Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of June 30, 2006, by and between Able Energy, Inc., a Delaware
corporation (the "Company"), and Laurus Master Fund, Ltd. (the "Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and between the Purchaser and the Company (as
amended, modified or supplemented from time to time, the "Securities Purchase
Agreement"), and pursuant to the Note and the Warrants referred to therein.
The Company and the Purchaser hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
that are defined in the Securities Purchase Agreement shall have the meanings
given such terms in the Securities Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means shares of the Company's common stock, par
value $0.01 per share.
"EFFECTIVENESS DATE" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than
one-hundred eighty (180) days following the date hereof and (ii) with respect to
each additional Registration Statement required to be filed hereunder, a date no
later than thirty (30) days following the applicable Filing Date.
"EFFECTIVENESS PERIOD" has the meaning set forth in Section
2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"FILING DATE" means, with respect to (i) the Registration
Statement required to be filed hereunder in respect of the shares of Common
Stock issuable upon conversion of the Note, a date no later than sixty (60) days
following the date hereof, (ii) the shares of Common Stock issuable upon
exercise of any Warrant, the date which is sixty (60) days after the date of the
issuance of such Warrant, and (iii) the shares of Common Stock issuable to the
Holder as a result of adjustments to the Fixed Conversion Price or Exercise
Price, as the case may be, made pursuant to the Note or the Warrant or
otherwise, thirty (30) days after the occurrence such event or the date of the
adjustment of the Fixed Conversion Price or Exercise Price, as the case may be.
"HOLDER" or "HOLDERS" means the Purchaser or any of its
affiliates or transferees to the extent any of them hold Registrable Securities,
other than those purchasing Registrable Securities in a market transaction.
"INDEMNIFIED PARTY" has the meaning set forth in Section 5(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section
5(c).
"NOTE" has the meaning set forth in the Securities Purchase
Agreement.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"REGISTRABLE SECURITIES" means the shares of Common Stock
issued upon the conversion of the Note and issuable upon exercise of the
Warrants.
"REGISTRATION STATEMENT" means each registration statement
required to be filed hereunder, including the Prospectus therein, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and any successor statute.
"SECURITIES PURCHASE AGREEMENT" has the meaning given to such
term in the Preamble hereto.
"TRADING MARKET" means any of the NASD Over The Counter
Bulletin Board, NASDAQ Capital Market, the NASDAQ National Markets System, the
American Stock Exchange or the New York Stock Exchange.
"WARRANTS" means the Common Stock purchase warrants issued in
connection with the Securities Purchase Agreement, whether on the date hereof or
thereafter.
2
2. REGISTRATION.
(a) On or prior to the Filing Date the Company shall prepare
and file with the Commission a Registration Statement covering the
Registrable Securities for a selling stockholder resale offering to be
made on a continuous basis pursuant to Rule 415. The Registration
Statement shall be on Form [S-3] (except if the Company is not then
eligible to register for resale the Registrable Securities on Form
[S-3], in which case such registration shall be on another appropriate
form in accordance herewith). The Company shall cause each Registration
Statement to become effective and remain effective as provided herein.
The Company shall use its best efforts to cause each Registration
Statement to be declared effective under the Securities Act as promptly
as possible after the filing thereof, but in any event no later than
the Effectiveness Date. The Company shall use its reasonable commercial
efforts to keep each Registration Statement continuously effective
under the Securities Act until the date which is the earlier date of
when (i) all Registrable Securities have been sold or (ii) all
Registrable Securities covered by such Registration Statement may be
sold immediately without registration under the Securities Act and
without volume restrictions pursuant to Rule 144(k), as determined by
the counsel to the Company pursuant to a written opinion letter to such
effect, addressed and acceptable to the Company's transfer agent and
the affected Holders (the "Effectiveness Period").
(b) Within three business days of the Effectiveness Date, the
Company shall cause its counsel to issue a blanket opinion in the form
attached hereto as Exhibit A, to the transfer agent stating that the
shares are subject to an effective registration statement and can be
reissued free of restrictive legend upon notice of a sale by the
Purchaser and confirmation by the Purchaser that it has complied with
the prospectus delivery requirements, provided that the Company has not
advised the transfer agent orally or in writing that the opinion has
been withdrawn. Copies of the blanket opinion required by this Section
2(b) shall be delivered to the Purchaser within the time frame set
forth above.
3. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions hereof to effect the registration of any Registrable Securities
under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities, respond as
promptly as possible to any comments received from the Commission, and
use its best efforts to cause the Registration Statement to become and
remain effective for the Effectiveness Period with respect thereto, and
promptly provide to the Purchaser copies of all filings and Commission
letters of comment relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement and to
keep such Registration Statement effective until the expiration of the
Effectiveness Period applicable to such Registration Statement;
3
(c) furnish to the Purchaser such number of copies of the
Registration Statement and the Prospectus included therein (including
each preliminary Prospectus) as the Purchaser reasonably may request to
facilitate the public sale or disposition of the Registrable Securities
covered by the Registration Statement;
(d) use its best efforts to register or qualify the
Purchaser's Registrable Securities covered by such Registration
Statement under the securities or "blue sky" laws of such jurisdictions
within the United States as the Purchaser may reasonably request,
provided, however, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
(e) list the Registrable Securities covered by such
Registration Statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately notify the Purchaser at any time when a
Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the Prospectus contained 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 light of the circumstances then existing; and
(g) make available for inspection by the Purchaser and any
attorney, accountant or other agent retained by the Purchaser, all
publicly available, non-confidential financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all publicly
available, non-confidential information reasonably requested by the
attorney, accountant or agent of the Purchaser.
4. REGISTRATION EXPENSES. All expenses relating to the Company's
compliance with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including reasonable counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the NASD, transfer taxes, fees of
transfer agents and registrars, fees of, and disbursements incurred by, one
counsel for the Holders, are called "Registration Expenses". All selling
commissions applicable to the sale of Registrable Securities, including any fees
and disbursements of any special counsel to the Holders beyond those included in
Registration Expenses, are called "Selling Expenses." The Company shall only be
responsible for all Registration Expenses.
5. INDEMNIFICATION.
(a) In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the Purchaser, and its
officers, directors and each other person, if any, who controls the
Purchaser within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which the
Purchaser, or such persons
4
may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration
Statement under which such Registrable Securities were registered under
the Securities Act pursuant to this Agreement, any preliminary
Prospectus or final Prospectus contained therein, or any amendment or
supplement thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse the Purchaser, and each such person for any reasonable
legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the Company will not be liable in any
such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity
with information furnished by or on behalf of the Purchaser or any such
person in writing specifically for use in any such document.
(b) In the event of a registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, the
Purchaser will indemnify and hold harmless the Company, and its
officers, directors and each other person, if any, who controls the
Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company
or such persons may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact which was
furnished in writing by the Purchaser to the Company expressly for use
in (and such information is contained in) the Registration Statement
under which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse the Company and each such person for any reasonable legal or
other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, PROVIDED,
HOWEVER, that the Purchaser will be liable in any such case if and only
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished in writing to the Company by or on behalf of the Purchaser
specifically for use in any such document. Notwithstanding the
provisions of this paragraph, the Purchaser shall not be required to
indemnify any person or entity in excess of the amount of the aggregate
net proceeds received by the Purchaser in respect of Registrable
Securities in connection with any such registration under the
Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party shall, if a claim
for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an "Indemnifying
Party"), notify the Indemnifying Party in writing thereof, but the
omission so to notify the
5
Indemnifying Party shall not relieve it from any liability which it may
have to such Indemnified Party other than under this Section 5(c) and
shall only relieve it from any liability which it may have to such
Indemnified Party under this Section 5(c) if and to the extent the
Indemnifying Party is prejudiced by such omission. In case any such
action shall be brought against any Indemnified Party and it shall
notify the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with
counsel satisfactory to such Indemnified Party, and, after notice from
the Indemnifying Party to such Indemnified Party of its election so to
assume and undertake the defense thereof, the Indemnifying Party shall
not be liable to such Indemnified Party under this Section 5(c) for any
legal expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof; if the Indemnified Party retains
its own counsel, then the Indemnified Party shall pay all fees, costs
and expenses of such counsel, PROVIDED, HOWEVER, that, if the
defendants in any such action include both the Indemnified Party and
the Indemnifying Party and the Indemnified Party shall have reasonably
concluded that there may be reasonable defenses available to it which
are different from or additional to those available to the Indemnifying
Party or if the interests of the Indemnified Party reasonably may be
deemed to conflict with the interests of the Indemnifying Party, the
Indemnified Party shall have the right to select one separate counsel
and to assume such legal defenses and otherwise to participate in the
defense of such action, with the reasonable expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the Indemnifying Party as incurred.
(d) In order to provide for just and equitable contribution in
the event of joint liability under the Securities Act in any case in
which either (i) the Purchaser, or any officer, director or controlling
person of the Purchaser, makes a claim for indemnification pursuant to
this Section 5 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for
indemnification in such case, or (ii) contribution under the Securities
Act may be required on the part of the Purchaser or such officer,
director or controlling person of the Purchaser in circumstances for
which indemnification is provided under this Section 5; then, and in
each such case, the Company and the Purchaser will contribute to the
aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that the
Purchaser is responsible only for the portion represented by the
percentage that the public offering price of its securities offered by
the Registration Statement bears to the public offering price of all
securities offered by such Registration Statement, PROVIDED, HOWEVER,
that, in any such case, (A) the Purchaser will not be required to
contribute any amount in excess of the public offering price of all
such securities offered by it pursuant to such Registration Statement;
and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 10(f) of the Act) will be entitled to
contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
6
6. REPRESENTATIONS AND WARRANTIES.
(a) The Common Stock is registered pursuant to Section 12(b)
or 12(g) of the Exchange Act and, except with respect to certain
matters which the Company has disclosed to the Purchaser on Schedule
4.21 to the Securities Purchase Agreement, the Company has timely filed
all proxy statements, reports, schedules, forms, statements and other
documents required to be filed by it under the Exchange Act. The
Company has filed (i) its Annual Report on Form 10-K for its fiscal
year ended Xxxx 00, 0000xxx (xx) its Quarterly Reports on Form 10-Q for
the fiscal quarters ended September 30, 2005, December 30, 2005 and
March 31, 2006 (collectively, the "SEC Reports"). Each SEC Report was,
at the time of its filing, in substantial compliance with the
requirements of its respective form and none of the SEC Reports, nor
the financial statements (and the notes thereto) included in the SEC
Reports, as of their respective filing dates, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Reports comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles ("GAAP") applied on a
consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto
or (ii) in the case of unaudited interim statements, to the extent they
may not include footnotes or may be condensed) and fairly present in
all material respects the financial condition, the results of
operations and the cash flows of the Company and its subsidiaries, on a
consolidated basis, as of, and for, the periods presented in each such
SEC Report.
(b) The Common Stock is listed for trading on the NASDAQ
Capital Market and satisfies all requirements for the continuation of
such listing, and the Company shall do all things necessary for the
continuation of such listing. The Company has not received any notice
that its Common Stock will be delisted from the NASDAQ Capital Market
(except for prior notices which have been fully remedied) or that the
Common Stock does not meet all requirements for the continuation of
such listing.
(c) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offers to buy any
security under circumstances that would cause the offering of the
Securities pursuant to the Securities Purchase Agreement to be
integrated with prior offerings by the Company for purposes of the
Securities Act which would prevent the Company from selling the Common
Stock pursuant to Rule 506 under the Securities Act, or any applicable
exchange-related stockholder approval provisions, nor will the Company
or any of its affiliates or subsidiaries take any action or steps that
would cause the offering of the Securities to be integrated with other
offerings.
(d) The Warrants, the Note and the shares of Common Stock
which the Purchaser may acquire pursuant to the Warrants and the Note
are all restricted securities under the Securities Act as of the date
of this Agreement. The Company will not issue
7
any stop transfer order or other order impeding the sale and delivery
of any of the Registrable Securities at such time as such Registrable
Securities are registered for public sale or an exemption from
registration is available, except as required by federal or state
securities laws.
(e) The Company understands the nature of the Registrable
Securities issuable upon the conversion of the Note and the exercise of
the Warrant and recognizes that the issuance of such Registrable
Securities may have a potential dilutive effect. The Company
specifically acknowledges that its obligation to issue the Registrable
Securities is binding upon the Company and enforceable regardless of
the dilution such issuance may have on the ownership interests of other
shareholders of the Company.
(f) Except for agreements made in the ordinary course of
business, there is no agreement that has not been filed with the
Commission as an exhibit to a registration statement or to a form
required to be filed by the Company under the Exchange Act, the breach
of which could reasonably be expected to have a material and adverse
effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into and
perform any of its obligations under this Agreement in any material
respect.
(g) The Company will at all times have authorized and reserved
a sufficient number of shares of Common Stock for the full conversion
of the Note and exercise of the Warrants.
7. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company or by a
Holder, of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to being
entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement.
(b) NO PIGGYBACK ON REGISTRATIONS. Except as and to the extent
specified in Schedule 7(b) hereto or as otherwise expressly consented
to by the Holder in writing which consent will not be unreasonably
withheld, neither the Company nor any of its security holders (other
than the Holders in such capacity pursuant hereto) may include
securities of the Company in any Registration Statement other than the
Registrable Securities, and the Company shall not after the date hereof
enter into any agreement providing any such right for inclusion of
shares in the Registration Statement to any of its security holders.
Except as and to the extent specified in Schedule 7(b) hereto, the
Company has not previously entered into any agreement granting any
registration rights with respect to any of its securities to any person
or entity that have not been fully satisfied.
(c) COMPLIANCE. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act
as applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
8
(d) DISCONTINUED DISPOSITION. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of a Discontinuation Event
(as defined below), such Holder will forthwith discontinue disposition
of such Registrable Securities under the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented
Prospectus and/or amended Registration Statement or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of
any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to enforce
the provisions of this paragraph. For purposes of this Agreement, a
"Discontinuation Event" shall mean (i) when the Commission notifies the
Company whether there will be a "review" of such Registration Statement
and whenever the Commission comments in writing on such Registration
Statement (the Company shall provide true and complete copies thereof
and all written responses thereto to each of the Holders); (ii) any
request by the Commission or any other Federal or state governmental
authority for amendments or supplements to such Registration Statement
or Prospectus or for additional information; (iii) the issuance by the
Commission of any stop order suspending the effectiveness of such
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv)
the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose; and/or
(v) the occurrence of any event or passage of time that makes the
financial statements included in such Registration Statement ineligible
for inclusion therein or any statement made in such Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires any revisions to such Registration Statement, Prospectus
or other documents so that, in the case of such Registration Statement
or Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) PIGGY-BACK REGISTRATIONS. If at any time after the date
hereof there is not an effective Registration Statement covering all of
the Registrable Securities required to be covered hereunder and the
Company shall determine to prepare and file with the Commission a
registration statement relating to an offering for its own account or
the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection with
stock option or other employee benefit plans, then the Company shall
send to each Holder written notice of such determination and, if within
fifteen (15) days after receipt of such notice, any such Holder shall
so request in writing, the Company shall include in such registration
statement all or any part of such Registrable Securities such Holder
requests to be registered to the extent the Company may do so without
violating registration rights of others which exist as of the date of
this Agreement, subject to customary underwriter
9
cutbacks applicable to all holders of registration rights and subject
to obtaining any required consent of any selling stockholder(s) to such
inclusion under such registration statement.
(f) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing
and signed by the Company and the Holders of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of certain Holders and that does
not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority of the Registrable Securities
to which such waiver or consent relates; PROVIDED, HOWEVER, that the
provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(g) NOTICES. Any notice or request hereunder may be given to
the Company or the Purchaser at the respective addresses set forth
below or as may hereafter be specified in a notice designated as a
change of address under this Section 7(g). Any notice or request
hereunder shall be given by registered or certified mail, return
receipt requested, hand delivery, overnight mail, Federal Express or
other national overnight next day carrier (collectively, "Courier") or
telecopy (confirmed by mail). Notices and requests shall be, in the
case of those by hand delivery, deemed to have been given when
delivered to any party to whom it is addressed, in the case of those by
mail or overnight mail, deemed to have been given three (3) business
days after the date when deposited in the mail or with the overnight
mail carrier, in the case of a Courier, the next business day following
timely delivery of the package with the Courier, and, in the case of a
telecopy, when confirmed. The address for such notices and
communications shall be as follows:
IF TO THE COMPANY: Able Energy, Inc.
000 Xxxxx Xxxx Xx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer,
Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
WITH A COPY TO:
Attention: Xxxxxxx X. Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
10
or such other address as may be designated in writing hereafter in
accordance with this Section 7(g) by such Person.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Holder. The
Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the persons and
entities as permitted under the Note and the Securities Purchase
Agreement.
(i) EXECUTION AND COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be
deemed to be an original and, all of which taken together shall
constitute one and the same agreement. In the event that any signature
is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as
if such facsimile signature were the original thereof.
(j) GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. The Company hereby consents and agrees that the state or federal
courts located in the County of New York, State of New York shall have
exclusion jurisdiction to hear and determine any Proceeding between the
Company, on the one hand, and the Purchaser, on the other hand,
pertaining to this Agreement or to any matter arising out of or related
to this Agreement; PROVIDED, that the Purchaser and the Company
acknowledge that any appeals from those courts may have to be heard by
a court located outside of the County of New York, State of New York,
and FURTHER PROVIDED, that nothing in this Agreement shall be deemed or
operate to preclude the Purchaser from bringing a Proceeding in any
other jurisdiction to collect the obligations, to realize on the
Collateral or any other security for the obligations, or to enforce a
judgment or other court order in favor of the Purchaser. The Company
expressly submits and consents in advance to such jurisdiction in any
Proceeding commenced in any such court, and the Company hereby waives
any objection which it may have based upon lack of personal
jurisdiction, improper venue or FORUM NON CONVENIENS. The Company
hereby waives personal service of the summons, complaint and other
process issued in any such Proceeding and agrees that service of such
summons, complaint and other process may be made by registered or
certified mail addressed to the Company at the address set forth in
Section 7(g) and that service so made shall be deemed completed upon
the earlier of the Company's actual receipt thereof or three (3) days
after deposit in the U.S. mails, proper postage prepaid. The parties
hereto desire that their disputes be resolved by a judge applying such
applicable laws. Therefore, to achieve the best combination of the
benefits of the judicial system and of arbitration, the parties hereto
waive all rights to trial by jury in any Proceeding brought to
11
resolve any dispute, whether arising in contract, tort, or otherwise
between the Purchaser and/or the Company arising out of, connected
with, related or incidental to the relationship established between
then in connection with this Agreement. If either party hereto shall
commence a Proceeding to enforce any provisions of this Agreement, the
Securities Purchase Agreement or any other Related Agreement, then the
prevailing party in such Proceeding shall be reimbursed by the other
party for its reasonable attorneys' fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such
Proceeding.
(k) CUMULATIVE REMEDIES. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(l) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(m) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
ABLE ENERGY, INC. LAURUS MASTER FUND, LTD.
By: s/Xxxxxxx X. Xxxxx By: s/Xxxxxx Grin
------------------ --------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx Grin
Title: Chief Executive Officer Title: Fund Manager
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Grin
Facsimile: 000-000-0000
13
EXHIBIT A
[June 30, 2006]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Re: ABLE ENERGY, INC.. REGISTRATION STATEMENT ON FORM [S-3]
-------------------------------------------------------
Ladies and Gentlemen:
As counsel to Able Energy, Inc., a Delaware corporation (the
"Company"), we have been requested to render our opinion to you in connection
with the resale by the individuals or entitles listed on Schedule A attached
hereto (the "Selling Stockholders"), of an aggregate of __________ shares (the
"Shares") of the Company's Common Stock.
A Registration Statement on Form [S-3] under the Securities Act of
1933, as amended (the "Act"), with respect to the resale of the Shares was
declared effective by the Securities and Exchange Commission on [date]. Enclosed
is the Prospectus dated [date]. We understand that the Shares are to be offered
and sold in the manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at
any time while the registration statement remains effective, it is our opinion
that the Shares have been registered for resale under the Act and new
certificates evidencing the Shares upon their transfer or re-registration by the
Selling Stockholders may be issued without restrictive legend. We will advise
you if the registration statement is not available or effective at any point in
the future.
Very truly yours,
[Company counsel]
SCHEDULE A TO EXHIBIT A
Shares
Selling Stockholder Being Offered
------------------- -------------
SCHEDULE 7(B)
