Exhibit 4.4


 


Execution Copy


 


REGISTRATION RIGHTS AGREEMENT


 


This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of May 26, 2006, is by and
between Earth Biofuels, Inc., a Delaware corporation (the “Company”), and each
of the entities whose names appear on the signature pages hereof. Such
entities are each referred to herein as “Purchaser” and, collectively, as the “Purchasers”.


 


The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement, dated as of May 26, 2006 (the “Securities Purchase Agreement”),
to issue and sell to each Purchaser named therein (A) an 8% Senior Note in
the form attached to the Securities Purchase Agreement (each, a “Note” and,
collectively, the “Notes”)
and (B) a Warrant in the form attached to the Securities Purchase
Agreement (each, a “Warrant”
and, collectively, the “Warrants”).


 


The Notes are convertible, subject to the conditions specified in the
Securities Purchase Agreement, into shares (the “Conversion Shares”) of the Company’s
common stock, par value $0.001 per share (the “Common Stock”). The Warrants are
exercisable into shares of Common Stock (the “Warrant Shares”) in accordance with
their terms.


 


In order to induce each Purchaser to enter into the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended (the “Securities Act”), and under applicable
state securities laws.


 


In consideration of each
Purchaser entering into the Securities Purchase Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:


 


1.                                       DEFINITIONS.


 


For purposes of this Agreement, the following terms shall have the
meanings specified:


 


“Business Day” means any day other than a
Saturday, a Sunday or a day on which the Commission is closed or on which banks
in the City of New York are authorized by law to be closed.


 


“Commission” means the Securities and Exchange
Commission.


 


“Effective Date” means the date on which the
Registration Statement is declared effective by the Commission.


 


“Filing Deadline” means the date that is the
earliest of the following:  (i) the
date on which the Company files a registration statement covering any of its
securities issued on or after January 1, 2006; (ii) the date on which
the Company is contractually required to file a


 

















 


registration statement covering any of its securities (other than the
Registrable Securities) issued after the Closing Date; and (iii) the date
that is the sixtieth (60th) calendar day following the Closing Date.


 


“Holder” means any person owning or having the
right to acquire, through conversion of the Notes or exercise of the Warrants
or otherwise, Registrable Securities, including initially each Purchaser and
thereafter any permitted assignee thereof.


 


“Registrable Securities” means the Conversion
Shares, the Warrant Shares, and any other shares of Common Stock issuable
pursuant to the terms of the Note or the Warrants, and any shares of capital
stock issued or issuable from time to time (with any adjustments) in
replacement of, in exchange for or otherwise in respect of the Conversion
Shares and the Warrant Shares.


 


“Registration Deadline” means the earliest of (i) the
one hundred and twentieth (120th) calendar day following the Closing
Date, (ii) the sixtieth (60th) calendar day following the
Filing Deadline, and (iii) the fifth (5th) Business Day after
the Company learns that no review of the Registration Statement will be made by
the staff of the Commission or that the staff of the Commission has no further
comments on the Registration Statement.


 


“Registration Period” has the meaning set
forth in Section 2(c) below.


 


“Registration Statement” means a registration
statement or statements prepared in compliance with the Securities Act and
pursuant to Rule 415 under the Securities Act (“Rule 415”) or
any successor rule providing for the offering of securities on a
continuous or delayed basis.


 


Capitalized terms used herein and not otherwise defined shall have the
respective meanings specified in the Securities Purchase Agreement.


 


2.                                       REGISTRATION.


 


(a)                                  Filing
of Registration Statement. On or before the Filing Deadline, the Company
shall prepare and file with the Commission a Registration Statement on Form SB-2
as a “shelf” registration statement under Rule 415 covering the resale of
a number of shares of Registrable Securities equal to one hundred and fifty
percent (150%) of the number of shares of Common Stock issuable upon conversion
of the Notes and exercise of the Warrants (such number to be determined using
the Conversion Price (as defined in the Notes) and Exercise Price (as defined
in the Warrants) in effect on the date on which the Registration Statement is
filed and without regard to any restriction on such conversion or exercise).
Such Registration Statement shall state, to the extent permitted by Rule 416
under the Securities Act, that it also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon the
conversion of the Notes and exercise of the Warrants in order to prevent
dilution resulting from stock splits, stock dividends or similar events. The
Company shall retain Akin, Gump, Strauss, Hauer & Feld LLP or a
comparable national law firm that is reasonably satisfactory to the Purchasers
to handle the preparation of the Registration Statement and the process of
getting such Registration Statement effective.


 


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(b)                                 S-1/S-3
Registration Statement. Notwithstanding the foregoing Section 2(a), if
at the Filing Deadline the Company does not meet the eligibility requirements
for filing a Registration Statement on Form SB-2, then in each such case
the Company shall instead prepare and file with the Commission a Registration
Statement meeting the foregoing requirements on Form S-1. In the event
that the Company files a Registration Statement on Form S-1 or Form SB-2,  and thereafter meets the eligibility
requirements to use Form S-3 for the resale of Registrable Securities by
the Purchaser, the Company shall re-file such Registration Statement, or file a
new Registration Statement covering at least the number of shares then
registered on the existing Registration Statement(s) (and not previously sold
pursuant to an existing Registration Statement or pursuant to Rule 144
under the Securities Act (“Rule 144”)),
on Form S-3 as promptly as practicable (but in no event later than thirty
(30) days) after the Company meets such requirements.


 


(c)                                  Effectiveness.
The Company shall use reasonable best efforts to cause the Registration
Statement to become effective as soon as practicable following the filing
thereof, but in no event later than the Registration Deadline. The Company
shall respond promptly to any and all comments made by the staff of the
Commission on with respect to a Registration Statement, and shall submit to the
Commission, within two (2) Business Days after the Company learns that no
review of such Registration Statement will be made by the staff of the
Commission or that the staff of the Commission has no further comments on such
Registration Statement, as the case may be, a request for acceleration of
the effectiveness of such Registration Statement to a time and date not later
than two (2) Business Days after the submission of such request. The
Company will maintain the effectiveness of each Registration Statement filed
pursuant to this Agreement until the earliest to occur of (i) the date on
which all of the Registrable Securities eligible for resale thereunder have
been publicly sold pursuant to either the Registration Statement or Rule 144,
(ii) the date on which all of the Registrable Securities remaining to be
sold under such Registration Statement (in the reasonable opinion of counsel to
the Company) may be immediately sold to the public under Rule 144(k)
under the Securities Act (“Rule 144(k)”)
or any successor provision and (iii) the date that is the second (2nd)
anniversary of the Effective Date (the period beginning on the Closing Date and
ending on the earliest to occur of (i), (ii) or (iii) above being
referred to herein as the “Registration
Period”).


 


(d)                                 Registration
Default. If (i) the Registration Statement is not filed on or before
the Filing Deadline or declared effective by the Commission on or before the
Registration Deadline, (ii) after a Registration Statement has been
declared effective by the Commission, sales of Registrable Securities (other
than such Registrable Securities as are then freely saleable pursuant to Rule 144(k))
cannot be made by a Holder under a Registration Statement for any reason not
within the exclusive control of such Holder, or (iii) an amendment or
supplement to a Registration Statement, or a new registration statement,
required to be filed pursuant to the terms of Section 3(j) below, is not filed on
or before the date required by such section (each of the foregoing clauses
(i), (ii) and (iii) being referred to herein as a “Registration Default”),
the Company shall make cash payments to each Holder equal to such Holder’s pro rata share (based on the aggregate
number of Registrable Securities then held by or issuable to such Holder as of
the occurrence of the Registration Deadline) equal to one percent (1%) of the
aggregate Purchase Price paid by such Holder for such Holder’s Note and
Warrants for each thirty (30) day period (pro rated for partial periods) in
which a Registration Default exists, up to a maximum of four percent (4%) of
the


 


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aggregate Purchase Price paid by such Holder for such Holder’s Note and
Warrants; provided, however, that
such maximum shall be increased to six percent (6%) of the aggregate Purchase
Price paid by such Holder if the Registration Statement is not filed on or
before August 31, 2006. Notwithstanding any provision of this Agreement to
the contrary, the Company shall be permitted to suspend the Registration
Statement for one or more periods (provided that the aggregate length of such
suspension shall not exceed ten (10) consecutive Business Days or an
aggregate of twenty (20) Business Days in any 365 day period, with at least
thirty calendar days between each such suspension) the actions required under Section 2(a) of
this Agreement to the extent that the Board of Directors of the Company
concludes reasonably and in good faith that the disclosure of information in
the prospectus is not in the best interest of the Company. Each such payment
required to be made under this Section 2(d) shall be made within five (5) Business
Days following the last day of each calendar month in which a Registration
Default exists. Any such payment shall be in addition to any other remedies
available to each Holder at law or in equity, whether pursuant to the terms
hereof, the Securities Purchase Agreement, the Notes, or otherwise.


 


(e)                                  Allocation
of Conversion Shares and Warrant Shares. The initial number of Conversion
Shares and Warrant Shares included in any Registration Statement and each
increase in the number thereof included therein shall be allocated pro rata among the Holders based on the
aggregate number of Registrable Securities issuable to each Holder at the time
the Registration Statement covering such initial number of Registrable
Securities or increase thereof is declared effective by the Commission (such
number to be determined using the Conversion Price or Exercise Price, as
applicable, in effect at such time and without regard to any restriction on the
ability of a Holder to convert such Holder’s Note or exercise such Holder’s
Warrant as of such date). In the event that a Holder sells or otherwise
transfers any of such Holder’s Registrable Securities, each transferee shall be
allocated the portion of the then remaining number of Registrable Securities
included in such Registration Statement allocable to the transferor.


 


(f)                                    Registration
of Other Securities. During the period beginning on the date hereof and
ending on the Effective Date, the Company shall refrain from filing any
registration statement (other than (i) a Registration Statement filed
hereunder, (ii) a registration statement on Form S-8 with respect to
stock option plans and agreements and stock plans currently in effect and
disclosed in the Securities Purchase Agreement or the schedules thereto, or (iii) a
registration statement on Form S-4 with respect to an acquisition or other
business combination involving the Company.


 


3.                                       OBLIGATIONS
OF THE COMPANY.


 


In addition to performing its obligations hereunder, including without
limitation those pursuant to Section 2 above, the Company shall, with
respect to each Registration Statement:


 


(a)                                  prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions
of the Securities Act or to maintain the effectiveness of such Registration
Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such
Holder or such Holder’s intended method of distribution;


 


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(b)                                 at
such time following the Closing that the Company is eligible to do so, use
commercially reasonable efforts to secure the listing on the Principal Market
of all Registrable Securities issuable upon conversion of the Notes and
exercise of the Warrants, and at any Holder’s request, provide such Holder with
reasonable evidence thereof;


 


(c)                                  so
long as a Registration Statement is effective covering the resale of the
applicable Registrable Securities owned by a Holder, furnish to each Holder
such number of copies of the prospectus included in such Registration
Statement, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such Holder may reasonably
request in order to facilitate the disposition of such Holder’s Registrable
Securities;


 


(d)                                 use
commercially reasonable efforts to register or qualify the Registrable
Securities under the securities or “blue sky” laws of such jurisdictions within
the United States as shall be reasonably requested from time to time by a
Holder, and do any and all other acts or things which may reasonably be
necessary or advisable to enable such Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions; provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
jurisdiction;


 


(e)                                  notify
each Holder immediately after becoming aware of the occurrence of any event
(but shall not, without the prior written consent of such Holder, disclose to
such Holder any facts or circumstances constituting material non-public
information) as a result of which the prospectus included in such Registration
Statement, as then in effect, contains an untrue statement of material fact or
omits 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, and as promptly as practicable prepare and file with the
Commission and furnish to each Holder a reasonable number of copies of a
supplement or an amendment to such prospectus as may be necessary so that
such prospectus does not contain an untrue statement of material fact or omit
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;


 


(f)                                    use
commercially reasonable efforts to prevent the issuance of any stop order or
other order suspending the effectiveness of such Registration Statement and, if
such an order is issued, to use commercially reasonable efforts obtain the
withdrawal thereof at the earliest possible time and to notify each Holder in
writing of the issuance of such order and the resolution thereof;


 


(g)                                 furnish
to each Holder, on the date that such Registration Statement, or any successor
registration statement, becomes effective, a letter, dated such date, signed by
an officer of or counsel to the Company and addressed to such Holder,
confirming such effectiveness and, to the knowledge of such counsel, the
absence of any stop order;


 


(h)                                 provide
to each Holder and its representatives the reasonable opportunity to conduct a
reasonable inquiry of the Company’s financial and other records during normal
business hours and make available during normal business hours and with
reasonable advance notice its officers, directors and employees for questions
regarding information which such Holder may reasonably request in order to
fulfill any due diligence obligation on its part;


 


5

















 


(i)                                     permit
counsel for each Holder to review such Registration Statement and all
amendments and supplements thereto, and any comments made by the staff of the
Commission concerning such Holder and/or the transactions contemplated by the
Transaction Documents and the Company’s responses thereto, within a reasonable
period of time prior to the filing thereof with the Commission (or, in the case
of comments made by the staff of the Commission, within a reasonable period of
time following the receipt thereof by the Company); and


 


(j)                                     in
the event that, at any time, the number of shares available under the
Registration Statement is insufficient to cover one hundred and twenty-five
percent (125%) of the Registrable Securities issuable under the Notes and
Warrants (such number to be determined using the Conversion Price or Exercise
Price, as applicable, in effect at such time and without regard to any
restriction on the ability of any Holder to convert such Holder’s Note or
exercise such Holder’s Warrant) the Company shall promptly amend such
Registration Statement or file a new registration statement, in any event as
soon as practicable, but not later than the tenth (10th) day
following notice from a Holder of the occurrence of such event, so that such
Registration Statement or such new registration statement, or both, covers no
less than one hundred and fifty percent (150%) of the Registrable Securities
eligible for resale thereunder and issuable under the Notes and Warrants (such
number to be determined using the Conversion Price or Exercise Price, as
applicable, in effect at the time of such amendment or filing and without
regard to any restriction on the ability of any Holder to convert such Holder’s
Note or exercise such Holder’s Warrant). The Company shall use its best efforts
to cause such amendment and/or new Registration Statement to become effective
as soon as practicable following the filing thereof. Any Registration Statement
filed pursuant to this Section 3(j)
shall state that, to the extent permitted by Rule 416 under the Securities
Act, such Registration Statement also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon conversion
of the Note and exercise of the Warrants in order to prevent dilution resulting
from stock splits, stock dividends or similar events. Unless and until such
amendment or new Registration Statement becomes effective, each Holder shall
have the rights described in Section 2(d) above.


 


4.                                       OBLIGATIONS
OF EACH HOLDER.


 


In connection with the registration of Registrable Securities pursuant
to a Registration Statement, each Holder shall:


 


(a)  timely furnish to the Company (i) a completed
Shareholder Questionnaire and (ii) such information in writing regarding
itself and the intended method of disposition of such Registrable Securities as
the Company shall reasonably request in order to effect the registration
thereof;


 


(b)  upon receipt of any notice from the Company of the happening
of any event of the kind described in Sections 3(e) or 3(f), immediately
discontinue any sale or other disposition of such Registrable Securities
pursuant to such Registration Statement until the filing of an amendment or
supplement as described in Section 3(e) or
withdrawal of the stop order referred to in Section 3(f), and use commercially
reasonable efforts to maintain the confidentiality of such notice and its
contents;


 


6

















 


(c)  to the extent required by applicable law, deliver a
prospectus to the purchaser of such Registrable Securities;


 


(d)  notify the Company when it has sold all of the Registrable
Securities held by it; and


 


(e)  notify the Company in the event
that any information supplied by such Holder in writing for inclusion in such
Registration Statement or related prospectus is untrue or omits to state a
material fact required to be stated therein or necessary to make such
information not misleading in light of the circumstances then existing;
immediately discontinue any sale or other disposition of such Registrable
Securities pursuant to such Registration Statement until the filing of an
amendment or supplement to such prospectus as may be necessary so that
such prospectus does not contain an untrue statement of material fact or omit
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 use commercially reasonable efforts to assist the Company as may be
appropriate to make such amendment or supplement effective for such purpose.


 


5.                                       INDEMNIFICATION.


 


In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:


 


(a)                                  To
the extent permitted by law, the Company shall indemnify and hold harmless each
Holder, the officers, directors, employees, agents and representatives of such
Holder, and each person, if any, who controls such Holder within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
against any losses, claims, damages, liabilities or reasonable out-of-pocket
expenses (whether joint or several) (collectively, including reasonable legal
expenses or other expenses reasonably incurred in connection with investigating
or defending same, “Losses”),
insofar as any such Losses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement under which such Registrable Securities were registered,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or (ii) the omission or alleged
omission to state therein 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. Subject to the provisions of Section 5(c) below,
the Company will reimburse such Holder, and each such officer, director,
employee, agent, representative or controlling person, for any reasonable legal
expenses or other out-of-pocket expenses as reasonably incurred by any such
entity or person in connection with investigating or defending any Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any Loss if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be obligated to indemnify
any person for any Loss to the extent that such Loss arises out of or is based
upon (i) any disclosure or any omission or alleged omission (to state a
material fact required to be stated therein or necessary to make statements
therein not misleading) that is based upon or in conformity with written
information furnished (or not furnished, in the case of an omission) by such
person expressly for use in such Registration Statement or (ii) a failure
of such person to deliver or cause to be delivered the final


 


7

















 


prospectus contained in the Registration Statement and made available
by the Company, if such delivery is required by applicable law.


 


(b)                                 To
the extent permitted by law, each Holder who is named in such Registration
Statement as a selling shareholder, acting severally and not jointly, shall
indemnify and hold harmless the Company, the officers, directors, employees,
agents and representatives of the Company, and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act, against any Losses to the extent (and only to the extent) that any such
Losses arise out of or are based upon (i) any disclosure or any omission
or alleged omission (to state a material fact required to be stated therein or
necessary to make statements therein not misleading) that is based upon or in
conformity with written information furnished (or not furnished, in the case of
an omission) by such person expressly for use in such Registration Statement,
or (ii) a failure of such Holder to deliver or cause to be delivered the
final prospectus contained in the Registration Statement and made available by
the Company, if such delivery is required under applicable law. Subject to the
provisions of Section 5(c) below,
such Holder will reimburse any legal or other expenses as reasonably incurred
by the Company and any such officer, director, employee, agent, representative,
or controlling person, in connection with investigating or defending any such
Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any such
Loss if such settlement is effected without the consent of such Holder (which
consent shall not be unreasonably withheld); and provided, further, that, in no event shall any indemnity
under this Section 5(b) exceed
the net proceeds resulting from the sale of the Registrable Securities sold by
such Holder under such Registration Statement.


 


(c)                                  Promptly
after receipt by an indemnified party under this Section 5 of notice of
the commencement of any action (including any governmental action), such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 5, promptly deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel selected by the indemnifying party and reasonably
acceptable to the indemnified party; provided,
however, that an indemnified party shall have the right to retain
its own counsel, with the reasonably incurred fees and expenses of one such
counsel for all indemnified parties to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate under applicable standards of professional
conduct due to actual or potential conflicting interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the delivery of notice of any such action, to the
extent prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section 5
with respect to such action, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it may have
to any indemnified party otherwise than under this Section 5 or with
respect to any other action unless the indemnifying party is materially prejudiced
as a result of not receiving such notice.


 


(d)                                 In
the event that the indemnity provided in Sections 5(a) or 5(b) is
unavailable or insufficient to hold harmless an indemnified party for any
reason, the Company and each Holder agree, severally and not jointly, to
contribute to the aggregate Losses to which the Company or such Holder may be
subject in such proportion as is appropriate to reflect the relative


 


8

















 


fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided,
however, that in no case shall such Holder be responsible for any
amount in excess of the net proceeds resulting from the sale of the Registrable
Securities sold by it under the Registration Statement. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or by such Holder. The Company
and each Holder agree that it would not be just and equitable if contribution
were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 5(d),
no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation. For purposes of this Section 5,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of such Holder shall have the same rights to contribution as
such Holder, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act and each officer, director,
employee, agent or representative of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this Section 5(d).


 


(e)                                  The
obligations of the Company and each Holder under this Section 5 shall
survive the conversion of the Note and exercise of the Warrants in full, the
completion of any offering or sale of Registrable Securities pursuant to a Registration
Statement under this Agreement, or otherwise.


 


6.                                       REPORTS.


 


With a view to making available to each Holder the benefits of Rule 144
and any other similar rule or regulation of the Commission that may at
any time permit such Holder to sell securities of the Company to the public
without registration, the Company agrees to:


 


(a)                                  make
and keep public information available, as those terms are understood and
defined in Rule 144;


 


(b)                                 file
with the Commission in a timely manner all reports and other documents required
of the Company under the Exchange Act; and


 


(c)                                  furnish
to such Holder, so long as such Holder owns any Registrable Securities,
promptly upon written request (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of Rule 144 and
the Exchange Act, (ii) to the extent not publicly available through the
Commission’s EDGAR database, a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company with the Commission, and (iii) such other information as may be
reasonably requested by such Holder in connection with such Holder’s compliance
with any rule or regulation of the Commission which permits the selling of
any such securities without registration.


 


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7.                                       MISCELLANEOUS.


 


(a)                                  Expenses
of Registration. Except as otherwise provided in the Securities Purchase
Agreement, all reasonable expenses, other than underwriting discounts and
commissions and fees and expenses of counsel and other advisors to each Holder,
incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers’ and accounting fees, the fees and disbursements
of counsel for the Company, and the fees and disbursements incurred in
connection with the opinion and letter described in Section 3(g) hereof,
shall be borne by the Company.


 


(b)                                 Amendment;
Waiver. Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended or waived except pursuant to a written
instrument executed by the Company and the Holders of at least two-thirds (2/3)
of the Registrable Securities into which all of the Note and Warrants then
outstanding are convertible or exercisable (without regard to any limitation on
such conversion or exercise). Any amendment or waiver effected in accordance
with this Section 6(b) shall
be binding upon each Holder, each future Holder and the Company. The failure of
any party to exercise any right or remedy under this Agreement or otherwise, or
the delay by any party in exercising such right or remedy, shall not operate as
a waiver thereof.


 


(c)                                  Notices.
Any notices, consents, waivers or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be
deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation
of transmission is mechanically or electronically generated and kept on file by
the sending party); or (iii) one Business Day after deposit with an
overnight courier service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:


 


	
   

  	
   

  	
  if to the Company:

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  Earth Biofuels, Inc.

  
	
   

  	
  3001 Knox Street, Suite 403,

  
	
   

  	
  Dallas, Texas 75205

  
	
   

  	
  Telephone: 214.389.9800

  
	
   

  	
  Facsimile:  214.389.9806

  
	
   

  	
  Attention:  Dennis McLaughlin

  
	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  with a copy (for informational purposes only) to:

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  Scheef & Stone, LLP

  
	
   

  	
  Telephone: 214.706.4200

  
	
   

  	
  Facsimile:  214.706.4242

  
	
   

  	
  Attention:  Roger A. Crabb, Esq.

  
					



 


and if to the Holder, to the address and facsimile number as to which
the Holder has notified the Company in writing. Written confirmation of receipt
(A) given by the recipient of such notice,


 


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consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by an overnight courier service shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from an
overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.


 


(d)                                 Assignment.
Upon the transfer of any Note, Warrants or Registrable Securities by a Holder,
the rights of such Holder hereunder with respect to such securities so
transferred shall be assigned automatically to the transferee thereof, and such
transferee shall thereupon be deemed to be a “Holder” for purposes of this
Agreement, as long as: (i) the Company is, within a reasonable period of
time following such transfer, furnished with written notice of the name and
address of such transferee, (ii) the transferee agrees in writing with the
Company to be bound by all of the provisions hereof, and (iii) such
transfer is made in accordance with the applicable requirements of the
Securities Purchase Agreement, the Notes or the Warrants, as applicable.


 


(e)                                  Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall be deemed one and the same
instrument. This Agreement, once executed by a party, may be delivered to
any other party hereto by facsimile transmission.


 


(f)                                    Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed entirely within the State of New York.


 


(g)                                 Holder of Record.
A person is deemed to be a Holder whenever such person owns or is deemed to own
of record such Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the record owner of such Registrable
Securities.


 


(h)                                 Entire Agreement.
This Agreement and the other Transaction Documents constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
and thereof. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein and therein. This Agreement
and the other Transaction Documents supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof and thereof.


 


(i)                                     Headings.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.


 


(j)                                     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.


 


[Signature Pages to Follow]


 


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IN WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date first-above written.


 


	
  EARTH BIOFUELS, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  INVESTOR NAME

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: