Draft 11/12/2007
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made on November
__, 2007 between Cranshire Capital L.P. ("SELLER") and Castlerigg Master
Investments Ltd. ("BUYER").
WHEREAS, pursuant to the Securities Purchase Agreement (the "SECURITIES
PURCHASE AGREEMENT"), dated as of July 24, 2006, by and among Earth Biofuels,
Inc., a Delaware corporation, with its corporate headquarters located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "BORROWER") and the investors
listed on the Schedule of Buyers attached thereto (individually, a "BUYER" and
collectively, the "BUYERS"), Seller (as a Buyer) purchased, and the Borrower
sold, upon the terms and conditions stated in the Securities Purchase Agreement,
(i) a senior convertible note in aggregate principal amount of One Million, Five
Hundred Thousand Dollars ($1,500,000) (the "NOTE"), in substantially the form
attached to the Securities Purchase Agreement as EXHIBIT A, (ii) a warrant, in
substantially the form attached to the Securities Purchase Agreement as EXHIBIT
B-1 (the "SERIES A WARRANT"), to acquire up to 258,621 shares of Common Stock
(as defined in the Securities Purchase Agreement) (the "SERIES A WARRANT
SHARES") and (iii) a warrant, in substantially the form attached to the
Securities Purchase Agreement as EXHIBIT B-2 (the "SERIES B WARRANT," and
together with the Series A Warrant, the "WARRANTS") to acquire up to 258,621
shares of Common Stock (the "SERIES B WARRANT SHARES," and together with the
Series A Warrant Shares, the "WARRANT SHARES").
WHEREAS, Borrower agreed to provide certain registration rights with
respect to the Registrable Securities (as defined in the Registration Rights
Agreement (as defined below)), under the Securities Act of 1933, as amended (the
"1933 ACT") and the rules and regulations promulgated thereunder, and applicable
state securities laws pursuant to the Registration Rights Agreement, dated as of
July 24, 2006, by and among the Borrower and Buyers (the "REGISTRATION RIGHTS
AGREEMENT").
WHEREAS, on June 13, 2007, Seller obtained a judgment against Borrower in
an amount equal to $2,295,708.13 in the action entitled CRANSHIRE CAPITAL L.P.
V. EARTH BIOFUELS, INC., Case ▇▇. ▇▇ ▇▇ ▇▇▇ (▇▇▇) then pending in the District
Court for the Southern District of New York ( the "CRANSHIRE JUDGMENT").
WHEREAS, Seller also served a Writ of Execution on JPMorgan Chase & Co. in
connection with the Cranshire Judgment (the "WRIT OF EXECUTION', and together
with the Cranshire Judgment, the "JUDGMENT").
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Note, the Warrants and the Judgment on the basis of the
representations, warranties and agreements contained in this Agreement, and upon
the terms but subject to the conditions set forth herein.
WHEREAS, Seller desires to assign to Buyer and Buyer desires to assume from
Seller, its rights as a holder of the Note and the Warrants under (a) the
Securities Purchase Agreement and (b) the Registration Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. PURCHASE OF NOTE AND WARRANTS
(a) PURCHASE AND SALE. Seller hereby agrees to sell to Buyer, and Buyer
agrees to purchase from Seller, the Note, the Warrants and the Judgment. The
aggregate purchase price for the Note, the Warrants and the Judgment shall be
the greater of (i) $375,000 and (ii) the amount paid by Buyer or any of its
affiliates on, before or within one hundred eighty (180) days after the Closing
Date to any holder of a similar Note to acquire such Note, expressed as a
percentage of the principal amount of such Note, multiplied by the principal
amount of Seller's Note (the "PURCHASE PRICE"). If by application of the
immediately preceding clause (a)(ii), Buyer is required to pay to Seller an
amount greater than the amount actually paid by Buyer on the Closing Date to
Seller for the Note, the Warrants and the Judgment, then Buyer shall promptly
pay such greater amount to Seller.
(b) CLOSING. Closing on this Agreement shall be conducted no later than the
second business day after satisfaction (or waiver) of the conditions to the
closing set forth in Section 2 (the "CLOSING DATE") at 10:00 a.m., New York City
time, (or such other time as the parties may agree) at the office of ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(c) FORM OF PAYMENT. On the Closing Date, Buyer shall pay the Purchase
Price to Seller for the Note, the Warrants and the Judgment by wire transfer of
immediately available funds in accordance with Seller's written wire
instructions.
SECTION 2. CLOSING CONDITIONS.
(a) BUYER CLOSING CONDITIONS. The obligation of Buyer to pay for the Note,
the Warrants and the Judgment as provided herein on the Closing Date is subject
to the following conditions (the "BUYER CLOSING CONDITIONS"), PROVIDED that
these conditions are for Buyer's sole benefit and may be waived by Buyer at any
time in its sole discretion by providing Seller with prior written consent
thereof.
(i) On the Closing Date, Seller shall have delivered to Buyer
certificates representing the Note and the Warrants (in such denominations
and registered in such names as Buyer shall request).
(ii) The representations and warranties of Seller shall be true and
correct in all material respects (except for those representations and
warranties that are qualified by materiality, which shall be true and
correct in all respects) as of the date when made and
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as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date, which
shall be true and correct as of such specified date), and Seller shall have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by Seller at or prior to the Closing
Date.
(iii) Buyer shall have received this Agreement and the Notice and
Acknowledgment and Joinder Agreement attached hereto as EXHIBIT A (the
"NOTICE AND ACKNOWLEDGMENT OF TRANSFER") duly executed by all parties
thereto.
(iv) Buyer shall have received the Interim Restructuring Agreement
duly executed by the Borrower in favor of each of the holders of the Notes,
substantially in the form attached hereto as EXHIBIT B.
(v) Buyer shall have received the Mutual Release attached as EXHIBIT C
(the "RELEASE") hereto duly executed by Seller in favor of Borrower.
(vi) Buyer shall have received from Seller an Assignment of Judgment
duly executed by Seller substantially in the form attached hereto as
EXHIBIT D.
(vii) An order of the United States Bankruptcy Court for the District
of Delaware shall have been entered on the docket and shall have become
final and non-appealable dismissing the case under the Bankruptcy Code
pending before the Bankruptcy Court in which Borrower is a debtor, In re
Earth Biofuels, Inc., No. 07-10928 (CSS).
(b) SELLER CLOSING CONDITIONS. The obligation of Seller to sell the Note,
the Warrants and the Judgment as provided herein on the Closing Date is subject
to the following conditions (the "SELLER CLOSING CONDITIONS"), PROVIDED that
these conditions are for Seller's sole benefit and may be waived by Seller at
any time in its sole discretion by providing Buyer with prior written consent
thereof.
(i) The representations and warranties of Buyer shall be true and
correct in all material respects (except for those representations and
warranties that are qualified by materiality, which shall be true and
correct in all respects) as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties
that speak as of a specific date, which shall be true and correct as of
such specified date), and Buyer shall have performed, satisfied and
complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or
complied with by Buyer at or prior to the Closing Date.
(ii) Seller shall have received this Agreement and the Notice and
Acknowledgment and Joinder Agreement attached hereto as EXHIBIT A (the
"NOTICE AND ACKNOWLEDGMENT OF TRANSFER") duly executed by all parties
thereto.
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(iii) Seller shall have received the Release executed by the Borrower
in favor of the Seller.
(iv) Buyer shall have delivered to Seller the Purchase Price for the
Note, the related Warrants and the Judgment being purchased by Buyer at the
Closing by wire transfer of immediately available funds pursuant to the
wire instructions provided by Seller.
(c) TERMINATION. In the event that any of the Buyer Closing Conditions or
the Seller Closing Conditions are not satisfied by December 21, 2007, either
party to this Agreement may terminate this Agreement immediately upon notice to
the other party, at which time each party's obligations under this Agreement and
the Release shall terminate and be null, void and of no further force and
effect. In the event of a termination, all original documents transmitted to any
party or otherwise held in escrow shall be returned to the executing party.
SECTION 3. SELLER REPRESENTATIONS AND WARRANTIES. Seller hereby
represents, warrants and covenants to Buyer as follows as of the date hereof:
(a) This Agreement has been duly authorized, executed and delivered by
Seller and constitutes a valid and legally binding agreement of Seller
enforceable against Seller in accordance with its terms, except (a) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, or (b) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
(b) All government and other consents that are required to have been
obtained by Seller with respect to this Agreement have been obtained and are in
full force and effect and all conditions of any such consents have been complied
with.
(c) Seller has good and valid title to the Note, the Warrants and the
Cranshire Judgment free and clear of any lien, mortgage, security interest,
pledge, charge or encumbrance of any kind ("LIENS") other than restrictions on
transfer imposed by the terms of the Securities Purchase Agreement, the
Registration Rights Agreement, the Note, the Warrants and applicable securities
laws. Delivery of the Note and the Warrants to Buyer will pass to Buyer good and
valid title to the Note and the Warrants, free and clear of any Liens, other
than restrictions on transfer imposed by the terms of the Securities Purchase
Agreement, the Registration Rights Agreement, the Note, the Warrants and
applicable securities laws.
(d) The execution and delivery by Seller of this Agreement, the sale by
Seller of the Note, the Warrants and the Judgment and the performance by Seller
of its obligations under this Agreement do not and will not violate or conflict
with any law applicable to Seller, any order or judgment of any court or other
agency of government applicable to Seller or any of Seller's assets or any
material contractual restriction binding on or affecting Seller or any of
Seller's assets.
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(e) There is no action, suit, proceeding, judgment, claim or investigation
pending, or to the knowledge of Seller, threatened against Seller which could
reasonably be expected in any manner to challenge or seek to prevent, enjoin,
alter or materially delay any of the transactions contemplated by this
Agreement.
(f) No authorization, consent, approval or other order of, or declaration
to or filing with, any governmental agency or body or other person is required
for the valid authorization, execution, delivery and performance by Seller of
this Agreement and the consummation of the transactions contemplated thereby.
(g) Seller is acting solely for Seller's own account, and has made Seller's
own independent decision to enter into this Agreement and as to whether this
Agreement is appropriate or proper for Seller based upon Seller's own judgment
and upon advice of such advisors as Seller deems necessary. Seller acknowledges
and agrees that Seller is not relying, and has not relied, upon any
communication (written or oral) of Buyer or any affiliate, employee or agent of
Buyer with respect to the legal, accounting, tax or other implications of this
Agreement and that Seller has conducted Seller's own analyses of the legal,
accounting, tax and other implications hereof and thereof; it being understood
that information and explanations related to the terms and conditions of this
Agreement shall not be considered investment advice or a recommendation to enter
into this Agreement. Seller acknowledges that neither Buyer nor any affiliate,
employee or agent of Buyer is acting as a fiduciary for or an advisor to Seller
in respect of this Agreement.
(h) Seller has taken no action that would give rise to any claim by any
person for brokerage commissions, finder's fees or similar payments relating to
this Agreement or the transactions contemplated hereby.
(i) Seller is not selling the Note, the Warrants or the Judgment as a
result of any advertisement, article, notice or other communication regarding
the Note, the Warrants or the Judgment published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(j) Neither the Seller nor any affiliate of the Seller (i) has any
relationship with the Company or any of its subsidiaries other than its
ownership of the Note and the Warrants issued to the Seller on or about July 26,
2006; (ii) directly or indirectly controls the Company or any of its
subsidiaries; or (iii) is a director or officer of the Company or any of its
subsidiaries.
(k) Seller acknowledges that (i) Buyer currently may have, and later may
come into possession of, information with respect to Borrower that is not known
to Seller and that may be material to a decision to sell the Note, the Warrants
and the Judgment for the Purchase Price ("SELLER EXCLUDED INFORMATION"), (ii)
Seller has determined to sell the Note, the Warrants and the Judgment
notwithstanding its lack of knowledge of Seller Excluded Information, if any,
and (iii) Buyer shall have no liability to Seller, and Seller waives and
releases any claims that it might have against Buyer, whether under applicable
securities laws or otherwise, with respect to the nondisclosure of Seller
Excluded Information, if any, in connection with Seller's sale of the Note, the
Warrants and the Judgment for the Purchase Price in accordance herewith;
provided,
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however, that Seller Excluded Information, if any, shall not and does not affect
the truth or accuracy of the representations or warranties of Buyer in this
Agreement and provided further, that all written material concerning the
Borrower that was provided by Buyer to Seller from the date the offer to
purchase Seller's Note, Warrants and Judgment was made by Buyer to Seller
through and including the Closing Date was delivered to Seller in the same form
that Buyer received it from the Borrower.
SECTION 4. BUYER REPRESENTATIONS AND WARRANTIES. Buyer hereby represents
and warrants to Seller as follows:
(a) Buyer understands that, except as and to the extent provided in the
Registration Rights Agreement, the Note and the Warrants have not been and are
not being registered under the 1933 Act or any state securities laws, and may
not be offered for sale, sold, assigned or transferred unless subsequently
registered thereunder or an exemption from such registration is available.
(b) Buyer has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been duly and
validly authorized, executed and delivered on behalf of Buyer and shall
constitute the legal, valid and binding obligation of Buyer enforceable against
it in accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors' rights
generally, or (b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
(c) The execution and delivery by Buyer of this Agreement, the purchase by
Buyer of the Note, the Warrants and the Judgment and the performance by Buyer of
its obligations under this Agreement do not and will not violate or conflict
with any law applicable to Buyer, any order or judgment of any court or other
agency of government applicable to Buyer or any of Buyer's assets or any
material contractual restriction binding on or affecting Buyer or any of Buyer's
assets.
(d) There is no action, suit, proceeding, judgment, claim or investigation
pending, or to the knowledge of Buyer, threatened against Buyer which could
reasonably be expected in any manner to challenge or seek to prevent, enjoin,
alter or materially delay any of the transactions contemplated by this
Agreement.
(e) No authorization, consent, approval or other order of, or declaration
to or filing with, any governmental agency or body or other person is required
for the valid authorization, execution, delivery and performance by Buyer of
this Agreement and the consummation of the transactions contemplated thereby.
(f) Buyer (i) is a sophisticated person with respect to the purchase of the
Note, the Warrants and the Judgment; (ii) has adequate information concerning
the business and financial condition of the Borrower to make an informed
decision regarding the purchase of the Note, the Warrants and the Judgment; and
(iii) has independently and without reliance upon Seller, and
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based on such information as Buyer has deemed appropriate, made its own analysis
and decision to enter into this Agreement, except that Buyer has relied upon
Seller's express representations, warranties and covenants in this Agreement.
Buyer acknowledges that Seller has not given Buyer any investment advice, credit
information or opinion on whether the purchase of the Note, the Warrants and the
Judgment is prudent.
(g) Buyer is purchasing the Note, the Warrants and the Judgment solely for
its own account and not with a view to the distribution or resale of the Note,
the Warrants and the Judgment or its rights thereunder except pursuant to a
registration statement declared effective under, or an exemption from the
registration requirements of, the Securities Act.
(h) Buyer is an "accredited investor" (as defined in Regulation D under the
Securities Act) and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of the transaction
contemplated herein, and it is able to bear the economic risk of such purchase.
(i) Buyer understands that the Note and the Warrants are being offered and
sold to it in reliance on specific exemptions from the registration requirements
of United States federal and state securities laws.
(j) Buyer understands that the Note, the Series A Warrant and the Series B
Warrant shall bear the legends set forth in Section 2(g) of the Securities
Purchase Agreement and such legends shall not be removed except in accordance
with Sections 2(g) of the Securities Purchase Agreement.
(k) Buyer is not purchasing the Note, the Warrants or the Judgment as a
result of any advertisement, article, notice or other communication regarding
the Note, the Warrants or the Judgment published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(l) Buyer has taken no action that would give rise to any claim by any
person for brokerage commissions, finder's fees or similar payments relating to
this Agreement or the transactions contemplated hereby.
(m) Buyer has not, and to its knowledge no one acting on its behalf has,
taken, directly or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the Borrower.
(n) Buyer acknowledges that (i) Seller currently may have, and later may
come into possession of, information with respect to Borrower that is not known
to Buyer and that may be material to a decision to purchase the Note, the
Warrants and the Judgment for the Purchase Price ("BUYER EXCLUDED INFORMATION"),
(ii) Buyer has determined to purchase the Note, the Warrants and the Judgment
notwithstanding its lack of knowledge of Buyer Excluded Information, if any, and
(iii) Seller shall have no liability to Buyer, and Buyer waives and releases any
claims that it might have against Seller, whether under applicable securities
laws or otherwise, with respect to the nondisclosure of Buyer Excluded
Information, if any, in
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connection with Buyer's purchase of the Note, the Warrants and the Judgment for
the Purchase Price in accordance herewith; provided, however, that Buyer
Excluded Information, if any, shall not and does affect the truth or accuracy of
the representations or warranties of Seller in this Agreement
SECTION 5. PAYMENT OF EXPENSES. Each party hereto shall be liable for its
own costs and expenses in connection with the transactions contemplated hereby.
SECTION 6. COVENANTS.
(a) Seller, for good and valuable consideration, effective as of the
Closing Date, hereby assigns, transfers, conveys and delivers to Buyer all of
its right, title and interest in and to the Note, the Warrants and the Judgment,
and with respect to such Note and the Warrants, to the Securities Purchase
Agreement and the Registration Rights Agreement.
(b) Buyer, for good and valuable consideration, effective as of the Closing
Date, hereby agrees to be bound by the terms of the Securities Purchase
Agreement and the Registration Rights Agreement with respect to the Note and the
Warrants. In addition, Buyer shall execute and deliver to Seller and the
Borrower the Notice and Acknowledgment agreeing to be bound by all of the
provisions contained therein.
SECTION 7. NOTICES. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to Buyer:
Castlerigg Master Investments Ltd.
c/o Sandell Asset Management
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Cem Hacioglu
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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If to Seller:
Cranshire Capital L.P.
c/o Downsview Capital, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇ Traurig, LLP
▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 8. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. EACH PARTY AGREES THAT ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT
SHALL BE BROUGHT IN A U.S. FEDERAL OR STATE COURT OF COMPETENT JURISDICTION
SITTING IN THE COUNTY, CITY, AND STATE OF NEW YORK. EACH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE JURISDICTION OF SUCH COURT AND
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY DEFENSE OF AN INCONVENIENT
FORUM OR A LACK OF PERSONAL JURISDICTION TO THE MAINTENANCE OF ANY ACTION OR
PROCEEDING AND ANY RIGHT OF JURISDICTION OR VENUE ON ACCOUNT OF THE PLACE OF
RESIDENCE OR DOMICILE OF ANY PARTY HERETO. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
SECTION 9. ENTIRE AGREEMENT; AMENDMENTS. This Agreement supersedes all
other prior oral or written agreements among Buyer, Seller, their affiliates and
Persons acting on their behalf with respect to the matters discussed herein, and
this Agreement and the instruments referenced
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herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither Seller nor Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision hereof may be
waived other than by an instrument in writing signed by the party against whom
enforcement is sought.
SECTION 10. SEVERABILITY. If any provision of this Agreement is prohibited
by law or otherwise determined to be invalid or unenforceable by a court of
competent jurisdiction, the provision that would otherwise be prohibited,
invalid or unenforceable shall be deemed amended to apply to the broadest extent
that it would be valid and enforceable, and the invalidity or unenforceability
of such provision shall not affect the validity of the remaining provisions of
this Agreement so long as this Agreement as so modified continues to express,
without material change, the original intentions of the parties as to the
subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective
expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties.
The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of
which comes as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
SECTION 11. NO THIRD PARTY BENEFICIARIES. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
SECTION 12. FURTHER ASSURANCES. Each party shall use its reasonable best
efforts to do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
SECTION 13. CONFIDENTIALITY. Each party agrees that, except as otherwise
compelled by law, court order or by a competent regulator, it will not issue any
reports, statements or releases, in each case relating to this Agreement or the
transactions contemplated hereby, without the prior written consent of the other
party hereto. Notwithstanding anything to the contrary set forth herein, any
party and each representative of such party may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement, and all materials of any kind
(including opinions or other tax analyses) related to such tax treatment and tax
structure.
SECTION 14. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns,
including any purchasers of the Note, the Warrants and the Judgment.
[The remainder of the page is intentionally left blank]
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IN WITNESS WHEREOF, Buyer and Seller have caused their respective
signature page to this Securities Purchase Agreement to be duly executed as of
the date first written above.
CRANSHIRE CAPITAL L.P.
By: Downsview Capital, Inc.
Its: General Partner
By:
-----------------------------------
Name:
Title:
CASTLERIGG MASTER INVESTEMENTS LTD.
By:
-----------------------------------
Name:
Title:
EXHIBIT A
NOTICE AND ACKNOWLEDGEMENT AND JOINDER AGREEMENT
This Notice and Acknowledgement and Joinder Agreement (the "NOTICE AND
ACKNOWLEDGEMENT") dated as of November __, 2007 between Earth Biofuels, Inc., a
Delaware corporation, with its corporate headquarters located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "BORROWER") and Castlerigg Master
Investments Ltd. (the "ASSIGNEE").
Reference is made to (a) the Securities Purchase Agreement (the "SECURITIES
PURCHASE AGREEMENT"), dated as of July 24, 2006, by and among the Borrower and
the investors listed on the Schedule of Buyers attached thereto (individually, a
"BUYER" and collectively, the "BUYERS"), whereby the Assignor (as a Buyer)
purchased, and the Borrower sold, upon the terms and conditions stated in the
Securities Purchase Agreement, (i) a senior convertible note in aggregate
principal amount of One Million, Five Hundred Thousand Dollars ($1,500,000) (the
"NOTE"), (ii) a warrant, in substantially the form attached to the Securities
Purchase Agreement as EXHIBIT B-1 (the "SERIES A WARRANT"), to acquire up to
258,621 shares of Common Stock (the "SERIES A WARRANT SHARES") and (iii) a
warrant, in substantially the form attached to the Securities Purchase Agreement
as EXHIBIT B-2 (the "SERIES B WARRANT," and together with the Series A Warrant,
the "WARRANTS") to acquire up to 258,621 shares of Common Stock (the "SERIES B
WARRANT SHARES," and together with the Series A Warrant Shares, the "WARRANT
SHARES"), (b) the Registration Rights Agreement, dated as of July 24, 2006, by
and among the Borrower and Buyers (the "REGISTRATION RIGHTS AGREEMENT"),
pursuant to which the Borrower has agreed to provide certain registration rights
with respect to the Registrable Securities (as defined in the Registration
Rights Agreement), under the Securities Act of 1933, as amended (the "1933 ACT")
and the rules and regulations promulgated thereunder, and applicable state
securities laws, and (c) the Securities Purchase Agreement (the "ASSIGNMENT
AGREEMENT"), dated as of November __, 2007, by and between the Assignor and the
Assignee, whereby the Assignor (i) sold to the Assignee the Note and the
Warrants, and (ii) assigned to Assignee its rights as a holder of the Note and
the Warrants pursuant to (x) the Securities Purchase Agreement and (y) the
Registration Rights Agreement (collectively, the "SALE AND ASSIGNMENT").
The Borrower and the Assignee hereby agree as follows:
1. The Borrower hereby acknowledges that it has received notice of the Sale
and Assignment in accordance with the Assignment Agreement as of the date
first above written.
2. The Assignee (i) agrees that it will perform in accordance with their terms
all of the agreements and obligations which by the terms of the Securities
Purchase Agreement and the Registration Rights Agreement are required to be
performed by it as a "Buyer" and, as of the Effective Date, the terms of
the Securities Purchase Agreement and the Registration Rights Agreement
shall be the binding obligations of the Assignee; (ii) represents and
warrants that the representations and warranties of the "Buyer" contained
in the Securities Purchase Agreement are true and correct as if made by the
Assignee on the date hereof; and (iii) agrees that it shall execute and
deliver such additional documents assuming the obligations of the Assignor
and perform all tasks reasonably requested by the Borrower to effect the
assignment contemplated hereby.
3. This agreement shall become effective on such date (the "EFFECTIVE DATE")
as the Borrower, the Assignee and the Assignor have executed and delivered
this Notice and Acknowledgement.
4. The Borrower and the Assignee agree that as of the Effective Date the
Assignee shall be a party to the Securities Purchase Agreement and the
Registration Rights Agreement and, to the extent provided in this Notice
and Acknowledgement, have the rights and obligations under the Securities
Purchase Agreement and the Registration Rights Agreement of the Assignor
with respect to the Note and the Warrants.
5. Each of the parties represents and warrants that it is duly authorized to
enter into this Notice and Acknowledgement. This Notice and Acknowledgement
shall be binding on each party's successors and permitted assigns. This
Notice and Acknowledgement is personal to the parties and may not be
assigned or transferred by any party without the prior written consent of
the other parties.
6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES. EACH PARTY AGREES THAT ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE BROUGHT IN A U.S. FEDERAL
OR STATE COURT OF COMPETENT JURISDICTION SITTING IN THE COUNTY, CITY, AND
STATE OF NEW YORK. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO THE JURISDICTION OF SUCH COURT AND HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY DEFENSE OF AN INCONVENIENT FORUM OR A LACK OF
PERSONAL JURISDICTION TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING AND
ANY RIGHT OF JURISDICTION OR VENUE ON ACCOUNT OF THE PLACE OF RESIDENCE OR
DOMICILE OF ANY PARTY HERETO. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Notice and
Acknowledgement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
EARTH BIOFUELS, INC.
By:
-----------------------------------
Name:
Title:
CASTLERIGG MASTER INVESTMENTS LTD.
By:
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Name:
Title:
Agreed and accepted,
this ___ day of November, 2007
CRANSHIRE CAPITAL L.P.
By: Downsview Capital, Inc.
Its: General Partner
By:
-----------------------------------
Name:
Title: