REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of this ____ day of March, 2005 between the Company,
known or to be known as Deli Solar (USA), Inc. and more fully defined in
Article I hereto, a Nevada corporation, and each of the Investors listed
on Exhibit A. hereto
WITNESSETH THAT
WHEREAS, the parties hereto have executed a Unit Purchase Agreement
simultaneously herewith providing for the purchase by Investors and sale by the
Company of units (the"Units") consisting of shares of the Company's Common Stock
(par value $0.01 per share; the "Shares") and warrants to purchase eight (8)
additional Shares for each ten (10) Shares purchased within the Units (the
"Warrants");
WHEREAS, the Investors are "accredited investors" as that term is used in Rule
506 of Regulation D promulgated under the Securities Act of 1933, as amended
(the "Securities Act", and are purchasing the Units with investment purposes and
not with a view to sell other otherwise distribute the underlying securities to
the public;
WHEREAS, the Investors have no arrangements in place, directly or indirectly
through or with affiliates or otherwise, to sell or otherwise distribute the
securities to third parties once the registration statement became effective
WHEREAS, several of the Investors are subject to regulations that require their
securities investments be registered with the Securities Act in order to meet
valuation and liquidity criteria; and they desire to registration of the
securities not to facilitate an immediate distribution to the public, but (i)
for valuation purposes and (ii) to protect against future contingencies where
the securities must be sold to meet liquidity requirements; and
WHEREAS, pursuant to the terms of the Unit Purchase Agreement the parties have
agreed to enter into this Registration Agreement;
NOW THEREFORE, it is agreed as follows:
ARTICLE I
REGISTRATION RIGHTS
Section 1.1 Registration. The Company shall upon execution of this Agreement use
its best reasonable efforts to effect the registration of the Shares purchased
pursuant to the Unit Purchase Agreement, and the Shares underlying the Warrants
included within the Units, at the earliest possible date and. if possible,
within 90 days, along with those share of the Company's common stock (par value
$0.001 per share) requested to be registered pursuant to "piggy back rights"
granted to third parties.
Section 1.2 General Registration Provisions. The Company will pay expenses
associated with the registration of the Shares, including without limitation
legal, accounting, printing and distribution fees and expenses except for
registration fees associated with the Shares.
Section 1.3 Registration Procedures.
(a) If and whenever the Company is required by the provisions
of Section 1.1 hereof to effect the registration of the Shares, the Company will
as promptly as practicable:
(i) furnish to each Investor participating in the
registration such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminarv prospectus and
any summary prospectus) in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus. and such other documents, as such
Investor may reasonably request to facilitate the disposition of the
Shares owned by it;
(ii)use its best efforts to register or qualify the
securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions, if applicable, as shall
be reasonably appropriate for distribution of the Shares: provided.
however, that the Company shall not be required. solely in order to
accomplish the foregoing, to qualify to do business as a foreign
corporation in any jurisdiction where it would not otherwise be required
to qualify, subject itself to taxation in any such jurisdiction or consent
to general service of process in any such jurisdiction;
(iii) advise each Investor participating in such
registration, promptly after it shall receive notice or obtain knowledge
thereof. of the issuance of any stop order by the SEC or any state
securities commission or agency suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding
for that purpose and use its best efforts to prevent the issuance of any
stop order to obtain its withdrawal if such stop order should be issued;
(iv) notify each Investor participating in such
registration upon the Company's discovery that, or upon the happening of
any event as a result of which any prospectus included in any registration
statement which includes Shares, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and at any
such Investor's request prepare and furnish to such Investor a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of
such Shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein necessary to make the statements therein riot misleading in the
light of the circumstances then existing;
(v) use its best efforts to cause all such Shares to be
listed on each securities exchange or inter-dealer quotation system on
which the common stock of the Company is then listed or will be listed
provided that the applicable listing requirements are satisfied.
(b) Each Investor included in such registration agrees that,
upon receipt of any notice from the Company of the occurrence of any event of
the kind described in Section 1.3(a)(iv) it will forthwith discontinue the
disposition of' Shares pursuant to the registration statement relating to such
Shares until its receipt of a supplemented or amended prospectus from the
Company and. if so directed by the Company, will deliver to the Company all
copies, other than permanent file copies, then in such Investor's possession, of
the prospectus relating to such Shares of Company at the time of receipt of such
notice.
(c) Each Investor shall take such actions and furnish the Company with such
information regarding itself and relating to the distribution of the Shares as
the Company may from time to time reasonably request and as shall be required in
connection with the registration and any qualification or compliance referred to
in this Agreement.
ARTICLE II
INDEMNIFICATION
Section 2.1 Indemnification by the Company. In the event of any registration of
Shares pursuant to Section 1.1 hereof, the Company agrees to indemnify and hold
harmless the seller of the Shares and its directors and officers (each, an
"Indemnified Person") from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable attorneys' fees and costs of
investigation) to which such Indemnified Person becomes subject under the
Securities Act or otherwise, insofar as such losses, claims. Damages,.
liabilities or expenses arise out of or based upon (i) any untrue statement or
alleged untrue statement of material fact contained in any registration
statement under which such securities were registered or qualified under the
Securities Act or otherwise, any preliminary prospectus. final prospectus or
summary prospectus included therein, or any amendment or supplement thereto, or
(ii) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
provided that the Company shall not be liable to such Indemnified Person in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement made in reliance upon
and in conformity with information furnished to the Company by such seller of
Shares.
Section 2.2 Indemnificadtion by the Investor. Each of the Investors agrees to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 1.1), the Company and its directors and officers and each other
person, if any, who controls the Company within the meaning of the Securities
Act arising out of or based upon (1) any untrue statement or alleged untrue
statement of material fact contained in any registration statement under which
such securities were registered or qualified under the Securities Act, or
otherwise, any preliminary prospectus, final prospectus or summary prospectus
included therein, or any amendment or supplement thereto, or (ii) any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading if such
statement or omission was made solely in reliance upon and in conformity with
information furnished to the Company by such Investor for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement.
Section 2.3 Defense of Glaim. If any action or proceeding (including any
governmental investigation) shall be brought or directed against any party
hereto (or its officers, directors or agents), the party against whom
indemnification is sought shall be permitted to (or. if requested. shall) assume
the defense of such claim, including the employment of counsel and the payment
of all expenses, unless a conflict of interest may exist with respect to such
claim or differing or additional defenses may be available to the other party.
If defense of a claim is assumed by an indemnifying party, the indemnified party
shall not be liable for any settlement of such action or proceedings effected
without their prior written consent. No indemnifying party shall consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to the
indemnified party of release from all liability in respect to such claim or
litigation. Any party entitled to indemnification hereunder agrees to give
prompt written notice to the other party of any written notice of the
commencement of any action, suit, proceedings or investigation or threat thereof
for which such party may claim indemnification or contribution pursuant to this
Agreement: provided. however. that failure to give such notice shall not limit
any party's right to indemnification or contribution hereunder. Notwithstanding
the foregoing, an indemnified party hereunder shall always have the right to
employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party.
Section 2.4 Contribution. If the indemnification provided for in Sections 2.1 or
2.2 hereof is unavailable to a party that would have been an indemnified party
under any such Subsections in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each party that would have been an indemnifying party thereunder shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative fault of such indemnifying party on the
one hand and such indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof). The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such indemnifying
party or such indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a contributing party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 2.4 shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. 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 was not
guilty of such fraudulent misrepresentation.
ARTICLE III
MISCELLANEOUS
Section 3.1 Fees and Expenses. Except as herein otherwise expressly provided,
all Costs and expenses incurred in connection with this Agreement shall be paid
by the party incurring such expenses.
Section 3.2 Amendment and Modification. This Agreement may be amended, modified
and supplemented itt any and all respects, but only by a written instrument
signed by all of the parties hereto expressly stating that such instrument is
intended to amend, modify or supplement this Agreement.
Section 2.3 Notices.. All notices and other communications hereunder shall be in
writing and shall be deemed given if mailed, delivered personally, telecopied
(which is confirmed) or sent by an overnight courier service, such as Federal
Express, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
if to the Investors to: See Investor signature page below.
If to the Company:
Deli Solar (USA), Inc.
c/o Kuhns Bros. & Co., Inc. , Financial Advisor
558 Lime Rock Road
Lime Rock, Connecticut 06039
Tel. 860 435 7000 Fax: 860 435 6540
with a copy to:
James M. Rae, Esq.
Stairs Dillenbeck Finley & Rendon
330 Madison Avenue, 29th Fl.
New York, NY 10017
Telephone: (212) 697-2700
Telecopy:(212) 687 3523
IN WITNESS WHEREOF the parties hereto have cause these presents to executed on
their behalf this __ day March __, 2005.
Deli Solar (USA), Inc.
By ________________________ By ___________________________
Deli Du Pres. Sec.
Investors: