CLEANTECH INNOVATIONS, INC. REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (the “Agreement”), dated as of _______________,
2010, is made by and between CleanTech Innovations, Inc., a Nevada corporation
(the “Company”), and the undersigned investor (the “Investor”).
WHEREAS,
in connection with that certain Subscription Agreement by and among the Company
and the Investor (the “Subscription Agreement”), the Company desires to sell to
the Investor, and the Investor desires to purchase from the Company units (the
“Units”) consisting of (a) shares of the Company’s common stock, $.00001 par
value per share (the “Common Stock”); and (b) Warrants to purchase additional
shares of Common Stock (the “Warrants”) equal to 67.5% of the Common Stock
initially purchased; and
WHEREAS,
to induce the Investor to purchase the Common Stock and Warrants, the Company
has agreed to register the shares of Common Stock purchased and the Common Stock
underlying the Warrants pursuant to the terms of this Agreement.
NOW,
THEREFORE, the Company and the Investor hereby covenant and agree as
follows:
1. Certain
Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
“Closing”
shall mean the closing of the sale of the Units.
“Commission”
shall mean the Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act.
“Effectiveness
Date” shall mean that date which is one hundred eighty (180) days following the
Final Closing Date.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
“Filing
Date” shall mean that date which is fourteen (14) days following the Final
Closing Date.
“Final
Closing Date” shall mean the date hereof.
“Offering”
shall refer to the Company’s proposal to sell Units for $4.00 per Unit, with
each Unit consisting of (i) one share of Common Stock of the Company and (ii) a
five (5) year Warrant to purchase 67.5% of one share of Common Stock of the
Company with an exercise price of $4.00 per share.
“Register,”
“registered” and “registration” each shall refer to a registration effected by
preparing and filing a Registration Statement or statements or similar documents
in compliance with the Securities Act and the declaration or ordering of
effectiveness of such Registration Statement or document by the
Commission.
“Registrable
Securities” shall mean the shares of Common Stock issued pursuant to the
Subscription Agreement or upon the exercise of the Warrants delivered as part of
the Offering; provided, however, that shares
of Common Stock which are Registrable Securities shall cease to be Registrable
Securities (i) upon any sale pursuant to a Registration Statement or Regulation
S under the Securities Act or (ii) at such time as they become eligible for sale
pursuant to Regulation S under the Securities Act or another similar exemption
under the Securities Act; provided, further, that the maximum amount of
Registrable Securities at any one time shall be limited by Rule
415.
“Regulation
S” shall mean Regulation S, as amended, as promulgated by the Securities and
Exchange Commission under the Securities Act.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
Capitalized
terms used but not defined herein shall have the meanings set forth in the
Subscription Agreement or the Warrants.
2. Automatic
Registration.
(a) On
or prior to the Filing Date, the Company shall prepare and file with the
Commission the Registration Statement covering the resale of all of the
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement required hereunder shall be
on Form S-1 or Form S-3, as applicable. Subject to the terms of this
Agreement, the Company shall use its commercially reasonable efforts to cause
the Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event not later than
the Effectiveness Date, and shall use its commercially reasonable efforts to
keep the Registration Statement continuously effective under the Securities Act
until the date when all Registrable Securities covered by the Registration
Statement have been sold or may be sold pursuant to Regulation S as determined
by counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent and the Investor (the
“Effectiveness Period”). The maximum amount of Registrable Securities at any one
time shall be limited by Rule 415 as required by the Commission. In the event
that there is a limitation by the Commission on the number of Registrable
Securities that may be registered at one time, the Company shall use its
reasonable best efforts to file an additional Registration Statement covering
such ineligible securities within 30 days of the date such securities become
eligible and to make such Registration Statement be declared effective by the
Commission as soon as practicably possible.
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(b) If: (i)
a Registration Statement is not filed on or prior to the Filing Date, or (ii)
the Company fails to file with the Commission a request for acceleration in
accordance with Rule 461 promulgated under the Securities Act, within 5 trading
days of the date that the Company is notified (orally or in writing, whichever
is earlier) by the Commission that a Registration Statement will not be
“reviewed,” or is not subject to further review, or (iii) a Registration
Statement filed or required to be filed hereunder is not declared effective by
the Commission on or before the Effectiveness Date as a result of the failure of
the Company to meet its obligations with respect to such filing as provided for
herein, or (iv) after a Registration Statement is first declared effective by
the Commission, it ceases for any reason to remain continuously effective as to
the Registrable Securities held by the Investor, or the Investor is not
permitted to utilize the Prospectus therein to resell such Registrable
Securities, for in any such case 20 consecutive trading days but no more than an
aggregate of 30 trading days during any 12-month period (which need not be
consecutive trading days) during which the Investor is not permitted to sell
such Registrable Securities under Regulation S (any such failure or breach being
referred to as an “Event,” and for purposes of clause (i) or (iii) the date on
which such Event occurs, or for purposes of clause (ii) the date on which such 5
trading day period is exceeded, or for purposes of clause (iv) the date on which
such 20- or 30-day period, as applicable, is exceeded being referred to as
“Event Date”), then: (A) on the first Event Date to occur the Company shall pay
to such Investor an amount, at the election of the Company, in cash or in Common
Stock, as liquidated damages and not as a penalty, equal to 1.0% of the
aggregate purchase price paid by such Investor pursuant to the Subscription
Agreement for any Registrable Securities then held by such Investor for which such
Investor has not received liquidated damages pursuant to Section 2(c) below; and (B) on each
anniversary of such Event Date (if the applicable Event, or any subsequent
Event, shall not have been cured by such date) until all Event(s) are cured, the
Company shall pay to such Investor an amount, as determined by the Company, in
cash or in Common Stock, as liquidated damages and not as a penalty, equal to
1.0% of the aggregate purchase price paid by such Investor pursuant to the
Subscription Agreement for any Registrable Securities then held by such Investor
for which such Investor has
not received liquidated damages pursuant to Section 2(c) below. In determining
the number of shares of Common Stock payable to the Investor, the 20-day average
closing price of the Common Stock ending on the Event Date shall be
used. If the Company fails to pay any liquidated damages pursuant to
this Section 2(b) in full within seven days after the date payable, the Company
will pay interest thereon at a rate of 10% per annum (or such lesser maximum
amount that is permitted to be (in cash or Common Stock, at the option of the
Investor) paid by applicable law) to the Investor, accruing daily from the date
such liquidated damages are due until such amounts, plus all such interest
thereon, are paid in full. The liquidated damages pursuant to the
terms hereof shall apply on a daily pro-rata basis for any portion of a year
prior to the cure of an Event.
(c) Notwithstanding
any other provision of this Section 2, if the Commission determines that
the number of securities that the Company may register on the Registration
Statement pursuant to Rule 415 is limited such that the shares so registered
thereunder shall exclude any Registrable Securities held by the Investor, then
the Company shall promptly so advise the Investor and the Company shall use
commercially reasonable efforts to effect the registration of any Registrable
Securities not so included on the Registration Statement as a result thereof as
soon as is legally possible to do so. In such event, the Company
shall pay to such Investor liquidated damages as set forth in Section 2(b)
hereof with respect to any Registrable Securities then held by the Investor that
were not registered by the Effectiveness Date.
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(d) The
parties acknowledge and agree that (i) the maximum amount of damages that the
Company shall be obligated to pay the Investor for any and all breaches of this
Section 2 is the amount of liquidated damages set forth in Section 2(b) or 2(c),
and (ii) such liquidated damages shall be the sole remedy available to Investor
for any breach of this Agreement, provided that nothing in this Section 2(d)
shall preclude Investor from seeking injunctive relief, including specific
performance of its rights under this Section 2.
3. Registration
Procedures. If and whenever the Company is required by the
provisions of Section 2 hereof to use its commercially reasonable efforts to
affect the registration of any Registrable Securities under the Securities Act,
the Company will, as expeditiously as possible:
(a) prepare
and file with the Commission the Registration Statement with respect to such
securities and use its reasonable best efforts to cause such Registration
Statement to become effective in an expeditious manner;
(b) 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 keep such Registration Statement continuously effective during the
Effectiveness Period and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
Registration Statement in accordance with the intended method of disposition set
forth in such Registration Statement for such period;
(c) furnish
to each seller of Registrable Securities and to each underwriter such number of
copies of the Registration Statement and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the intended disposition of the Registrable Securities
covered by such Registration Statement;
(d) use
its commercially reasonable efforts (i) to register or qualify the Registrable
Securities covered by such Registration Statement under the securities or “Blue
Sky” laws of such jurisdictions as the sellers of Registrable Securities or, in
the case of an underwritten public offering, the managing underwriter,
reasonably shall request, (ii) to prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements, and take such
other actions, as may be necessary to maintain such registration and
qualification in effect at all times for the period of distribution contemplated
thereby and (iii) to take such further action as may be necessary or advisable
to enable the disposition of the Registrable Securities in such jurisdictions,
provided, that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process in any
such jurisdiction;
(e) use
its commercially reasonable efforts to list the Registrable Securities covered
by such Registration Statement with any securities exchange on which the Common
Stock of the Company is then listed;
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(f) immediately
notify each seller of Registrable Securities and each underwriter under such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
of which the Company has knowledge as a result of which the prospectus contained
in such Registration Statement, as then in effect, includes any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing and promptly amend or supplement such
Registration Statement to correct any such untrue statement or
omission;
(g) promptly
notify each seller of Registrable Securities of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose and make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
time;
(h) if
the offering is an underwritten offering, enter into a written agreement with
the managing underwriter selected in the manner herein provided in such form and
containing such provisions as are usual and customary in the securities business
for such an arrangement between such underwriter and companies of the Company’s
size and investment stature, including, without limitation, customary
indemnification and contribution provisions;
(i) if
the offering is an underwritten offering, at the request of any seller of
Registrable Securities, use its commercially reasonable efforts to furnish to
such seller on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration: (1) a copy of an opinion,
dated such date, of counsel representing the Company for the purposes of such
registration, addressed to the Investors (or a reliance letter addressed to the
Investors), stating that such Registration Statement has become effective under
the Securities Act and that (A) to the 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 or statistical
information contained therein) and (C) to such other effects as reasonably may
be requested by counsel for the Investors and customarily given in an
underwritten public offering; and (2) a copy of a letter dated such date from
the independent public accountants retained by the Company, addressed to the
Investors (or a reliance letter addressed to the Investors), stating that they
are independent registered public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the Registration Statement or the
prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
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(j) take
all actions reasonably necessary to facilitate the timely preparation and
delivery of certificates (not bearing any legend restricting the sale or
transfer of such securities) representing the Registrable Securities to be sold
pursuant to the Registration Statement and to enable such certificates to be in
such denominations and registered in such names as the Investor or any
underwriters may reasonably request; and
(k) take
all other reasonable actions necessary to expedite and facilitate the
registration of the Registrable Securities pursuant to the Registration
Statement.
4. Obligations of
Investor.
(a) The
Investor shall furnish to the Company such information regarding such Investor,
the number of Registrable Securities owned and proposed to be sold by it, the
intended method of disposition of such securities and any other information as
shall be required to effect the registration of the Registrable Securities, and
cooperate with the Company in preparing the Registration Statement and in
complying with the requirements of the Securities Act; and
(b) Concurrently
with the execution of the Subscription Agreement, the Company and the Investor
have entered into a lock-up letter agreement (the “Lock-Up Letter Agreement”)
regarding the Registrable Securities. Pursuant to the Lock-Up Letter
Agreement, and notwithstanding the effectiveness of any Registration Statement
registering the Registrable Securities, the Investor has agreed that it shall
not offer for sale, sell, pledge or otherwise dispose of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock in any manner contrary to the Lock-Up Letter Agreement for a period of 90
days commencing on the date the Company files the Registration Statement
registering the Registrable Securities. The undersigned understands that the
Company is relying upon such Lock-Up Letter Agreement in connection with the
purchase of the Units by the Investor in the Offering.
5. Expenses.
(a) All
expenses incurred by the Company in complying with Sections 2 and 3 including,
without limitation, all registration and filing fees (including the fees of the
Securities and Exchange Commission and any other regulatory body with which the
Company is required to file), printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or “Blue Sky” laws, and fees of transfer agents and registrars are
called “Registration Expenses.” All underwriting discounts and selling
commissions applicable to the sale of Registrable Securities are called “Selling
Expenses.”
(b) The
Company will pay all Registration Expenses in connection with any Registration
Statement filed hereunder, and the Selling Expenses in connection with each such
Registration Statement shall be borne by the participating sellers in proportion
to the number of Registrable Securities sold by each or as they may otherwise
agree.
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6. Indemnification and
Contribution.
(a) In
the event of a registration of any of the Registrable Securities under the
Securities Act pursuant to the terms of this Agreement, the Company will
indemnify and hold harmless and pay and reimburse, each seller of such
Registrable Securities thereunder, each underwriter of such Registrable
Securities thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
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
pursuant hereto or 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 or alleged violation of the Securities Act or any state
securities or “Blue Sky” laws and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, that the Company will
not be liable in any such case if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon the Company’s reliance on an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use in
such Registration Statement or prospectus.
(b) In
the event of a registration of any of the Registrable Securities under the
Securities Act pursuant hereto, each seller of such Registrable Securities
thereunder, severally and not jointly, will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the Registration
Statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, 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
reliance on any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant hereto or, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter, and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided that such seller will be liable hereunder in any such case if and only
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such Registration Statement or prospectus; and
provided, further, that the liability of each seller hereunder shall be limited
to the proceeds received by such seller from the sale of Registrable Securities
covered by such Registration Statement. Notwithstanding the
foregoing, the indemnity provided in this Section 6(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or expense
if such settlement is effected without the consent of such indemnified party and
provided further, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability (or action in respect
thereof) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in such Registration Statement, which
untrue statement or alleged untrue statement or omission or alleged omission is
completely corrected in an amendment or supplement to the Registration Statement
and the undersigned indemnitees thereafter fail to deliver or cause to be
delivered such Registration Statement as so amended or supplemented prior to or
concurrently with the sale of the Registrable Securities to the person asserting
such loss, claim, damage or liability (or actions in respect thereof) or expense
after the Company has furnished the undersigned with the same.
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(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to such indemnified party other
than under this Section 6 and shall only relieve it from any liability which it
may have to such indemnified party under this Section 6 if and to the extent the
indemnifying party is materially prejudiced by such omission. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 6 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
based upon written advice of its counsel that there may be reasonable defenses
available to it that are different from or additional to those available to the
indemnifying party or if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party as
incurred.
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(d) In
order to provide for just and equitable contribution to joint liability under
the Securities Act in any case in which either (1) any holder of Registrable
Securities exercising rights under this Agreement, or any controlling person of
any such holder, makes a claim for indemnification pursuant to this Section 6
but it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides for
indemnification in such case, or (2) contribution under the Securities Act may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, and in each such case, the Company and such holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by the Registration
Statement bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; provided, that, in any such case, (A) no such holder will be required
to contribute any amount in excess of the public offering price of all such
Registrable Securities offered by it pursuant to such Registration Statement and
(B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 12 (f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
7. Changes in Capital
Stock. If, and as often as, there is any change in the capital
stock of the Company by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue as so changed.
8. Representations and
Warranties of the Company. The Company represents and warrants
to the Investor as follows:
(a) The
execution, delivery and performance of this Agreement by the Company have been
duly authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government, the
Articles of Incorporation or Bylaws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company or its subsidiaries.
(b) This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to any applicable bankruptcy, insolvency or
other laws affecting the rights of creditors generally and to general equitable
principles and the availability of specific performance.
9. Rule 144
Requirements. The Company agrees to:
(a) make
and keep current public information about the Company available, as those terms
are understood and defined in Rule 144;
(b) use
its commercially reasonable efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
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(c) furnish
to any holder of Registrable Securities upon request (i) a written statement by
the Company as to its compliance with the reporting requirements of Rule 144 and
of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
10. Termination. All
of the Company’s obligations to register Registrable Shares under Sections 2 and
3 hereto shall terminate upon the date on which the Investor holds no
Registrable Securities or all of the Registrable Securities are eligible for
resale under Regulation S.
11. Miscellaneous.
(a) All
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including without limitation
transferees of any Registrable Securities), whether so expressed or
not.
(b) All
notices, requests, consents and other communications hereunder shall be in
writing and shall be delivered in person, mailed by certified or registered
mail, return receipt requested postage prepaid, or sent by telecopier, addressed
(i) if to the Company, at CleanTech Innovations, Inc., c/o The ▇▇▇▇▇▇ Law Firm,
PLLC, 44 Wall Street, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esquire; phone (▇▇▇)
▇▇▇-▇▇▇▇; facsimile (▇▇▇) ▇▇▇-▇▇▇▇; and (ii) if to any holder of Registrable
Securities, to it at such address as may have been furnished to the Company or
its counsel in writing by such holder; or, in any case, at such other address or
addresses as shall have been furnished, in writing to the Company or its counsel
(in the case of a holder of Registrable Securities) or to the holders of
Registrable Securities (in the case of the Company) in accordance with the
provisions of this paragraph.
(c) This
Agreement shall be governed by and construed under the laws of the State of New
York, without giving effect to principles of conflicts of laws. The
Company and Investor (i) agree that any legal suit, action or proceeding arising
out of or relating to this Agreement shall be instituted exclusively in any
state court located in New York, New York or in the United States District Court
for the Southern District of New York, (ii) waive any objection which the
Company or Investor may have now or hereafter to the venue of any such suit,
action or proceeding, and (iii) irrevocably consent to the jurisdiction of any
state court located in New York, New York, and the United States District Court
for the Southern District of New York in any such suit, action or
proceeding. The Company and Investor further agree to accept and
acknowledge service of any and all process which may be served in any such suit,
action or proceeding in any state court located in New York, New York, or in the
United States District Court for the Southern District of New York and agree
that service of process upon the Company or Investor mailed by certified mail,
return receipt requested, postage prepaid, to, in the case of the Company, the
Company’s address, and in the case of the Investor, to the Investor’s address as
set forth on the Company’s books and record, shall be deemed in every respect
effective service of process upon the Company, in any such suit, action or
proceeding. THE PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED
HEREBY.
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(d) In
the event of a breach by the Company or by the Investor of any of their
obligations under this Agreement, the Investor or the Company, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company
and the Investor agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(e) This
Agreement may not be amended or modified without the written consent of the
Company and the Investor.
(f) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof. No waiver shall be effective unless and until it is
in writing and signed by the party granting the waiver.
(g) This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this
Agreement.
(h) 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 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.
(i) This
Agreement constitutes the entire contract among the Company and the Investor
relative to the subject matter hereof and supersedes in its entirety any and all
prior agreements, understandings and discussions with respect
thereto.
(j) The
headings of the sections of this Agreement are for convenience and shall not by
themselves determine the interpretation of this Agreement.
[Signature
Page Follows]
11
[Signature
Page to the Registration Rights Agreement]
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
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COMPANY
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By:
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| Name: Bei Lu | ||||
| Title: Chief Executive Officer | ||||
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INVESTOR
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[Company,
Partnership or Trust]
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COMPANY
NAME:
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By:
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|||
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Name:
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||||
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Title:
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[Individual(s)]
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Name:
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Name:
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12