EXHIBIT 2.3(f)
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of June ___, 1999, among VideoLabs, Inc., a
Delaware corporation (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇▇, a resident of Minnesota
(the "Investor").
The Investor is a party to an Agreement and Plan of Merger dated as of
May __, 1999 ("Merger Agreement") pursuant to which Accoustic Communications
Systems, Inc., a corporation wholly-owned by Investor, was merged into a
wholly-owned subsidiary of the Company (the "Merger"). In connection with the
Merger, the Investor received ________ shares of Common Stock from the Company
and the Company has agreed to provide the registration rights set forth in this
Agreement. Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in paragraph 8 hereof or in the Merger
Agreement.
The parties hereto agree as follows:
1. PIGGYBACK REGISTRATIONS.
a. Right to Piggyback. Whenever the Company proposes to
register any of its securities under the Securities Act and the
registration form to be used may be used for the registration of
Investor Registrable Securities (as hereinafter defined) (a "Piggyback
Registration"), the Company shall give prompt written notice to the
Investor of its intention to effect such a registration and shall
include in such registration all Investor Registrable Securities with
respect to which the Company has received a written request for
inclusion therein within 20 days after the receipt of the Company's
notice (subject to paragraphs 2(c) and (d) below).
b. Piggyback Expenses. The Registration Expenses shall be paid
in all Piggyback Registrations as provided in Paragraph 4 below.
c. Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Company, and the managing underwriter(s) advise the Company in writing
that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering,
the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Investor
Registrable Securities requested to be included in such registration
and (iii) third, other securities requested to be included in such
registration.
d. Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of
holders of the Company's securities, and the managing underwriters
advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting
the marketability of the offering, the Company shall include in such
registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the Investor
Registrable Securities requested to be included in such registration,
and (iii) third, other securities requested to be included in such
registration.
e. Selection of Underwriters. If any Piggyback Registration is
an underwritten offering, the selection of investment banker(s) and
manager(s) for the offering shall be made solely by the Company.
f. Other Registrations. If the Company has previously filed a
registration statement with respect to Investor Registrable Securities
pursuant to the paragraph 1 and if such previous registration has not
been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its
equity securities under the Securities Act (except on Form S-8 or any
successor form), whether on its own behalf or at the request of any
holder or holders of such securities, until a period of at least 180
days has elapsed from the effective date of such previous registration.
2. HOLDBACK AGREEMENTS.
a. The Investor shall not effect any public sale or
distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days
prior to and the 180-day period beginning on the effective date of any
underwritten Piggyback Registration in which Investor Registrable
Securities are included (except as part of such underwritten
registration), unless the underwriters managing the registered public
offering otherwise agree.
b. The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the
holdback period mandated by the managing underwriters of the registered
public offering, which period shall not exceed the 180-day period
beginning on the effective date of any underwritten Piggyback
Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-8 or any successor form), and (ii)
shall cause each holder of more than 8% of its Common Stock, or any
securities convertible into or exchangeable or exercisable for Common
Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to
effect any public sale or
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distribution (including sales pursuant to Rule 144) of any such
securities during such period (except as part of such underwritten
registration, if otherwise permitted).
3. REGISTRATION PROCEDURES. Whenever the Investor has requested
that any Investor Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and
the sale of such Investor Registrable Securities in accordance with the intended
method of disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:
a. prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Investor
Registrable Securities and use its best efforts to cause such
registration statement to become effective (provided that before filing
a registration statement or prospectus or any amendments or supplements
thereto, the Company shall furnish to the counsel selected by the
Investor copies of all such documents proposed to be filed, which
documents shall be subject to the review and reasonable comment of such
counsel);
b. notify the Investor of the effectiveness of each
registration statement filed hereunder and prepare and file with the
Securities and Exchange 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
effective for a period of not less than 180 days and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
c. furnish to the Investor such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as the Investor may
reasonably request in order to facilitate the disposition of the
Investor Registrable Securities owned by the Investor;
d. use its best efforts to register or qualify such Investor
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as the Investor reasonably requests and do any and
all other acts and things which may be reasonably necessary or
advisable to enable the Investor to consummate the disposition in such
jurisdictions of the Investor Registrable Securities owned by the
Investor (provided that the Company shall 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 subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
e. notify the Investor, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in
such registration statement contains an
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untrue statement of a material fact or omits any fact necessary to make
the statements therein not misleading, and, at the request of the
Investor, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Investor Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any fact necessary
to make the statements therein not misleading;
f. cause all such Investor Registrable Securities to be listed
on each securities exchange on which similar securities issued by the
Company are then listed and, if not so listed, to be listed on the NASD
automated quotation system;
g. provide a transfer agent and registrar for all such
Investor Registrable Securities not later than the effective date of
such registration statement;
h. enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the Investor or the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such Investor
Registrable Securities (including effecting a stock split or a
combination of shares);
i. otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Company's first
full calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
j. 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 common stock included in such
registration statement for sale in any jurisdiction, the Company shall
use its best efforts promptly to obtain the withdrawal of such order;
k. use its best efforts to cause such Investor Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the Investor to consummate the disposition of
such Investor Registrable Securities; and
l. in the case of a primary offering, obtain a cold comfort
letter from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by cold
comfort letters as the Investor reasonably requests.
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4. REGISTRATION EXPENSES.
a. All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company and all independent certified
public accountants, underwriters (excluding discounts and commissions)
and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses") shall be borne as provided in
this Agreement, except that the Company shall, in any event, pay its
internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
b. In connection with each Piggyback Registration, the
Investor shall be responsible for the fees and disbursements of legal
counsel chosen by the Investor.
c. To the extent Registration Expenses are required to be paid
by the Company pursuant to paragraph 5(a), each holder of securities
included in any registration hereunder shall pay those Registration
Expenses allocable to the registration of such holder's securities so
included, and any Registration Expenses not so allocable shall be borne
by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so
registered.
5. INDEMNIFICATION.
a. The Company agrees to indemnify, to the extent permitted by
law, the Investor, its officers and directors and each Person who
controls the Investor ( within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by
any untrue or alleged untrue statement of material fact contained in
any registrable statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing
to the Company by the Investor expressly for use therein or by the
Investor's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company
has furnished the Investor with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall
indemnity such underwriters, their officers and directors and each
Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to
the indemnification of the Investor.
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b. In connection with any registration statement in which the
Investor is participating, the Investor shall furnish to the Company in
writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the
Company, its directors and officers and each Person who controls the
Company (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact, required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or
affidavit so furnished in writing by the Investor; provided that the
obligation to indemnify shall be limited to the net amount of proceeds
received by the Investor from the sale of Investor Registrable
Securities pursuant of such registration statement.
c. Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to
give prompt notice shall not impair any Person's right to
indemnification hereunder to the extent such failure has not prejudiced
the indemnifying party) and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent
(but such consent shall not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume the defense of a
claim shall not be obligated to pay the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with
respect to such claim.
d. The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by
or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the
transfer of securities. The Company also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's indemnification
is unavailable for any reason.
6. DEFINITIONS.
"Common Stock" means the Company's common stock, $.01 par
value.
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"Investor Registrable Securities" means (i) the ______ shares
of Common Stock issued to the Investor pursuant to the Merger
Agreement, or (ii) any equity securities issued or issuable with
respect to the securities referred to in clause (i) by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to
any particular Investor Registrable Securities, such securities shall
cease to be Investor Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer or market
maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force) or otherwise sold, transferred or disposed
of by the Investor.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a government
entity or any department, agency or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
7. MISCELLANEOUS.
a. No Inconsistent Agreements. The Company shall not hereafter
enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the Investor in
this Agreement.
b. Remedies. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for
specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
c. Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only
upon the prior written consent of the Company and the Investor.
d. Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective permitted successors and
assigns of the parties hereto. The
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provisions of this Agreement which are for the benefit of the Investor
are not transferable and may not be assigned or otherwise transferred
to any person or purchaser of Investor Registrable Securities or
Warrant.
e. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement.
f. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement.
g. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a
part of this Agreement.
h. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Minnesota.
i. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been given
when delivered personally to the recipient, sent to the recipient by
reputable overnight courier service (charges prepaid) or mailed to the
recipient by certified or registered mail, return receipt requested and
postage prepaid. Such notices, demands and other communications shall
be sent to the addressed indicated below:
To the Investor: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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To the Company: VideoLabs, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman
with copies to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
3100 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
VIDEOLABS, INC.
By
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Its
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