Exhibit 4
FORM OF REGISTRATION RIGHTS AGREEMENTS
AGREEMENT, dated as of the date specified on the signature page hereto (the
"Agreement") between the person(s) who is designated as the holder on the
signature page hereto (the "Holder") and PortaCom Wireless, Inc., a corporation
incorporated under the laws of British Columbia and having its corporate
headquarters at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Company").
WHEREAS, simultaneously with the execution and delivery of this Agreement, the
Holder is purchasing from the Company certain securities of the Company pursuant
to a subscription agreement which entitle the Holder to receive, under certain
conditions, shares of common stock of the Company (the "Common Stock"). (The
shares received by the Holder, if any, pursuant to such Subscription Agreement
shall be referred to herein as the "Shares").
WHEREAS, the Company has agreed to provide the Holder with certain registration
rights as set forth herein.
NOW THEREFORE, in consideration of the premises, obligations and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to and on the terms
and conditions set forth herein, the parties hereto agree as follows:
1. "Piggyback" Registration Rights.
If the Company proposes to register any of its shares of Common Stock under the
Securities Act of 1933, as amended (the "Act") by registration on Form ▇-▇, ▇-▇
or S-3 or any successor forms thereto (other than in connection with a merger,
acquisition, exchange offer or dividend reinvestment plan) either on its behalf
or on behalf of any selling shareholder of the Company where the Company is
responsible for payment of all expenses of such selling shareholder, it shall
give written notice by registered mail, at least twenty (20) days prior to the
filing of each such registration statement, to the Holder of its intention to do
so and shall inquire whether the Holder desires to include any of his Shares in
such registration. Upon written request from the Holder which is received by the
Company within ten (10) days after the date of any notice described in the
previous sentence, which request shall state the maximum amount of Shares
intended to be disposed of by the Holder, the Company shall (subject to the
provisions of Sections 2 and 3 below) use its best efforts to effect the
registration under the Act of such Shares at the Company's sole cost and
expense. Notwithstanding the foregoing, the Holder shall pay any underwriting
discounts or commissions in connection with the registration of the Shares,
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any taxes arising as a result of such registration, the fees and costs of any
attorney or other advisor representing the Holder in connection with such
registration and any telephone, telecopy, travel, messenger, courier or other
direct expenses incurred by the Holder in connection with such registration.
2. No Obligation.
Notwithstanding the provisions of Section 1 hereof, the Company shall have the
right at any time after it shall have given written notice pursuant to Section 1
(irrespective of whether a written request for inclusion of any Shares shall
have been made by the Holder) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
3. Underwriter's "Hold Back."
Notwithstanding the provisions of Section 1 hereof, if the Company's managing
underwriter for the offering contemplated by a registration statement advises
the Company that in its good faith judgment the inclusion of all or a portion of
the Shares requested to be registered by the Holder, when added to the
securities being registered by the Company or any selling shareholder, will
exceed the maximum amount of the Company's securities which can be marketed (the
"Maximum Sale Amount") (i) in an orderly manner within a price range acceptable
to the Company and any other selling shareholders, or (ii) without otherwise
materially adversely affecting the entire offering, then the Company will
include in such registration:
(x) first, the securities the Company proposes to sell;
(y) second, to the extent the Maximum Sale Amount is not exceeded, any
securities proposed to be sold by security holders exercising contractual
"demand" registration rights; and
(z) third, to the extent the Maximum Sale Amount is not exceeded, any
Shares requested to be included in such registration by the Holder and any other
securities of the Company requested to be included in such registration by other
security holders of the Company with contractual "piggy back" registration
rights on a pro rata basis, in proportion to the number of securities originally
requested to be included in such registration by the Holder or such other
security holder.
4. Termination of Registration Rights.
The Holder's right to participate in a registration pursuant to this Agreement
shall terminate after the Company has made an offering of shares of Common Stock
to the public on Form S-1 (or any replacement or similar form) and the Holder's
Shares may be sold pursuant to Rule 144 under the Act (ignoring any holding
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period limitations set forth therein). Once the Holder's registration rights
have been terminated in accordance with this Section 4, such rights shall not be
thereafter reinstated.
5. Hold Back Agreements.
Each Holder agrees not to sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, during the 180 day period beginning on the effective date of
the registration statement for any underwritten offering in which shares of
Common Stock are included (except as part of such underwritten registration),
unless the managing underwriters for the registered public offering otherwise
agree.
6. Registration Procedures.
Whenever the Company is required to register Shares pursuant to this Agreement,
the Company shall:
(a) Comply with all material federal securities laws and regulations relating to
the registration statement and the offering and sale of shares thereunder,
including filing any necessary amendments to the registration statement or other
supplemental documents required for such compliance;
(b) Furnish to the Holder such number of copies of such registration statement,
each amendment and post-effective amendment thereto, the prospectus included in
such registration statement (including each preliminary prospectus and any
supplement to such prospectus) and such other documents as the Holder may
reasonably request in order to facilitate the disposition of the Shares owned by
the Holder; it being understood that the Company hereby consents to the use, in
accordance with all applicable laws, of each such registration statement (or
amendment or post-effective amendment thereto) and each such prospectus (or
preliminary prospectus or supplement thereto) by the Holder, if any, in
connection with the offering and sale of the Shares covered by such registration
statement or prospectus);
(c) Use reasonable efforts to (i) register or qualify such Shares under the
securities or blue sky laws of such jurisdictions as the Holder reasonably
requests, except in the case of an underwritten offering, where such
registration or qualification shall be determined solely by agreement between
the Company and the managing underwriter, (ii) keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and (iii) do any and all other acts and things which may be reasonably
necessary or advisable to enable the Holder to consummate the disposition in
such jurisdictions of the Shares owned by the Holder; provided that
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the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction;
(d) In the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Shares included in such registration statement for sale in any jurisdiction,
use reasonable efforts to obtain the withdrawal of such order;
(e) Notify the Holder,
(i) when the prospectus or any supplement or post-effective
amendment has been filed, and, with respect to the registration
statement or any post-effective amendment thereto, when the same has
become effective,
(ii) of the issuance by the Securities and Exchange Commission of
any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose,
(iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding
of such purpose, and
(iv) at any time when the prospectus is required to be delivered
under the Act, of the discovery that, or of the happening of any event
as a result of which, the registration statement, the prospectus or any
document incorporated therein by reference contains an untrue statement
of a material fact or omits any material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and, at the
reasonable request of the Holder, the Company will prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Shares, such prospectus will not contain an untrue
statement of a material fact or omit to state any 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 agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described
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in Section 6(e)(ii) or (iv), each will, to the extent appropriate, discontinue
its disposition of Shares pursuant to the registration statement relating to
such Shares until, in the case of Section 6(e)(iv), its receipt of the copies of
the supplemented or amended prospectus contemplated by such Section and, if so
directed by the Company, will deliver to the Company all copies, other than
permanent file copies, then in its possession, of the prospectus relating to
such Shares current at the time of receipt of such notice.
7. Indemnification.
(a) Indemnification by the Company. The Company agrees that in the event of
any registration of any securities of the Company under the Act, the Company
will, and hereby does, indemnify and hold harmless the Holder (and its
respective directors, officers, partners, agents and affiliates and each other
person, if any, who controls the Holder within the meaning of the Act) if the
Holder offers Shares covered by such registration statement, against any losses,
claims, damages or liabilities, joint or several, (or actions or proceedings,
whether commenced or threatened, in respect thereof) to which the Holder or any
such director, officer, partner, agent or affiliate or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities, arise out of or are based upon (i) any untrue statement
or alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Act, any
preliminary prospectus, final prospectus or summary prospectus contained
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 in light of the circumstances in which
they were made not misleading, and the Company will reimburse such indemnified
party for any reasonable legal or any other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that the Company shall not be liable 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 in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such indemnified party specifically for inclusion therein or any disclosure
directly relating to such person that was contained in the last draft of any
such document provided to such person for such person's review, except to the
extent that such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises as a result of the failure of the Company to
make any change in such disclosure requested by
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such person following such review. Such indemnity shall remain in full force
regardless of any investigation made by or on behalf of such Holder or any such
director, officer, partner, agent or affiliate or controlling person and shall
survive the transfer of such securities by such indemnified party.
(b) Indemnification by the Holder. As a condition to including any Shares
in any registration statement, the Company shall have received an undertaking
reasonably satisfactory to it from each Holder so including any Shares to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 7(a)) the Company, and each director of the Company, each
officer of the Company and each other person, if any, who controls the Company
within the meaning of the Act, and any underwriter, with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
such registration statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto,
but only to the extent such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Holder specifically for
inclusion therein or any disclosure directly relating to such person that was
contained in the last draft of any such document provided to such person for
such person's review, except to the extent that such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises as a
result of the failure of the Company to make any change in such disclosure
requested by such person following such review. Such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person and shall
survive the transfer of such securities by such indemnifying party.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subsections of this Section 7, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action or
proceeding; provided, however, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subsections of this Section 7, except to the
extent that the indemnifying party is prejudiced by such failure to give notice,
and shall not relieve the indemnifying party from any liability which it may
have to the indemnified party otherwise than under this Section 7. In case any
such action or proceeding is brought against an indemnified party, the
indemnifying party shall be entitled to participate therein and, unless in the
opinion of outside counsel to the indemnified party a conflict of interest
between such indemnified and indemnifying parties may
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exist in respect of such claim, to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action or proceeding include both the
indemnified party and the indemnifying party and if in the opinion of outside
counsel to the indemnified party there may be legal defenses available to such
indemnified party and/or other indemnified parties which are different from or
in addition to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to defend such action
or proceeding on behalf of such indemnified party or parties, provided, however,
that the indemnifying party shall be obligated to pay for only one counsel for
all indemnified parties (including, when the Company is the indemnifying party,
any parties indemnified by the Company under agreements similar to this
Agreement). After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and approval by the indemnified
party of such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of investigation
(unless the first proviso in the preceding sentence shall be applicable). No
indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent. No indemnifying party shall,
without the consent of the indemnified party, 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 such indemnified party of a
release from all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in this Section 7
shall for any reason be held by a court to be unavailable to an indemnified
party under Section 7(a) or (b) hereof in respect to any loss, claim, damage or
liability, or any action in respect thereof, then, in lieu of the amount paid or
payable under Section 7(a) or (b), the indemnified party and the indemnifying
party shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand, and the indemnified
party on the other, which resulted in such loss, claim, damage or liability, or
action in respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the allocation provided in this clause (ii) provides a greater amount to the
indemnified party than clause (i) above, in such proportion as shall be
appropriate to
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reflect not only the relative fault but also the relative benefits received by
the indemnifying party and the indemnified party from the offering of the
securities covered by such registration statement as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to in the preceding sentence
of this Section 7(d). No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. No person
shall be obligated to contribute hereunder any amounts in payment for any
settlement of any action or claim effected without such person's consent, which
consent shall not be unreasonably withheld. Notwithstanding anything in this
Section 7(d) to the contrary, the aggregate liability of any indemnifying party
under this Section 7(d) shall be limited to the amount of net proceeds received
by such party from the sale of the shares in the offering to which the losses,
claims, damages or liabilities of the indemnified parties relate.
(e) Other Indemnification. Indemnification and contribution similar to that
specified in the preceding subsections of this Section 7 (with appropriate
modifications) shall be given by the Company and the Holder with respect to any
required registration or other qualification of securities under any federal,
state or blue sky law or regulation of any governmental authority other than the
Act. The indemnification agreement contained in this Section 7 shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made by
and or on behalf of any indemnified party and shall survive the transfer of any
of the Shares of the Holder.
(f) Indemnification Payments. The indemnification and contribution required
by this Section 7 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
8. Underwritten Offerings.
In the case of the registration pursuant to Section 1 hereof, if the Company
shall have determined to enter into any underwriting agreements in connection
therewith, all of the Holder's Shares to be included in such registration shall
be subject to such underwriting agreements and the Holder shall execute such
underwriting agreements. If the Company shall have determined not to enter into
any such underwriting agreements, no Holder
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shall have the right to compel the Company to enter into any such agreement.
9. Miscellaneous.
(a) Specific Performance. The parties hereto agree that money damages or
other remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that in addition to
all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
(b) Amendments and Waivers. This Agreement may be amended, modified,
supplemented or waived only upon the written agreement of the party against whom
enforcement of such amendment, modification, supplement or waiver is sought.
(c) Binding Effect; Assignment. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective heirs,
legal representatives, successors and assigns; provided, however, the Holder's
rights under this Agreement may not be assigned except to the transferee of
Shares in connection with an assignment of such Shares which (i) takes place
prior to the registration of such Shares under the Act, and (ii) is not a
transaction exempt from registration under Rule 144 under the Act.
(d) Headings; References; Execution in Counterparts. The headings and
captions contained herein are for convenience only and shall not control or
affect the meaning or construction of any provision hereof. All article,
section, schedule, exhibit and paragraph references are to this Agreement,
unless otherwise expressly provided. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
(e) Notices. All notices and other communications hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed to have been
given when delivered by hand or mailed by registered or certified mail, postage
prepaid, return receipt requested, as follows:
(i) If to the Holder, to its address set forth on the signature
page to this Agreement, or such other address as shall be specified by
notice given in accordance with this Agreement.
(ii) If to the Company, to its address set forth on the first
page of this Agreement, or such other
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address as shall be specified by notice given in accordance with this
Agreement.
(f) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, without giving
effect to the principles of conflicts of law thereof.
(g) Invalidity of Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
(h) Further Assurances. Each party hereto shall do and perform or cause to
be done and performed all further acts and things and shall execute and deliver
all other agreements, certificates, instruments and documents as any other party
hereto reasonably may request in order to carry out the intent and accomplish
the purposes of this Agreement.
(i) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
(j) Definition of "Person". For the purpose of this Agreement, "person"
means an individual, corporation, partnership, association, trust,
unincorporated organization, other entity or group.
(k) Execution and Delivery by Spouse. If the Holder resides in a community
property state, any provision hereunder which requires the Holder to execute and
deliver any agreement, certificate, instrument or document shall be deemed to
also require the Holder's spouse to execute and deliver such agreement,
certificate, instrument or document.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
Parties hereto dated as of the _____ day of __________, 1996.
PORTACOM WIRELESS, INC.
By:
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Its:
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HOLDER
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Signature
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Print Name
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Address
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