REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as of
June 14, 2006 by and among ZBB ENERGY CORPORATION, a Wisconsin corporation (the
"COMPANY"), and the persons and entities listed on the signature pages hereof
(the "INVESTORS").
WITNESSETH:
WHEREAS, the Investors have purchased Warrants to purchase up to
14,844,440 shares (the "WARRANT SHARES") of Common Stock of the Company pursuant
to the Note Purchase Agreement dated June 14, 2006 (the "NOTE PURCHASE
AGREEMENT"); and
WHEREAS, the Investors have purchased Notes pursuant to the Note
Purchase Agreement, which such Notes, upon an event of default, as provided in
the Note Purchase Agreement, may be converted at the option of each holder into
an estimated aggregate of 14,844,440 shares (the "CONVERSION SHARES") of Common
Stock of the Company; and
WHEREAS, the Company has agreed with the Investors to grant certain
registration rights with respect to the Warrant Shares and Conversion Shares.
NOW THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
"COMMISSION" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
"HOLDER" shall mean any holder of outstanding Registrable
Securities or anyone who holds outstanding Registrable Securities to whom the
registration rights conferred by this Agreement have been transferred in
compliance with this Agreement.
"INITIATING HOLDERS" shall mean any Holder or Holders of at least
fifty-one percent (51%) of the Registrable Securities then outstanding.
"REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement, and compliance with applicable
state securities laws of such states in which Holders notify the Company of
their intention to offer Registrable Securities.
"REGISTRABLE SECURITIES" shall mean all of the following to the
extent the same have not been sold to the public (i) any and all of the Warrant
Shares and Conversion Shares;
or (ii) stock issued in respect of stock referred to in (i) above in any
reorganization; or (iii) stock issued in respect of the stock referred to in (i)
or (ii) as a result of a stock split, stock dividend, recapitalization or
combination. Notwithstanding the foregoing, Registrable Securities shall not
include otherwise Registrable Securities (i) sold by a person in a transaction
in which his rights under this Agreement are not properly assigned; or (ii) (A)
sold to or through a broker or dealer or underwriter in a public distribution or
a public securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale or
(C) the registration rights associated with such securities have been terminated
pursuant to Section 12 of this Agreement.
"RULE 144" shall mean Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144A.
"RULE 144A" shall mean Rule 144A under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time to time,
but shall not include Rule 144.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
2. RESTRICTIONS ON TRANSFERABILITY. The Registrable Securities shall
not be sold, assigned, transferred or pledged except upon the conditions
specified in this Agreement, which conditions are intended to ensure compliance
with the provisions of the Securities Act. Each Holder will cause any proposed
purchaser, assignee, transferee, or pledgee of the Registrable Securities held
by a Holder to agree to take and hold such securities subject to the provisions
and upon the conditions specified in this Agreement.
3. RESTRICTIVE LEGEND. Each certificate representing Registrable
Securities shall (unless otherwise permitted by the provisions of Section 4
below) be stamped or otherwise imprinted with a legend as provided in the Note
Purchase Agreement (in addition to any legend required under applicable state
securities laws or otherwise). Each Holder consents to the Company making a
notation on its records and giving instructions to any transfer agent of the
Registrable Securities in order to implement the restrictions on transfer
established in this Agreement.
4. NOTICE OF PROPOSED TRANSFER. The Holder of each certificate
representing Registrable Securities, by acceptance thereof, agrees to comply in
all respects with the provisions of this Section 4. Each such Holder agrees not
to make any disposition of all or any portion of any Registrable Securities
unless and until:
a. There is in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
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b. Such Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and if reasonably
requested by the Company, such Holder shall furnish the Company with an opinion
of counsel, reasonably satisfactory to the Company that such disposition shall
not require registration of such shares under the Securities Act. It is agreed,
however, that no such opinion will be required for Rule 144 or Rule 144A
transactions, except as required by the Company's transfer agent or in unusual
circumstances.
c. Notwithstanding the provisions of paragraphs (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Holder which is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or the transfer
by gift, will, or intestate succession of any partner to his spouse or siblings,
lineal descendants or ancestors of such partner or spouse, provided, however,
that such transferee agrees in writing to be subject to all of the terms hereof
to the same extent as if he were an original Holder hereunder.
5. PIGGYBACK REGISTRATION.
a. If at any time or from time to time, the Company shall
determine to register any of its securities, for its own account or the account
of any of its shareholders, other than a registration relating solely to
employee benefit plans, or a registration relating solely to an SEC Rule 145
transaction, or a registration on any form (other than Form XX-0, XX-0, X-0, X-0
or S-3, or their successor forms) which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
i. give to each Holder written notice thereof as soon as
practicable prior to filing the registration statement; and
ii. include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within fifteen (15) days after receipt of such written notice
from the Company, by any Holder or Holders, except as set forth in subsection
(b) below.
b. If the registration is for a registered public offering
involving an underwriting, the Company shall so advise the Holders as a part of
the written notice given pursuant to subsection 5(a)(i). In such event, the
right of any Holder to registration pursuant to Section 5 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
5, if the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the number of Registrable Securities
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to be included in the registration and underwriting, or may exclude Registrable
Securities entirely from such registration (provided that no shares held by
officers and directors of the Company, other than Registrable Securities that
may be owned by officers and directors, are included in the registration and
underwriting). The Company shall so advise all Holders and the other Holders
distributing their securities through such underwriting pursuant to piggyback
registration rights similar to this Section 5, and the number of shares of
Registrable Securities and other securities that may be included in the
registration and underwriting shall be allocated among all Holders and other
holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders and other securities held by other
holders at the time of filing the registration statement. If any Holder
disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the managing underwriter. If, by
the withdrawal of such Registrable Securities, a greater number of Registrable
Securities held by other Holders may be included in such registration (up to the
limit imposed by the underwriters), the Company shall offer to all Holders who
have included Registrable Securities in the registration the right to include
additional Registrable Securities. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
6. EXPENSES OF REGISTRATION. In addition to the fees and expenses
contemplated by Section 8 hereof, all expenses incurred in connection with all
registrations pursuant to Section 5 hereof, including without limitation all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for the Company and a single counsel for all Holders,
and expenses of any special audits of the Company's financial statements
incidental to or required by such registration, shall be borne by the Company,
except that the Company shall not be required to pay underwriters' fees,
discounts or commissions relating to Registrable Securities or fees of a
separate legal counsel of a Holder other than the counsel described above.
7. REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to this Agreement, the Company will keep each Holder
participating therein advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense the Company will:
a. keep such registration pursuant to Section 5 continuously
effective until all of the securities covered by such registration statement
have been sold pursuant to such registration statement or all of the Registrable
Securities covered by such registration statement may be sold without
registration under Rule 144(k) of the Securities Act;
b. promptly prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of the
Securities Act, and to keep such registration statement effective for that
period of time specified in Section 7(a) above;
c. furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request;
d. use reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the lifting
of any suspension of the
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qualification of any of the Registrable Securities for sale in any jurisdiction,
at the earliest possible moment;
e. register or qualify such Registrable Securities for offer and
sale under the securities or blue sky laws of such jurisdictions as any Holder
or underwriter reasonably requires, and keep such registration or qualification
effective during the period set forth in Section 7(a) above;
f. cause all Registrable Securities covered by such registrations
to be listed or quoted on each securities exchange, including Nasdaq, on which
similar securities issued by the Company are then listed or quoted,
g. cause its independent public accountants to deliver an
accountants' comfort letter and updates thereof, in customary form and covering
matters of the type customarily covered in such letters with respect to
underwritten offerings, addressed to the Holders;
h. enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably, request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
i. make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
j. if the offering is underwritten, at the request of any Holder
of Registrable Securities 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 such Holder, 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, (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 (C) to such
other effects as reasonably may be requested by counsel for the underwriters or
by such Holder or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, 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
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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
reasonably may request;
k. notify each Holder, at any time a prospectus covered by such
registration statement is required to be delivered under the Securities Act, of
the happening of any event of which it has knowledge 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;
l. take such other actions as shall be reasonably requested by
any Holder.
8. INDEMNIFICATION.
a. In the event of a registration of any of the Registrable
Securities under the Securities Act pursuant to Section 5, the Company will
indemnify and hold harmless each Holder of such Registrable Securities
thereunder, each underwriter of such Registrable Securities thereunder and each
other person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such Holder, underwriter or controlling person 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, 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, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or any state securities law
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, and will reimburse each such
Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any reasonable legal and any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage or liability arises
out of or is based on any untrue statement or omission based upon written
information furnished to the Company by an instrument duly executed by such
Holder or underwriter specifically for use therein.
b. Each Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration is being effected, indemnify and hold harmless the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the
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Company and each underwriter within the meaning of the Securities Act, and each
other such Holder, each of its officers, directors and partners and each person
controlling such Holder, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any 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, such Holders, such directors,
officers, partners, persons or underwriters for any reasonable legal or any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder specifically for use therein; provided, however,
the total amount for which any Holder, its officers, directors and partners, and
any person controlling such Holder, shall be liable under this Section 8(b)
shall not in any event exceed the aggregate proceeds received by such Holder
from the sale of Registrable Securities sold by such Holder in such
registration.
c. Each party entitled to indemnification under this Section 8
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claims as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations hereunder, unless such failure resulted in actual detriment to
the Indemnifying Party. 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 Party of a release from all liability in respect of such claim or
litigation.
d. Notwithstanding the foregoing, to the extent that the
provisions on indemnification contained in the underwriting agreements entered
into among the selling Holders, the Company and the underwriters in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall be controlling as
to the Registrable Securities included in the public offering; provided,
however, that if, as a result of this Section 8(d), any Holder, its officers,
directors, and partners and any person controlling such Holder is held liable
for an amount which exceeds the aggregate proceeds received by such Holder from
the sale of Registrable Securities included in a registration, as provided in
Section 8(b) above, pursuant to such underwriting agreement (the "EXCESS
LIABILITY"), the Company shall reimburse any such Holder for such Excess
Liability.
e. If the indemnification provided for in this Section 8 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss,
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liability, claim, damage or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The relevant
fault of the indemnifying party and the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Notwithstanding the foregoing,
the amount any Holder shall be obligated to contribute pursuant to this Section
8(e) shall be limited to an amount equal to the proceeds to such Holder of the
Restricted Securities sold pursuant to the registration statement which gives
rise to such obligation to contribute (less the aggregate amount of any damages
which the Holder has otherwise been required to pay in respect of such loss,
claim, damage, liability or action or any substantially similar loss, claim,
damage, liability or action arising from the sale of such Restricted
Securities).
f. The indemnification provided by this Section 8 shall be a
continuing right to indemnification and shall survive the registration and sale
of any securities by any Person entitled to indemnification hereunder and the
expiration or termination of this Agreement.
9. INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration referred to herein.
10. RULE 144 REPORTING. With a view to making available to Holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees at all times to file with the Commission all
reports and other documents required of the Company under the Securities Act and
the Exchange Act.
11. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities of a Holder and keep information available
granted to a Holder by the Company under Section 5 may be assigned by a Holder
to any partner or shareholder of such Holder, to any other Holder, or to a
transferee or assignee; provided, that the Company is given written notice by
the Holder at the time of or within a reasonable time after said transfer,
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being assigned.
12. TERMINATION OF RIGHTS. The rights of any particular Holder to
cause the Company to register securities under Section 5 shall terminate with
respect to such Holder at such time that such Holder is able to dispose of all
of such Holder's Registrable Securities (i) in one three-month period pursuant
to the provisions of Rule 144, provided that such Holder holds not
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more than one percent (1%) of the outstanding voting stock of the Company, or
(ii) pursuant to the provisions of Rule 144(k).
13. REMEDIES UPON DEFAULT OR DELAY.
a. Without limitation of any other remedy available to a Holder
under applicable law or otherwise, if the Company shall (1) fail to register
Registrable Securities after it shall have been requested to do so by a Holder
in accordance with Section 5, or (2) fail to perform any of its obligations
hereunder and as a result of such failure Holders have not been able to sell
their Registrable Securities, or (3) act or fail to act in any manner such that
one or more Holders have been delayed in the sale of their Registrable
Securities, which delay is not expressly permitted by this Agreement, then any
Holder adversely affected by such action, failure or delay shall be entitled to
any or all of the following remedies, which may be elected in the sole
discretion of such Holder:
i. Such Holder may withhold from selling its Registrable
Securities and cause the Company to repurchase some or all of its Holder's
Registrable Securities at a price equal to the Repurchase Price for each of such
securities in accordance with paragraph (b) of this Section; or
ii. Such Holder may otherwise sell its Registrable
Securities and cause the Company to pay to such Holder the amount of any Price
Difference for any or all of such securities in accordance with paragraph (c) of
this Section.
b. Upon the occurrence of any of the events listed in paragraph
(a) of this Section, a Holder may elect to cause the Company to repurchase any
of such Holder's Registrable Securities by giving written notice to the Company.
As soon as practicable (but not later than 10 days) thereafter the Company shall
pay the Repurchase Price to the Holder for such repurchased securities;
provided, however, that subject to paragraph (e) of this Section, if the
Repurchase Price for any security shall not be immediately determinable, the
Company and the Holder shall agree in good faith upon an estimate of the
Repurchase Price for such security, which estimate shall be paid by the Company
in accordance with this paragraph.
c. Upon the occurrence of any of the events listed in paragraph
(a) of this Section, unless the Holder shall have been eligible to and have
elected to cause the Company to repurchase such securities pursuant to paragraph
(a) of this Section, the Holder may sell any security to any third party and the
Company shall be obligated to pay to the Holder the amount of any Price
Difference with respect to such security. If the Holder is unable to sell such
security promptly pursuant to a registration statement, such Holder may sell
such security in a manner and on such terms that the Holder in good faith
believes are not unreasonable under the circumstances. The Company shall pay the
Price Difference for each such security as soon as practicable (but not later
than 10 days) after the Holder shall give written notice to the Company, which
notice shall set forth the number and type of securities sold by such Holder and
the Sale Dates and Selling Prices applicable thereto; provided, however, that,
if the Price Difference for any security shall not be immediately determinable,
the Company and the Holder shall agree in good faith upon an estimate
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of the Price Difference for such security, which estimate shall be paid by the
Company in accordance with the terms of this paragraph.
d. If the Repurchase Price or Price Difference for any security
shall not be immediately determinable, the Company shall cooperate with any
investment banking firm selected by the Holder and shall otherwise use its best
efforts to cause such amount to be determined as quickly as possible. As soon as
practicable after the final Repurchase Price or Price Difference shall have been
determined, any difference between the final Repurchase Price or Price
Difference and the estimated Repurchase Price or Price Difference, respectively,
shall be paid by either the Company or the Holder to the other party, as the
case may be, the amount of any underpayment being paid by the Company and the
amount of any overpayment being paid by the Holder.
e. If the Company shall be prevented by law from making any
payment required to be made under this Section, the obligations hereunder shall
be continuing obligations, and such payments shall be made in partial payments
when, as soon as, and to the extent that, any portion of such payments shall
later be permitted under applicable law. If more than one Holder has not been
paid all amounts due as a result of the preceding sentence, all of such Holders
shall share any partial payment on a pro rata basis based on the unpaid amount
then owed to such Holders. No repurchase of any security shall be deemed to have
been made, and the Holder shall continue to be deemed to be the owner of such
security, until the date on which final payment of the Repurchase Price is made.
f. The term "REPURCHASE PRICE" shall mean, as to any Registrable
Securities, the highest market value during the period which an event has
occurred and is continuing under Section 16(a) which triggers the remedies under
this Section 13, based on the assumption that the Registrable Securities are
freely transferable without restriction. The term "PRICE DIFFERENCE" shall mean,
as to any Registrable Securities, the difference between the Repurchase Price
for such Registrable Securities and the actual sales price of such Registrable
Securities.
14. MISCELLANEOUS.
a. Amendments. This Agreement may be amended only by a writing
signed by the Holders of more than fifty percent (50%) of the Registrable
Securities, as constituted from time to time. The Holders hereby consent to
future amendments to this Agreement that permit future investors, other than
employees, officers or directors of the Company, to be made parties hereto and
to become Holders of Registrable Securities; provided, however, that no such
future amendment may materially impair the rights of the Holders hereunder
without obtaining the requisite consent of the Holders, as set forth above. For
purposes of this Section, Registrable Securities held by the Company or
beneficially owned by any officer or employee of the Company shall be
disregarded and deemed not to be outstanding.
b. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute a single instrument.
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c. Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and may be sent initially by facsimile
transmission and shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand or by messenger, addressed:
(i) if to a Holder, at such Holder's address set forth on
the books of the Company, or at such other address as such Holder shall have
furnished to the Company in writing, or if to any other holder of any
Registrable Securities, at such address as such holder shall have furnished the
Company in writing, or, until any such holder so furnishes an address to the
Company, then to and at the address of the last holder of such securities who
has so furnished an address to the Company,
and, with copies to: Xxxxxx Xxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to the Company, one copy should be sent to the
Company's current address, as follows, or at such other address as the Company
shall have furnished to the Holders:
To the Company: ZBB Energy Corporation
X00 X00000 Xxxxxxxxx Xxx
Xxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx, Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: Xxxxxxx Xxxx LLP
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 - 0150
Attn: Xxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each such notice or other communication shall for all purposes of this Agreement
be treated as effective or having been given when delivered if delivered
personally, or, if sent by first class, postage prepaid mail, at the earlier of
its receipt or seventy-two (72) hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
d. Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any
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other provision of this Agreement, and this Agreement shall be carried out as if
any such illegal, invalid or unenforceable provision were not contained herein.
e. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York without regard to principles
of conflict of law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed on the day and year first above written.
THE COMPANY:
ZBB ENERGY CORPORATION
By:
-------------------------------------
Xxxxxx Xxxxx
Chief Executive Officer
THE INVESTORS:
ABS SOS-PLUS PARTNERS, LTD.
By:
-------------------------------------
Name:
Title:
BUSHIDO CAPITAL MASTER FUND L.P.
By: Bushido Capital Partners, Ltd.
By:
------------------------------------
Name:
Title:
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