreement to be duly executed on its behalf as of the date first written
above.
XETHANOL
CORPORATION
By:
/s/
Xxxxxxxxxxx x’Xxxxxx-Xxxxxx
Name: Xxxxxxxxxxx
x’Xxxxxx-Xxxxxx
Title: President
and CEO
CRESTVIEW
CAPITAL MASTER, LLC
By: /s/Xxxxxx
X. Xxxx
Name: Xxxxxx
X.
Xxxx
Title: Managing
Partner
TOIBB
INVESTMENT LLC
By: /s/
Xxxxxx Xxxxxxxx
Name: Xxxxxx
Xxxxxxxx
Title: CFO
12
