Registration Rights Agreement - SeaChange International Inc. and Microsoft Corp.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
this 23rd day of May, 2000, between SeaChange International, Inc., a Delaware
corporation (the "Company"), and Microsoft Corporation, a Washington corporation
(the "Purchaser").
WHEREAS, the Purchaser intends to purchase shares of Common Stock, par
value, $0.01 per share (the "Common Stock") of the Company pursuant to the terms
and conditions of a Stock Purchase Agreement dated as of May 23, 200O (the
"Purchase Agreement"); and
WHEREAS, the Purchase Agreement requires that the Company enter into this
Agreement with the Purchaser;
NOW, THEREFORE, in consideration of the foregoing, the parties to this
Agreement hereby agree as follows:
1. Demand Registration. If, after the date of this Agreement the Purchaser
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shall request the Company in writing to register under the Securities Act of
1933, as amended (the "Securities Act"), any or all of the shares of the Common
Stock acquired by Purchaser pursuant to the Purchase Agreement (the shares of
such Common Stock so registrable are referred to as the "Subject Stock"), the
Company shall use its reasonable best efforts to cause the Subject Stock to be
registered as soon as reasonably practicable so as to permit the sale thereof,
and in connection therewith shall prepare and file a Form S-3 registration
statement with the Securities and Exchange Commission (the "SEC") under the
Securities Act to effect such registration; provided, however, such request
shall (i) express the intention of the Purchaser to offer or cause the offering
of the Subject Stock for distribution, (ii) describe the nature or method of the
proposed offer and sale thereof, and (iii) contain the undertaking of the
Purchaser to provide all such information and materials and take all such action
as may be required in order to permit the Company to comply with all applicable
requirements of the SEC and to obtain any desired acceleration of the effective
date of such registration statement. In the event that Form S-3 is not then
available, the registration statement shall be filed on the successor to Form S-
3 or if there is no clear successor form, or if the Company is not eligible to
use Form S-3 or a successor form, then the registration statement shall be filed
using such form as may be available for the proposed distribution by the
Purchaser with which it is least burdensome for the Company to comply. The
Company agrees not to grant to any other person registration rights pursuant to
which such person would have the right to register shares of Common Stock on a
registration statement filed by the Company pursuant to the exercise of
Purchaser's rights under this Agreement. Subject to the limitations in Section 2
and the termination of this Agreement pursuant to Section 12 Purchaser may make
no more than two such requests, provided that a second request shall not be made
prior to six months after the termination of the distribution made pursuant to
the first registration statement and neither request shall be for less than 25%
of the shares acquired by Purchaser pursuant to the Purchase Agreement.
2. Obligations of the Company.
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(a) Whenever the Company is required by the provisions of this
Agreement to use its reasonable best efforts to effect the registration of any
Subject Stock under the Securities Act, the Company shall (i) prepare and, as
soon as reasonably practicable, file with the SEC a registration statement with
respect to the shares of Subject Stock, and shall use its reasonable best
efforts to cause such registration statement to become effective and to remain
effective until the earlier of (A) the sale of the shares of Subject Stock so
registered, (B) the
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withdrawal at the request of Purchaser of such shares from such registration
statement or (C) the ability of the Purchaser to sell within a single three
month period pursuant to Rule 144 or Rule 144(k) of the Securities Act all of
the shares of Common Stock acquired by Purchaser pursuant to the Purchase
Agreement and then held by Purchaser; (ii) subject to paragraph (b) below,
prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
reasonably necessary to make and to keep such registration statement effective
and to comply with the provisions of the Securities Act with respect to the sale
or other disposition of all securities proposed to be registered pursuant to
such registration statement until the earlier of (A), (B) or (C) in (i) above;
and (iii) take all such other action reasonably necessary to permit the shares
of Subject Stock held by the Purchaser to be registered and disposed of in
accordance with the method of disposition described herein.
(b) Notwithstanding anything in this Agreement to the contrary, by
delivery of written notice to the Purchaser (a "Suspension Notice"), stating
which one or more of the following limitations shall apply to the Purchaser, the
Company may (1) postpone effecting a registration under this Agreement or (2)
require the Purchaser to refrain from disposing of Subject Stock under the
registration, in each case for a reasonable time specified in the notice but not
exceeding an aggregate of 90 days in any one year period (which period may not
be extended or renewed). The Company may postpone effecting a registration or
require the Purchaser to refrain from disposing of Subject Stock under the
registration, if (1) the Company in good faith determines that such registration
or disposition would materially impede, delay or interfere with any material
financing, offer or sale of equity securities or debt securities of the Company,
acquisition, disposition or other material transaction by the Company or any of
its material subsidiaries, (2) an investment banking firm of recognized national
standing shall advise the Company in writing that effecting the disposition by
such person of Subject Stock would materially and adversely affect an offering
of equity securities of the Company, by the Company for its own account the
preparation of which had then been commenced, or (3) the Company in good faith
determines that the Company is in possession of material non-public information
the disclosure of which during the period specified in such notice the Company
reasonably believes would not be in the best interests of the Company; provided
that the Company may not take any action pursuant to this Section with respect
to any of the limitations on dispositions specified in clause (2) for a period
of time in excess of 90 days in any one year period.
(c) In connection with any registration statement, the following
provisions shall apply:
(1) The Company shall furnish to the Purchaser, prior to the filing
thereof with the SEC, a copy of any registration statement, and each
amendment thereof and each amendment or supplement, if any, to the
prospectus included therein and shall use its reasonable efforts to reflect
in each such document, when so filed with the SEC, such comments as the
Purchaser and its counsel reasonably may propose.
(2) The Company shall take such action as may be necessary so that:
(i) any registration statement and any amendment thereto and any prospectus
forming part thereof and any amendment or supplement thereto (and each
report or other document incorporated therein by reference) complies in all
material respects with the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and the respective rules and
regulations thereunder, and (ii) any registration statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
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(3) (A) The Company shall advise the Purchaser and, if requested by the
Purchaser, confirm such advice in writing:
(i) when a registration statement and any amendment thereto has been
filed with the SEC and when the registration statement or any post-
effective amendment thereto has become effective; and
(ii) of any request by the SEC for amendments or supplements to the
registration statement or the prospectus included therein or for
additional information.
(B) The Company shall advise the Purchaser and, if requested by
Purchaser, confirm such advice in writing of:
(i) the issuance by the SEC of any stop order suspending
effectiveness of the registration statement or the initiation of any
proceedings for that purpose; and
(ii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included therein for
sale in any jurisdiction or the initiation of any proceeding for such
purpose.
(4) The Company shall notify the Purchaser at any time when a Prospectus
with respect to the Subject Stock is required to be delivered under the
Securities Act, when the Company becomes aware of the happening of any event as
a result of which the Registration Statement or the Prospectus (as then in
effect) contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein (in the case of the
Prospectus or any preliminary Prospectus, in light of the circumstances under
which they were made) not misleading; and, as promptly as practicable
thereafter, but subject to Sections 2(b) and 4, the Company shall use its
reasonable best efforts to prepare and file with the SEC an amendment or
supplement to the Registration Statement or the Prospectus so that, as
thereafter delivered to the purchasers of the Subject Stock, such Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. As promptly as
practicable after the issuance by the SEC of an order suspending the
effectiveness of the Registration Statement, but subject to Sections 2(b) and 4,
the Company shall use its best efforts to obtain the withdrawal of such order at
the earliest possible moment.
(5) The Company shall furnish to the Purchaser with respect to the
registration statement relating to the Subject Stock, without charge, such
number of copies of such registration statement and any post-effective amendment
thereto, including financial statements and schedules, and all reports, other
documents and exhibits (including those incorporated by reference) as the
Purchaser shall reasonably request.
(6) The Company shall furnish to the Purchaser such number of copies of any
prospectus (including any preliminary prospectus and any amended or supplemented
prospectus) relating to the Subject Stock as the Purchaser may reasonably
request in order to effect the offering and sale of the shares of Subject Stock
to be offered and sold, but only while the Company shall be required under the
provisions hereof to cause the
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registration statement to remain current, and the Company consents (except
during the continuance of any event described in Sections 2(b) or 4 to the use
of the Prospectus or any amendment or supplement thereto by the Purchaser in
connection with the offering and sale of the Subject Stock covered by the
Prospectus or any amendment or supplement thereto.
(7) Prior to any offering of Subject Stock pursuant to any registration
statement, the Company shall use its reasonable best efforts to register or
qualify the shares of Subject Stock covered by such registration statement under
the securities or blue sky laws of such states as the Purchaser shall reasonably
request, maintain any such registration or qualification current until the
earlier of (i) the sale of the shares of Subject Stock so registered, (ii)
termination pursuant to Section 4 or (iii) the withdrawal of Subject Stock from
the registration statement, and do any and all other acts and things either
reasonably necessary or advisable to enable the Purchaser to consummate the
public sale or other disposition of the shares of Subject Stock in domestic
jurisdictions where the Purchaser desires to effect such sales or other
disposition; provided, however, that the Company shall not be required to take
any action that would subject it to the general jurisdiction of the courts of
any jurisdiction in which it is not so subject or to qualify as a foreign
corporation in any jurisdiction where the Company is not so qualified.
(8) In connection with any offering of shares of Subject Stock registered
pursuant to this Agreement, the Company shall (x) furnish the Purchaser, at the
Company's expense, on a timely basis with certificates free of any restrictive
legends representing ownership of the shares of Subject Stock being sold in such
denominations and registered in such names as the Purchaser shall request and
(y) instruct the transfer agent and registrar of the Subject Stock to release
any stop transfer orders with respect to the shares of Subject Stock.
(9) The Company shall make generally available to its security holders or
otherwise provide in accordance with Section 11(a) of the Securities Act as
soon as reasonably practicable after the effective date of the registration
statement an earnings statement satisfying the provisions of Section 1l(a) of
the Securities Act.
(10) The Company shall, if requested, promptly include or incorporate in a
prospectus supplement or post-effective amendment to a registration statement,
such information as the Purchaser or any underwriters reasonably request to be
included therein in accordance with Section 3(b) and to which the Company does
not reasonably object and shall make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after they are
notified of the matters to be included or incorporated in such prospectus
supplement or post-effective amendment.
(11) [Intentionally Omitted]
(12) The Company will use its best efforts to cause the Subject Stock to be
admitted for quotation on the Nasdaq National Market or other stock exchange or
trading system on which the Common Stock primarily trades on or prior to the
effective date of any registration statement hereunder.
(13) Any obligation of the Company under this Agreement, including any
obligation to use its "best efforts," "reasonable best efforts" or take such
actions as are reasonably required, shall not preclude the Company from taking
any action or omitting
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to take any action (other than omitting to file necessary amendments, post-
effective amendments and supplements if a Suspension Notice or Termination
Notice is not then in effect pursuant to Section 2(b) or 4, respectively)
that would result in the Company issuing a Suspension Notice or Termination
Notice pursuant to Section 2(b) or 4, respectively.
(d) With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Subject
Stock to the public without registration, the Company agrees to:
(1) make all filings with the SEC required by Rule 144(c) (or
any similar provision then in force) under the Securities Act to permit the sale
of the Subject Stock by any holder thereof to satisfy the conditions of Rule 144
(or any similar provision then in force).
(2) during the term of this Agreement, to furnish to the
Purchaser upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other reports
and documents of the Company as the Purchaser may reasonably request in availing
itself of any rule or regulation of the SEC allowing the Purchaser to sell any
such securities without registration.
3. Obligations of the Purchaser.
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(a) The Purchaser shall, (i) offer to sell or otherwise distribute
the Subject Stock in reliance upon a registration contemplated by this Agreement
only after a registration statement shall have been filed with the SEC, (ii)
sell or otherwise distribute the Subject Stock in reliance upon such
registration only if a registration statement is then effective under the
Securities Act, (iii) not sell or otherwise distribute any of the Subject Stock
during any period specified in a Suspension Notice delivered to the Purchaser
pursuant to Section 2(b) or after receiving a Termination Notice pursuant to
Section 4 (until the Purchaser shall have received written notice from the
Company that the registration is again effective), (iv) distribute the Subject
Stock only in accordance with the manner of distribution contemplated by the
prospectus and (v) report to the Company distributions made by the Purchaser of
shares of the Subject Stock pursuant to the prospectus. The Purchaser, by
participating in a registration pursuant to this Agreement, acknowledges that
the remedies of the Company at law for failure by the Purchaser to comply with
the undertaking contained in this paragraph (a) would be inadequate and that the
failure would not be adequately compensable in damages and would cause
irreparable harm to the Company, and therefore agrees that undertakings made by
the Purchaser in this paragraph (a) may be specifically enforced.
(b) The Purchaser shall furnish to the Company in writing promptly
upon the request of the Company the information regarding the Purchaser, the
contemplated distribution of the Subject Stock and the other information
regarding the proposed distribution by the Purchaser that shall be required in
connection with the proposed distribution by the applicable securities laws of
the United States of America and the states thereof in which the Subject Stock
are contemplated to be distributed. The information furnished by the Purchaser
shall be certified by the Purchaser and shall be stated to be specifically for
use in connection with the registration.
(c) The obligations of the Company to maintain a registration
statement are conditioned upon the Purchaser of the Subject Stock furnishing to
the Company the information
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in respect of the distribution of the Subject Stock that may be required under
this Agreement to be furnished by the Purchaser to the Company.
4. Termination Provisions. Notwithstanding anything in this Agreement to
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the contrary, if, in the opinion of counsel for the Company (which opinion shall
be reasonably acceptable to counsel for the Purchaser), there shall have arisen
any legal impediment to the offering of the Subject Stock pursuant to this
Agreement or if any legal action or administrative proceeding shall have been
instituted or threatened or any other claim shall have been made relating to the
registration or the offer made by the related prospectus or against any of the
parties involved in the offering, the Company may at any time upon written
notice to the Purchaser (a "Termination Notice") terminate the effectiveness of
the related Registration Statement; provided that, promptly after those matters
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shall be resolved to the satisfaction of counsel for the Company, then, the
Company shall cause the registration of the Subject Stock formerly covered by
the Registration Statement that were removed from registration by the action of
the Company.
5. Expenses. The Company shall pay all fees and expenses incurred in
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connection with the performance of its obligations under Sections 1 and 2
hereof, including, without limitation, all SEC and blue sky registration and
filing fees, printing expenses, transfer agents' and registrars' fees, and the
reasonable fees and disbursements of the Company's outside counsel and
independent accountants incurred in connection with the preparation, filing and
amendment of any registration statement authorized by this Agreement (but
excluding underwriters' and brokers' discounts and commissions).
6. Indemnification and Contribution.
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(a) Indemnification by the Company. In the case of any offering
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registered pursuant to this Agreement, the Company agrees to indemnify and hold
the Purchaser and each person who controls any of the foregoing within the
meaning of Section 15 of the Securities Act harmless against any and all losses,
claims, damages or liabilities to which they or any of them may become subject
under the Securities Act or any other statute or common law or otherwise, and to
reimburse them, from time to time upon request, for any legal or other expenses
reasonably incurred by them in connection with investigating any claims and
defending any actions, insofar as any such losses, claims, damages, liabilities
or actions shall arise out of or shall be based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement (or any amendment thereto) relating to the sale of such shares of
Subject Stock, including all documents incorporated therein by reference, or the
omission or alleged omission to state therein 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 (as amended or supplemented if the
Company shall have filed with the SEC any amendment thereof or supplement
thereto), if used prior to the effective date of such registration statement or
contained in the prospectus (as amended or supplemented if the Company shall
have filed with the SEC any amendment thereof or supplement thereto), if used
within the period during which the Company shall be required to keep the
registration statement to which such prospectus relates current pursuant to the
terms of this Agreement, or the omission or alleged omission to state therein
(if so used) a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the indemnification agreement contained in this Section
6(a) shall not apply to such losses, claims, damages, liabilities or actions
which shall arise out of or shall be based upon any such untrue statement or
alleged untrue statement, or any such omission or alleged omission, if such
statement or omission shall have been (x) made in reliance upon and
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in conformity with information furnished in writing to the Company by the
Purchaser specifically for use in connection with the preparation of the
registration statement or any preliminary prospectus or prospectus contained in
the registration statement or any such amendment thereof or supplement thereto,
or (y) made in any preliminary prospectus, and the prospectus shall have
corrected such statement or omission and a copy of such prospectus shall have
been delivered to the Purchaser or any such underwriter prior to the time such
prospectus is required to be delivered by the Purchaser or the underwriter under
applicable law.
(b) Indemnification by the Purchaser. In the case of each offering
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registered pursuant to this Agreement, the Purchaser agrees, in the same manner
and to the same extent as set forth in Section 6(a) of this Agreement to
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act, its
directors and those officers of the Company who shall have signed any such
registration statement with respect to any statement in or omission from such
registration statement or any preliminary prospectus (as amended or as
supplemented, if amended or supplemented as aforesaid) or prospectus contained
in such registration statement (as amended or as supplemented, if amended or
supplemented as aforesaid), if such statement or omission shall have been made
in reliance upon and in conformity with information furnished in writing to the
Company by the Purchaser specifically for use in connection with the preparation
of such registration statement or any preliminary prospectus or prospectus
contained in such registration statement or any such amendment thereof or
supplement thereto.
(c) Notice of Claims. Each party indemnified under Section 6(a) or
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Section 6(b) of this Agreement shall, promptly after receipt of notice of the
commencement of any action against such indemnified party in respect of which
indemnity may be sought, notify the indemnifying party in writing of the
commencement thereof, enclosing a copy of all papers served on such indemnified
party. The omission of any indemnified party so to notify an indemnifying party
of any such action shall not relieve the indemnifying party from any liability
in respect of such action which it may have to such indemnified party on account
of the indemnity agreement contained in Section 6(a) or Section 6(b) of this
Agreement, unless the indemnifying party was prejudiced by such omission, and in
no event shall relieve the indemnifying party from any other liability which it
may have to such indemnified party. In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, that if any indemnified party
or parties reasonably determine that there may be legal defenses available to
such indemnified party that are different from or in addition to those available
to such indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of interest,
then such indemnifying party shall not be entitled to assume such defense. If an
indemnifying party is not entitled to assume the defense of such action as a
result of the proviso to the preceding sentence, counsel for such indemnifying
party shall be entitled to conduct the defense of such indemnifying party and
counsel for the indemnified party shall be entitled to conduct the defense of
such indemnified party or parties. If an indemnifying party assumes the defense
of an action in accordance with and as permitted by the provisions of this
paragraph, such indemnifying party shall not be liable to such indemnified party
under Section 6(a) or Section 6(b) of this Agreement for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. In no event shall
the indemnifying party be liable for the fees and expenses of more than one
counsel (in addition to local counsel) separate from its own counsel for all
indemnified parties in connection with any
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one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. The indemnifying
party shall not be liable for any settlement of any action or proceeding
effected without its written consent, but if settled with its written consent,
or if there be a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party shall indemnify and hold harmless the
indemnified persons from and against any loss or liability by reason of the
settlement or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided for in this Section 6 is for any
reason held to be unavailable to the indemnified parties although applicable in
accordance with its terms, the Company and Purchaser shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity incurred by the Company and Purchaser, as
incurred; provided that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person that was not guilty of such fraudulent
misrepresentation. As between the Company, on the one hand, and Purchaser, on
the other hand, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company, on the one hand, and the Purchaser, on the other
hand, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault of the Company,
on the one hand, and of the Purchaser, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by or on
behalf of the Purchaser, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 6 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the relevant equitable considerations. For purposes of
this Section 6(d), each person who controls the Company or the Purchaser within
the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as Purchaser or the Company, as the case may be. No party shall be
liable for contribution with respect to any action, suit, proceeding or claim
settled without its written consent.
(e) The Company may require, as a condition to entering into any
underwriting agreement with respect to the registration of Subject Stock, that
the Company shall have received an undertaking reasonably satisfactory to it
from each underwriter named in any such underwriting agreement, severally and
not jointly, to comply with the provisions of paragraphs (a) through (d) of this
Section 6.
(f) The obligations of the Company and Purchaser under this Section 6
shall survive the completion of any offering of Subject Stock in a registration
statement.
7. Notices. Any notice or other communication given under this Agreement
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shall be sufficient if in writing and sent by registered or certified mail,
return receipt requested, postage prepaid, to a party at its address set forth
below (or at such other address as shall be designated for such purpose by such
party in a written notice to the other party hereto):
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(a) if to the Company, to it at:
SeaChange International Inc.
124 Acton Street
Maynard, MA 01754
Facsimile Number: (978) 897-9590
Attention: Mr. William L. Fiedler
with a copy to:
William B. Simmons, Jr., Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
Facsimile Number: (617) 248-7100
(b) if to the Purchaser, to it at:
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Attention: Chief Financial Officer
Facsimile Number: (425) 936-7369
with a copy addressed as set forth above but to the attention of
Deputy General Counsel, Finance and Operations, facsimile number:
(425) 869-1327
with a copy to:
Richard B. Dodd, Esq.
Preston Gates & Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, WA 98104-7078
Facsimile Number: (206) 623-7022
All such notices and communications shall be effective when received by the
addressee.
8. Governing Law. This Agreement shall be governed in all respects by the
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internal laws of the State of Delaware as applied to contracts entered into
solely between residents of, and to be performed entirely within, such state,
and without reference to principles of conflicts of laws or choice of laws.
9. Entire Agreement; Amendments. This Agreement constitutes the full and
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entire understanding and agreement between the parties with regard to the
subject matter hereof and supersedes all prior agreements and understandings
among the parties relating to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
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10. Successors and Assigns. This Agreement shall be binding upon and shall
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inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Severability. If any term, provision, covenant or restriction of this
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Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restriction
of this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
12. Termination of Company Obligation. All registration rights provided
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hereunder shall terminate upon the earlier of (i) the third anniversary of the
date of this Agreement or (ii) the ability of the Purchaser to sell within a
single three month period pursuant to Rule 144 or Rule 144(k) of the Securities
Act all of the shares of Common Stock acquired by Purchaser pursuant to the
Purchase Agreement and then held by Purchaser.
13. Counterparts This Agreement may be executed in two or more partially
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or fully executed counterparts and by facsimile signatures each of which shall
be deemed an original and shall bind the signatory, but all of which together
shall constitute but one and the same instrument. The execution and delivery of
a Signature Page - Registration Rights Agreement in the form attached to this
Agreement by any party hereto who shall have been furnished the final form of
this Agreement shall constitute the execution and delivery of this Agreement by
such party.
14. No Transfer or Assignment of Registration Rights. The registration
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rights set forth in this Agreement shall not be transferable or assignable by
the Purchaser, except to (i) any person or group approved in writing by the
Company; or (ii) a corporation of which the Purchaser owns more than 50% of the
voting power entitled to be cast in the election of directors; provided,
however, that each transferee agrees in writing to be subject to all the terms
and conditions of this Agreement and the Purchase Agreement and in the case of a
transfer permitted by (ii) the number of shares shall not represent less than
50% of the shares initially acquired by the Purchaser.
15. Interpretation. The words "include," "includes," and "including" when
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used therein shall be deemed in each case to be followed by the words "without
limitation." The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
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SIGNATURE PAGE-REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date set forth above.
SEACHANGE INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ W.L. Fiedler
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Name: W.L. FIEDLER
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Title: VICE PRESIDENT
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MICROSOFT CORPORATION,
a Washington corporation
By: /s/ Amar Nehru
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Name: Amar Nehru
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Title: Corporate Development VP
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