As filed with the Securities and Exchange Commission on December 6, 1996
Registration No. 33-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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SEACHANGE INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Delaware 04-3197974
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
124 Acton Street, Maynard, Massachusetts 01754
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(Address of principal executive offices) (Zip Code)
Amended and Restated 1995 Stock Option Plan
1996 Non-Employee Director Stock Option Plan
1996 Employee Stock Purchase Plan
---------------------------------
(Full title of the plans)
William C. Styslinger, III
President, Chief Executive Officer and Chairman
SEACHANGE INTERNATIONAL, INC.
124 Acton Street
Maynard, Massachusetts 01754
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(Name and address of agent for service)
(508) 897-0100
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(Telephone number, including area code, of agent for service)
Copy to:
William B. Simmons, Jr., Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower
125 High Street
Boston, MA 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
- ----------------------------------------------------------------------------------------------------
Amended and Restated
1995 Stock Option Plan 715,409 shares $ 4.67(1) $ 3,338,185 $ 1,011.57
Common Stock,
$.01 par value
Amended and Restated
1995 Stock Option Plan
Common Stock, 1,225,369 shares $ 24.875(2) $30,481,054 $ 9,236.68
$.01 par value
1996 Non-Employee
Director Stock Option
Plan
Common Stock,
$.01 par value 10,125 shares $ 7.33(1) $ 74,250 $ 22.50
1996 Non-Employee
Director Stock Option
Plan
Common Stock,
$.01 par value 19,875 shares $ 24.875(2) $ 494,391 $ 149.82
1996 Employee Stock
Purchase Plan
Common Stock,
$.01 par value 300,000 shares $ 24.875(2) $ 7,462,500 $ 2,261.36
Total: 2,270,778 shares $12,681.93
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(1) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price and
the fee have been computed upon the basis of the price at which the options
may be exercised. The offering price per share set forth for such shares
is the weighted average exercise price per share at which such options are
exercisable.
(2) The price of $24.875 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on December 2, 1996, is set
forth solely for purposes of calculating the filing fee pursuant to Rule
457(c) and has been used only for those shares without a fixed exercise
price.
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2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
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The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated November 4, 1996, contained in the
Registrant's Registration Statement No. 333-12233 on Form S-1,
as amended (the "Form S-1"), as filed with the Commission on
November 5, 1996;
(b) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement
on Form 8-A, filed pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on
September 18, 1996;
(c) Registrant's Quarterly Report on Form 10-Q, as filed with the
Commission on December 3, 1996.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters
3
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Registrant's Amended and Restated Certificate of Incorporation
incorporates substantially the provisions of the General Corporation Law of the
State of Delaware providing for indemnification of directors, officers,
employees and agents of the Registrant against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
officer, director, employee, agent or controlling stockholder of the Registrant.
In addition, the Registrant is authorized to enter into indemnification
agreements with its directors and officers providing mandatory indemnification
to them to the maximum extent permissible under Delaware law.
As permitted under Delaware law, the Registrant's Amended and Restated
Certificate of Incorporation provides for the elimination of the personal
liability of a director to the corporation and its stockholders for monetary
damages arising from a breach of the director's fiduciary duty of care. The
provision is limited to monetary damages, applies only to a director's actions
while acting within his capacity as a director, and does not entitle the
Registrant to limit direct liability for any judgment resulting from (a) any
breach of the director's duty of loyalty to the Registrant or its stockholders;
(b) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law; (c) paying an illegal dividend or approving
an illegal stock repurchase; or (d) any transaction from which the director
derived an improper benefit. In addition, Section 145 of the General
Corporation Law of the State of Delaware provides generally that a person sued
as a director, officer, employee or agent of a corporation may be indemnified by
the corporation for reasonable expenses, including counsel fees, if in the case
of other than derivative suits, he has acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation (and in the case of a criminal proceeding, had no reasonable cause
to believe that his conduct was unlawful). In the case of a derivative suit, an
officer, employee or agent of the corporation who is not protected by the
Certificate of Incorporation may be indemnified by the corporation for
reasonable expenses, including attorneys' fees, if he has acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
the case of a derivative suit in respect of any claim as to which an officer,
employee or agent has been adjudged to be liable to the corporation unless the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine that such person is fairly and reasonably entitled to indemnity
for proper expenses. Indemnification is mandatory in the case of a director,
officer, employee, agent or controlling stockholder who is successful on the
merits in defense of a suit against him.
4
The Registrant maintains directors and officers liability insurance for
the benefit of its directors and certain of its officers.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits
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Exhibit No. Description of Exhibit
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Exhibit 4.1 Specimen certificate representing the Common Stock of the
Registrant (filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-12233)
and incorporated herein by reference).
Exhibit 4.2 Amended and Restated Certificate of Incorporation of the
Registrant.
Exhibit 4.3 Amended and Restated By-Laws of the Registrant.
Exhibit 4.4 Form of Stock Restriction Agreement of the Registrant
(filed as Exhibit 4.3 to the Registrant's Registration
Statement on Form S-1 (File No. 333-12233) and
incorporated herein by reference).
Exhibit 4.5 Form of Stock Restriction Agreement Amendment of the
Registrant (filed as Exhibit 4.4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-12233)
and incorporated herein by reference).
Exhibit 4.6 Amended and Restated 1995 Stock Option Plan (filed as
Exhibit 10.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-12233) and incorporated herein
by reference).
Exhibit 4.7 1996 Non-Employee Director Stock Option Plan (filed as
Exhibit 10.2 to the Registrant's Registration Statement
on Form S-1 (File No. 333-12233) and incorporated herein
by reference).
Exhibit 4.8 1996 Employee Stock Purchase Plan.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Price Waterhouse LLP.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page
to this Registration Statement).
Item 9. Undertakings.
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(a) 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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
registration statement.
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report
6
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, 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 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 Act and
will be governed by the final adjudication of such issue.
7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
SeaChange International, Inc., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Maynard, Commonwealth of
Massachusetts, on this 6th day of December, 1996.
SEACHANGE INTERNATIONAL, INC.
By:/s/ Joseph S. Tibbetts, Jr.
---------------------------
Joseph S. Tibbetts, Jr.
Vice President, Finance and
Administration, Chief Financial Officer
and Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, William C.
Styslinger, III and Joseph S. Tibbetts, Jr., his attorneys-in-fact, each with
the power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 (including post-effective
amendments), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- -------------------- ---------------- -----------
/s/ William C. Styslinger, III President, Chief Executive December 6, 1996
- ------------------------------ Officer, Chairman of the Board
William C. Styslinger, III and Director (Principal
Executive Officer)
/s/ Joseph S. Tibbetts, Jr. Vice President, Finance and December 6, 1996
- --------------------------- Administration, Chief Financial
Joseph S. Tibbetts, Jr. Officer and Treasurer (Principal
Financial and Accounting Officer)
/s/ Martin R. Hoffmann Director December 6, 1996
- ---------------------------
Martin R. Hoffmann
/s/ Edward J. McGrath Director December 6, 1996
- ---------------------------
Edward J. McGrath
/s/ Paul Saunders Director December 6, 1996
- ---------------------------
Paul Saunders
/s/ Carmine Vona Director December 6, 1996
- ---------------------------
Carmine Vona
INDEX TO EXHIBITS
Exhibit No. Description Page
- ----------- ----------- ----
Exhibit 4.1 Specimen certificate representing the Common Stock of the
Registrant (filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-12233) and incorporated
herein by reference).
Exhibit 4.2 Amended and Restated Certificate of Incorporation of the
Registrant.
Exhibit 4.3 Amended and Restated By-Laws of the Registrant.
Exhibit 4.4 Form of Stock Restriction Agreement of the Registrant (filed as
Exhibit 4.3 to the Registrant's Registration Statement on Form S-
1 (File No. 333-12233) and incorporated herein by reference).
Exhibit 4.5 Form of Stock Restriction Agreement Amendment of the Registrant
(filed as Exhibit 4.4 to the Registrant's Registration Statement
on Form S-1 (File No. 333-12233) and incorporated herein by
reference).
Exhibit 4.6 Amended and Restated 1995 Stock Option Plan (filed as Exhibit
10.1 to the Registrant's Registration Statement on Form S-1 (File
No. 333-12233) and incorporated herein by reference).
Exhibit 4.7 1996 Non-Employee Director Stock Option Plan (filed as Exhibit
10.2 to the Registrant's Registration Statement on Form S-1 (File
No. 333-12233) and incorporated herein by reference).
Exhibit 4.8 1996 Employee Stock Purchase Plan.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Price Waterhouse LLP.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page to this
Registration Statement).