EXHIBIT 7(B)
VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of September 26, 2002 (this
"AGREEMENT"), by and among OpenTV Corp., a company organized under the laws of
the British Virgin Islands ("PARENT") and the stockholders of ACTV, Inc., a
Delaware corporation (the "COMPANY"), listed on Exhibit A attached hereto (each,
a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS"). Capitalized terms used
but not defined herein shall have the meaning set forth in the Merger Agreement
(as defined below).
RECITALS
WHEREAS, Parent, the Company and ACTV Merger Sub, Inc., a
Delaware corporation and a wholly owned subsidiary of Parent ("MERGER SUB"),
propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (as such agreement may be modified or amended from time to time, the
"MERGER AGREEMENT"), providing for the merger of Merger Sub with and into the
Company, with the Company as the surviving corporation in the merger (the
"MERGER"), upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, each Stockholder owns certain shares of common stock,
par value $0.10 per share, of the Company (the "COMMON STOCK"); and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that each Stockholder
enter into this Agreement.
NOW, THEREFORE, to induce Parent and Merger Sub to enter into,
and in consideration of their entering into, the Merger Agreement, and in
consideration of the promises and the representations, warranties and agreements
contained herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each of the
Stockholders represents and warrants to Parent that (a) such Stockholder owns
beneficially (as defined below) the number of shares of Common Stock set forth
opposite such Stockholder's name on Exhibit A attached hereto (such shares of
Common Stock, the "SUBJECT SHARES"), free and clear of all Liens or Restrictions
and, except for this Agreement and the Merger Agreement, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder is a party relating to the pledge,
disposition or Voting (as defined in Section 2) of such Subject Shares and there
are no Voting trusts or Voting agreements with respect to such Subject Shares,
(b) such Stockholder does not beneficially own any shares of Common Stock other
than such Stockholder's Subject Shares and does not have any options, warrants
or other rights to acquire any additional shares of capital stock of the Company
or any security exercisable for or convertible into shares of capital stock of
the Company other than those options, warrants or other rights set forth
opposite such Stockholder's name on Exhibit A hereto (such Stockholder's
"OPTIONS") and each Stockholder represents and warrants that such Stockholder
shall not exercise any such Options prior to the termination of this Agreement
except in accordance with Section 7 of this Agreement, (c) such Stockholder has
not appointed
or granted any proxy, which appointment or grant is still effective with respect
to the Subject Shares or any New Shares, (d) if such Stockholder is not a
natural person, such Stockholder is duly incorporated or organized and validly
existing under the laws of its jurisdiction of incorporation or organization and
is duly authorized to do business and is in good standing under the laws of its
jurisdiction of incorporation or organization and if such Stockholder is a
natural person, such Stockholder has the capacity to enter into this Agreement,
(e) such Stockholder has full power and authority to enter into, execute and
deliver this Agreement and to perform fully such Stockholder's obligations
hereunder and this Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms (except
insofar as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or by principles governing the availability of equitable remedies),
(f) other than filings under the Exchange Act, no notices, reports or other
filings are required to be made by such Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
such Stockholder from, any Governmental Entity, in connection with the execution
and delivery of this Agreement by such Stockholder, and (g) the execution,
delivery and performance of this Agreement by such Stockholder does not, and the
consummation by such Stockholder of the transactions contemplated hereby will
not, (i) violate, conflict with or constitute a breach of, or a default under,
the certificate of incorporation or by-laws of such Stockholder or any or their
comparable governing instruments (if such Stockholder is not a natural person),
(ii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, modification or acceleration) (whether after the
giving of notice or the passage of time or both) under any Contract to which
such Stockholder is a party or by which any of its assets are bound, (iii) will
not result in the creation of any Lien on any of the assets of such Stockholder
or (iv) result in a violation of, under or pursuant to any law, rule,
regulation, order, judgment or decree applicable to such Stockholder or by which
any of its assets are bound. For the purposes of this Agreement, a Person
"beneficially" owns a security if such Person, directly or indirectly, through
any contract, arrangement, understanding or otherwise has (A) the power to vote,
or direct the vote of such security and (B) the power to dispose, or direct the
disposition of such security.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders
severally agrees to deliver to Parent on the date hereof an irrevocable proxy
substantially in the form attached hereto as Exhibit B to Vote such
Stockholder's Subject Shares (a) in favor of approval and adoption of the Merger
Agreement, the Merger and the other transactions contemplated by the Merger
Agreement (the Merger together with such transactions, collectively, the
"TRANSACTIONS") at any meeting of the stockholders of the Company at which such
matters are considered and at every adjournment or postponement thereof, (b)
against any action, approval or agreement that would compete with or materially
impede, interfere with, adversely affect or tend to discourage the Transactions
or inhibit the timely consummation of the Transactions, including, without
limitation, any Alternative Proposal, (c) against any action, approval or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the Company under the
Merger Agreement and (d) except for the Transactions, against any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
subsidiaries, in each case, to the same extent and with the same effect as such
Stockholder might or could do under
applicable law, rules and regulations. The proxy delivered by each of the
Stockholders pursuant to this Section 2 shall be irrevocable during the term of
this Agreement to the extent permitted under Delaware law. For purposes of this
Agreement, "VOTE" shall include voting in person or by proxy in favor of or
against any action, otherwise consenting or withholding consent in respect of
any action (including, without limitation, consenting in accordance with Section
228 of the DGCL) or taking other action in favor of or against any action.
"VOTING" shall have a correlative meaning. Each of the Stockholders hereby
revokes any and all previous proxies granted with respect to any of the Subject
Shares and shall not hereafter, unless and until this Agreement terminates
pursuant to Section 10 hereof, purport to grant any other proxy or power of
attorney with respect to any of the Subject Shares or the New Shares or enter
into any agreement (other than this Agreement), arrangement or understanding
with any Person, directly or indirectly, to vote, grant any proxy or give
instructions with respect to the voting of any of the Subject Shares or the New
Shares covering the subject matter hereof. Each Stockholder also severally
agrees to use its reasonable best efforts to take, or cause to be taken, all
action, and do, or cause to be done, all things necessary or advisable in order
to consummate and make effective the transactions contemplated by this
Agreement. Each of the Stockholders acknowledges receipt and review of a copy of
the Merger Agreement.
3. NO PROXY SOLICITATIONS. Each of the Stockholders severally
agrees that such Stockholder will not, nor will such Stockholder permit any
entity or person under such Stockholder's control, (a) to solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act) in opposition to or in competition with
the consummation of the Transactions or otherwise encourage or assist any party
in taking or planning any action which would compete with or materially impede,
interfere with, adversely effect or tend to discourage the Transactions or
inhibit the timely consummation of such Transactions, (b) to directly or
indirectly encourage, initiate or cooperate in a stockholders' Vote or action by
consent of the Company's stockholders in opposition to or in competition with
the consummation of the Transactions or (c) to become a member of a "group" (as
such term is used in Section 13(d) of the Exchange Act) with respect to any
voting securities of the Company for the purpose of opposing or competing with
the consummation of the Transactions.
4. FIDUCIARY DUTIES. Notwithstanding anything to the contrary
in this Agreement, none of the agreements of the Stockholders contained herein
shall restrict any Stockholder who is a director or an officer of the Company
from taking any action, in his or her capacity, respectively, (a) as a director,
if such director believes such action is necessary to satisfy such director's
fiduciary duties to the stockholders of the Company, or (b) as an officer, if
such officer is acting at the direction of the Company Board and in accordance
with the terms and provisions of the Merger Agreement, including, without
limitation, Section 6.5 thereof.
5. NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Parent or Merger Sub any direct or indirect ownership
or incidence of ownership of or with respect to any Subject Shares. All rights,
ownership and economic benefits of and relating to the Subject Shares shall
remain vested in and belong to the Stockholders, and Parent and Merger Sub shall
have no authority to manage, direct, superintend, restrict, regulate, govern or
administer any of the policies or operations of the Company or exercise any
power or authority to direct the Stockholders in the voting of any of the
Subject Shares, except as otherwise provided herein.
6. TRANSFER AND ENCUMBRANCE. On or after the date hereof and
during the term of this Agreement, each of the Stockholders agrees not to
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any
of such Stockholder's Subject Shares, Options or New Shares (as defined in
Section 7).
7. ADDITIONAL PURCHASES. Each of the Stockholders severally
agrees that such Stockholder will not purchase or otherwise acquire beneficial
ownership of any shares of Common Stock after the execution of this Agreement,
including, but not limited to, acquisition by virtue of exercising any Option
(such shares of Common Stock, "NEW SHARES"), nor will any Stockholder
voluntarily acquire the right to Vote or share in the Voting of any shares of
Common Stock other than the Subject Shares, unless such Stockholder agrees to
deliver to Parent immediately after such purchase or acquisition an irrevocable
proxy substantially in the form attached hereto as Exhibit C with respect to
such New Shares. Each of the Stockholders also severally agrees that any New
Shares acquired or purchased by such Stockholder shall be subject to the terms
of this Agreement to the same extent as if they constituted Subject Shares.
8. NO VOTING TRUSTS. Each of the Stockholders severally agrees
that such Stockholder will not, nor will such Stockholder permit any Person
under such Stockholder's control to, deposit any of such Stockholder's Subject
Shares or New Shares in a Voting trust or subject any of such Stockholder's
Subject Shares or New Shares to any arrangement with respect to the Voting of
the Subject Shares or New Shares inconsistent with this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto acknowledges that
it will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto agrees that injunctive relief or other
equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the granting of such relief on
the basis that the other party has an adequate remedy at law. Each party hereto
severally agrees that it will not seek, and agrees to waive any requirement for,
the securing or posting of a bond in connection with any other party's seeking
or obtaining equitable relief.
10. TERM AND TERMINATION. Subject to Section 14(i), the term
of this Agreement shall commence on the date hereof, and such term and this
Agreement shall terminate upon the earliest to occur of (i) the Effective Time
and (ii) the date on which the Merger Agreement is terminated in accordance with
its terms.
11. CERTAIN EVENTS. Each of the Stockholders severally agrees
that this Agreement and the obligations hereunder shall attach to such
Stockholder's Subject Shares or New Shares and shall be binding upon any entity
or person to which legal or beneficial ownership of such Subject Shares or New
Shares shall pass, whether by operation of law or otherwise, including such
Stockholder's heirs, guardians, administrators or successors.
12. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
(including the Exhibits and the other documents and instruments referred to
herein) constitutes the entire agreement and supersedes all prior agreements and
understandings, written or oral, among the
parties with respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by each of the parties hereto.
No waiver of any provisions hereof by any party shall be deemed a waiver of any
other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
13. NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
(by courier service or otherwise) or mailed, certified or registered mail with
postage prepaid, or sent by confirmed telecopier, as follows:
(a) If to Parent:
OpenTV Corp.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Liberty Broadband Interactive Television, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx III
Facsimile: (000) 000-0000
with an additional copy to:
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to a Stockholder:
c/o ACTV, Inc.
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Savage, Kaplowitz, Wolf & Marcus, LLP
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other Person or address as any party shall specify by notice in
writing to the other party. Any such notice shall be deemed to have been given
(i) upon actual delivery, if delivered by hand, (ii) on the third (3rd) business
day following deposit of such notice, properly addressed with postage prepaid,
with the United States Postal Service if mailed by registered or certified mail,
return receipt requested, or (iii) upon sending such notice, if sent via
facsimile, with confirmation of receipt, except that any notice of change of
address shall be effective only upon actual receipt thereof.
14. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE
IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the Federal courts of the United States of America located in the State of
Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to in this Agreement,
and in respect of the transactions contemplated hereby, and hereby waive, and
agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement or any such document may not be enforced in or by such
courts, and the parties hereto irrevocably agree that all claims with respect to
such action or proceeding shall be heard and determined in such a Delaware State
or Federal court. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of such
dispute and agree that mailing of process or other papers in connection with any
such action or proceeding in the manner provided in Section 13 of this Agreement
or in such other manner as may be permitted by law shall be valid and sufficient
service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 14(b).
(c) SEVERABILITY. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "invalid provision"),
then such provision shall be severed from this Agreement and the remaining
provisions of this Agreement shall remain binding on the parties hereto. Without
limiting the generality of the foregoing sentence, in the event a change in any
applicable law, rule or regulation makes it unlawful for a party to comply with
any of its obligations hereunder, the parties shall negotiate in good faith a
modification to such obligation to the extent necessary to comply with such law,
rule or regulation that is as similar in terms to the original obligation as may
be possible while preserving the original intentions and economic positions of
the parties as set forth herein to the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(e) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(f) HEADINGS. All Section headings herein are for convenience
of reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(g) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
(h) ASSIGNMENT. Neither any Stockholder nor Parent may assign
any of his, her or its rights or obligations under this Agreement without the
prior written consent of the other parties hereto, except that Parent may assign
its rights and obligations hereunder to any of its direct or indirect wholly
owned subsidiaries (including Merger Sub), but no such assignment shall relieve
Parent of its obligations hereunder if such transferee does not perform such
obligations. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
(i) EFFECTIVENESS. The obligations of the Stockholders set
forth in this Agreement shall not be effective or binding upon the Stockholders
until after such time as the Merger Agreement is executed and delivered by
Parent, Merger Sub and the Company.
(j) JOINT PARTICIPATION IN DRAFTING THIS AGREEMENT. The
parties acknowledge and confirm that each of their respective attorneys have
participated jointly in the drafting, review and revision of this Agreement and
that it has not been written solely by counsel for one party and that each party
has had the benefit of its independent legal counsel's advice with respect to
the terms and provisions hereof and its rights and obligations hereunder. Each
party hereto, therefore, stipulates and agrees that the rule of construction to
the effect that any ambiguities are to be or may be resolved against the
drafting party shall not be employed in the interpretation of this Agreement to
favor any party against another and that no party shall have the benefit of any
legal presumption or the detriment of any burden of proof by reason of any
ambiguity or uncertain meaning contained in this Agreement.
(k) EXPENSES. Whether or not the Transactions are consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby will be paid by the party incurring such cost
or expense.
(l) PUBLIC ANNOUNCEMENTS. Without the prior written consent of
Parent, none of the Stockholders shall issue any press release or make any
public statements with respect to this Agreement, the Merger Agreement or the
Transactions, except as may be required by applicable law or court process.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
OPENTV CORP.
By: ____________________________________
Name:
Title:
XXXXX XXXXX
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XXXXXXX XXXXXXX
By: ____________________________________
Name:
Title:
XXXXX XXXXXXX
By: ____________________________________
Name:
Title:
