EXHIBIT 10.34
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of September 7, 2005, by and among OpenTV Corp., a company
organized under the laws of the British Virgin Islands ("OpenTV"), CAM Systems,
L.L.C., a Delaware limited liability company ("CAMS"), and StarNet, L.P., a
Pennsylvania limited partnership ("StarNet," and together with CAMS, the
"Initial Holders").
WHEREAS, OpenTV and the Initial Holders are parties to an Asset
Purchase Agreement, dated September 7, 2005 (the "Asset Purchase Agreement"),
pursuant to which OpenTV will acquire certain assets of the Initial Holders in
exchange for cash and Class A Ordinary Shares of OpenTV as set forth in the
Asset Purchase Agreement; and
WHEREAS, the Asset Purchase Agreement contemplates that OpenTV will
enter into this Agreement with the Initial Holders to provide them with certain
registration rights with respect to the Class A Ordinary Shares of OpenTV to be
issued to the Initial Holders in accordance with the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meaning ascribed to them in the Asset Purchase
Agreement. The following terms, as used herein, have the following meanings:
"Affiliate" means with respect to any specified Person, an
"affiliate," as defined in Rule 144, of such Person.
"Class A Ordinary Shares" means the Class A Ordinary Shares, no par
value, of OpenTV, or if applicable, the class of common stock or ordinary shares
of OpenTV into which the Class A Ordinary Shares of OpenTV may be converted by
reason of any reclassification, recapitalization, split-up, stock combination,
domestication transaction, exchange of shares, readjustment or otherwise.
"Commission" means the Securities and Exchange Commission.
"Demand Notice" has the meaning set forth in Section 2.01(a).
"Demand Registration" has the meaning set forth in Section 2.01(a).
"Disclosure Condition" has the meaning set forth in Section 2.01(d).
"Effective Date" has the meaning set forth in Section 2.01(b).
"Effectiveness Period" has the meaning set forth in Section 2.01(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means each of the Initial Holders and each of their
respective Permitted Transferees who agree to be bound by the provisions of this
Agreement in accordance with Section 2.05.
"Indemnified Party" has the meaning set forth in Section 3.03.
"Indemnifying Party" has the meaning set forth in Section 3.03.
"OpenTV Class A Share Value" as of any date means the last sale
price (or, if no sale price is reported on such day, the average of the quoted
high bid and low ask prices on such day) of a Class A Ordinary Share on the
Nasdaq Stock Market (or, if Class A Ordinary Shares are not traded on the Nasdaq
Stock Market, such other securities exchange or national market system on which
such shares are traded).
"Permitted Transferee" shall have the meaning set forth in Section
2.05.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, governmental authority or other
entity.
"Piggyback Registration" has the meaning set forth in Section
2.02(a).
"Prospectus" means the prospectus related to any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance on Rule 415 under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference in such
prospectus.
"Public Offering" means any public offering of Registrable
Securities pursuant to an effective registration statement under the Securities
Act other than pursuant to a registration statement on Form S-8 or S-4, or any
successor or similar forms.
"Registrable Securities" means the Class A Ordinary Shares issued to
the Initial Holders pursuant to the Asset Purchase Agreement, and any other
Class A Ordinary Shares issued to the Initial Holders in respect of such shares,
including by way of a stock split or stock dividend, in connection with a
recapitalization or a merger, consolidation or other reorganization, or pursuant
to a distribution; provided that such securities shall cease to be Registrable
Securities if and when (i) a registration statement with respect to the
disposition of such securities shall have become effective under the Securities
Act and such securities shall have been disposed of pursuant to such effective
registration statement, (ii) such securities shall have been sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) are met, (iii) such shares are no longer held
by the Initial Holders or any of their respective Permitted Transferees, (iv)
such securities may be sold pursuant to Rule 144(k) or otherwise in the public
market without being registered pursuant to the Securities Act or (v) such
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securities shall have ceased to be outstanding; provided that any such
securities that have ceased to be Registrable Securities pursuant to clauses
(i), (ii) or (iii) above cannot thereafter become Registrable Securities, and
securities that are issued or distributed following the date of such sale or
other transfer specified in clauses (i), (ii) or (iii) above by way of dividends
in respect of such securities that have ceased to be Registrable Securities
shall not be Registrable Securities.
"Registration Expenses" means all (i) registration, qualification
and filing fees with the Commission and other regulatory agencies or
organizations, (ii) fees and expenses of compliance with securities or blue sky
laws, (iii) printing expenses, (iv) fees and disbursements of counsel for
OpenTV, (v) customary fees and expenses for independent certified public
accountants retained by OpenTV (including the expenses of any comfort letters or
costs associated with the delivery by independent certified public accountants
of a comfort letter or comfort letters), and (vi) fees and expenses of listing
the Registrable Securities on a securities exchange; but shall not include any
underwriting fees or discounts or commissions attributable to the sale of
Registrable Securities or any fees or expenses of counsel for any Initial
Holders or any Permitted Transferee.
"Registration Notice" has the meaning set forth in Section 2.01(a).
"Registration Statement" means any Registration Statement of OpenTV
under the Securities Act that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the related Prospectus, any
preliminary prospectus, all amendments and supplements to such registration
statement (including post-effective amendments), all exhibits and all material
incorporated by references or deemed to be incorporated by reference in such
registration statement.
"Rule 144" means Rule 144 under the Securities Act including any
successor statute.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.01. Demand Registration.
(a) Requests for Registration. Subject to the conditions set forth
in this Agreement, each Initial Holder (and its Permitted Transferees) shall
have the right, exercisable by written notice delivered to OpenTV (a "Demand
Notice"), to require OpenTV to register Registrable Securities under and in
accordance with the Securities Act (a "Demand Registration"), provided that all,
and not less than all, of the outstanding Registrable Securities held
beneficially or of record by the demanding party are registered pursuant to the
Demand Registration and any of the demanding party's Permitted Transferees (or
if the demanding party is a Permitted Transferee, all Registrable Securities of
such Permitted Transferee and the Initial Holder or Initial Holders from whom
such Registrable Securities were transferred). Within ten (10) days after
receipt of a Demand Notice, OpenTV shall provide written notice thereof (the
"Registration Notice") to all other Holders and shall include in any Demand
Registration required under this Section 2.01 all Registrable Securities with
respect to which OpenTV
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receives written requests for inclusion therein within ten (10) days after such
Registration Notice is given to the applicable Holder.
(b) Filing and Effectiveness. Subject to Sections 2.01(c) and
2.01(d), OpenTV shall file a Registration Statement relating to any Demand
Registration as promptly as practicable (but in any event within 90 days after
receipt of the Demand Notice in the case of a registration made on Form S-1, or
a comparable successor form, as applicable, or 30 days after receipt of the
Demand Notice in the case of any registration eligible to be made on Form S-3,
or a comparable successor form, as applicable) following the date on which the
Registration Notice is required to be given, and will use its reasonable efforts
to cause the same to be declared effective by the Commission as soon as
practicable thereafter (the date such Registration Statement is declared
effective being hereinafter referred to as the "Effective Date"). Subject to
Section 2.01(d), OpenTV shall use reasonable best efforts to cause any
Registration Statement relating to any Demand Registration to remain effective
until the sooner to occur of the sale of all of the Registrable Securities
covered by such Registration Statement or the 180th day following the Effective
Date of such Registration Statement (such period being the "Effectiveness
Period").
(c) Limitations on Demand Registration. Notwithstanding anything to
the contrary in any other provision of this Agreement, OpenTV will not be
required to effect a Demand Registration pursuant to this Section 2.01:
(i) prior to one hundred eighty (180) days following the Closing
Date;
(ii) if, on the date it receives any Demand Notice, OpenTV had
previously filed with the Commission a Registration Statement pursuant to
this Section 2.01, and is not then eligible to register Registrable
Securities pursuant to such Demand Notice on Form S-3 or a comparable
successor form; or
(iii) if OpenTV has previously filed two (2) Registration Statements
pursuant to this Section 2.01.
(d) Blackout Periods. With respect to any Registration Statement
filed or to be filed pursuant to this Section 2.01, if OpenTV shall determine,
in its good faith judgment, that to maintain the effectiveness of such
Registration Statement (or, if no Registration Statement has yet been filed, to
file such a Registration Statement) would (i) interfere with or adversely affect
any financing, acquisition, corporate reorganization or other material
transaction or development involving OpenTV or any of its Affiliates, or (ii)
require OpenTV to disclose matters that otherwise would not be required to be
disclosed at such time (each, a "Disclosure Condition"), OpenTV may, for a
period of not more than 120 days from the date of such determination, require
the suspension by each Holder of the distribution of any Registrable Securities
(or, if no Registration Statement has yet been filed, delay the filing thereof)
by giving notice to each Holder; provided, however, that no single suspension
shall extend for more than 120 days without the written consent of the affected
Holder(s), nor may the aggregate number of days in which the Holders are subject
to a suspension during any period of 12 consecutive months exceed 150 days. Any
such notice of suspension or delay need not specify the reasons for such
suspension or delay if OpenTV determines, in its good faith judgment, that doing
so could
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interfere with or adversely affect any such transaction or result in a
Disclosure Condition. In the event that such notice is given, then until OpenTV
has determined, in its good faith judgment, that such registration and offering
would no longer result in a Disclosure Condition and has given notice thereof to
each Holder, OpenTV's obligations under Section 2.01(b) will be suspended. In
the event of a suspension pursuant to this Section 2.01(d), the Effectiveness
Period of such Registration Statement shall be extended for a number of days
equal to the total number of days for which the distribution of Registrable
Securities included in such Registration Statement by the Holder has been
suspended under this Section 2.01(d).
(e) Plan of Distribution. Each Holder of Registrable Securities
included in any Registration Statement filed pursuant to this Section 2.01 shall
be named as a selling stockholder in such Registration Statement and related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of Registrable Securities in accordance with applicable law under
ordinary circumstances. The "Plan of Distribution" section of the Registration
Statement and prospectus shall be substantially in the form of Annex A hereto
(to the extent such inclusion is permitted under applicable Commission
regulations and is consistent with comments received from the Commission during
any Commission review of the Registration Statement). Notwithstanding the
foregoing, if the Holders who hold a majority in interest of the Registrable
Securities elect to have the distribution of Registrable Securities pursuant to
any Demand Registration be an underwritten offering, OpenTV shall have the right
to select a managing underwriter or co-managing underwriters of national
standing to administer the offering, which underwriters shall be reasonably
satisfactory to the Holders. If the Holders do not elect to pursue an
underwritten offering as contemplated in the previous sentence, OpenTV may, in
its sole discretion, elect that the distribution be in the form of an
underwritten Public Offering, in which event OpenTV shall have the right to
select the managing underwriter or co-managing underwriters for such Public
Offering, which underwriters shall be reasonably acceptable to the Initial
Holders.
(f) OpenTV's Right to Purchase. Notwithstanding anything to the
contrary contained herein, in the event OpenTV is required to file a
Registration Statement pursuant to a Demand Notice and all other Holders are
properly notified of such Demand Notice by OpenTV in accordance with Section
2.01(a), OpenTV shall have the option, in lieu of effecting any registration
hereunder, of purchasing or causing one or more of its designees to purchase all
of the Registrable Securities otherwise required to be included in such
Registration Statement, and in lieu of including any portion of such Registrable
Securities in a Registration Statement, of purchasing or causing the purchase of
such portion of Registrable Securities, in each case, at a per share price equal
to the OpenTV Class A Share Value thereof (reduced by an amount per share equal
to the anticipated underwriter or brokerage discounts and commissions (or other
items constituting compensation to the anticipated underwriter, agent or
broker-dealer), if any, upon such registered offering and any other expenses
that would be payable by a Holder pursuant to Section 2.04) on the date on which
the Demand Notice has been given to OpenTV. Notice of OpenTV's election to
exercise its option hereunder shall be furnished in writing by OpenTV to each
Holder whose Registrable Securities were to be included in the Demand
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Registration within five Business Days after the expiration of the ten-day
period in which each Holder shall have the right to notify OpenTV that such
Holder elects to participate in Demand Registration. Payment for any Registrable
Securities purchased by OpenTV hereunder shall be made to each Holder whose
Registrable Securities were to be included in the Demand Registration in
immediately available funds on a Business Day to be determined by OpenTV within
20 days of the date such Holder receives notice from OpenTV of OpenTV's decision
to exercise the option provided for in this Section 2.01(f). Upon any such sale,
each such Holder shall be deemed to have made the same representations and
warranties concerning its title to and ownership of its Registrable Securities
that are being so purchased and such Holder's power and authority to effect such
sale as would customarily be made by a selling stockholder to an underwriter in
an underwriting agreement with respect to a secondary distribution.
Section 2.02. Piggyback Registration.
(a) Right to Piggyback. At any time until the earlier of (i) the
second anniversary of the latest date that any shares of Series A Common Stock
are issued to any or all of the Initial Holders pursuant to Section 2.5 of the
Asset Purchase Agreement, and (ii) the earliest date which a Holder may publicly
sell all of such Holder's Registrable Securities without restriction pursuant to
Rule 144, each time OpenTV proposes to register under the Securities Act Class A
Ordinary Shares in a transaction for cash (other than in connection with a
dividend reinvestment, employee benefit, stock option or similar plan; an
offering of rights, warrants or securities directly or indirectly convertible
into or exchangeable or exercisable for Class A Ordinary Shares; a transaction
registered on Form S-4; or a registration solely for the account of OpenTV
pursuant to Rule 415 under the Securities Act), OpenTV shall give each Holder
holding Registrable Securities written notice of such proposed filing at least
fifteen (15) days before the anticipated filing date. The notice referred to in
the preceding sentence shall offer Holders the opportunity to register such
amount of Registrable Securities as each Holder may request (a "Piggyback
Registration"). Subject to Section 2.02(b), OpenTV will include in each such
Piggyback Registration all Registrable Securities with respect to which OpenTV
receives written requests for inclusion therein within fifteen (15) days after
the written notice from OpenTV is given.
(b) Priority on Piggyback Registrations. If the proposed method of
distribution in a Piggyback Registration is an underwritten public offering and
the managing underwriter thereof determines that the inclusion of Registrable
Securities would materially adversely affect the success of the offering, then
OpenTV shall be obligated to include in such Registration Statement only such
limited portion of the Registrable Securities with respect to which Holders have
requested inclusion hereunder as the underwriter shall permit after taking into
account all of the securities to be offered by OpenTV for its own account, if
any. Any exclusion of Registrable Securities shall be made pro rata among the
Holders seeking to include Registrable Securities, in proportion to the number
of Registrable Securities sought to be included by such Holders; provided,
however, that OpenTV shall not exclude any Registrable Securities unless it has
first excluded all outstanding securities, the holders of which are not
contractually entitled to inclusion of such securities in such Registration
Statement or are not contractually entitled to pro rata inclusion with the
Registrable Securities; and provided further, however, that, after giving effect
to the immediately preceding proviso, any exclusion of Registrable Securities
shall be made pro rata with holders of other securities having the contractual
right to include such securities in the Registration Statement other than
holders of securities contractually entitled to inclusion of their securities in
such Registration Statement by reason of demand registration rights. No right to
registration of Registrable Securities under this Section 2.02 shall be
construed to limit any registration required under Section 2.01 hereof. If an
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offering in connection with which a Holder is entitled to registration under
this Section 2.02 is an underwritten offering, then each Holder whose
Registrable Securities are included in such Registration Statement shall, unless
otherwise agreed by OpenTV, offer and sell such Registrable Securities in an
underwritten offering using the same underwriter or underwriters and, subject to
the provisions of this Agreement, on the same terms and conditions as other
securities included in such underwritten offering.
(c) Right to Terminate Piggyback Registration. OpenTV may, without
the consent of any Holder, delay, suspend, abandon or withdraw any Registration
Statement described in this Section 2.02 and any related proposed offering or
other distribution in which any Holder has requested the inclusion of such
Holder's Registrable Securities.
Section 2.03. Obligations with Respect to Registration.
(a) Obligations of OpenTV. If and whenever OpenTV is obligated by
the provisions of Sections 2.01 or 2.02 of this Agreement to effect the
registration of any Registrable Securities under the Securities Act, OpenTV
shall:
(i) subject to Sections 2.01(d) and 2.02(c), use reasonable efforts
to cause the Registration Statement to remain effective, and to prepare
and file with the Commission any amendments and supplements to the
Registration Statement and to the Prospectus used in connection therewith
as may be necessary to keep the Prospectus current and in compliance in
all material respects with the provisions of the Securities Act, during
the Effectiveness Period;
(ii) notify the Holders of Registrable Securities included in any
such Registration Statement, (A) when a Registration Statement becomes
effective, (B) when the filing of a post-effective amendment to a
Registration Statement or supplement to the Prospectus is required, when
the same is filed, and in the case of a post-effective amendment, when the
same becomes effective, (C) of any request by the Commission for any
amendment of or supplement to a Registration Statement or any Prospectus
relating thereto or for additional information and (D) of the entry of any
stop order suspending the effectiveness of such Registration Statement or
of the initiation of any proceedings for that purpose;
(iii) furnish to each Holder of Registrable Securities included in
any such Registration Statement a conformed copy of the Registration
Statement as declared effective by the Commission and of each
post-effective amendment thereto, and such number of copies of the final
Prospectus and of each supplement thereto as may reasonably be required to
facilitate the distribution of the Registrable Securities;
(iv) register or qualify the Registrable Securities covered by a
Registration Statement under the securities or blue sky laws of such
jurisdictions in the United States as the Holders of Registrable
Securities included in any such Registration Statement shall reasonably
request, and do any and all other acts and things which may be necessary
to enable each such Holder to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
OpenTV shall in no event be required to
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qualify to do business as a foreign corporation or a dealer in any
jurisdiction where it is not so qualified, to conform its capitalization
or the composition of its assets at the time to the securities or blue sky
laws of such jurisdiction, to execute or file any general consent to
service of process under the laws of any jurisdiction, to take any action
that would subject it to service of process in suits other than those
arising out of the offer and sale of the Registrable Securities covered by
such Registration Statement, or to subject itself to taxation in any
jurisdiction where it has not theretofore done so; and
(v) cause such Registrable Securities covered by a Registration
Statement to be listed on the principal exchange or exchanges or qualified
for trading on the principal over the counter market on which the Class A
Ordinary Shares are then listed or traded upon the sale of such
Registrable Securities pursuant to such Registration Statement.
(b) Obligations of Holders. OpenTV's obligations under this
Agreement with respect to a Holder shall be conditioned upon such Holder's
compliance with the following:
(i) such Holder shall cooperate with OpenTV in connection with the
preparation of the Registration Statement, and for so long as OpenTV is
obligated to keep the Registration Statement effective, such Holder will
provide to OpenTV, in writing, for use in the Registration Statement, all
information regarding such Holder and such other information as may be
necessary to enable OpenTV to prepare the Registration and Prospectus
covering the Registrable Securities and to maintain the currency and
effectiveness thereof;
(ii) such Holder shall permit OpenTV, the proposed underwriters,
agents or broker-dealers of the offering or other distribution and their
respective representatives and agents to examine such documents and
records and shall supply any information as they may reasonably request in
connection with the offering or other distribution in which such Holder
proposes to participate;
(iii) such Holder shall enter into such agreements with OpenTV and
any underwriter, broker-dealer or similar securities industry professional
containing representations, warranties, indemnities and agreements as are
in each case customarily entered into and made by selling stockholders,
and will cause its counsel to give any legal opinions customarily given,
in secondary distributions under similar circumstances;
(iv) during such time as such Holder may be engaged in a
distribution of the Registrable Securities, such Holder will comply with
all applicable laws including but not limited to Regulation M promulgated
under the Exchange Act and pursuant thereto will, among other things: (A)
not engage in any stabilization activity in connection with the securities
of OpenTV in contravention of such rules; (B) distribute the Registrable
Securities owned by such Holder solely in the manner described in the
Registration Statement; (C) cause to be furnished to each underwriter,
agent or broker-dealer to or through whom the Registrable Securities owned
by such Holder may be offered, or to the offeree if an offer is made
directly by the Holder, such copies of the Prospectus (as amended and
supplemented to such date) and documents incorporated by reference therein
as may be required by such underwriter, agent, broker-dealer or offeree;
and (D)
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not bid for or purchase any securities of OpenTV or attempt to induce any
person to purchase any securities of OpenTV other than as permitted under
the Exchange Act; and
(v) on notice from OpenTV of the happening of any of the events
specified in clauses (B), (C) or (D) of Section 2.03(a)(ii), or that, as
set forth in Section 2.01(d), it requires the suspension by such Holder of
the distribution of any of the Registrable Securities, then such Holder
shall cease offering or distributing the Registrable Securities until such
time as OpenTV notifies such Holder that offering and distribution of the
Registrable Securities may recommence.
Section 2.04. Expenses. Except as specifically provided herein,
OpenTV shall pay all Registration Expenses in connection with the registration
of Registrable Securities pursuant to Sections 2.01 and 2.02. Each Holder of
Registrable Securities included in a Registration Statement shall pay all fees
and expenses of counsel for such Holder and all underwriting discounts and
commissions, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to any Registration Statement.
Section 2.05. Transfer of Registration Rights. Each Initial Holder
shall have the right to transfer, by written agreement, any or all of its
registration rights granted under Sections 2.01 and 2.02 to any of H. Xxxxx
Xxxxxxx, X. X. Xxxxxxx, or any trust for the benefit of either of them (each, a
"Permitted Transferee"); provided, (i) that such Permitted Transferee must
agree, in writing in form and substance reasonably satisfactory to OpenTV, to be
bound by the terms and provisions of this Agreement (it being specifically
understood that any Permitted Transferee's delivery of any Prospectus to
purchasers of Registrable Securities shall be in accordance with the "Plan of
Distribution" section of the Registration Statement and Prospectus); and (ii)
that such transfer shall be effected in accordance with applicable securities
laws and any agreements between OpenTV and the Initial Holders. Following any
transfer or assignment made pursuant to this Section 2.05, the Initial Holders
shall retain all rights under this Agreement with respect to the Registrable
Securities that continue to be held by them.
Section 2.06. Termination of Registration Rights. The registration
rights granted pursuant to Section 2.02 and 2.03 of this Agreement shall
terminate as to any Holder, at the earlier of (i) two years after the latest
date on which such Holder received Registrable Securities, and (ii) such time as
such Holder is able to sell all Registrable Securities held by such Holder
pursuant to Rule 144(k).
Section 2.07. Market Stand-off. Each Holder agrees not to effect any
public sale or distribution, including any sale pursuant to Rule 144 or any
successor provision under the Securities Act, of any Registrable Securities
during the period beginning fourteen days prior to any planned public sale or
distribution of such securities of OpenTV (or, if later, two Business Days after
such Holder has received written notice of such planned public sale or
distribution) and ending on the date such securities are issued.
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ARTICLE 3
INDEMNIFICATION
Section 3.01. Indemnification By OpenTV. OpenTV agrees to indemnify
and hold harmless to the fullest extent permitted by law each holder of
Registrable Securities covered by a Registration Statement, its officers,
directors and agents, and each Person, if any, who controls such holder of
Registrable Securities within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities, joint or several and expenses caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus relating to the Registrable Securities (as
amended or supplemented if OpenTV shall have furnished any amendments or
supplements thereto) or any preliminary, summary or final Prospectus or any
amendments or supplements thereto, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and OpenTV will reimburse such
holders of Registrable Securities for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending such loss, claim,
damage, liability or expense except insofar as such losses, claims, damages,
liabilities or expenses are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to OpenTV by such holder or on such holder's behalf in either such case
expressly for use therein; provided, that with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
Prospectus, or in any Prospectus, as the case may be, the indemnity agreement
contained in this paragraph shall not apply to the extent that any such loss,
claim, damage, liability or expense results from (a) the fact that a current
copy of the Prospectus was not sent or given to the Person asserting any such
loss, claim, damage, liability or expense at or prior to the written
confirmation of the sale of the Registrable Securities concerned to such Person
if it is determined that OpenTV has provided such Prospectus and it was the
responsibility of such holder of Registrable Securities to provide such Person
with a current copy of the Prospectus (or such amended or supplemented
Prospectus, as the case may be) and such current copy of the Prospectus (or such
amended or supplemented Prospectus, as the case may be) would have cured the
defect giving rise to such loss, claim, damage, liability or expense, (b) the
use of any Prospectus by or on behalf of any holder of Registrable Securities
more than 24 hours after OpenTV has notified such Person that such Prospectus
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
(c) the use of any Prospectus by or on behalf of any holder of Registrable
Securities after such time as the obligation of OpenTV to keep the related
Registration Statement effective has expired.
Section 3.02. Indemnification By Holders Of Registrable Securities.
Each holder of Registrable Securities included in any Registration Statement
agrees, severally and not jointly, to indemnify and hold harmless to the fullest
extent permitted by law (including without limitation reimbursement of OpenTV
for any legal or any other expenses reasonably incurred by it in investigating
or defending such loss, claim, damage, liability or expense) OpenTV, its
officers, directors and agents and each Person, if any, who controls OpenTV
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from OpenTV to
such holder of Registrable Securities in Section 3.01,
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but only (i) with respect to information furnished in writing by such holder of
Registrable Securities or on such holder's behalf, in either case expressly for
use in any Registration Statement or Prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary, summary
or final Prospectus or any amendments or supplements thereto or (ii) to the
extent that any loss, claim, damage, liability or expense described in this
Section 3.02 results from (a) the fact that a current copy of the Prospectus was
not sent or given to the Person asserting any such loss, claim, damage,
liability or expense at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is determined that it was
the responsibility of such holder to provide such Person with a current copy of
the Prospectus (or such amended or supplemented Prospectus, as the case may be)
and such current copy of the Prospectus (or such amended or supplemented
Prospectus, as the case may be) would have cured the defect giving rise to such
loss, claim, damage, liability or expense, (b) the use of any Prospectus by or
on behalf of any holder of Registrable Securities more than 24 hours after
OpenTV has notified such Person that such Prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (c) the use of any
Prospectus by or on behalf of any holder of Registrable Securities after such
time as the obligation of OpenTV to keep the related Registration Statement
effective has expired.
Section 3.03. Conduct Of Indemnification Proceeding. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Sections 3.01 or 3.02 (an "Indemnified Party"), such Indemnified Party shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such Indemnified Party, and shall assume the payment of all fees and expenses.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii)
representation of both parties by the same counsel would be inappropriate due to
an actual conflict of interest between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to a single
local counsel) at any time for all such Indemnified Parties. In the case of any
such separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Party who had the largest number of Registrable
Securities included in such registration. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written consent
which consent shall not be unreasonably withheld, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such proceeding.
11
Section 3.04. Contribution. If the indemnification provided for
hereunder is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred to herein, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities as between OpenTV on the one hand and each holder
of Registrable Securities covered by a Registration Statement on the other, in
such proportion as is appropriate to reflect the relative fault of OpenTV and of
each such holder of Registrable Securities in connection with such statements or
omissions, as well as any other relevant equitable considerations. The relative
fault of the OpenTV on the one hand and of each such holder of Registrable
Securities on the other 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 such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
OpenTV, CAMS, StarNet and their respective Permitted Transferees
agree that it would not be just and equitable if contribution pursuant to this
Section 3.04 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages or liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. 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 who was not guilty of such
fraudulent misrepresentation.
ARTICLE 4
MISCELLANEOUS PROVISIONS
Section 4.01. Notices. All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be delivered by
hand or telecopy (which is confirmed), or sent, postage prepaid, by express
mail, or reputable overnight courier service (providing proof of delivery) and
shall be deemed given when so delivered by hand, or telecopied, or one (1)
Business Day after dispatch in the case of express mail or overnight courier
service, to the parties at the following addresses (or at such other address for
a party specified by like notice, provided that notice of a change of address
shall be effective only upon receipt thereof) as follows:
If to CAMS or StarNet, to:
c/o StarNet, L.P.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: H. Xxxxx Xxxxxxx, Sellers Representative
Fax: (000) 000-0000
12
with a required copy to (which shall not constitute notice):
Xxxxxx X. Xxxxx, General Counsel
x/x Xxx Xxxxxxx Xxxxx
Xxxx Xxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
If to OpenTV, to:
OpenTV Corp.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
with a required copy to (which shall not constitute notice):
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxx
Fax: (000) 000-0000
Any party to this Agreement may change the address to which notices
and other communications hereunder are to be delivered by giving the other
parties to this Agreement notice in the manner herein set forth.
Section 4.02. Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto and supersedes any prior
understandings, agreements or representations by or among the parties hereto, or
any of them, written or oral, with respect to the subject matter hereof.
Section 4.03. Further Assurances. Each of the parties shall execute
such documents and perform such further acts as may be reasonably required or
desirable to carry out or perform the provisions of this Agreement.
Section 4.04. Other Agreements. Nothing contained in this Agreement
shall be deemed to be a waiver of, or release from, any obligations any party
hereto may have under any other agreements.
Section 4.05. No Third-Party Beneficiaries. Except as provided in
Sections 3.01, 3.02, 3.03 and 3.04, this Agreement is not intended, and shall
not be deemed, to confer any rights or remedies upon any Person other than the
parties hereto and their respective successors and permitted assigns or to
otherwise create any third-party beneficiary hereto.
13
Section 4.06. Assignment. This Agreement shall be binding upon,
shall inure to the benefit of, and shall be enforceable by the parties hereto
and their respective successors and assigns and, with respect to the Initial
Holders, any of their respective Permitted Transferees. No assignment or
transfer shall be effective hereunder unless and until the purported transferee
executes and delivers an agreement, in form and substance reasonably acceptable
to the parties, agreeing to be bound by the terms hereof.
Section 4.07. Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless consented to in writing by OpenTV and CAMS.
Section 4.08. Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity of the offending term or provision in any other situation
or in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provisions that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such court does
not exercise the power granted to it in the prior sentence, the parties hereto
agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision that shall achieve, to the extent possible,
the economic, business and other purposes of such invalid or unenforceable term.
Section 4.09. Counterparts and Signature. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each of the parties
hereto and delivered to the other parties, it being understood that all parties
need not sign the same counterpart. This Agreement may be executed and delivered
by facsimile transmission.
Section 4.10. Interpretation. When reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement,
unless otherwise indicated. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural, and vice versa. Any
reference to any federal, state, local or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
14
Section 4.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to any choice or conflict of laws provision or rule (whether of
the State of New York or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the State of New
York.
Section 4.12. Submission to Jurisdiction. Any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought exclusively in any federal or state court located in the
State and City of New York, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 4.01 as to
giving notice hereunder shall be deemed effective service of process on such
party.
Section 4.13. Remedies. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party shall be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by law or equity
upon such party, and the exercise by a party of any one remedy shall not
preclude the exercise of any other remedy. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement, this being in
addition to any other remedy to which the parties are entitled at law or in
equity or pursuant to Section 2.04.
Section 4.14. WAIVER OF JURY TRIAL. EACH OF OPENTV AND THE INITIAL
HOLDERS HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF OPENTV AND THE INITIAL HOLDERS IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
[Signature page follows.]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first above written.
OPENTV CORP
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
CAM SYSTEMS, L.L.C.
By: /s/ H. Xxxxx Xxxxxxx
---------------------------------
Name: H. Xxxxx Xxxxxxx
Title:
STARNET, L.P.
By: /s/ H. Xxxxx Xxxxxxx
---------------------------------
Name: H. Xxxxx Xxxxxxx
Title:
[Registration Rights Agreement]
16
PLAN OF DISTRIBUTION
The Selling Stockholder, including some of its transferees who may
later hold its interest in the securities covered by this prospectus and who are
otherwise entitled to resell the securities using this prospectus, may sell the
securities covered by this prospectus from time to time in any legal manner
selected by the Selling Stockholder, including directly to purchasers or through
underwriters, broker-dealers or agents, who may receive compensation in the form
of discounts, concessions or commissions from the Selling Stockholder or the
purchasers. These discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved. The Selling Stockholder will act independently
of us in making decisions with respect to the timing, manner and size of each
sale of the securities covered by this prospectus.
The Selling Stockholder has advised us that the securities may be
sold in one or more transactions at fixed prices, at prevailing market prices at
the time of sale, at prices related to the prevailing market prices, at varying
prices determined at the time of sale and/or at negotiated prices. These sales
may be effected in one or more transactions, including:
- on the Nasdaq National Market
- in the over-the-counter market;
- in transactions otherwise than on the Nasdaq National Market
or in the over-the-counter market; or
- any combination of the foregoing.
The Selling Stockholder has advised us that it has not entered into
any agreements, arrangements or understandings with any underwriter,
broker-dealer or agent regarding the sale of its securities. However, we may be
required, under the registration rights agreement relating to the securities
being sold under this prospectus, to enter into customary underwriting and other
agreements in connection with the distribution of the securities under this
prospectus, subject to some limitations. For more information regarding the
registration rights agreement, see "Selling Stockholders--Relationships with the
Selling Stockholders--Registration Rights Agreement." The specific terms of any
such underwriting or other agreement will be disclosed in a supplement to this
prospectus filed with the SEC under Rule 424(b) under the Securities Act, or, if
appropriate, a post-effective amendment to the registration statement of which
this prospectus forms a part. The Selling Stockholder may sell any or all of the
securities offered by it pursuant to this prospectus. In addition, there can be
no assurance that the Selling Stockholder will not transfer, devise or gift the
securities by other means not described in this prospectus.
There can be no assurance that the Selling Stockholder will sell any
or all of the securities pursuant to this prospectus. In addition, any
securities covered by this prospectus that qualify for sale pursuant to Rule 144
of the Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
A-1
The aggregate proceeds to the Selling Stockholder from the sale of
the securities offered by it will be the purchase price of the securities less
discounts and commissions, if any. If the securities are sold through
underwriters or broker-dealers, the Selling Stockholder will be responsible for
underwriting discounts and commissions and/or agent's commissions. We will not
receive any of the proceeds from the sale of the securities covered by this
prospectus.
In order to comply with the securities laws of some states, if
applicable, the securities may be sold in these jurisdictions only through
registered or licensed brokers or dealers. In addition, in some states the
securities may not be sold unless they have been registered or qualified for
sale or any exemption from registration or qualification requirements is
available and is complied with.
Any underwriters, broker-dealers or agents that participate in the
sale of the securities may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act. As a result, any profits on the sale of the
securities by the Selling Stockholder and any discounts, commissions or
concessions received by any such broker-dealers or agents may be deemed to be
underwriting discounts and commissions under the Securities Act.
To the extent required, the securities to be sold, the name of the
Selling Stockholder, the respective purchase prices and public offering prices,
the names of any agent, dealer or underwriter, and any applicable commissions or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this prospectus is a part.
We have agreed to indemnify the Selling Stockholder and its
directors, officers and controlling persons against certain liabilities,
including specified liabilities under the Securities Act, or to contribute with
respect to payments which the Selling Stockholder may be required to make in
respect of such liabilities. The Selling Stockholder has agreed to indemnify us
for liabilities arising under the Securities Act with respect to written
information furnished to us by it or to contribute with respect to payments in
connection with such liabilities.
We have agreed to pay all of the costs, fees and expenses incident
to our registration of the resale of the Selling Stockholder's securities,
excluding any legal fees of the Selling Stockholder and commissions, fees and
discounts of underwriters, brokers, dealers and agents.
Under our registration rights agreement with the Selling
Stockholder, we will use our reasonable efforts to keep the registration
statement of which this prospectus is a part continuously effective, subject to
customary suspension periods, until the earlier of ninety days from the
effective date of such registration statement and the date on which the last of
the securities covered by the registration statement are sold.
Our obligation to keep the registration statement to which this
prospectus relates effective is subject to specified, permitted exceptions. In
these cases, we may suspend offers and sales of the securities pursuant to the
registration statement to which this prospectus relates.
A-2
