<PAGE> 1
As filed with the Securities and Exchange Commission on May 30, 1997.
File No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VIDEOSERVER, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 04-3114212
(State or other jurisdiction (I.R.S. Employer
of organization) Identification No.)
63 THIRD AVENUE, BURLINGTON, MASSACHUSETTS 01803 (617) 229-2000
(Address and telephone number of registrant's principal executive offices)
----------------------------------
ROBERT L. CASTLE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VIDEOSERVER, INC.
63 THIRD AVENUE
BURLINGTON, MASSACHUSETTS 01803
(617) 229-2000
(Name, address and telephone number of agent for service)
with copies to:
DAVID L. ENGEL, ESQ. MARGARET D. FARRELL, ESQ.
BINGHAM, DANA & GOULD LLP HINCKLEY, ALLEN & SNYDER
150 FEDERAL STREET 1500 FLEET CENTER
BOSTON, MASSACHUSETTS 02110 PROVIDENCE, RHODE ISLAND 02903
(617) 951-8000 (401) 274-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective
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If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==================================================================================
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration
Per Share* Offering Price* Fee
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
No Par Value 223,881 $17.50 $3,917,918 $1,187
==================================================================================
</TABLE>
* Estimated solely for the purpose of determining the registration fee.
Calculated in accordance with Rule 457(c) based on the average of the high and
low prices reported in the consolidated trading system on May 29, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion, Dated May 30, 1997
P R O S P E C T U S
VIDEOSERVER, INC.
223,881 Shares of
Common Stock, $.01 Par Value
-----------
This Prospectus ("PROSPECTUS") of VideoServer, Inc., a Delaware corporation
(the "COMPANY" or "VIDEOSERVER"), relates to up to 223,881 shares (the "SHARES")
of the Company's common stock, par value $.01 per share (the "COMMON STOCK"),
being sold by a certain stockholder of the Company (the "SELLING STOCKHOLDER"),
for its account. See "Selling Stockholder." The Company will not receive any
proceeds from the sale of Shares by the Selling Stockholder. The Common Stock is
traded on the Nasdaq National Market under the symbol "VSVR." On May 29, 1997,
the last reported sale price of the Common Stock on the Nasdaq National Market
was $17 per share.
The Company will pay all of the expenses incident to the registration,
offering and sale of the Shares to the public hereunder (other than commissions,
fees and discounts of underwriters, brokers, dealers and agents), estimated to
be $27,000. The Company has agreed to indemnify the Selling Stockholder against
certain liabilities, including liabilities under the Securities Act of 1933 (the
"SECURITIES ACT").
All or a portion of the Shares may be disposed of by the Selling
Stockholder hereunder from time to time in one or a combination of the following
transactions: (a) transactions (which may involve block transactions) on the
Nasdaq National Market, or otherwise, at market prices prevailing at the time of
sale or at prices related to such prevailing market prices; or (b) privately
negotiated transactions at negotiated prices, including underwritten offerings.
The Selling Stockholder may effect such transactions by selling the Shares
directly to purchasers or by selling the shares to or through underwriters,
brokers or dealers, and such underwriters, brokers or dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholder or the purchasers of the Shares for whom such underwriters,
brokers or dealers may act as agent, or to whom they sell as principal, or both
(which compensation to a particular underwriter, broker or dealer might be in
excess of customary commissions or be changed from time to time). The Selling
Stockholder and the underwriters, brokers, dealers or agents who participate in
a sale of the Shares may be deemed "underwriters" within the meaning of Section
2(11) of the Securities Act and the commissions paid or discounts allowed to any
of the underwriters, brokers, dealers or agents in addition to any profits
received on resale of the Shares if any of the underwriters, brokers, dealers or
agents should purchase any Shares as a principal may be deemed to be
underwriting discounts or commissions under the Securities Act. See "Plan of
Distribution."
Certain of the underwriters, brokers, dealers or agents may have other
business relationships with the Company and/or its affiliates in the ordinary
course.
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<PAGE> 3
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS AND
CAUTIONARY STATEMENT" ON PAGE 4.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
-----------
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained in this Prospectus or
any Prospectus Supplement, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. Neither this Prospectus nor any Prospectus Supplement constitutes an
offer to sell or a solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful to make such an
offer in such jurisdiction. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or thereof.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
UNDERWRITING PROCEEDS TO
PRICE TO DISCOUNTS SELLING
PUBLIC AND COMMISSIONS STOCKHOLDER
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share (l) (1)(2) (1)(2)
- --------------------------------------------------------------------------------
Total (1) (1)(2) (1)(2)
- --------------------------------------------------------------------------------
</TABLE>
(1) The Selling Stockholder may from time to time effect the sale of the Shares
at prices and at terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. Under the
securities laws of certain states, the Shares may be sold in such states
only through registered or licensed brokers or dealers. See "Plan of
Distribution" and "Selling Stockholder."
(2) The Company has agreed to prepare and file this Prospectus and the related
Registration Statement and supplements and amendments thereto required by
the Securities Act with the Securities and Exchange Commission, and to
deliver copies of the Prospectus to the Selling Stockholder. The expenses
incurred in connection with the same, estimated at $27,000, will be borne
by the Company. The Selling Stockholder and any broker-dealers, agents or
underwriters who participate in a sale of the Shares may be deemed
"underwriters" within the meaning of the Securities Act, and any
commissions paid or discounts allowed to, and any profits received on
resale of the Shares by, any of them may be deemed to be underwriting
discounts or commissions under the Securities Act. See "Plan of
Distribution." The Company will not be responsible for any discounts,
concessions, commissions or other compensation due to any broker or dealer
in connection with the sale of any of the shares offered hereby, which
expenses will be borne by the Selling Stockholder.
IN CONNECTION WITH THIS OFFERING, CERTAIN UNDERWRITERS (AND SELLING GROUP
MEMBERS) MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE COMMON STOCK ON
NASDAQ IN ACCORDANCE WITH RULE 103 OF REGULATION M. SEE "PLAN OF DISTRIBUTION."
The date of this Prospectus is __________ , 1997.
-2-
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and in accordance
therewith files periodic reports and other information with the Securities and
Exchange Commission (the "COMMISSION"). Such reports, proxy statements and other
information concerning the Company may be inspected and copies may be obtained
(at prescribed rates) at public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the regional offices of the Commission located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and at Northwest Atrium Center, 500
W. Madison Street, Suite 1400, Chicago, Illinois 60661-2511. In addition,
electronically filed documents, including reports, proxy and information
statements and other information regarding the Company, can be obtained from the
Commission's Web site at: http://www.sec.gov. The Company's Common Stock is
listed on the Nasdaq National Market, and reports, proxy statements and other
information concerning the Company can also be inspected the offices of the
National Association of Securities Dealers, Inc. at 1735 K Street, Washington,
D.C. 20006.
The Company has filed a Registration Statement on Form S-3 (the
"REGISTRATION STATEMENT") under the Securities Act with the Commission with
respect to the Common Stock being offered pursuant to this Prospectus. As
permitted by the rules and regulations of the Commission, this Prospectus omits
certain of the information contained in the Registration Statement. For further
information with respect to the Company and the Common Stock being offered
pursuant to this Prospectus, reference is hereby made to such Registration
Statement, including the exhibits filed as part thereof. Statements contained in
this Prospectus concerning the provisions of certain documents filed with, or
incorporated by reference in, the Registration Statement are not necessarily
complete, each such statement being qualified in all respects by such reference.
Copies of all or any part of the Registration Statement, including the documents
incorporated by reference therein or exhibits thereto, may be obtained upon
payment of the prescribed rates at the offices of the Commission set forth
above.
Upon request, the Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered a copy of any information that
was incorporated by reference in the Prospectus (other than exhibits to
documents, unless such exhibits are specifically incorporated by reference into
the information incorporated by reference in the Prospectus). The Company will
also provide upon specific request, without charge to each person to whom a copy
of this Prospectus has been delivered, a copy of all documents filed from time
to time by the Company with the Commission pursuant to the Exchange Act.
Requests for such copies should be directed to Paul L. Criswell, Corporate
Counsel, 63 Third Avenue, Burlington, Massachusetts 01803. Telephone requests
may be directed to Mr. Criswell at (617) 229-2000.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There is incorporated herein by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 1996 and the Quarterly Report
on Form 10-Q of the Company for the fiscal quarter ended March 31, 1997, filed
with the Commission pursuant to Section 13(a) of the Exchange Act, the Current
Report on Form 8-K of the Company filed on May 12, 1997 with the Commission
pursuant to Section 13(a) of the Exchange Act, and the description of the Common
Stock contained in the Company's Registration Statement on Form 8-A filed with
the Commission pursuant to Section 12(g) of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing such documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document or portion thereof which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
-3-
<PAGE> 5
RISK FACTORS AND CAUTIONARY STATEMENT
An investment in the Shares being offered herein involves a high degree of
risk. Prospective investors should consider carefully the risk factors contained
in the Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1996 (including without limitation those risks and uncertainties
discussed in the section titled "Other factors which may affect future
operations" of the Company's 1996 Annual Report to Shareholders as incorporated
by reference in the Form 10-K), as well as those risks and uncertainties
contained in the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997 in the section with the same title, all of which are incorporated
herein by reference, before purchasing the Shares offered hereby.
The documents incorporated by reference in this Prospectus contain, and
additional statements issued by the Company from time to time in public filings
or press releases or publicly made orally by officers of the Company with
respect to the Company contain or may contain, "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995. Such
statements are subject to certain risks and uncertainties, including without
limitation those discussed in the sections referred to above of the Company's
1996 Annual Report to Shareholders and Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997. Such forward-looking statements speak only as of
the date on which they are made, and the Company cautions readers not to place
undue reliance on such statements.
THE COMPANY
VideoServer is a leading supplier of networking equipment and associated
software used to create multimedia conferences that connect multiple users over
wide area networks and allow them to interact as a group. The Company's
products, Multimedia Conference Servers ("MCSs"), provide multimedia
conferencing, as well as applications for conference control, network management
and bandwidth management. The Company's products enable interoperability between
dissimilar communications networks, video conferencing systems, and the encoding
technologies used by those systems. The Company believes that its products,
which combine audio, video and data information, are positioned to become a key
enabler of communications networks supporting emerging collaborative multimedia
applications.
VideoServer's objective is to expand its leadership position in the
conferencing market by developing and supplying products that enable multimedia
conferencing, whether through end-user multimedia networks or carrier-provided
conferencing services.
The Company provides MCSs to a wide variety of technology and distribution
partners, including leading videoconferencing equipment suppliers, telephone
carriers, private conferencing service providers, computer companies and PBX
suppliers. The Company believes that it was the largest supplier in annual
shipments of multimedia conference servers in 1994, 1995 and 1996.
On April 28, 1997, the Company acquired the network access card ("NAC")
business unit of Promptus Communications, Inc., a Rhode Island corporation
("PROMPTUS") and subsidiary of GTI Corporation, a publicly traded Delaware
corporation. The Company paid an aggregate consideration to Promptus of
approximately $18,000,000 at the closing, consisting of $14,500,000 in cash and
223,881 shares of the Company's Common Stock. The assets acquired include all
tangible and intangible assets of Promptus' NAC business unit, including fixed
assets, inventories, trade receivables, products and technology, including
certain in-process research and development. Liabilities assumed by the Company
include all third-party trade liabilities and other accrued obligations
pertaining to the acquired NAC assets. The transaction will be accounted for as
a purchase. The acquired business unit will assume the name VideoServer
CONNECTIONS, and will operate as a wholly-owned subsidiary of the Company.
The address of the principal executive office of the Company is 63 Third
Avenue, Burlington, Massachusetts 01803. The telephone number of the Company is
(617) 229-2000.
-4-
<PAGE> 6
SELLING STOCKHOLDER
On April 28, 1997, Promptus acquired 223,881 shares of the Common Stock
from the Company in a transaction exempt from the registration requirement of
the Securities Act, in connection with an Asset Purchase Agreement, dated as of
March 25, 1997, pursuant to which the Company through a wholly-owned subsidiary
purchased certain assets comprising Promptus' NAC business, in exchange for
$14,500,000 in cash (subject to certain post-closing adjustments) and 223,881
shares of the Common Stock.
The term Selling Stockholder includes the holder listed below and the
beneficial owners of the Shares and their transferees, pledgees, donees and
other successors.
Pursuant to the Registration Rights Agreement, dated as of April 26, 1997,
between the Company and the Selling Stockholder, the Company agreed to file with
the Commission the Registration Statement, of which this Prospectus is a part,
with respect to the resale of the Shares. The Company has committed to keep the
Registration Statement effective until the earlier of (i) the second anniversary
of the closing date under the Asset Purchase Agreement, or (ii) such time as all
the shares of Common Stock covered by such Registration Statement have been
sold. The Company has agreed to indemnify the Selling Stockholder and its
officers, directors and controlling persons against certain liabilities,
including certain liabilities under the Securities Act.
As of April 25, 1997, except as noted below, Promptus held of record no
shares of the Company's outstanding Common Stock. Promptus has within the past
three years had no position, office or other material relationship (other than
as a significant supplier) with the Company or its affiliates.
As of May 28, 1997, there were 12,876,361 shares of the Common Stock issued
and outstanding.
The following table sets forth certain information regarding the beneficial
ownership of the Common Stock as of May 30, 1997 and as adjusted to reflect the
sale of all of the Common Stock offered hereby by the Selling Stockholder.
<TABLE>
<CAPTION>
Name of Selling Shares Owned Shares Shares to be Owned
Stockholder Prior to Offering Offered (1) After Offering
----------- ----------------- ----------- --------------
<S> <C> <C> <C>
Promptus 223,881 223,881 0
Communications, Inc.
</TABLE>
(1) See "Plan of Distribution."
PLAN OF DISTRIBUTION
The sale or distribution of the Shares may be effected directly to
purchasers by the Selling Stockholder as a principal or through one or more
underwriters, brokers, dealers or agents from time to time in one or more
transactions (which may involve crosses or block transactions) (i) on any
exchange or in the over-the-counter market, (ii) in transactions otherwise than
in the over-the-counter market or (iii) through the writing of options (whether
such options are listed on an options exchange or otherwise) on, or settlement
of short sales of, the Shares. Any of such transactions may be effected at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at varying prices determined at the time of sale or at
negotiated or fixed prices, in each case as determined by the Selling
Stockholder or by agreement between the Selling Stockholder and underwriters,
brokers, dealers or agents, or purchasers. The Selling Stockholder may effect
such transactions by selling the Shares directly to purchasers or by selling
shares to or through underwriters, brokers or dealers and such underwriters,
brokers or dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholder or the purchasers of the
Shares for whom such underwriters, brokers or dealers may act as agent, or to
whom they sell as principal, or both (which compensation to a particular
underwriter, broker or dealer might be in excess of customary commissions or be
changed from time to time). The Selling Stockholder and any underwriters,
brokers, dealers or agents who participate in a sale of the Shares may be deemed
"underwriters" within the meaning of
-5-
<PAGE> 7
Section 2(11) of the Securities Act and the commissions paid or discounts
allowed to any of such underwriters, brokers, dealers or agents in addition to
any profits received on resale of the Shares if any of such underwriters,
brokers, dealers or agents should purchase any Shares as a principal may be
deemed to be underwriting discounts or commissions under the Securities Act.
Certain of any such underwriters, dealers, brokers or agents may have other
business relationships with the Company and/or its affiliates in the ordinary
course.
Under the securities laws of certain states, the Shares may be sold in such
states only through registered or licensed brokers or dealers.
The Company will pay all of the expenses incident to the registration,
offering and sale of the Shares to the public hereunder other than commissions,
fees and discounts of underwriters, brokers, dealers and agents. The Company has
agreed to indemnify the Selling Stockholder and its officers, directors and
controlling persons (within the meaning of the Securities Act) against certain
liabilities, including liabilities under the Securities Act. The Company will
not receive any of the proceeds from the sale of any of the Shares by the
Selling Stockholder.
If all or a portion of the Shares are offered through an underwritten
offering, the terms of such underwritten offering, including the initial public
offering price, the names of the underwriters and the compensation, if any, of
such underwriters, will be set forth in an accompanying Prospectus Supplement.
Until the distribution of the Shares is completed, rules of the Commission
may limit the ability of any underwriters and any other person participating in
the distribution of the Shares to bid for and purchase the Common Stock. As an
exception to these rules, underwriters are permitted to engage in certain
transactions that stabilize the price of the Common Stock. Such transactions
consist of bids or purchases for the purpose of pegging, fixing or maintaining
the price of the Common Stock. If any underwriters create a short position in
the Shares in connection with the offering, selling more Shares than are set
forth on the cover page of this Prospectus, the underwriters may reduce that
short position by purchasing shares of Common Stock in the open market.
Purchases of the Common Stock for the purpose of stabilization or to reduce a
short position could cause the price of the Common Stock to be higher than it
might be in the absence of such purchases. In addition, rules of the Commission
may limit the timing of purchases and sales of shares of Common Stock by the
Selling Stockholder and any other such person. All of the foregoing may limit
the marketability of the Shares and the ability of any underwriter, broker,
dealer or agent to engage in market making activities.
CERTAIN LEGAL MATTERS
The validity of the offered Common Stock will be passed upon for the
Company by Bingham, Dana & Gould LLP, 150 Federal Street, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of VideoServer, Inc. incorporated by
reference in VideoServer's Annual Report (Form 10-K) for the year ended December
31, 1996, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon, incorporated by reference therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
-6-
<PAGE> 8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
-------------------------------------------
<TABLE>
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting compensation, are:
<S> <C>
SEC Registration Fee............................... $ 1,187.00
Transfer Agent and Registrar Fees and Expenses..... 500.00
Legal Fees and Expenses............................ 12,500.00*
Accounting Fees and Expenses....................... 7,500.00*
Nasdaq National Market Fee......................... 4,477.62
Miscellaneous...................................... 835.38*
----------
Total.............................................. $27,000.00
==========
</TABLE>
-----------------
* Estimates
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Company's Amended and Restated Certificate of Incorporation (the
"CHARTER") contains certain provisions permitted under the Delaware General
Corporation Law relating to the liability of directors. These provisions
eliminate a director's personal liability for monetary damages resulting from a
breach of fiduciary duty, except in certain circumstances involving certain
wrongful acts, such as a breach of a director's duty of loyalty or acts or
omissions that involve intentional misconduct or a knowing violation of law.
These provisions do not limit or eliminate the rights of the Company or any
stockholder to seek non-monetary relief, such as an injunction or rescission, in
the event of the breach of a director's fiduciary duty. These provisions will
not alter a director's liability under federal securities laws. The Company's
Charter and its Amended and Restated By-Laws also contain provisions
indemnifying the directors and officers of the Company to the fullest extent
permitted by the Delaware General Corporation Law. The Company believes that
these provisions will assist the Company in attracting and retaining qualified
individuals to serve as directors.
Item 16. EXHIBITS.
--------
4.1 Specimen Certificate for Shares of the Registrant's Common Stock,
par value $.01 per share, incorporated by reference to Exhibit
4.1 to the Company's Registration Statement on Form S-1 (Reg. No.
33-91132).
4.2 Asset Purchase Agreement dated as of March 25, 1997, between the
Registrant and Promptus Communications, Inc., incorporated by
reference to Exhibit 1.0 to the Company's Report on Form 8-K
dated May 12, 1997.
4.3 Registration Rights Agreement, dated as of April 26, 1997,
between the Registrant and Promptus Communications, Inc.
5 Opinion of Bingham, Dana & Gould LLP.
23.1 Consent of Bingham, Dana & Gould LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (included on signature page).
II-1
<PAGE> 9
Item 17. UNDERTAKINGS.
------------
(A) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(B) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(C) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(D) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(E) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 10
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Burlington and the Commonwealth of Massachusetts as
of May 30, 1997.
VIDEOSERVER, INC.
By: /s/ Robert L. Castle
---------------------------------------
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Robert L. Castle
and Stephen J. Nill and each of them severally, acting alone and without the
other, his/her true and lawful attorney-in-fact with the authority to execute in
the name of each such person, and to file with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith,
any and all amendments (including without limitation post-effective amendments)
to this registration statement necessary or advisable to enable the Registrant
to comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, which amendments may make such other changes in the
registration statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed below as of May 30, 1997 by
the following persons on behalf of the Registrant and in the capacities
indicated.
/s/ Robert L. Castle President and Chief Executive Officer
- ----------------------------- (principal executive officer) and Director
Robert L. Castle
Vice President of Business Development and
- ----------------------------- Director
Rubin Gruber
/s/ Stephen J. Nill Vice President and Chief Financial Officer
- ----------------------------- (principal financial and accounting officer)
Stephen J. Nill
/s/ Paul J. Ferri Director
- -----------------------------
Paul J. Ferri
/s/ William E. Foster Director
- -----------------------------
William E. Foster
/s/ Steven C. Walske Director
- -----------------------------
Steven C. Walske
II-4
<PAGE> 12
EXHIBIT INDEX
-------------
EXHIBIT DESCRIPTION
------- -----------
4.3 Registration Rights Agreement, dated as of April 26, 1997,
between the Registrant and Promptus Communications, Inc.
5 Opinion of Bingham, Dana & Gould LLP
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included on signature page).
<PAGE> 1
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).
<PAGE> 2
-2-
"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
<PAGE> 3
-3-
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
<PAGE> 4
-4-
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;
<PAGE> 5
-5-
(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
<PAGE> 6
-6-
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.
<PAGE> 7
-7-
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.
<PAGE> 8
-8-
(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.
63 Third Avenue
Burlington, MA 01803
Attention: Paul Criswell, Esq.
Telecopier No. 617-505-2101
With a copy to:
David L. Engel, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, MA 02110
Telecopier No. 617-951-8736
If to Promptus:
Promptus Communications, Inc.
<PAGE> 9
-9-
207 High Point Avenue
Portsmouth Business Park
Portsmouth, RI 02871
Attention: Chairman
Telecopier No.
With a copy to:
John Rodney, Esq.
Kirkpatrick & Lockhart LLP
1500 Oliver Building
Pittsburgh, PA 15222
and to
Margaret D. Farrell, Esq.
Hinkley, Allen & Snyder
1500 Fleet Center
Providence, RI 02903
(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.
<PAGE> 10
-10-
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
PROMPTUS:
---------
PROMPTUS COMMUNICATIONS, INC.
By_____________________________________
Name:
Title:
COMPANY:
--------
VIDEOSERVER, INC.
By_____________________________________
Name:
Title:
<PAGE> 1
Exhibit 5
BINGHAM, DANA & GOULD LLP
150 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1726
May 30, 1997
VideoServer, Inc.
63 Third Avenue
Burlington, MA 01803
Dear Ladies and Gentlemen:
We have acted as counsel for VideoServer, Inc., a Delaware corporation
(the "COMPANY"), in connection with the registration under the Securities Act of
1933, as amended (the "SECURITIES ACT"), of 223,881 shares of the Company's
Common Stock, par value $.01 per share (the "SHARES"), pursuant to a
Registration Statement on Form S-3 (the "REGISTRATION STATEMENT"), filed with
the Securities and Exchange Commission on May 30, 1997, all of which Shares were
issued on April 28, 1997 pursuant to the terms of an Asset Purchase Agreement,
dated as of March 25, 1997 (the "ASSET PURCHASE AGREEMENT") between the Company
and Promptus Communications, Inc.
As such counsel, we have reviewed the corporate proceedings of the
Company with respect to the authorization of the issuance of the Shares. We have
also examined and relied upon originals or copies, certified or otherwise
identified or authenticated to our satisfaction, of such corporate records,
instruments, agreements or other documents of the Company, and certificates of
officers of the Company as to certain factual matters, and have made such
investigation of law and have discussed with officers and representatives of the
Company such questions of fact, as we have deemed necessary or appropriate to
enable us to express the opinions rendered hereby.
In our examination, we have assumed the genuineness of all signatures,
the conformity to originals of all documents reviewed by us as copies, the
authenticity and completeness of all original documents reviewed by us in
original or copy form and the legal competence of each individual executing a
document.
We have also assumed that the Shares were issued and delivered in
accordance with the terms of the Asset Purchase Agreement. As to all matters of
fact (including without limitation the value placed upon the assets acquired in
consideration for the Shares pursuant to the Asset Purchase Agreement), we have
relied entirely upon the determinations, representations and statements of the
Company; and we have assumed, without independent inquiry, the accuracy of all
such determinations, representations and statements.
This opinion is limited solely to the Delaware General Corporation Law as
applied by courts located in Delaware.
<PAGE> 2
VideoServer, Inc.
May 30, 1997
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
Shares are validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Certain Legal Matters" in the Prospectus included in the Registration
Statement.
Very truly yours,
/s/ Bingham, Dana & Gould LLP
BINGHAM, DANA & GOULD LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of VideoServer, Inc.
for the registration of 223,881 shares of its common stock and to the
incorporation by reference therein of our reports dated January 14, 1997, with
respect to the consolidated financial statements of VideoServer, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1996 and the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
May 28, 1997
