REGISTRATION RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of
_____, 2009, by and among GC China Turbine Corp., a Nevada corporation (the
“Company”), and each of
the undersigned (individually a “Purchaser” and collectively,
the “Purchasers”).
WHEREAS:
A. In
connection with the securities purchase agreement by and among the parties
hereto of even date herewith (the “Purchase Agreement”), the
Company has agreed, upon the terms and subject to the conditions contained
therein, to issue and sell to the Purchasers, up to 6,400,000 shares of common
stock of the Company, par value $0.001 per share (the “Common Shares”), and warrants
to purchase up to 640,000 shares of common stock (the “Warrants”); and
B. The
Company has agreed to provide to the Purchasers certain registration rights
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the “1933 Act”), with respect to
the Units;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and each of the Purchasers hereby agree as
follows:
1. DEFINITIONS.
a. As
used in this Agreement, the following terms shall have the following
meanings:
(i) “Purchasers” means the
Purchasers and any transferee or assignee who agrees to become bound by the
provisions of this Agreement in accordance with Section 9 hereof.
(ii) “register,” “registered,” and “registration” refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any
successor rule providing for offering securities on a continuous basis (“Rule 415”), and the
declaration or ordering of effectiveness of such Registration Statement by the
United States Securities and Exchange Commission (the “SEC”).
(iii) “Registrable Securities” means
the Common Shares and the shares of common stock issued or issuable upon
exercise of the Warrants.
(iv) “Registration Statement” means
a registration statement of the Company under the 0000 Xxx.
b. Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Purchase Agreement.
2. REGISTRATION.
a. The
Company shall prepare and file within 60 days following the date hereof (the
“Filing Date”) the
Registration Statement covering the resale of the Registrable Securities, and
use commercially reasonable efforts to cause the Registration Statement declared
effective 180 days following the Filing Date (the “Effective Date”); provided,
however, that the amount of Registrable Securities to be included in the
Registration Statement shall be limited to not less than 100% of the maximum
amount of the Registrable Securities which may be included in a single
registration statement without exceeding registration limitations imposed the
SEC pursuant to Rule 415, and provided, further, that the Company shall not be
obligated to the Purchasers for any penalties or damages, liquidated or
otherwise, if the Registration Statement is not filed by the Filing Date or
declared effective by the Effective Date.
b. The
Company will pay all expenses associated with the registration, including,
without limitation, filing and printing fees, and the Company’s counsel and
accounting fees and expenses, costs, if any, associated with clearing the
Registrable Securities for sale under applicable state securities
laws.
c. The
Company shall have the right to delay the filing or effectiveness of the
Registration Statement, or, as applicable, suspend sales of Registrable
Securities under an effective Registration Statement or suspend trading of its
securities on any exchange, in the event such filing or effectiveness of the
Registration Statement, or the non-suspension of trading, will require the
disclosure of material, non-public information concerning the Company that is
not, in the reasonable opinion of the Company, in the best interest of the
Company.
d. the
Company will use commercially reasonable efforts to cause the Registration
Statement to remain continuously effective for a period (the “Effectiveness Period”) that
will terminate upon the earlier of (x) the date on which all the Registrable
Securities covered by the Registration Statement have been sold or (y) the date
on which all the Registrable Securities covered by the Registration Statement
may be sold immediately without registration under the Securities Act and
without volume restrictions pursuant to Rule 144(b), as determined by reputable
United States securities counsel to the Company pursuant to a written opinion
letter to such effect, addressed and acceptable to the Transfer Agent and the
affected Purchasers,
and will
advise the Purchasers when the Effectiveness Period has expired with respect to
the Purchasers.
3. OBLIGATIONS OF THE
PURCHASERS.
In
connection with the registration of the Registrable Securities, the Purchasers
shall have the following obligations:
a. It
shall be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of a particular Purchaser that such Purchaser shall furnish to the
Company such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it
as shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request.
b. Each
Purchaser, by such Purchaser’s acceptance of the Registrable Securities, agrees
to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of the Registration Statements
hereunder, unless such Purchaser has notified the Company in writing of such
Purchaser’s election to exclude all of such Purchaser’s Registrable Securities
from the Registration Statements.
c. Each
Purchaser agrees to immediately discontinue disposition of Registrable
Securities pursuant to any registration statement upon notice from the Company
of (x) the issuance of any stop order or other suspension of effectiveness of
the Registration Statement by the SEC, or the suspension of the qualification of
any of the Registrable Securities for sale in any jurisdiction by the applicable
regulatory authorities or (y) the happening of any event, as promptly as
practicable after becoming aware of such event, as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omission 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 or
(z) the failure of the prospectus included in the Registration Statement,
as then in effect, to comply with the requirements of the Securities Act, until
the Purchaser’s receipt of a supplemented or amended prospectus or receipt of
notice that no supplement or amendment is required.
4. INDEMNIFICATION.
In the
event of a registration of any Registrable Securities under this
Agreement:
a. The
Company will, to the extent permitted by law, indemnify and hold harmless each
Purchaser, its officers, directors and other person, if any, who controls such
Purchaser within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which such Purchaser or such
controlling person may become subject under the 1933 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 the Registration Statement, 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 in light of the circumstances when made,
and will subject to the provisions of Section 4(c) reimburse such Purchaser 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, however, that the Company shall not be
liable to such Purchaser or any such controlling person to the extent that any
such damages arise out of or are based upon an untrue statement or omission made
in any preliminary prospectus if (i) such Purchaser failed to send or deliver a
copy of the final prospectus delivered by the Company to such Purchaser with or
prior to the delivery of written confirmation of the sale by such Purchaser to
the person asserting the claim from which such damages arise, (ii) the final
prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission, or (iii) to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by any Purchaser or any controlling person
in writing specifically for use in the Registration Statement or
prospectus.
b. Each
Purchaser severally but not jointly will, to the extent permitted by law,
indemnify and hold harmless the Company, and each person, if any, who controls
the Company within the meaning of the 1933 Act, each officer of the Company who
signs the Registration Statement, and each director of the Company, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director or controlling person may become subject under the
1933 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 the
Registration Statement, 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 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, however, that such Purchaser 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 Purchaser, as such, furnished in
writing to the Company by such Purchaser specifically for use in the
Registration Statement or prospectus, and provided, further, however, that the
liability of such Purchaser hereunder shall be limited to the net proceeds
actually received by such Purchaser from the sale of Registrable Securities
covered by the Registration Statement.
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 4(c) and shall only relieve it from any liability which
it may have to such indemnified party under this Section 4(c) except and only if
and to the extent the indemnifying party is prejudiced by such omission. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 4(c) 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,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified parties, as a group,
shall have the right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as
incurred.
5. CONTRIBUTION.
To the
extent any indemnification by an indemnifying party is prohibited or limited by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 4 to the
fullest extent permitted by law; provided, however, that no contribution
shall be made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 4, no
seller of Registrable Securities guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation, and contribution (together with any indemnification or other
obligations under this Agreement) by any seller of Registrable Securities shall
be limited in amount to the net amount of proceeds received by such seller from
the sale of such Registrable Securities.
6. ASSIGNMENT OF REGISTRATION
RIGHTS.
The
rights under this Agreement shall be automatically assignable by the Purchasers
to any transferee of all or any portion of Registrable Securities if:
(i) the Purchaser agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment, (ii) the Company is, within
a reasonable time after such transfer or assignment, furnished with written
notice of the name and address of such transferee or assignee, and
the securities with respect to which such registration rights are being
transferred or assigned, (iii) following such transfer or assignment, the
further disposition of such securities by the transferee or assignee is
restricted under the 1933 Act and applicable state securities laws, (iv) at or
before the time the Company receives the written notice contemplated by clause
(ii) of this sentence, the transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained herein, (v) such transfer
shall have been made in accordance with the applicable requirements of the
Purchase Agreement, and (vi) such transferee shall be an “accredited investor” as that
term defined in Rule 501 of Regulation D promulgated under the 1933
Act.
7. AMENDMENT OF REGISTRATION
RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with written consent of the Company, and Purchasers who in
the aggregate hold 25% of the Registrable Securities. Any amendment
or waiver effected in accordance with this Section 8 shall be binding upon each
Purchaser and the Company.
8. MISCELLANEOUS.
a. A
person or entity is deemed to be a holder of Registrable Securities whenever
such person or entity owns of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two or
more persons or entities with respect to the same Registrable Securities, the
Company shall act upon the basis of instructions, notice or election received
from the registered owner of such Registrable Securities.
b. Any
notices required or permitted to be given under the terms hereof shall be given
pursuant to Section 8 of the Purchase Agreement.
c. 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.
d.
THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEVADA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN LAS VEGAS, NEVADA,
WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED
INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT
A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT
OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN
ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND
EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN
CONNECTION WITH SUCH DISPUTE.
e. In
the event that any provision of this Agreement is invalid or unenforceable under
any applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.
f. This
Agreement and the Purchase Agreement (including all schedules and exhibits
thereto) 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 Purchase Agreement
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
g. Subject
to the requirements of Section 7 hereof, this Agreement shall be binding upon
and inure to the benefit of the parties and their successors and
assigns.
h. The
headings in this Agreement are for convenience of reference only and shall not
form part of, or affect the interpretation of, this Agreement.
i.
This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. 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.
j.
Each party shall 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 the 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.
k. Except
as otherwise provided herein, all consents and other determinations to be made
by the Purchasers pursuant to this Agreement shall be made by Purchasers holding
a majority of the Registrable Securities, determined as if all of the Warrants
then outstanding have been converted into Registrable Securities.
l.
The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
[REMAINDER
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IN WITNESS WHEREOF, the
Company and the undersigned Initial Purchasers have caused this Agreement to be
duly executed as of the date first above written.
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GC
CHINA TURBINE, CORP.
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By:
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Name:
Qi Na
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Title: Chief
Executive Officer
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PURCHASER:
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By:
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Name:
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Title:
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Address:________________________________
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_________________________________
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Tel
No: ______________________
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Fax
No.:______________________
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Email:_______________________
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