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Exhibit 3.3
FORM OF
REGISTRATION RIGHTS AGREEMENT
The parties to this Registration Rights Agreement (the
"Agreement") are MIRACOM CORPORATION, a Nevada corporation (the "Company"), and
the Holder (the "Holder") named on and executing the signature page below.
The Holder is purchasing from the Company ________ shares of
the common stock (the "Common Stock") of the Company. The Company desires to
grant to the Holder the registration rights set forth below with respect to the
shares of Common Stock.
Therefore, the parties hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms
shall have the following meanings:
(a) "Securities Act" means the Securities Act of
1933, as amended.
(b) "Exchange Act" means the Securities Exchange Act
of 1934, as amended.
(c) "Register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and the declaration or ordering
of effectiveness of such registration statement.
(d) "Registrable Securities" means that number of
shares of Common Stock purchased by the Holder and any additional shares of
Common Stock that may be issued by the Company as a dividend or other
distribution in respect of those shares.
(e) "SEC" means the Securities and Exchange
Commission.
2. PIGGY-BACK REGISTRATION.
(a) If at any time prior to May 1, 2002, the Company proposes
to register any of its Common Stock under the Securities Act for sale to the
public, whether for its own account or for the account of other security holders
or both (except in connection with registration statements on Forms X-0, Xxxx
X-0 or another form not available for registering the Registrable Securities for
sale to the public), then the Company shall at such time give prompt written
notice to the Holder of its intention to effect such registration setting forth
a description of intended method of distribution and indicating Holder's right
under such proposed registration, and upon the request of the Holder delivered
to the Company within twenty (20) days after giving such notice (which request
shall specify the Registrable Securities intended to be disposed of by the
Holder), the Company shall include such Registrable Securities held by the
Holder and requested to be included in such registration, subject to any
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underwriter's cutback or lock-up of the Registrable Securities as mutually
agreed between Holder, the Company and the underwriter, if the registration
statement relates to an underwritten public offering by the Company. The
Company's obligation to give such notice and to register such Registrable
Securities shall terminate as to those Registrable Securities that are no longer
owned by the Holder.
(b) If, at any time after giving such written notice of the
Company's intention to register any of the Registrable Securities and prior to
the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to file the
registration statement wherein the Registrable Securities would be registered or
to delay the registration of such Registrable Securities, at its sole election,
the Company may give written notice of such determination to the Holders and
thereupon shall be relieved of its obligation to register any Registrable
Securities issued or issuable in connection with such registration (but not from
its obligation to pay registration expenses in connection therewith or to
register the Registrable Securities in a subsequent registration).
(c) The Company shall not be required to include any of the
Registrable Securities in the registration statement relating to an underwritten
offering of the Company's securities unless the Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, if any (provided such terms are usual and customary for selling
stockholders) and the Holder agrees to execute and/or deliver such documents in
connection with such registration as the Company or the managing underwriter may
reasonably request. If the Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriters prior to the initial filing of the registration
statement with the SEC. Any Registrable Securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.
(d) The Company may, in its sole discretion and without the
consent of the Holder, withdraw such registration statement and abandon the
proposed offering in which the Holder had requested to participate, but such
abandonment shall not preclude subsequent request for registration pursuant to
this Section 2.
(e) The Company shall use its best efforts to maintain the
effectiveness of the registration statement until the earlier of (i) the date
that all of the Registrable Securities included therein have been sold, or (ii)
the date the Holder receives an opinion of counsel to the Company that all of
the Registrable Securities may be freely traded without registration under the
Securities Act, subject only to applicable volume limitations under Rule 144
promulgated by the SEC.
3. COOPERATION WITH THE COMPANY.
(a) The Holder will cooperate with the Company in all respects
in connection with this Agreement, including, without limitation, timely
supplying all information reasonably requested by the Company and executing and
returning all documents reasonably requested in connection with the registration
and sale of the Registrable Securities.
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(b) The Holder agrees that, upon receipt of any notice from
the Company of the happening of any event as a result of which the prospectus,
as then in effect, would contain an untrue statement of 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, the Holder will immediately discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until the Holder's receipt of the copies of a
supplemented or amended prospectus which corrects such untrue statement or
omission and, if so directed by the Company, the Holder shall deliver to the
Company (at the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in the Holder's possession of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice.
4. EXPENSES. All expenses incurred by the Company in
registering the Registrable Securities, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of any
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, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars and costs
of insurance ("Registration Expenses") shall be borne by the Company. However,
Registration Expenses shall not include expenses of counsel for the Holder, any
underwriting discounts, selling commissions and underwriter expense
reimbursement allowances applicable to the sale of the Registrable Securities
("Selling Expenses"). The Company will pay all Registration Expenses in
connection with each registration of the Registrable Securities pursuant to the
provisions of this Agreement. All Selling Expenses in connection with each such
registration statement shall be borne by the participating sellers in proportion
to the number of shares sold by each, or by such participating sellers other
than the Company (except to the extent the Company shall be a seller) as they
may agree.
5. DELAY OF REGISTRATION. The Holder shall not have any right
to take any action to restrain, enjoin, or otherwise delay any registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
6. INDEMNIFICATION. In the event any Registrable Securities
are included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless the Holder requesting or joining in a registration, any
underwriter (as defined in the Securities Act) for it, and each person, if any,
who controls such Holder or underwriter within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) arise out of or are based on any untrue or alleged untrue
statement of any material fact contained in such registration statement,
including, without limitation, any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, 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
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misleading, or arise out of any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration; and will reimburse the Holder, such underwriter, or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability, expense or action; PROVIDED, HOWEVER, that the Company will not be
liable in any such case if and to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon: (i) a settlement of any
such loss, claim, damage, liability, expense or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld or delayed), (ii) an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by the Holder, any such underwriter or any such controlling person in
writing specifically for use in such registration statement or prospectus; or
(iii) the Holder's failure to deliver a copy of the final prospectus as then
amended or supplemented after the Company has furnished the Holder with a
sufficient number of copies of the same, but only if delivery of same is
required by law and the same would have cured the defect giving rise to any such
loss, claim, damage, liability, expense, or action.
(b) To the extent permitted by law, the Holder requesting or
joining in a registration will indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the registration statement, each
underwriter for the Company (within the meaning of the Securities Act), and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act, against any losses, claims, damages, liabilities
or expenses to which the Company or any such director, officer, controlling
person or underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereto) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, 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
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary prospectus or final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished by or on behalf of the Holder expressly for use in
connection with such registration; and will reimburse the Company or any such
director, officer, controlling person or underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, expense or action; PROVIDED,
HOWEVER, that the indemnity agreement contained in this Section 6(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
expense or action if such settlement is effected without the consent of the
Holder (which consent shall not be unreasonably withheld or delayed); and
provided further, that the Holder shall not have any liability under this
Section 6(b) in excess of the net proceeds actually received by the Holder in
the relevant public offering.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 6, notify the indemnifying party in writing of the
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commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties. The failure to notify
an indemnifying party promptly of the commencement of any such action, shall, to
the extent (but only to the extent) actually prejudicial to its ability to
defend such action, relieve such indemnifying party of any liability to the
indemnified party under this Section 6, but the omission so to notify the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 6.
(d) The indemnification provided by this Agreement shall be a
continuing right to indemnification and shall survive the registration and sale
of any Registrable Securities by any person entitled to indemnification
hereunder and the expiration of this Agreement.
7. MISCELLANEOUS
(a) WAIVER. No waiver by any party of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing.
(b) NOTICES. All notices and other communications pursuant to
this Agreement shall be deemed to be sufficient if contained in a written
instrument and shall be deemed given if delivered personally, telecopied, sent
by nationally-recognized, overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to Company, to:
Miracom Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopier: 000-000-0000
(ii) if to the Holder, to the address set forth below the
Holder's signature on the last page of this
Agreement.
Any notice so addressed, when mailed by registered or
certified mail shall be deemed to be given three (3) days after so mailed, when
telecopied shall be deemed to be given when transmitted, or when delivered by
hand or overnight shall be deemed to be given when delivered.
(c) INVALIDITY OF PROVISIONS. If any provisions of this
Agreement shall be determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
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(d) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings, oral or written, between
the parties with respect to the subject matter hereof.
(e) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in one or more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same agreement. Facsimile
signatures hereon shall have the same legal force and effect as original
signatures.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be
enforceable by, and shall inure to the benefit of and be binding upon, the
parties and their respective successors and assigns. As used herein, the term
"successors and assigns" shall mean, where the context so permits, heirs,
executors, administrators, trustees and successor trustees and personal and
other representatives.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
contracts made and to be performed therein without otherwise giving effect to
principles of conflicts of laws.
(h) AMENDMENTS. This Agreement may be amended only by the
written consent of all parties hereto.
(i) HEADINGS. The headings set forth in this Agreement have
been inserted for convenience of reference only, shall not be considered a part
of this Agreement and shall not limit, modify or affect in any way the meaning
or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be executed and delivered as of the ______ day of
__________, 1999.
Print Name of Holder
Address:
-------------------------------
Signature of Holder
If an entity, sign as follows:
By
-----------------------------
(Signature of Officer)
Name:
Title or other capacity:
MIRACOM CORPORATION
By:
-------------------------------
Name:
Title:
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