EXHIBIT 2.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
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entered into as of December 10, 1997 by and among SeaChange International, Inc.,
a Delaware corporation ("Buyer"), and the former shareholders (individually, a
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"Seller," and collectively, the "Sellers") of IPC Interactive Pte. Ltd., a
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Singapore corporation (the "Company"), as set forth on Schedule A hereto..
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W I T N E S S E T H:
WHEREAS, Buyer, the Company and the Sellers are parties to a certain
Stock Purchase Agreement dated as of the date hereof (the "Purchase Agreement")
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pursuant to which Buyer has acquired all of the outstanding shares of capital
stock of the Company in exchange for Buyer Common Shares at a closing (the
"Closing") on the date hereof (the "Closing Date"); and
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WHEREAS, the execution of this Agreement by the parties hereto is a
condition precedent to the obligations of the parties to consummate the
transactions contemplated by the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth below, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the meaning ascribed to them:
"Black-out Period" shall mean with respect to Buyer that period during
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which Buyer precludes all its employees from trading stock (currently commencing
on the first day of each March, June, September and December of any year and
ending two business days after the public announcement (by filing with the
Commission or press release) by Buyer of its earnings for its fiscal year or
quarter, as the case may be, but in no event later than two days after the time
such financial information would be required to be filed by Buyer with the
Commission pursuant to federal securities laws).
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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Friday that is not a day on which banking institutions in New York City are
closed.
"Buyer Common Shares" means the shares of Common Stock, par value $.01
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per share, of Buyer issued to the Sellers pursuant to the Purchase Agreement.
"Commission" means the U.S. Securities and Exchange Commission, or any
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other U.S. federal agency at the time administering the Securities Act.
"Effective Date" means the date the Registration Statement becomes
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effective.
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"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
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amended, or any other similar U.S. federal statute, and the rules and
regulations of the Commission thereunder, as may be in effect from time to time.
"Material Event" shall mean: (a) the possession by Buyer of material
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information not ripe for public disclosure, which shall be evidenced by a
determination in good faith by the Board of Directors of Buyer that public
disclosure of such information at that time would be detrimental to the business
and affairs of Buyer and that the Registration Statement would be materially
misleading absent the public disclosure of such information; or (b) the
determination by the Board of Directors of Buyer that it intends to conduct a
primary or combined primary and secondary public offering provided that the
officers and directors of the Buyer shall be precluded from selling Common Stock
of the Company during the period which constitutes a Material Event under (a)
above.
"Prospectus" means the prospectus included in any Registration
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Statement, as amended or supplemented by any prospectus supplement (including,
without limitation, any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement), and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" means the Buyer Common Shares issued to and
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received by the Sellers in respect of shares of the Company's common stock at
the Closing pursuant to the Purchase Agreement and held continuously from the
Closing Date by such Sellers and any securities that may be issued by Buyer or
any successor to Buyer from time to time with respect to, in exchange for, or in
replacement of such Buyer Common Shares, including, without limitation,
securities issued as a stock dividend on or pursuant to a stock split or similar
recapitalization of such shares; provided, however, that those shares as to
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which the following apply shall cease to be Registrable Securities if: (a) a
Registration Statement with respect to the sale of such Registrable Securities
shall have become effective under the Securities Act and such Registrable
Securities shall have been disposed of under such Registration Statement; (b)
such Registrable Securities shall have become transferable, and have been so
transferred, in accordance with the resale provisions of Rule 144 or any
successor rule or provision, under the Securities Act; (c) such Registrable
Securities shall have been transferred in a transaction in which the Seller's
rights and obligations under this Agreement were not assignable in accordance
with this Agreement; (d) such Registrable Securities shall have ceased to be
outstanding; or (e) the Registrable Securities have previously been sold in
accordance with the terms of this Agreement.
"Registration Statement" means a registration statement of the Buyer on
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Form S-3 (or any successor form prescribed by the Commission) registering the
Registrable Securities under the Securities Act.
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"Securities Act" means the U.S. Securities Act of 1933, as amended, or
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any similar U.S. federal statue, and the rules and regulations of the Commission
thereunder, as may be in effect from time to time.
2. REGISTRATION.
Buyer shall use its reasonable efforts to proceed with and complete the
filing of a Registration Statement in respect of the Registrable Securities as
provided herein and in doing so shall carry out the following actions:
(i) prepare the Registration Statement and use its reasonable
efforts to obtain the approval of its Board of Directors to carry out the
necessary actions to file the Registration Statement and register the
Registrable Securities in compliance therewith;
(ii) file the Registration Statement with the Commission prior to
five months from the Closing Date, and use its reasonable efforts to cause
the Registration Statement to become effective as soon as practicable
following the end of the six months from the Closing Date, and to keep such
Registration Statement continuously effective until the earlier of (A) the
first anniversary of the Closing, or (B) the date on which no Registrable
Securities for which the registration has been initiated remain unsold (the
"Distribution Period");
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(iii) prepare and file as expeditiously a possible with the
Commission such amendments and supplements to the Registration Statement,
and the Prospectus, as may be necessary to keep the Registration Statement
effective during the Distribution Period;
(iv) furnish to each Seller such number of copies of the
Registration Statement and the Prospectus (including each preliminary
prospectus) and any amendments or supplements thereto as such Seller may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities;
(v) use its reasonable efforts to register or qualify the
Registrable Securities under the state securities or "blue sky" laws of
such jurisdictions as each Seller shall reasonably request and to maintain
such qualification throughout the Distribution Period, except that Buyer
shall not be required for the purpose of such qualification to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or, except as to matters relating to the offer
and sale of the Registrable Securities, consent to general service of
process in any such jurisdiction;
(vi) immediately notify each Seller (A) of the Effective Date and
the date when any post-effective amendment to the Registration Statement
becomes effective, (B) of any stop order or notification from the
Commission or any other jurisdiction as to the suspension of the
effectiveness of the Registration Statement, and (C) of the happening of
any event of which Buyer has knowledge that would result in the Prospectus
contained in
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the Registration Statement, as then in effect, including an untrue
statement of a material fact or omitting to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing; and
(vii) timely file with the Commission all documents required to be
filed by Buyer pursuant to subsections 13(a), 13(c), 15(d), and Section 14
of the Exchange Act, and otherwise maintain its qualification to file a
Registration Statement.
3. SHAREHOLDER OBLIGATIONS. In connection with the filing of the
Registration Statement, each Seller will furnish to Buyer as expeditiously as
possible, such documents or information with respect to itself and the proposed
sale or distribution of the Registrable Securities, as is reasonably necessary
in order to assure compliance with U.S. federal and applicable state securities
laws, and as a condition to any proposed sale or distribution of the Registrable
Securities deliver to Buyer in writing representation and warranties, including
but not limited to, representations and warranties that, in connection with any
proposed sale or distribution of Registrable Securities, Seller has complied and
will comply with all requirements under the Securities Act, including applicable
prospectus delivery requirements, and that such shares of Registrable Securities
have been or will be sold or distributed in accordance with the method of sale
set forth in the Registration Statement. Each Seller shall comply, throughout
the Distribution Period, with all United States and state securities laws in the
offer and sale of the Registrable Securities.
4. DELAYS AND BLACKOUTS.
(a) The obligations of Buyer with respect to the Registration Statement
(as set out in Section 2 hereof) and the rights of the Sellers to distribute the
Registrable Securities pursuant to this Agreement and any Registration
Statement, may be suspended by Buyer on the occurrence of a Material Event.
(b) In the event of a suspension pursuant to paragraph (a) of this
Section 4, Buyer shall use its best efforts to minimize the length of such
suspension, and in any event the aggregate number of days during the
Distribution Period during which the obligations of Buyer and/or rights of the
Sellers under Section 4(a) shall be so suspended shall not exceed 60 days.
(c) Buyer shall promptly give the Sellers notice of both the beginning
and end of any suspension under subsection 4(a). The notice shall not provide
any material nonpublic information concerning Buyer but shall only state the
existence of a suspension.
(d) Notwithstanding anything herein to the contrary, any Sellers who are
employees or officers of the Buyer shall be subject to the restrictions on sale
of Registrable Securities during the Blackout Period pursuant to Buyer's policy
on xxxxxxx xxxxxxx and shall otherwise be subject to such policy. provided,
however, that Buyer shall use its reasonable efforts to exempt such Sellers from
being subject to the Blackout Period which commences on June 1, 1998 until June
30, 1998.
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5. EXPENSES.
(a) Buyer will pay all Registration Expenses (as defined below) in
connection with the registration of Registrable Securities effected by Buyer
pursuant to Section 2 hereof. Sellers of Registrable Securities registered
pursuant to this Agreement shall pay all Selling Expenses (as defined below)
associated with such registration, with each Seller bearing a pro rata portion
of the Selling Expenses based upon the number of Registrable Securities
registered by each Seller.
(b) The term "Registration Expenses" means all expenses incurred by
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Buyer in complying with Section 2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel to Buyer and independent public accountants for Buyer, fees and expenses
incurred in connection with complying with state securities or "blue sky" laws,
and fees of transfer agents and registrars; provided, however, that Registration
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Expenses shall not include the fees and expenses of counsel for the Sellers.
The term "Selling Expenses" means all underwriting discounts and selling
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commissions and stock transfer fees and taxes applicable to the sale of the
Registrable Securities.
6. SALE OF REGISTRABLE SECURITIES DURING THE DISTRIBUTION PERIOD.
The parties confirm their intention that the sale or distribution of the
Registrable Securities will be carried out in a orderly and cooperative manner.
To that end, the Sellers will periodically advise Buyer of the nature and
progress of their efforts to sell or distribute the Registrable Securities
including, without limitation, the provision to Buyer of a written monthly
report setting out any sales of Registrable Securities.
7. INDEMNIFICATION.
(a) Buyer will indemnify and hold harmless each Seller, the officer,
directors, partners, agents and employees of each Seller and each person, if
any, who controls such Seller within the meaning of the Securities Act, against
all losses, claims, damages or liabilities, joint or several (collectively
"Claims"), to which they may become subject under the Securities Act, the
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Exchange Act or other federal or state law (excepting Claims related to or
arising from a breach by such Seller of its obligations under Sections 3 or 4),
in so far as the Claims (or actions in respect thereof) arise out of or are
based on (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment or supplement
thereto, or the omission or alleged omission to state in those documents a
material fact required to be stated therein, or necessary to make the statements
therein, not misleading or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, or the omission or alleged omission to
state in those documents a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (collectively, a "Violation"), and reimburse each such Seller,
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officer, director, partner, agent, employee or controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any Claims; provided, however, that the indemnity agreement
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contained in this
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Section 8(a) shall not apply to amounts paid in settlement of any such Claims,
if such settlement is effected without the consent of Buyer, which consent shall
not be unreasonably withheld, conditioned or delayed. This indemnity shall not
apply to any Claims that arise out of, or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information provided by any such Seller in writing
specifically for the purposes of filing or maintaining the effectiveness of the
Registration Statement.
(b) Each Seller will indemnify and hold harmless Buyer, each of its
officers, directors, partners, agents or employees, each person, if any, who
controls Buyer within the meaning of the Securities Act, any underwriter and any
other Seller or any of its directors, officers, partners, agents or employees or
any person who controls such Seller, against any Claims to which Buyer or any
such director, officer, partner, agent, employee, controlling person or
underwriter, or other such Seller or director, officer, partner, agent, employee
or controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state law, insofar as such Claims arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Seller expressly for use in connection with such
registration; and each such Seller will reimburse any reasonable legal or other
expenses reasonably incurred by Buyer or any such director, officer, partner,
agent, employee, controlling person or underwriter, other Seller, officer,
director, partner, agent, employee or controlling person in connection with
investigating or defending any such Claims. Notwithstanding anything contained
in this Agreement to the contrary, the indemnity agreement contained in this
Section 7(b) shall not apply to amounts paid in settlement of any such Claims if
such settlement is effected without the consent of the Seller, which consent
shall not be unreasonably withheld, conditioned or delayed; provided further,
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that the aggregate liability of each Seller in connection with any sale of
Registrable Securities pursuant to a Registration Statement in which a Violation
occurred shall be limited to such Seller's net proceeds from the sale of
Registrable Securities pursuant to such Registration Statement.
(c) As soon as it becomes aware of the commencement of an action
respecting a Claim, the indemnified party shall promptly notify the indemnifying
party, although failure to notify shall not relieve the indemnifying party from
any liability to indemnify the indemnified party. Following receipt of that
notice, the indemnifying party may participate in and, to the extent it wishes
and upon giving notice to the indemnified party, assume and undertake the
defense of the action using counsel satisfactory to it. In that event, the
indemnifying party will not be liable to the indemnified party for any legal
expenses subsequently incurred by the indemnified party in connection with the
defense of the action, other than reasonable costs of investigation and of
liaison with the indemnifying party's counsel. If the defendants in any action
include both the indemnified party and the indemnifying party, and if the
indemnified party reasonably concludes that there may be reasonable defenses
available to it that are different from or additional to those available to the
indemnifying party or if the interests of the indemnified party reasonably may
be deemed to be conflicting with the interests of the Indemnifying party, the
indemnified party shall have the right to select separate counsel and to assume
those legal defenses and otherwise to participate in the defense of the action,
with the
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expenses and fees of separate counsel and other expenses related to that
participation to be reimbursed by the indemnifying party as incurred.
(d) If the indemnification provided for above is held by a court of
competent jurisdiction to be unavailable, then the indemnifying party, in lieu
of such indemnification, shall contribute to the amount paid or payable by the
indemnified party in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand the indemnified party on the
other hand in connection with the statements or omissions that resulted in the
Claims, as well as other equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
alleged untrue statement of a material fact or omission to state a material fact
relates to information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The provisions of this Section 7 shall survive the expiration or
termination of this Agreement and shall expire at the end of any applicable
limitation period.
8. RESTRICTIONS ON TRANSFERS OF COMMON SHARES.
The Sellers agree and understand that the issuance of the Registrable
Securities has not been, and, except as contemplated in this Agreement, the sale
or other disposition thereof by the Sellers will not be, registered under the
Securities Act or the securities laws of any state and that such shares may be
sold or disposed of only in one or more transactions registered under the
Securities Act and, where applicable, such state laws or as to which an
exemption from the registration requirements of the Securities Act and, where
applicable, such state laws is available. The Sellers acknowledge that, except
as expressly set forth in this Agreement, the Sellers have no right to require
Buyer to cause the registration of any Registrable Securities. The Sellers
understand and agree that each certificate representing any Registrable
Securities (each, a "Certificate") shall be subject to stop transfer
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instructions and shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE OR FOREIGN SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE AND FOREIGN SECURITIES
LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS."
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Buyer hereby agrees that it will, upon the request of the Sellers,
eliminate any stop transfer instructions and any restrictive legend on any
certificates representing the Registrable Securities if (i) in the opinion of
counsel, which counsel and opinion (in form, scope and substance) shall be
reasonably satisfactory to Buyer, the Sellers are entitled to sell or dispose of
the Registrable Securities represented by such Certificate without registration
or (ii) such shares are being disposed of by the Sellers under a Registration
Statement pursuant to Section 2 herein and in compliance with the Securities Act
and applicable state and federal securities laws. Before the Registration
Statement is declared effective, Buyer will use reasonable efforts to arrange
for the transfer agent to automatically remove the legend and transfer any
shares disposed of by the Sellers under a Registration Statement pursuant to
Section 2 herein if a Seller and its broker provide transfer representation
documents reasonably acceptable to the transfer agent.
9. BINDING ON SUCCESSORS. This Agreement is binding upon and shall
enure to the benefit of the respective successors and assigns of the parties,
whether so expressed or not.
10. NO ASSIGNMENT. No Seller may assign this Agreement or any of the
rights or obligations hereunder without the express written consent of the
Buyer. Each Seller may assign registration rights in connection with one or
more sales, each to a single purchaser, of at least 20% of the number of Buyer
Common Shares originally held by such Seller provided that the purchaser agrees
to be bound by this Agreement.
11. NOTICE. All notices, requests, consents or other communications
required pursuant to this Agreement shall be in writing and shall be delivered
personally, mailed by certified or registered mail (return receipt requested),
or sent by facsimile addressed as follows:
if to Buyer:
SeaChange International, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Vice President, Administration and Finance
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
if to any Seller, at the address set forth on Schedule A hereto.
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or, to such other address as may be given pursuant to this Section 11.
12. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts (irrespective of
its choice of law principles).
13. AMENDMENT. This Agreement may not be amended without the written
consent of Buyer and the holders of a majority of the Registrable Securities
then outstanding. The failure of a party to enforce any right set forth in this
Agreement, or granted at law or in equity, shall in no way be construed to be a
waiver of such right, or affect the validity of this Agreement or any part
thereof, or the right thereafter to enforce each and every provision of this
Agreement.
14. UNENFORCEABLE PROVISION. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable, such provision shall be severed
from this Agreement and shall not in any manner affect or render illegal,
invalid or unenforceable any other provision of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
SEACHANGE INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx, III
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Name: Xxxxxxx X. Xxxxxxxxxx, III
Title: Chief Executive Officer
IPC CORPORATION LTD.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chairman
/s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
SCHEDULE A
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Address of Sellers (including telephone and
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Name of Sellers facsimile numbers)
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IPC Corporation Ltd. 00 Xxx Xxxx Xxxxx
XXX Xxxxxxxx
Xxxxxxxxx 0000
Telecopier no. (00) 000-0000
Attention: Xxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx IPC Interactive, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier no. (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx IPC Interactive, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier no. (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx Xxxxxxx IPC Interactive, Inc.
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier no. (000) 000-0000
Attention: Xxxxx Xxxxxxx
