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Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of April 26, 1997, by and between Promptus
Communications, Inc., a Rhode Island corporation ("PROMPTUS"), and VideoServer
Inc., a Delaware corporation (the "COMPANY").
This Agreement is made pursuant to an Asset Purchase Agreement, dated
as of March 25, 1997 (as in effect from time to time, the "ASSET AGREEMENT"), by
and among Promptus, the Company, and VideoServer Acquisitions Corp., a Delaware
corporation and wholly-owned subsidiary of the Company ("VSVR"), whereunder
Promptus has sold certain assets to VSVR, and the Company has issued shares of
its Common Stock to Promptus as part of the consideration for such assets.
Except as otherwise defined herein, the capitalized terms used in this Agreement
shall have the meanings ascribed to them in the Asset Agreement.
In order to induce Promptus to enter into the Asset Agreement and to
consummate the transactions contemplated thereby, the Company has agreed to
provide the registration rights set forth in this Agreement.
The parties hereto agree as follows:
1. DEFINITIONS.
"ASSET AGREEMENT" has the meaning specified in the preamble.
"BUSINESS DAY" means any day that the New York Stock Exchange is open
for trading.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Common Stock, $0.01 par value per share, of
the Company.
"COMPANY" has the meaning specified in the preamble.
"PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
"PIGGYBACK REGISTRATION" has the meaning specified in sec.3(a).
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"PROMPTUS" has the meaning specified in the preamble.
"REGISTRABLE SECURITIES" means (i) any Common Stock issued to Promptus
under the Asset Agreement and (ii) any securities issued 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, reclassification,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities when they have been distributed to the public through a broker,
dealer or market purchaser in compliance with Rule 144 under the Securities Act
(or any similar rule then in force) or sold pursuant to an effective
registration statement under the Securities Act.
"REGISTRATION EXPENSES" has the meaning specified in sec.5.
"REGISTRATION STATEMENT" has the meaning specified in sec.2.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"UNDERWRITER'S MAXIMUM NUMBER" means, that number of securities to
which such registration should, in the opinion of the managing underwriters of
such registration in the light of marketing factors, be limited.
"VSVR" has the meaning specified in the preamble.
2. REGISTRATION ON FORM S-3. As promptly as possible following
the Closing (as defined in the Asset Agreement), the Company will prepare and
file with the Commission a registration statement on Form S-3 (or on Form S-1
(or other comparable form adopted by the Commission) if registration on Form S-3
is unavailable) (the "REGISTRATION STATEMENT") covering all of the Registrable
Securities issued to Promptus on the Closing Date. The Registration Statement
will permit delayed or continuous offerings pursuant to Rule 415 under the
Securities Act. The Company will use its best efforts to cause the Registration
Statement to become effective as soon as practicable.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHTS TO PIGGYBACK.
(i) Subject to the provisions contained in paragraph (b) of this
Section 3, if the Company proposes to register any of its securities under the
Securities Act prior to the
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effectiveness of any registration pursuant to Section 2 above either for the
Company's own account or for the account of any of its stockholders (other than
Promptus) (each such registration not withdrawn or abandoned prior to the
effective date thereof being herein called a "PIGGYBACK REGISTRATION"), the
Company will give written notice to Promptus of such proposal not later than the
earlier to occur of (A) the tenth day following the receipt by the Company of
notice of exercise of any registration rights by any persons, and (B) the
thirtieth day prior to the anticipated filing date of such Piggyback
Registration.
(ii) Subject to the provisions contained in paragraph (b) of this
Section 3 and in the last sentence of this subparagraph (ii), (A) the Company
will be obligated and required to include in each Piggyback Registration all
Registrable Securities with respect to which the Company shall receive from
Promptus, within fifteen (15) days after the date on which the Company shall
have given written notice of such Piggyback Registration to Promptus pursuant to
Section 3(a)(i) hereof, the written request of Promptus for inclusion in such
Piggyback Registration, and (B) the Company will use its best efforts in good
faith to effect promptly the registration of all such Registrable Securities.
Promptus shall be permitted to withdraw all or any part of its Registrable
Securities from any Piggyback Registration at any time prior to the effective
date of such Piggyback Registration unless Promptus shall have entered into a
written agreement with the Company's underwriters establishing the terms and
conditions under which Promptus would be obligated to sell such securities in
such Piggyback Registration. The Company will not be obligated or required to
include any Registrable Securities in any registration effected solely to
implement an employee benefit plan or a transaction to which Rule 145 of the
Commission is applicable.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. If a Piggyback
Registration is an underwritten registration, and the managing underwriters
shall give written advice to the Company of an Underwriters' Maximum Number,
then: (i) the Company shall be entitled to include in such registration (A) that
number of securities which the Company proposes to offer and sell for its own
account in such registration and (B) that number of securities which shall have
been requested by any other holders thereof who have registration rights
pursuant to an agreement with the Company which is in effect on the date hereof
to be included in such registration and which securities in the aggregate do not
exceed the Underwriters' Maximum Number; and (ii) if the Underwriters' Maximum
Number exceeds the sum of the number of securities which the Company shall be
required to include in such registration pursuant to clause (i)(B) and the
number of securities which the Company proposes to offer and sell for its own
account in such registration, then the Company may include in such registration
that number of other securities (including Registrable Securities) which persons
(including Promptus) shall have requested be included in such registration and
which shall not be greater than such excess.
(c) SELECTION OF UNDERWRITERS. In any Piggyback Registration, the
Company shall (unless the Company shall otherwise agree) have the right to
select the investment bankers and managing underwriters in such registration.
4. REGISTRATION PROCEDURES. The Company agrees to use all
commercially reasonable efforts to effect the registration of the Registrable
Securities in accordance with the intended
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method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective until the second anniversary of the Closing, or
such earlier time as all of the Registrable Securities covered by such
registration statement have been sold, and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the Registration Statement during such effective
period in accordance with the intended methods of disposition by
Promptus set forth in the Registration Statement;
(b) furnish to Promptus such number of copies of the
Registration Statement, each amendment and supplement thereto, the
prospectus included in the Registration Statement (including each
preliminary prospectus) and such other documents as Promptus may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by Promptus;
(c) use reasonable efforts to register or qualify the
Registrable Securities under such other securities or blue sky laws of
such states of the United States as Promptus reasonably requests and do
any and all other acts and things which may be reasonably necessary or
advisable to enable Promptus to consummate the disposition in such
jurisdictions of the Registrable Securities owned by Promptus; PROVIDED
that the Company will not be required (i) to qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this subparagraph (c), (ii) to subject itself to
taxation in any such jurisdiction or (iii) to consent to general
service of process in any such jurisdiction;
(d) notify Promptus, 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
the Registration Statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not
misleading, and, at the request of Promptus, the Company will promptly
prepare (and, when completed, give notice to Promptus) a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading; PROVIDED
that upon such notification by the Company, Promptus will not offer or
sell Registrable Securities until the Company has notified Promptus
that it has prepared a supplement or amendment to such prospectus and
delivered copies of such supplement or amendment to Promptus;
(e) cause all the Registrable Securities to be listed on each
securities exchange on which shares of Common Stock issued by the
Company are then listed;
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(f) in connection with any underwritten offering enter into
such customary agreements (including underwriting agreements in
customary form) and take all such other actions as Promptus or the
underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of the Registrable Securities; and
(g) in the event of the issuance of any stop order suspending
the effectiveness of the Registration Statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in
the Registration Statement for sale in any jurisdiction, the Company
will use reasonable efforts promptly to obtain the withdrawal of such
order.
5. REGISTRATION EXPENSES. 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,
and fees and disbursements of counsel for the Company and all independent
certified public accountants and other Persons retained by the Company, the
Company's 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 for the Company and its board of directors 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 (all such
expenses being herein called "REGISTRATION EXPENSES"), will be borne by the
Company. Notwithstanding the foregoing, in no event shall the Registration
Expenses borne by the Company include any underwriting compensation or discount
or any brokerage fees or sales commissions or any filing fees required to be
paid to the National Association of Securities Dealers, Inc. (other than any
fees payable in connection with listing shares of Common Stock on the Nasdaq
Stock Market).
6. LOCK-UP AGREEMENT. The Seller hereby agrees not to sell,
transfer or otherwise dispose of any Registrable Securities on or prior to the
later of (a) the date thirty (30) days after the Closing Date and (b) the date
the Registration Statement described in Section 2 hereof becomes effective.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, Promptus, its officers and directors and each Person who controls Promptus
(within the meaning of the Securities Act) against all losses, claims, damages
and liabilities caused by 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, except insofar as the same are
(i) caused by or contained in any information furnished to the Company by
Promptus for use therein, (ii) caused by Promptus' failure to deliver a copy of
the Registration Statement or prospectus or any amendments or supplements
thereto after the Company has furnished Promptus with a sufficient number of
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copies of the same, or (iii) caused by Promptus' sale of Registrable Securities
in violation of the proviso to Section 4(d) hereof.
(b) In connection with the Registration Statement, Promptus will
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, will 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 and
liabilities 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 or alleged untrue statement or omission or alleged omission is
attributable (i) to the information furnished by Promptus to the Company in
writing expressly for use in such registration statement or prospectus or
supplement thereto, (ii) the failure by Promptus to deliver a copy of the
Registration Statement or prospectus or any amendments or supplements thereto
after the Company has furnished Promptus with a sufficient number of copies of
the same, or (iii) the sale by Promptus of Registrable Securities in violation
of the proviso to Section 4(d) hereof.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii), unless in the reasonable judgment of
such indemnified party's counsel set forth in a written opinion a conflict of
interest between such indemnified and indemnifying parties exists 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 will not be subject to any liability
for any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will 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. Subject to
the foregoing terms and provisions of this Section 7(c), each indemnifying party
hereunder will reimburse the person entitled to indemnification hereunder for
all legal and other expenses reasonably incurred in connection with
investigating and defending the action or claim for which such indemnified party
seeks indemnification, as such expenses are incurred, PROVIDED that such
indemnified party shall have given to the Company a written undertaking to repay
all indemnification amounts paid by the Company to or for the account of such
indemnified party if such party shall be adjudicated to be not entitled to
indemnification under this Section 7.
(d) The indemnification provided for under this Agreement will
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 will survive the transfer of securities.
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8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any offering hereunder which is underwritten unless such Person
(I) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements (as provided in Section 4(f)) and (II) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements; PROVIDED, that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such holder and such holder's intended method of
distribution.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities under this
Agreement.
(b) NO IMPLIED RIGHTS OR REMEDIES. Except as otherwise expressly
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any Person, other than the parties hereto
and their respective shareholders, any rights or remedies under or by reason of
this Agreement.
(c) ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Neither this Agreement nor the obligations of any party
hereunder shall be assignable or transferable by such party without the prior
written consent of the other party hereto.
(d) SEVERABILITY. In the event that any covenant, condition, or
other provision herein contained is held to be invalid, void, or illegal by any
court of competent jurisdiction, the same shall be deemed to be severable from
the remainder of this Agreement and shall in no way affect, impair, or
invalidate any other covenant, condition, or other provision contained herein.
(e) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) SECTIONS AND SECTION HEADINGS. The headings of sections and
subsections are for reference only and shall not limit or control the meaning
thereof.
(g) GOVERNING LAW. The validity and construction of this Agreement
shall be governed by the internal laws (and not the choice-of-law rules) of the
Commonwealth of Massachusetts.
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(h) WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY AGREEMENT, CONTRACT OR OTHER DOCUMENT OR
INSTRUMENT EXECUTED IN CONNECTION HEREWITH, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
(i) WAIVER OF CERTAIN DAMAGES. EACH OF THE PARTIES HERETO TO THE
FULLEST EXTENT PERMITTED BY LAW IRREVOCABLY WAIVES ANY RIGHTS THAT THEY MAY HAVE
TO PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN RESPECT OF ANY
LITIGATION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY RELATED
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF
ANY OF THEM RELATING THERETO.
(j) NOTICES. All notices, demands and other communications
hereunder shall be in writing or by written telecommunication, and shall be
deemed to have been duly given if (i) delivered personally (effective upon
delivery), (ii) mailed by certified mail, return receipt requested, postage
prepaid (effective five business days after dispatch), (iii) sent by a
reputable, established courier service that guarantees next business day
delivery (effective the next business day), or (iv) sent by telecopier followed
within 24 hours by confirmation by one of the foregoing methods (effective upon
receipt of the telecopy in complete, readable form), addressed as follows (or to
such other address as the recipient party may have furnished to the other party
for the purpose pursuant to this Section 9(j):
If to the Company:
VideoServer, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇
If to Promptus:
Promptus Communications, Inc.
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207 High Point Avenue
Portsmouth Business Park
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman
Telecopier No.
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and to
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(k) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties, supersedes all prior agreements and understandings
relating to the subject matter hereof and shall not be amended except by a
written instrument hereafter signed by all of the parties hereto.
(l) FURTHER ASSURANCES. The parties agree to take such reasonable
steps and execute such other and further documents as may be necessary or
appropriate to cause the terms and conditions contained herein to be carried
into effect.
(m) PUBLIC STATEMENTS OR RELEASES. Each of the parties hereto
agrees that prior to the Closing of the Asset Agreement no party to this
Agreement will make, issue or release any public announcement, statement or
acknowledgment of the existence of, or reveal the status of, this Agreement or
the transactions provided for herein, without first obtaining the consent of the
other party hereto. Nothing contained in this Section 9(m) shall prevent either
party from making such disclosures as such party may consider necessary to
satisfy such party's legal or contractual obligations.
(n) EXPENSES. Except as expressly set forth in this Agreement, all
expenses of the preparation, execution and consummation of this Agreement and of
the transactions contemplated hereby, including, without limitation, attorneys',
accountants' and outside advisers' fees and disbursements, shall be borne by the
party incurring such expenses.
(o) CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
PROMPTUS:
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PROMPTUS COMMUNICATIONS, INC.
By_____________________________________
Name:
Title:
COMPANY:
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VIDEOSERVER, INC.
By_____________________________________
Name:
Title: