REGISTRATION RIGHTS AGREEMENT
EX-4.1
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
this 8th day of December, 2005 by and between ENERTECK CORPORATION, a Delaware
corporation (the “Company”), and BATL BIOENERGY LLC, a Delaware limited
liability company (the “Purchaser”).
W
I T N E S S E T H
WHEREAS,
pursuant to a Securities Purchase Agreement, dated as of the date hereof,
between the Company and the Purchaser (the “Purchase
Agreement”),
the
Company has agreed to issue and sell to the Purchaser an aggregate of 2,450,000
shares (the “BATL
Shares”)
of
common stock of the Company, $.001 par value (“Common
Stock”),
and a
warrant (the “Warrant”)
to
purchase 1,000,000 shares of the Company’s Common Stock (the “Warrant
Shares”,
and
together with the BATL Shares, the “Shares”).
WHEREAS,
to
induce the Purchaser to execute and deliver the Purchase Agreement, the Company
has agreed to provide to the Purchaser and its permitted assigns certain
registration rights under the Securities Act of 1933, as amended (the
“Securities
Act”),
and
applicable state securities laws; and
WHEREAS,
this
Agreement, together with the Purchase Agreement and the Warrants, are
hereinafter collectively referred to as the “Transaction
Documents”.
NOW
THEREFORE,
in
consideration of the foregoing and other good and valuable consideration, the
parties hereto agree as follows:
1. Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
| (a) |
“Claims”
shall have the meaning ascribed to it in Section
6(a).
|
| (b) |
“Excess
Liability”
shall have the meaning ascribed to it in Section
6(e).
|
| (c) |
"Holder"
or “Holders”
mean a holder or holders of Registrable
Securities.
|
| (d) |
“Indemnified
Person”
shall have the meaning ascribed to it in Section
6(a).
|
| (e) |
“Registrable
Securities”
shall mean (i) the Shares, (ii) the shares of Common Stock or other
securities issued or issuable to the Purchaser or its permitted transferee
or designee (a) upon exercise of the Warrant, or (b) upon any distribution
with respect to, any exchange for or any replacement of such Warrant,
or
(c) upon any conversion, exercise or exchange of any securities issued
in
connection with any such distribution, exchange or replacement; (iii)
securities issued or issuable upon any stock split, stock dividend,
recapitalization or similar event with respect to such shares of Common
Stock; and (iv) any other security issued as a dividend or other
distribution with respect to, in exchange for, or in replacement of,
the
securities referred to in the preceding
clauses.
|
| (f) |
“Registration
Period”
shall have the meaning ascribed to it in Section
2(ii).
|
| (g) |
“Registration
Statement”
means a registration statement or registration statements of the Company
filed under the Securities Act covering Registrable
Securities.
|
| (h) |
“Register,”“Registered”
and “Registration”
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and pursuant to Rule
415
under the Securities Act or any successor rule providing for offering
securities on a continuous basis (“Rule
415”),
and the declaration or ordering of effectiveness of such registration
statement by the United States Securities and Exchange Commission (the
“Commission”).
|
| (i) |
“Rule
144”
shall have the meaning ascribed to it in Section
8.
|
| (j) |
“Securities
Act”
shall mean the Securities Act of 1933, as
amended.
|
| (k) |
“Violations”
shall have the meaning ascribed to it in Section
6(a).
|
| (l) |
“Penalty
Warrant”
shall mean a five-year warrant to purchase 49,000 shares of Common
Stock
(subject to appropriate adjustment for any stock splits, stock dividends,
reorganizations, reclassifications or other similar events by the Company
after the date hereof) at a per share exercise price that is equal
to the
then-prevailing exercise price under the Warrant, and containing
substantially similar terms as those contained in the certificate
evidencing the Warrant.
|
Capitalized
terms defined in the introductory paragraph or the recitals to this Agreement
shall have the respective meanings therein provided. Capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth in
the
Purchase Agreement or elsewhere in the Transaction Documents.
2. Mandatory
Registration.
(i) The
Company shall prepare and file with the Securities and Exchange Commission
(the
“Commission”) not later than the 60th day (the “Filing
Date”)
after
the Closing Date under the Purchase Agreement a Registration Statement or
Registration Statements (as necessary) on Form SB-2 covering the resale of
all
of the Registrable Securities, in an amount sufficient to cover the resale
of
the BATL Shares and the shares issuable upon exercise of the Warrant. In the
event that Form SB-2 is unavailable and/or inappropriate for such a
registration, the Company shall use such other form as is available and
appropriate for such a registration. Any Registration Statement prepared
pursuant hereto shall register for resale at least that number of shares of
Common Stock equal to the Shares. The Company shall use its best efforts to
cause the Registration Statement to be declared effective under the Securities
Act as promptly as possible after the filing thereof, but in any event prior
to
the 240th
day
after the Filing Date (such day referred to herein as the “Effective Date”);
provided
that,
if the
Registration Statement is not filed by the Filing Date or declared effective
by
the Effective Date (each a “Penalty Event”) then the Company shall issue a
Penalty Warrant to the Purchaser per 30-day period following the Penalty Event
that the Registration Statement has not been filed and/or that the Effective
Date has not occurred. Each such Penalty Warrant shall be due within five days
of the end of each 30-day period. The Registration Statement shall be
appropriately revised, and/or amended promptly following each such 30-day
period, as appropriate, to include for resale any additional shares issuable
upon exercise of such Penalty Warrants.
2
(ii) The
Company shall use its best efforts to keep each Registration Statement effective
pursuant to Rule 415 at all times until such date as is the earlier of (i)
the
date on which all of the Registrable Securities have been sold and (ii) the
date
on which the Registrable Securities (in the opinion of counsel to each Purchaser
and acceptable to legal counsel for the Company) may be immediately sold without
restriction (including without limitation as to volume restrictions by each
holder thereof) without registration under the Securities Act (the “Registration
Period”).
(iii) If
any
offering pursuant to a Registration Statement, pursuant to Section 2 hereof,
involves an underwritten offering (which may only be with the consent of the
Company), each Purchaser shall have the right to select legal counsel and an
investment banker or bankers and manager or managers to administer to the
offering, which investment banker or bankers or manager or managers shall be
reasonably satisfactory to the Company.
3. Obligations
of the Company.
In
connection with the registration of the Registrable Securities, the Company
shall do each of the following:
(a) Prepare
and file with the Commission the Registration Statements required by Section
2
of this Agreement and such amendments (including post-effective amendments)
and
supplements to the Registration Statements and the prospectuses used in
connection with the Registration Statements, as may be necessary to keep the
Registration effective at all times during the Registration Period, and, during
the Registration Period, to comply with the provisions of the Securities Act
with respect to the disposition of all of the Registrable Securities until
such
time as all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof as
set
forth in the Registration Statements;
(b) If
the
Registrable Securities are included in a Registration Statement, the Company
shall promptly furnish, after such Registration Statement is prepared, filed
with the Commission, publicly disseminated and distributed and received by
the
Company, to the Purchaser and its legal counsel, a copy of the Registration
Statement, each preliminary prospectus, each final prospectus, and all
amendments and supplements thereto and such other documents as the Purchaser
may
reasonably request in order to facilitate the disposition of its Registrable
Securities;
(c) As
soon
as practicable for the Company and its counsel, but no later than five business
days after receipt thereof, furnish to the Purchaser and its counsel copies
of
appropriate correspondence between the Company and the Commission with respect
to any registration statement or amendment or supplement thereto filed pursuant
to this Agreement;
(d) Use
all
best efforts to (i) register and qualify the Registrable Securities covered
by
the Registration Statement under such other securities or blue sky laws, if
applicable, of such jurisdictions as the Purchaser may reasonably request,
(ii)
prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at
all
times during the Registration Period, (iii) take such other actions as may
be
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period and (iv) take all other actions necessary
or advisable to qualify the Registrable Securities for sale in such
jurisdictions, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection
(d) be obligated to be so qualified, or to subject itself to taxation in any
such jurisdiction, or to consent to general service of process in any such
jurisdiction;
3
(e) If
required, list such securities on the OTC Bulletin Board and all other national
securities exchanges on which any securities of the Company are then listed,
and
file any filings required by the OTC Bulletin Board and/or such other filings;
(f) Notify
the Purchaser and (if requested by the Purchaser) confirm such advice in
writing, (i) when or if the prospectus or any prospectus supplement or
post-effective amendment has been filed with the Commission, and, with respect
to the Registration Statement or any post-effective amendment, when the same
has
been declared effective by the Commission, (ii) of any request by the Commission
for amendments or supplements to the Registration Statement or the prospectus
or
for additional information, (iii) of the issuance by the Commission of any
stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (v) of the happening of
any
event as a result of which 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;
(g) If
any
fact contemplated by clause (v) of paragraph (f), above, shall exist, prepare
a
supplement or post-effective amendment to the Registration Statement or the
related prospectus or any document incorporated therein by reference or file
any
other required document so that, as thereafter delivered to the purchaser of
the
Registrable Securities the prospectus will not contain an untrue statement
of
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(h) If
the
Company has consented to an underwritten offering and such offering is
underwritten, at the request of the Purchaser, to furnish on the date that
Registrable Securities are delivered to the underwriters for sale pursuant
to
such registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the underwriters
and
to the Purchaser, stating that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of such counsel,
no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Securities Act and (B) the registration statement, the related
prospectus and each amendment or supplement thereof comply as to form in all
material respects with the requirements of the Securities Act (except that
such
counsel need not express any opinion as to financial statements or other
financial data contained therein) and (ii) a letter dated such date from the
Company’s independent public accountants addressed to the underwriters and to
the Purchaser, stating that they are independent public accountants within
the
meaning of the Securities Act and that, in the opinion of such accountants,
the
financial statements of the Company included in the registration statement
or
the prospectus, or any amendment or supplement thereof, comply as to form in
all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters may reasonably request;
(i) Cooperate
with the Purchaser to facilitate the timely preparation and delivery of
certificates for the Registrable Securities to be offered pursuant to the
Registration Statement and to enable such certificates for the Registrable
Securities to be in such denominations or amounts, as the case may be, as the
Purchaser may reasonably request, and registered in such names as the Purchaser
may request; and, within three business days after a Registration Statement
which includes Registrable Securities is ordered effective by the Commission,
the Company shall deliver, and shall cause legal counsel selected by the Company
to deliver, to the transfer agent for the Registrable Securities (with copies
to
the Purchaser) an appropriate instruction and opinion of such counsel,
satisfactory to the Company, and the Purchaser and its legal
counsel;
4
(j) Enter
into customary agreements (including, in the case of an underwritten offering,
underwriting agreements in customary form, and including provisions with respect
to indemnification and contribution in customary form and consistent with the
provisions relating to indemnification and contribution contained herein) and
take all other customary and appropriate actions in order to expedite or
facilitate the disposition of such Registrable Securities and in connection
therewith:
(i)
make
such
representations and warranties to the Purchaser and the underwriters, if any,
in
form, substance and scope as are customarily made by issuers to underwriters
in
similar underwritten offerings;
(ii)
to
the
extent requested and customary for the relevant transaction, enter into a
securities sales agreement with the Purchaser and such representative of the
Purchaser as the Purchaser shall select relating to the Registration and
providing for, among other things, the appointment of such representative as
agent for the Purchaser for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be customary in form, substance and scope
and
shall contain customary representations, warranties and covenants;
and
(iii)
deliver
such customary documents and certificates as may be reasonably requested by
the
Purchaser to the extent its Registrable Securities are being sold or by the
managing underwriters, if any.
The
above
shall be done (y) at the effectiveness of such Registration Statement (and
each
post-effective amendment thereto) in connection with any registration, and
(z)
at each closing under any underwriting or similar agreement as and to the extent
required thereunder.
(k) The
Company shall hold in confidence and not make any disclosure of information
concerning the Purchaser provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws and/or
the requests of any self-regulatory organizations, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in
any
Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other order from a court or governmental body of
competent jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of this or any
other agreement. The Company agrees that it shall, upon learning that disclosure
of such information concerning the Purchaser is sought in or by a court or
governmental body of competent jurisdiction or though other means, give prompt
notice to the Purchaser prior to making such disclosure, and allow the
Purchaser, at its expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, such information.
4. Obligations
of the Purchaser to Provide Information.
In
connection with the registration of the Registrable Securities, the Purchaser
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities, and the Purchaser shall execute any and all
such
documents in connection with such registration as the Company and its legal
counsel may reasonably request. At least five business days prior to the first
anticipated filing date of the Registration Statement, the Company shall notify
the Purchaser of the information the Company requires of the Purchaser to be
included in the Registration Statement. The Purchaser shall give sufficient
notice to the Company before selling any Registrable Securities so that the
Company may prepare and file any necessary post-effective amendments to the
Registration Statement or such additional filings as shall be necessary or
desirable.
5
5. Expenses
of Registration.
All
expenses, other than underwriting discounts and commissions and other fees
and
expenses of investment bankers, other brokerage commissions and legal fees
of
the Purchasers, incurred in connection with registrations, filings or
qualifications pursuant to Section 3, but including, without limitation, all
registration, listing, and qualification fees, printing and accounting fees,
and
the fees and disbursements of counsel for the Company, with respect to the
Registration Statement filed pursuant hereto, shall be borne by the Company.
6. Indemnification.
In the
event any Registrable Securities are included in a Registration Statement under
this Agreement:
(a) The
Company will indemnify and hold harmless the Purchaser, each of its officers,
directors, members, managers, partners and shareholders, and each person, if
any, who controls the Purchaser within the meaning of the Securities Act or
the
Exchange Act (each, an “Indemnified
Person”),
against any losses, claims, damages, liabilities or expenses (joint or several)
incurred (collectively, “Claims”)
to
which any of them may become subject under the Securities Act, the Exchange
Act
or otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) 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 any post-effective amendment thereof or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances in which they were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented,
if
the Company files any amendment thereof or supplement thereto with the
Commission) or the omission to state therein any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
or
foreign securities law or any rule or regulation under the Securities Act,
the
Exchange Act or any state or foreign securities law (the matters in foregoing
clauses (i) through (iii) being, collectively, “Violations”).
The
Company shall, subject to the provisions of Section 6(b) below, reimburse the
Purchaser, promptly as such expenses are incurred and are due and payable,
for
any reasonable legal and other reasonable costs, expenses and disbursements
in
giving testimony or furnishing documents in response to a subpoena or otherwise,
including without limitation, the costs, expenses and disbursements, as and
when
incurred, of investigating, preparing or defending any such action, suit,
proceeding or investigation (whether or not in connection with litigation in
which the Purchaser is a party), incurred by it in connection with the
investigation or defense of any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a) shall not (i) apply to any Claim arising out of or based upon
a
modification which occurs in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (ii) be available
to the extent that such Claim is based upon a failure of the Purchaser to
deliver or to cause to be delivered the prospectus made available by the
Company, if such prospectus was timely made available by the Company pursuant
to
Section 3(b) hereof; or (iii) apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity shall remain
in
full force and effect regardless of any investigation made by or on behalf
of
the Indemnified Person and shall survive the transfer of the Registrable
Securities by the Purchaser pursuant to Section 9.
6
(b) The
Purchaser will indemnify the Company and its officers and directors against
any
Claims arising out of or based upon a Violation which occurs in reliance upon
and in conformity with information furnished in writing to the Company, by
or on
behalf of the Purchaser, expressly for use in connection with the preparation
of
the Registration Statement (including any modifications, amendments or
supplements thereto), subject to such limitations and conditions as are
applicable to the indemnification provided by the Company in this Section 6;
provided, however, that in no event shall any indemnity by the Purchaser under
this Section 6 exceed the amount of the net proceeds received by the Purchaser
in connection with the offering effected through such Registration
Statement.
(c) Promptly
after receipt by an Indemnified Person under this Section 6 of notice of the
commencement of any action (including any governmental action), such Indemnified
Person shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and to the extent that the indemnifying party
so desires, jointly with any other indemnifying party similarly notified, to
assume control of the defense thereof with counsel mutually satisfactory to
the
indemnifying party and the Indemnified Person, provided, however, that an
Indemnified Person shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person and the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person and any other party represented by such counsel
in such proceeding. In such event, the Company shall pay for only one separate
legal counsel for the Purchaser, and such legal counsel shall be selected by
the
Purchaser. The failure to deliver written notice to an indemnifying party within
a reasonable time after the commencement of any such action shall not relieve
such indemnifying party of any liability to the Indemnified Person under this
Section 6, except to the extent that the indemnifying party is materially
prejudiced in its ability to such action. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
(d) No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, 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 Person
of an unconditional and irrevocable release from all liability in respect of
such claim or litigation.
(e) Notwithstanding
the foregoing, to the extent that any provisions relating to indemnification
or
contribution contained in the underwriting agreements entered into among the
Company, the underwriters and the Purchaser in connection with the underwritten
public offering are in conflict with the foregoing provisions, the provisions
in
such underwriting agreements shall be controlling as to the Registrable
Securities included in the public offering; provided,
however,
that
if, as a result of this Section 6(e), the Purchaser, or each of its officers,
directors, members, partners, shareholders or any person controlling the
Purchaser is or are held liable with respect to any Claim for which they would
be entitled to indemnification hereunder but for this Section 6(e) in an amount
which exceeds the aggregate proceeds received by the Purchaser from the sale
of
Registrable Securities included in a registration pursuant to such underwriting
agreement (the “Excess
Liability”),
the
Company shall reimburse the Purchaser for such Excess Liability.
7
7. Contribution.
To the
extent any indemnification by an indemnifying party is prohibited or limited
under applicable law, the indemnifying party agrees to contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage, liability or expense in such proportion as is appropriate to reflect
the
relative fault of the indemnifying party on the one hand and the Indemnified
Person on the other hand in connection with the statements or omissions which
resulted in such Claim, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and the Indemnified Person shall
be
determined by reference to, among other things, whether the untrue statement
of
a material fact or the omission to state a material fact on which such Claim
is
based relates to information supplied by the indemnifying party or by the
Indemnified Person, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the forgoing, (a) no contribution shall be made under
circumstances where the payor would not have been liable for indemnification
under the fault standards set forth in Section 6, (b) no seller of Registrable
Securities guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any seller
of Registrable Securities who was not guilty of such fraudulent
misrepresentation and (c) contribution by any seller of Registrable Securities
shall be limited in amount to the net proceeds received by such seller from
the
sale of such Registrable Securities. The Company and the Purchaser agree that
it
would not be just and equitable if contribution pursuant to this Section 7
were
determined by pro rata
allocation (even if the Purchaser and any other party were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this
Section.
8. Reports
Under Exchange Act.
With a
view to making available to the Purchaser the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation of the
Commission that may at any time permit the Purchasers to sell securities of
the
Company to the public without registration (“Rule
144”),
the
Company agrees to cause its successor in interest by merger to:
(i)
make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(ii)
file
with
the Commission in a timely manner all reports and other documents required
of
the Company under the Securities Act and the Exchange Act; and
(iii)
furnish
to the Purchaser so long as the Purchaser owns Shares or Warrants promptly
upon
request, (i) a written statement by the Company that it has complied with the
reporting requirements of the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or periodic report of the Company and such other
reports and documents so filed by the Company and (iii) such other information
as may be reasonably requested to permit the Purchaser to sell such securities
pursuant to Rule 144 without registration.
9. Assignment
of the Registration Rights.
The
rights to have the Company register Registrable Securities pursuant to this
Agreement shall be automatically assigned by the Purchaser to any transferee
of
the Shares or Warrants held by the Purchaser if: (a) the Purchaser agrees in
writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after such
assignment; (b) the Company is, at the time of such transfer within five
business days after such transfer or assignment, furnished with written notice
of the name and address of such transferee or assignee; and (c) at or before
the
time the Company receives the written notice contemplated by clause (b) of
this
sentence, the transferee or assignee agrees in writing with the Company to
be
bound by all of the provisions contained herein.
8
10. Amendment
of Registration Rights.
Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and each such
Purchaser. Any amendment or waiver effected in accordance with this Section
10
shall be binding upon such Purchaser and the Company.
11. Miscellaneous.
(a) A
person
or entity is deemed to be a holder of Registrable Securities whenever such
person or entity owns of record such Registrable Securities or Warrants
exercisable into such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more persons or
entities with respect to the same Registrable Securities, the Company shall
act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities or Warrants.
(b) Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be effective upon personal delivery,
via
facsimile (upon receipt of confirmation of error-free transmission) or two
business days following deposit of such notice with an internationally
recognized courier service, with postage prepaid and addressed to each of the
other parties thereunto entitled at the address set forth below in this Section
11(b), or at such other addresses as a party may designate by ten (10) days
advance written notice to each of the other parties hereto. All notices shall
be
addressed as follows:
If
to the
Company:
EnerTeck
Corporation
00000
Xxxxxxxxx Xxxxx
Xxxxx
000
Xxxxxxxx,
Xxxxx 00000
Attention:
Xxxxxx Xxxxx
Telecopier
No.: (000) 000-0000
With
a
copy to:
Danzig
Xxxx Xxxxxx Xxxxx & Xxx, LLP
00X
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
Attn:
Xxxxx X. Xxxx, Esq.
Telecopier
No.: (000) 000-0000
If
to
Purchaser:
BATL
BioEnergy LLC
0
Xxxxxxxx Xxxxx
Xxx,
Xxx
Xxxx 00000
Attn:
Xxxxxx Xxxxxx
Telecopier
No.: (000) 000-0000
9
With
a
copy to:
Xxxxxx
Xxxxxx Xxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Elliot Press, Esq.
Telecopier
No: (000) 000-0000
(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
(d) This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York, without giving effect to conflicts of laws issues. Each
of the parties agrees to the jurisdiction of the federal courts whose districts
encompass any part of the City of New York or the state courts of the State
of
New York sitting in the City of New York in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by
law,
any objection, including any objection based on forum non
conveniens,
to the
bringing of any such proceeding in such jurisdictions. This Agreement may be
signed in two or more counterparts, each of which shall be deemed an original.
The headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement. If any provision
of this Agreement shall be invalid or unenforceable in any jurisdiction, such
validity or unenforceability shall not affect the validity or enforceability
of
the remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction. Subject to the provisions of Section 10
hereof, this Agreement may be amended only by an instrument in writing signed
by
the party to be charged with enforcement.
(e) This
Agreement, together with the other Transaction Documents, constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.
This Agreement supersedes all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof.
(f) Subject
to the requirements of Section 9 hereof, this Agreement shall inure for the
benefit of and be binding upon the successors and assigns of each of the parties
hereto.
(g) All
pronouns and any variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require.
(h) The
Company acknowledges that any failure by the Company to perform its obligations
under Section 2, or any delay in such performance could result in direct and
indirect damages to the Purchasers, and the Company agrees that, after notice
and time to cure in addition to any other liability the Company may have by
reason of any such failure or delay, the Company shall be liable for all direct
and consequential damages caused by any such failure or delay. Nothing herein
shall limit each Purchaser’s right to pursue any claim seeking such direct or
consequential damages.
10
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to
be executed as of the date first written above.
| ENERTECK CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
|
Name: Xxxxxx Xxxxx |
||
| Title: Chief Executive Officer | ||
| BATL BIOENERGY LLC | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: President | ||
11
