AGREEMENT
Exhibit
10.1
AGREEMENT
This
Agreement (this “Agreement”) is made
and entered into as of December 16, 2010, by and among SeaChange International,
Inc. (the “Company” or “SeaChange”) and the
entities and natural persons listed on Exhibit A hereto (collectively, the
“Ramius Group”)
(each of the Company and the Ramius Group, a “Party” to this
Agreement, and collectively, the “Parties”).
RECITALS:
WHEREAS,
the Company and the Ramius Group have engaged in various discussions and
communications concerning the Company’s business, financial performance and
strategic plans;
WHEREAS,
the Company and the members of the Ramius Group entered into that certain
Settlement Agreement dated as of June 3, 2010 (the “2010 Settlement”) with
respect to the composition of the Board, certain matters related to the 2010
Annual Meeting and certain other matters, as provided therein; and
WHEREAS
the Company and the members of the Ramius Group have determined to come to an
agreement with respect to the composition of the Board, certain matters related
to the 2011 annual meeting of stockholders of the Company (including any
adjournment or postponement thereof, the “2011 Annual Meeting”)
and certain other matters, as provided in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Board Matters; Board
Appointments; 2011 Annual Meeting; Committees.
(a) Upon
execution of this Agreement, the Company will take all necessary actions to (i)
reconstitute the classes of the Board such that Xxxxxxx Xxxx shall become a
Class I director with a term expiring at the Company’s 2012 annual meeting of
stockholders (the “2012 Annual
Meeting”), and (ii) appoint Xxxxx X. Xxxx as a Class III director to fill
the vacancy on the Board created by the resignation of XxxXxxx Xxxx as a
director of the Company.
(b) The
Company agrees that it shall take all necessary actions to re-nominate Xxxxx
Xxx, or the Xxx Replacement Director (as such term is defined in the 2010
Agreement), if applicable, for election to the Board as a Class III director at
the 2011 Annual Meeting and recommend, support and solicit proxies for the
election of Xx. Xxxx and Xx. Xxx or the Xxx Replacement Director, if applicable,
in the same manner as for the Company’s slate of nominees who are up for
election at the 2011 Annual Meeting (collectively, the “2011
Nominees”). The 2011 Annual Meeting shall be held no later
than July 22, 2011.
(c) The
Company agrees that if Xx. Xxxx is unable to serve as a director, resigns as a
director or is removed as a director prior to the 2012 Annual Meeting, the
Ramius Group shall have the ability to recommend a substitute person(s), who
will qualify as “independent” pursuant to NASDAQ listing standards, to replace
Xx. Xxxx, subject to the approval of the Company’s Corporate Governance and
Nominating Committee in good faith after exercising its fiduciary duties, which
approval shall not be unreasonably withheld (any such replacement nominee
appointed in accordance with the provisions of this clause (c) shall be referred
to as the “Xxxx
Replacement Director”). In the event the Corporate Governance
and Nominating Committee does not accept a substitute person recommended by the
Ramius Group, the Ramius Group will have the right to recommend additional
substitute person(s) for consideration by the Corporate Governance and
Nominating Committee. Upon the acceptance of a replacement director nominee by
the Corporate Governance and Nominating Committee, the Board will appoint such
replacement director to the Board no later than five (5) business days after the
Corporate Governance and Nominating Committee’s recommendation of such
replacement director. Upon appointment to the Board, the Xxxx
Replacement Director shall be appointed to the Advisory Committee (as described
and defined in clause (g) below).
(d) At
the 2011 Annual Meeting, the Ramius Group agrees to appear in person or by proxy
and vote all shares of common stock of the Company beneficially owned by it and
its affiliates in favor of the election of the 2011 Nominees and in favor of the
ratification of the Company’s independent registered public accounting
firm.
(e) Neither
the Ramius Group nor any member of the Ramius Group shall (i) nominate any
person for election at the 2011 Annual Meeting or (ii) submit any proposal for
consideration at, or bring any other business before, the 2011 Annual Meeting,
directly or indirectly. The Ramius Group shall not publicly or
privately encourage or support any other stockholder to nominate any person for
election at the 2011 Annual Meeting.
(f) The
Company agrees that the size of the Board shall remain fixed at eight (8)
members until the conclusion of the Company’s 2012 Annual
Meeting. The 2012 Annual Meeting shall be held no later than July 31,
2012.
(g) Upon
the execution of this Agreement, the Company agrees that the Board will
immediately establish an independent committee (to be named the Independent
Advisory Committee) composed of four independent directors including Xxxxx Xxxx
(who shall be Chair), Xxxxx Xxx, Xxxxxx Xxxxx and Xxxxxxx Xxxx (the “Advisory
Committee”). The responsibilities of the Advisory Committee
will be as set forth in the Advisory Committee’s charter, the provisions of
which will be mutually agreeable to the Company and the Ramius Group (the
“Charter”), provided, however, if the terms
of the Charter, as mutually agreed to by the Company and the Ramius Group, are
materially amended or breached without the approval of Xxxxx Xxxx or the Xxxx
Replacement Director, as applicable, then the Ramius Group’s obligations under
Sections 1(d) and 1(e) of this Agreement shall terminate.
2. Representations and
Warranties of the Company.
The
Company represents and warrants to the Ramius Group that (a) the Company has the
corporate power and authority to execute this Agreement and to bind it thereto,
(b) this Agreement has been duly and validly authorized, executed and delivered
by the Company, constitutes a valid and binding obligation and agreement of the
Company, and is enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
generally affecting the rights of creditors and subject to general equity
principles and (c) the execution, delivery and performance of this Agreement by
the Company does not and will not violate or conflict with (i) any law,
rule, regulation, order, judgment or decree applicable to it, or
(ii) result in any breach or violation of or constitute a default (or an
event which with notice or lapse of time or both could become a default) under
or pursuant to, or result in the loss of a material benefit under, or give any
right of termination, amendment, acceleration or cancellation of, any
organizational document, agreement, contract, commitment, understanding or
arrangement to which the Company is a party or by which it is
bound.
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3. Representations and
Warranties of the Ramius Group.
The
Ramius Group shall cause its Affiliates to comply with the terms of this
Agreement. The Ramius Group represents and warrants to the Company that
(a) the authorized signatory of the Ramius Group set forth on the signature
page hereto has the power and authority to execute this Agreement and to bind it
thereto this Agreement, (b) this Agreement has been duly authorized,
executed and delivered by the Ramius Group, and is a valid and binding
obligation of the Ramius Group, enforceable against the Ramius Group in
accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws generally affecting the rights of creditors and
subject to general equity principles, (c) the execution of this Agreement,
the consummation of any of the transactions contemplated hereby, and the
fulfillment of the terms hereof, in each case in accordance with the terms
hereof, will not conflict with, or result in a breach or violation of the
organizational documents of the Ramius Group as currently in effect and
(d) the execution, delivery and performance of this Agreement by each
member of the Ramius Group does not and will not violate or conflict with
(i) any law, rule, regulation, order, judgment or decree applicable to it,
or (ii) result in any breach or violation of or constitute a default (or an
event which with notice or lapse of time or both could become a default) under
or pursuant to, or result in the loss of a material benefit under, or give any
right of termination, amendment, acceleration or cancellation of, any
organizational document, agreement, contract, commitment, understanding or
arrangement to which such member is a party or by which it is
bound.
4. Press
Release.
Promptly
following the execution of this Agreement, the Company and the Ramius Group
shall jointly issue a mutually agreeable press release (the “Mutual Press
Release”) announcing the terms of this Agreement, in the form attached
hereto as Exhibit B. Prior to the issuance of the Mutual Press
Release, neither the Company nor the Ramius Group shall issue any press release
or public announcement regarding this Agreement without the prior written
consent of the other party.
5. Specific
Performance.
Each of
the members of the Ramius Group, on the one hand, and the Company, on the other
hand, acknowledges and agrees that irreparable injury to the other party hereto
would occur in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached and
that such injury would not be adequately compensable in damages. It
is accordingly agreed that the members of the Ramius Group or any of them, on
the one hand, and the Company, on the other hand (the “Moving Party”), shall
each be entitled to specific enforcement of, and injunctive relief to prevent
any violation of, the terms hereof, and the other party hereto will not take
action, directly or indirectly, in opposition to the Moving Party seeking such
relief on the grounds that any other remedy or relief is available at law or in
equity.
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6.
Expenses.
The
Company shall reimburse the Ramius Group for its reasonable, documented out of
pocket fees and expenses (including legal expenses) incurred in connection with
the matters related to the 2011 Annual Meeting and the negotiation and execution
of this Agreement, provided that such reimbursement shall not exceed $5,000 in
the aggregate.
7.
Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated. It is hereby stipulated and declared to be the intention of the
parties that the parties would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which may be hereafter
declared invalid, void or unenforceable. In addition, the parties agree to use
their best efforts to agree upon and substitute a valid and enforceable term,
provision, covenant or restriction for any of such that is held invalid, void or
enforceable by a court of competent jurisdiction.
8.
Notices.
Any
notices, consents, determinations, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) business day after
deposit with a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If to the
Company:
SeaChange
International, Inc.
00 Xxxxx
Xxxx
Xxxxx,
XX 00000
Attention:
Chief Financial Officer
Facsimile:
(000) 000-0000
With a
copy to:
Xxxxxx,
Hall & Xxxxxxx LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxx, Xx.
Facsimile:
(000) 000-0000
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If to the
Ramius Group or any member of the Ramius Group:
Ramius Value and Opportunity Master
Fund Ltd
c/o Ramius Value and Opportunity Advisors
LLC
000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With a
copy to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
9.
Applicable
Law.
This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware without reference to the conflict of laws
principles thereof. Each of the Parties hereto irrevocably agrees that any legal
action or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any
judgment in respect of this Agreement and the rights and obligations arising
hereunder brought by the other party hereto or its successors or assigns, shall
be brought and determined exclusively in the Delaware Court of Chancery and any
state appellate court therefrom within the State of Delaware (or, if the
Delaware Court of Chancery declines to accept jurisdiction over a particular
matter, any state or federal court within the State of Delaware). Each of the
Parties hereto hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect of its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts and agrees
that it will not bring any action relating to this Agreement in any court other
than the aforesaid courts. Each of the parties hereto hereby irrevocably waives,
and agrees not to assert in any action or proceeding with respect to this
Agreement, (i) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason, (ii) any claim that
it or its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) and (iii) to the fullest
extent permitted by applicable legal requirements, any claim that (A) the
suit, action or proceeding in such court is brought in an inconvenient forum,
(B) the venue of such suit, action or proceeding is improper or
(C) this Agreement, or the subject matter hereof, may not be enforced in or
by such courts.
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10. Counterparts. This
Agreement may be executed in one or more counterparts which together shall
constitute a single agreement.
11. Entire Agreement; Amendment
and Waiver; Successors and Assigns.
This
Agreement and the 2010 Settlement contain the entire understanding of the
parties hereto with respect to its subject matter. There are no
restrictions, agreements, promises, representations, warranties, covenants or
undertakings between the parties other than those expressly set forth
herein. No modifications of this Agreement can be made except in
writing signed by an authorized representative of each the Company and the
Ramius Group. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by
law. The terms and conditions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the parties hereto and
their respective successors, heirs, executors, legal representatives, and
permitted assigns. No party shall assign this Agreement or any rights or
obligations hereunder without, with respect to any member of the Ramius Group,
the prior written consent of the Company, and with respect to the Company, the
prior written consent of the Ramius Group.
12. Prior
Agreements.
Each of
the Parties covenants and agrees that this Agreement is not intended to amend,
supersede or otherwise replace the 2010 Settlement, except as specifically set
forth herein. In the event of any conflict between the terms of this
Agreement and the 2010 Settlement, the terms of this Agreement shall
control.
[The remainder of this page
intentionally left blank]
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly
authorized signatories of the parties as of the date hereof.
|
SEACHANGE
INTERNATIONAL, INC.
|
|
|
By:
|
/s/ Xxxxxxx X.
Xxxxxxxxxx
|
|
Name: Xxxxxxx
X. Xxxxxxxxxx, III
|
|
|
Title: Chief
Executive Officer
|
|
THE
RAMIUS GROUP:
|
RAMIUS
VALUE AND OPPORTUNITY
|
RAMIUS
VALUE AND OPPORTUNITY
|
|
MASTER
FUND LTD
|
ADVISORS
LLC
|
|
By:
Ramius Value and Opportunity Advisors LLC,
|
By:
Ramius LLC,
|
|
its
investment manager
|
its
sole member
|
|
RAMIUS
NAVIGATION MASTER FUND LTD
|
RAMIUS
ADVISORS, LLC
|
|
By:
Ramius Advisors, LLC,
|
By:
Ramius LLC,
|
|
its
investment advisor
|
its
sole member
|
|
RAMIUS
ENTERPRISE MASTER FUND LTD
|
RAMIUS
LLC
|
|
By:
Ramius Advisors, LLC,
|
By:
Xxxxx Group, Inc.,
|
|
its
investment advisor
|
its
sole member
|
|
RCG
PB, LTD
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XXXXX
GROUP, INC.
|
|
By:
Ramius Advisors, LLC,
|
|
|
its
investment advisor
|
RCG
HOLDINGS LLC
|
|
By:
C4S & Co., L.L.C.,
|
|
|
COWEN
OVERSEAS INVESTMENT LP
|
its
managing member
|
|
By:
Ramius Advisors, LLC,
|
|
|
its
general partner
|
C4S
& CO., L.L.C.
|
|
By:
|
/s/ Own X. Xxxxxxx
|
|
Name: Xxxx
X. Xxxxxxx
|
|
|
Title: Authorized
Signatory
|
|
/s/
Xxxx X. Xxxxxxx
|
|
XXXX
X. XXXXXXX
|
|
Individually
and as attorney-in-fact for Xxxxxxx
|
|
X.
Xxxxxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx
|
|
and
Xxxxxx X. Xxxxxxx
|
|
/s/
Xxxxx X. Xxxx
|
|
XXXXX
X. XXXX
|
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EXHIBIT
A
The Ramius
Group
RAMIUS
VALUE AND OPPORTUNITY MASTER FUND LTD
RAMIUS
NAVIGATION MASTER FUND LTD
RCG PB,
LTD
RAMIUS
ENTERPRISE MASTER FUND LTD
COWEN
OVERSEAS INVESTMENT LP
RAMIUS
ADVISORS, LLC
RAMIUS
VALUE AND OPPORTUNITY ADVISORS LLC
RAMIUS
LLC
XXXXX
GROUP, INC.
RCG
HOLDINGS LLC
C4S &
CO., L.L.C.
XXXXX X.
XXXXX
XXXXXX X.
XXXXX
XXXXXX X.
XXXXXXX
XXXXXXX
X. XXXXXXX
XXXXX X.
XXXX
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EXHIBIT
B
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Contact:
|
Xxx
Xxxxxxx
|
Xxxxxx
Xxxxxxxx
|
|
SeaChange
PR
|
SeaChange
IR
|
|
|
0-000-000-0000
x0000
|
0-000-000-0000
x0000
|
|
|
xxx.xxxxxxx@xxxxxxx.xxx
|
xxxxxx.xxxxxxxx@xxxxxxx.xxx
|
SEACHANGE
INTERNATIONAL APPOINTS XXXXX X. XXXX
TO
ITS BOARD OF DIRECTORS
Board
Forms Independent Advisory Committee
ACTON,
Mass. (Dec. xx, 2010) – SeaChange International, Inc. (NASDAQ: SEAC), the
leading global multi-screen video software company, today announced the
appointment of Xxxxx X. Xxxx to its Board of Directors. Xx. Xxxx, a
Managing Director of Ramius LLC and a Portfolio Manager of the Ramius Value
& Opportunity Fund (“Ramius”), replaces XxxXxxx Xxxx as a director, whose
resignation was accepted by the Board and announced by SeaChange on Nov.
16. Ramius currently owns approximately 8.4% of the outstanding
shares of SeaChange.
Xx.
Xxxx was also appointed Chairman of the newly-created Independent Advisory
Committee of SeaChange’s Board (the “Committee”). The Committee will
be made up of four independent directors including Xx. Xxxx, Xxxxxx Xxxxx, Xxxxx
Xxx, and Xxxxxxx Xxxx. The Committee will work with management and
the Board to advise and support them in a broad range of business development
and other initiatives.
Xx.
Xxxx joins SeaChange’s Board as a Class III Director to be elected for a
three-year term at the 2011 Annual Meeting. Separately, Xxxxxxx Xxxx,
Lead Director of SeaChange’s Board, has moved to Class I and will be elected for
a three-year term at the 2012 Annual Meeting.
“SeaChange
is pleased to further strengthen its Board of Directors with the appointment of
Xxxxx Xxxx,” said Xxxx Xxxxxxxxxx, SeaChange CEO & Chairman. “We
look forward to working with Xxxxx, the other directors, and our employees
towards a common goal of delivering best-in-class products and services to our
customers and creating value for our shareholders. We remain
committed to driving improved profitability during fiscal 2012 across all of our
businesses.”
“I am pleased to join the Board of
SeaChange and look forward to working with my fellow directors to realize the
full potential of SeaChange’s valuable businesses. SeaChange has a
leading customer base and a strong technology platform both of which are key
components for the future success of the Company. As a representative
of one of the Company’s largest shareholders, I will work to ensure that the
best interests of shareholders are represented on the board,” said Xx.
Xxxx.
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(more)
SeaChange
BOD Welcomes Xxxx/Page 2
Xx.
Xxxxx X. Xxxx (Age 31)
Xx.
Xxxx is a Managing Director of Ramius LLC and a Portfolio Manager of the Ramius
Value & Opportunity Fund, a position he has held since November
2008. Prior to becoming a Managing Director, Xx. Xxxx served as a
Director at Ramius LLC from February 2007 to November 2008. Xx. Xxxx
joined Ramius LLC as an Associate in February 2005. From June 2001 to
July 2004, Xx. Xxxx was an investment banking analyst at Banc of America
Securities, LLC, the investment banking arm of Bank of America Corporation, a
bank and financial holding company. Xx. Xxxx previously served on the
Board of Directors of CPI Corp. (NYSE: CPY), a leading portrait studio operator
in North America.
About
SeaChange International
SeaChange International (NASDAQ: SEAC)
is the global leader in multi-screen video and one of the largest software
companies worldwide. The Company provides innovative, Emmy award-winning
solutions and services for back office, advertising, content, in-home devices
and broadcast to hundreds of media companies, including blue chip companies such
as Comcast, Virgin Media, AT&T, Xxxxxxxxx Whampoa, Vodacom and DISH Network.
Headquartered in Acton, Massachusetts, SeaChange has product development,
support and sales offices around the world. Visit
xxx.xxxxxxx.xxx
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