Registration Rights Agreement - OpenTV Corp., Media & Technology Group Ltd., Sky New Media Ventures plc, HSBC Investment Bank plc and Cazenove New Europe (GP) Ltd.
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
the 2 day of July, 2001, by and among OpenTV Corp., a corporation organized
under the laws of the British Virgin Islands (the "Company"), with a registered
office at the offices of Havelet Trust Company (BVI) Limited, P.O. Box 3186,
Road, Tortola, British Virgin Islands and each of the Persons who have executed
this Agreement and are named in Annex A hereto (each sometimes referred to
individually as an "Investor" and sometimes collectively as the "Investors"
which term shall include any Permitted Transferee to which an Investor Transfers
Shares).
RECITALS
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1. The Company and the Investors have entered into Share Purchase
Agreements of even date herewith (each, a "Share Purchase Agreement") pursuant
to which the Company will be issuing certain of its Class A Ordinary Shares (the
"Shares") to the Investors in consideration for all of the issued and
outstanding capital shares of Static 2358 Holdings Limited ("Static").
2. As a condition to the closing of the above referenced transaction, the
Investors desire to obtain and the Company has agreed to grant certain
incidental registration rights to the Investors with respect to the Shares.
3. In consideration of the mutual promises and covenants set forth in
this Agreement, the parties agree as follows:
AGREEMENT
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1. Definitions. Unless the context otherwise requires, the terms defined
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in this Section 1 shall have the meanings herein specified for all purposes of
this Agreement, applicable to both the singular and plural forms of any of the
terms herein defined.
"Affiliate" means with respect to any party hereto, any Person Controlling,
Controlled by or under common Control with such party.
"Agreement" means this Registration Rights Agreement.
"Board" means the Board of Directors of the Company.
"Class A Shares" means the Class A Ordinary Shares of the Company.
"Class B Shares" means the Class B Ordinary Shares of the Company.
"Commission" means the U.S. Securities and Exchange Commission.
"Control" (including its correlative meanings "Controlled by" and "under
common Control with") means the possession, direct or indirect, of the power to
direct or cause the
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direction of management and policies of a Person, whether through the ownership
of voting securities, by contract, management agreement or otherwise.
"Equity Security" shall mean (i) any Ordinary Shares or other equity
security of the Company, or (ii) any security of the Company convertible into,
or exercisable or exchangeable for, with or without consideration, any Ordinary
Shares or other equity security of the Company, but shall not include any Equity
Securities of the Company acquired from any Person which is not a party to or an
Affiliate of a party to this Agreement (other than the Company).
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Holder" of any security means the owner of such security, including any
transferee or assignee of record of such security in accordance with Section
10(d).
"Holders of a Majority of the Registrable Securities" means the Person or
Persons who are the Holders of greater than fifty percent (50%) of the shares of
Registrable Securities then outstanding.
"Investor" has the meaning assigned to it in the introductory paragraph of
this Agreement.
"Memorandum and Articles" means, collectively, the Memorandum of
Association and the Articles of Association of the Company, each as in effect
from time to time.
"OpenTV" means OpenTV, Inc., a Delaware corporation.
"Ordinary Shares" means, collectively, the Class A Shares and Class B
Shares.
"Permitted Transferee" means any Subsidiary of an Investor to which Equity
Securities are transferred or any limited partner of an Investor in partnership
form or member of an Investor in limited liability company form who receives
Equity Securities in a distribution from such Investor or, to the extent that
any Shares are held in the name of a nominee, trustee or custodian, such
nominee, trustee or custodian.
"Person" includes any natural person, corporation, trust, association,
company, partnership, limited liability company, joint venture and any other
entity, and any government, governmental agency, instrumentality or political
subdivision.
"Public Offering" shall mean an underwritten, widely distributed, public
offering of Class A Shares of the Company pursuant to a registration statement
filed under the Securities Act and declared effective by the Commission;
provided that a registration statement filed for the benefit of persons who
would hold Ordinary Shares as a result of any exchange of shares or options of
OpenTV shall not constitute a Public Offering.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
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"Registrable Securities" means (1) the Shares issued or issuable pursuant
to a Share Purchase Agreement; and (2) any securities issued or issuable with
respect to the Shares referred to in clause (1) by way of a stock dividend or
stock split or in connection with a combination of shares, reclassification,
recapitalization, merger or consolidation or reorganization; provided, however,
that such Equity Securities shall only be treated as Registrable Securities if
and so long as they have not been (i) sold to or through an underwriter in a
Public Offering, or (ii) sold in a private transaction in which the transferor's
rights under Section 3 is not assigned or assignable, or (iii) sold pursuant to
Rule 144 or otherwise in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive legends with respect
to such Equity Securities are removed upon the consummation of such sale.
"Rule 144" means Rule 144 or any similar or analogous rule promulgated
under the Securities Act.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Shares" means the Class A Ordinary Shares received by the shareholders of
Static pursuant to the terms of the Share Purchase Agreements.
"Subsidiary" of any Person (the "first Person") means any other Person (the
"second Person") of which the first Person owns, directly or indirectly, equity
securities or other ownership interests equal to more than 30% of the
outstanding equity securities or other ownership interests of the second Person,
and which equity securities or other ownership interests have ordinary voting
power sufficient to elect a majority of the board of directors or other Persons
performing similar functions.
"Transfer" means to sell, assign, transfer, distribute (including, without
limitation, any distribution upon dissolution or liquidation), pledge,
hypothecate, mortgage, encumber or dispose of, directly or indirectly, Equity
Securities.
2. Restrictions on Transfer.
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(a) Each certificate representing shares of Registrable Securities
shall (unless otherwise permitted by the provisions of this Agreement or the
applicable Share Purchase Agreement) be stamped or otherwise imprinted with a
legend substantially similar to the following (in addition to any legend
required under applicable state securities laws or as provided elsewhere in this
Agreement); provided, however that for any non-United States Person (as defined
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in Regulation S), such legend shall be required for only a 40-day period
following the completion date:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS (COLLECTIVELY, THE "ACTS"). NO
INTEREST IN SUCH SECURITIES MAY BE SOLD, ENCUMBERED OR OTHERWISE
TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACTS COVERING THE TRANSACTION, (ii) THE COMPANY RECEIVES AN
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OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE ACTS, OR (iii) THE COMPANY OTHERWISE
SATISFIES ITSELF THAT REGISTRATION IS NOT REQUIRED UNDER THE ACTS."
In addition, the Company may place on any such certificate any legend required
by the Blue Sky laws of any state or other jurisdiction to the extent such laws
are applicable to the New OpenTV Shares represented by the certificate so
legend.
(b) The Company shall be obligated to reissue promptly unlegended
certificates (as to the legend in paragraph (a) above) at the request of any
Holder thereof (i) if the Holder shall have obtained an opinion of counsel
(which counsel may be counsel to the Company) reasonably acceptable to the
Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification or legend, or
(ii) if such Registrable Securities are registered under the Securities Act or
may be sold under Rule 144 promulgated under the Securities Act.
(c) Any legend endorsed on an instrument pursuant to applicable state
securities laws or the laws of another jurisdiction and the stop-transfer
instructions with respect to such securities shall be removed upon receipt by
the Company of an order of the appropriate blue-sky authority authorizing such
removal.
3. Incidental Registration.
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(a) Each time the Company shall determine to file a registration
statement under the Securities Act (other than (i) on Form F-4 or another
registration statement for shares to be issued in a merger or acquisition
transaction, or (ii) a registration statement covering solely one or more
employee benefit plans), the Company shall promptly notify Holders of
Registrable Securities and, upon the written request of any such Holder given
within thirty (30) days after the receipt of such written notice from the
Company, the Company agrees to use its best efforts to cause all Registrable
Securities, held by such Holders which such Holders have so requested
registration thereof, to be included in such registration statement and
registered under the Securities Act, all to the extent required to permit the
sale or other disposition of such Registrable Securities.
(b) If the registration of which the Company gives written notice
pursuant to Section 3(a) is for a Public Offering, the Company agrees to so
advise each Holder as a part of its written notice. In such event the right of
any such Holder to registration pursuant to this Section 3 shall be conditioned
upon such Holder's participation in such Public Offering and the inclusion of
such Holder's Registrable Securities in the Public Offering to the extent
provided herein. All Holders distributing their Registrable Securities through
such Public Offering agree to enter into (together with the Company and the
other holders distributing their securities through such Public Offering) an
underwriting agreement with the underwriter or underwriters selected for such
underwriting by the Company, provided that such underwriting agreement is in
customary form and is reasonably acceptable to the Company and the Holder
selling Registrable Securities through such underwriting. If any Holder of
Registrable Securities does not agree to enter into an underwriting agreement
having such terms and conditions, such Holder shall
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withdraw from such registration the Registrable Securities proposed to be
registered by it and shall reimburse the Company for the incremental amount of
registration expenses incurred by the Company in connection with the
registration of the Registrable Securities such Holder was proposing to sell
within thirty (30) days after such withdrawal.
(c) Notwithstanding any other provision of this Section 3, if the
managing underwriter of a Public Offering advises the Company and the Holders of
the Registrable Securities participating in such Public Offering in writing that
in its good faith judgment the number of shares of Registrable Securities and
the other securities to be registered exceeds the number of shares of
Registrable Securities and other securities which can be sold in such offering
without having a material and adverse effect upon the success of such offering,
including the price at which such Registrable Securities can be sold, then (i)
the number of shares of Registrable Securities and other securities so requested
to be included in the offering shall be reduced to that number of shares which
in the good faith judgment of the managing underwriter can be sold in such
offering (except for shares to be issued by the Company in an offering initiated
by and for the account of the Company, which shall have priority over the shares
of Registrable Securities), and (ii) such reduced number of shares shall be
allocated among all participating Holders of Registrable Securities and the
holders of other securities in proportion, is nearly as practicable, to the
respective number of shares of Registrable Securities proposed to be offered and
sold in such registration.
(d) Any Holder of Registrable Securities may elect to withdraw its
respective Registrable Securities from inclusion in a registration to be
effected pursuant to this Section 3 at any time prior to five (5) Business Days
prior to the then anticipated effective date of the applicable registration
statement.
4. Registration Procedures. If and whenever the Company is required by
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the provisions of Section 3 hereof to use its best efforts to effect the
registration of Registrable Securities under the Securities Act, the Company
agrees to:
(a) In accordance with the Securities Act and all applicable rules
and regulations, prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective until the earlier of (i)
ninety (90) days, or (ii) the sale of the securities covered by such
registration statement, and prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus contained
therein as may be necessary to keep such registration statement effective and
such registration statement and prospectus accurate and complete until the
earlier of (i) such ninety (90) day period or (ii) the sale of the securities
covered by such registration statement;
(b) Furnish to the Holders of securities participating in such
registration and to the underwriters of the securities being registered, without
charge and as soon as such documents become available to the Company, such
number of copies of the registration statement and each amendment and supplement
thereto, preliminary prospectus, final prospectus and such other documents as
such underwriters and Holders may reasonably request in order to facilitate the
public offering of such securities;
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(c) Use its best efforts to register or qualify the securities
covered by such registration statement under such state securities or blue sky
laws of such jurisdictions as such participating Holders and underwriters may
reasonably request within ten (10) days prior to the original filing of such
registration statement, except that the Company shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified;
(d) Notify the Holders participating in such registration, promptly
after it shall receive notice thereof, of the date and time when such
registration statement and each post-effective amendment thereto has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(e) Notify such Holders promptly of any request by the Commission for
the amending or supplementing of such registration statement or prospectus or
for additional information;
(f) If, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event has occurred as the
result of which any such prospectus or any other prospectus as then in effect
would include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, notify as promptly as practicable each Holder of
Registrable Securities participating in such registration of the happening of
such event and prepare and file as promptly as practicable with the Commission,
and as promptly as practicable notify such Holders of the filing of, such
amendments or supplements to such registration statement or prospectus as may be
necessary to correct any statements or omissions.
(g) Advise such Holders, as promptly as practicable after it shall
receive notice or obtain knowledge thereof, of the issuance, or threatened
issuance, of any stop order or other order by the Commission suspending the
effectiveness of such registration statement; use its best efforts to prevent
the issuance of any such threatened stop order or other order of which it
becomes aware; and, if such stop order or other order is issued, promptly use
its best efforts to obtain a lifting of such order as promptly as possible and
promptly notify each such Holder of any such lifting or withdrawal.
(h) Make available for inspection upon request by any Holder of
Registrable Securities covered by such registration statement, by any managing
underwriter of any distribution to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
Holder or any such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney, accountant or agent in
connection with such registration statement; and
(i) At the request of any Holder of Registrable Securities covered by
such registration statement, furnish to such Holder on the effective date of the
registration statement or, if such registration includes an underwritten public
offering, at the closing provided for in the underwriting agreement, (i) an
opinion dated such date of the counsel representing the Company
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for the purposes of such registration, addressed to the underwriters, if any,
and to the Holder or Holders making such request (which opinion shall be
reasonably acceptable to such Holders), and (ii) a copy of the "cold comfort"
letter executed by the Company's independent certified public accountants and
delivered by such accountants to the underwriters, each covering such matters as
are customarily the subject of opinions of issuer's counsel or independent
certified public accountants, as the case may be, provided to underwriters in
Public Offerings.
5. Expenses.
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(a) With respect to each inclusion of shares of Registrable
Securities in a registration statement pursuant to Section 3 hereof, the Company
agrees to bear all fees, costs and expenses of and incidental to the Company's
performance of or compliance with this Agreement (the "Registration Expenses");
provided, however, that the Holders participating in any such registration shall
bear, on a pro rata basis, all underwriting discounts and commissions
attributable to Registrable Securities sold pursuant to such registration
statement by such Holders. Such fees, costs and expenses to be borne by the
Company shall include, without limitation, all registration, filing and NASD
fees, printing expenses, fees and disbursements of counsel and accountants for
the Company, all legal fees and disbursements and other expenses of complying
with state securities or blue sky laws of any jurisdictions in which the
securities to be offered are to be registered or qualified, reasonable fees and
disbursements of one firm of counsel for the selling Holders, up to $30,000 per
registered offering, selected by the Holders of a majority of the shares of
Registrable Securities to be included in such registration, and the premiums and
other costs of policies of insurance against liability arising out of such
offering.
(b) To the extent Registration Expenses are not required to be paid
by the Company, such Registration Expenses shall be borne by the Holders of
securities (including Registrable Securities) requesting such registration in
proportion to the number of shares owned by each such requesting Holder which
are included in any registration effected pursuant to Section 3.
6. Indemnification.
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(a) The Company hereby agrees to indemnify and hold harmless, to the
full extent permitted by law, each Holder of Registrable Securities, which are
included in a registration statement pursuant to the provisions of this
Agreement and each of such Holder's officers, directors, partners, employees,
attorneys, accountants and agents, and each Person who controls any of the
foregoing within the meaning of the Securities Act from and against, and agrees
to reimburse such Holder, its officers, directors, employees, attorneys,
accountants, agents, and controlling Persons with respect to, any and all
claims, actions, demands, losses, damages, liabilities, costs and expenses to
which such Holder, its officers, directors, employees, attorneys, accountants
and agents, or controlling Persons, may become subject under applicable laws,
insofar as such claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such registration statement, any
prospectus contained therein, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company shall reimburse such Holder, its
officers, directors, partners,
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employees, attorneys, accountants, agents and each person who controls any of
the foregoing for any reasonable costs and expenses incurred by them in
connection with investigating any such claim, action, demand, loss, damage,
liability, cost or expense, provided, however, that the Company will not be
liable in any such case to the extent that any such claim, action, demand, loss,
damage, liability, cost or expense is caused by an untrue statement or alleged
untrue statement or omission or alleged omission so made in strict conformity
with written information furnished by such Holder, such underwriter or such
controlling Person specifically for use in the preparation thereof.
(b) Each Holder of shares of Registrable Securities which are
included in a registration statement pursuant to the provisions of this
Agreement hereby agrees, severally and not jointly, to indemnify and hold
harmless, to the full extent permitted by law, the Company, its officers,
directors, employees, attorneys, accountants and agents, and each Person who
controls the Company within the meaning of the Securities Act, from and against,
and agrees to reimburse the Company, its officers, directors, employees,
attorneys, accountants and agents, and controlling Persons with respect to, any
and all claims, actions, demands, losses, damages, liabilities, costs or
expenses to which the Company, its officers, directors or such controlling
Persons may become subject under applicable laws, insofar as such claims,
actions, demands, losses, damages, liabilities, costs or expenses are caused by
any untrue or alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment or
supplement thereto, or are caused by the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
so made in strict conformity with written information furnished by such Holder
specifically for use in the preparation thereof. Notwithstanding the foregoing,
no Holder of Registrable Securities shall be obligated hereunder to pay more
than the net proceeds realized by it upon its sale of Registrable Securities
included in such registration statement.
(c) Promptly after receipt by a party entitled to indemnification
pursuant to the provisions of subsection (a) or (b) of this Section 6 of notice
of the commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to be
made against the indemnifying party pursuant to the provisions of subsection (a)
or (b), notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 6 and shall not relieve the indemnifying party from liability under this
Section 6 unless such indemnifying party is materially prejudiced by such
omission. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying parties similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate
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counsel (in which case the indemnifying party shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties). Upon
the permitted assumption by the indemnifying party of the defense of such
action, and approval by the indemnified party of counsel, the indemnifying party
shall not be liable to such indemnified party under subsection (a) or (b) for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof (other than reasonable costs of
investigation) unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the immediately preceding sentence, or (ii) the indemnifying
party and its counsel do not actively pursue the defense of such action. No
indemnifying party shall be liable to an indemnified party for any settlement of
any action or claim without the consent of the indemnifying party and no
indemnifying party may unreasonably withhold its consent to any such settlement.
No indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability with respect to such claim or litigation.
(d) If the indemnification provided for in subsection (a) or (b) of
this Section 6 is held by a court of competent jurisdiction to be unavailable to
a party to be indemnified with respect to any claims, actions, demands, losses,
damages, liabilities, costs or expenses referred to therein, then each
indemnifying party under any such subsection, in lieu of indemnifying such
indemnified party thereunder, hereby agrees to contribute to the amount paid or
payable by such indemnified party as a result of such claims, actions, demands,
losses, damages, liabilities, costs or expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such claims, actions, demands, losses, damages,
liabilities, costs or expenses, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Notwithstanding the foregoing, no Holder of
Registrable Securities shall be obligated hereunder to contribute more than the
net proceeds realized by it upon its sale of Registrable Securities included in
such registration statement.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
hereunder from any person who was not guilty of such fraudulent
misrepresentation.
(e) The Company and the Holders of Registrable Securities agree that
customary indemnification arrangements relating to any underwriter (as defined
in the Securities Act) involved in the Public Offering and any controlling
Person of such underwriter shall be set forth in the underwriting agreement
executed by the Company and such Holder in connection with the registration of
Registrable Securities in accordance herewith.
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7. Rule 144 Reporting. With a view to making available to the Holders the
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benefits of certain rules and regulations of the Commission which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 at all times;
(b) use its best efforts to file with the Commission, in a timely
manner, all reports and other documents required of the Company under the
Exchange Act; and
(c) so long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the Exchange Act
(at any time after it has become subject to such reporting requirements); a copy
of the most recent annual or quarterly report of the Company; and such other
reports and documents as a Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing it to sell any such securities
without registration.
8. Stockholder Information. The Company may request each Holder of
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Registrable Securities as to which any registration is to be effected pursuant
to this Agreement to furnish the Company with such information with respect to
such Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request in writing and as shall be required by
law or by any securities commission (including the Commission), stock exchange
or self-regulatory agency in connection therewith, and each Holder of
Registrable Securities as to which any registration is to be effected pursuant
to this Agreement agrees to furnish the Company with such information.
9. Forms. All references in this Agreement to particular forms of
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registration statements are intended to include, and shall be deemed to include,
references to all successor forms which are intended to replace, or to apply to
similar transactions as, the forms herein referenced and to references to all
forms available to a foreign registrant where any referenced form of
registration statement is only available to a domestic registrant or vice versa.
10. Miscellaneous.
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(a) Waivers and Amendments. Except as otherwise expressly provided,
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in this Agreement may be amended or modified only upon the written consent of
the Company and each Investor for so long as it has any rights or obligations
hereunder. Except as otherwise expressly provided in this Agreement, the rights
of an Investor under this Agreement may be waived only with the written consent
of such Investor. Except as otherwise provided in this Agreement, the rights of
the Company under this Agreement may be waived only with the written consent of
the Company. Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally or by course of dealing, but only by a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, except to the extent
provided in this Section 10(a). Specifically, but without limiting the
generality of the foregoing, the failure of any party at any time or times to
require performance of any provision hereof by another party shall in no manner
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affect the right of such first party at a later time to enforce the same.
No waiver by any party of the breach of any term or provision contained in
this Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
(b) Notices. All notices required or permitted hereunder shall
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be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified; (ii) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient, if not,
then on the next business day; (iii) three (3) days after having been sent
by registered or certified mail, return receipt requested, postage prepaid;
or (iv) one (1) day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the Company at 401 East
Middlefield Road, Mountain View, California 94043, Attention: Chief
Financial Officer and General Counsel, and to each Investor at its address
set forth on Annex A attached hereto or at such other address as the
Company or Investor may designate by ten (10) days advance written notice
to the other parties hereto.
(c) Severability. In the event of any conflict between the
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provisions of this Agreement and the provisions of the Company's Memorandum
and Articles then, subject to the provisions of British Virgin Islands law,
the provisions of this Agreement shall prevail as between the parties
hereto, and the parties hereto shall exercise all voting and other rights
and powers legally available to them (whether as shareholders or otherwise)
to give effect to the provisions of this Agreement. If there is an
irreconcilable conflict between a provision of this Agreement and a
mandatory provision of British Virgin Islands law, the parties shall use
their respective best efforts to agree on an alternative mechanism or
provision which is as close as reasonably possible to the provisions of
this Agreement and the conflicting provisions contained in this Agreement
shall be invalid (but only to the extent necessary), provided that such
invalidity shall not affect the other provisions of this Agreement. Except
as provided in the preceding sentence, should any one or more of the
provisions of this Agreement or of any agreement entered into pursuant to
this Agreement be determined to be illegal or unenforceable, all other
provisions of this Agreement and of each other agreement entered into
pursuant to this Agreement, shall be given effect separately from the
provision or provisions determined to be illegal or unenforceable and shall
not be affected thereby.
(d) Assignment of Rights. The rights to cause the Company to
--------------------
register Registrable Securities pursuant to Section 3, and all related
rights and benefits hereunder, including, without limitation, rights of
indemnification under Section 6, may be assigned by a Holder to a
transferee or assignee of Registrable Securities which is a Permitted
Transferee of a Holder; provided, however, that (A) the transferor shall,
within ten (10) days after such transfer, furnish to the Company written
notice of the name and address of such transferee or assignee and the
securities with respect to which such rights are being assigned, and (B)
such transferee shall agree in writing to be subject to all restrictions
set forth in this Agreement. Except as provided in the preceding sentence
this Agreement and the rights and benefits hereunder shall not be
assignable, except with the prior written consent of the Company and the
Investors.
(e) Parties in Interest. All the terms and provisions of this
-------------------
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and
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<PAGE>
permitted assigns of the parties hereto. Subject to the immediately
preceding sentence, and except as set forth specifically in this Agreement,
including, without limitation, in Section 6 hereof, this Agreement shall
not run to the benefit of or be enforceable by any Person other than a
party to this Agreement and its successors and permitted assigns.
(f) Headings. The headings of the sections, subsections and
--------
paragraphs of this Agreement have been inserted for convenience of
reference only and do not constitute a part of this Agreement.
(g) Choice of Law. It is the intention of the parties that the
-------------
internal substantive laws, and not the laws of conflicts, of the State of
California should govern the enforceability and validity of this Agreement,
the construction of its terms and the interpretation of the rights and
duties of the parties.
(h) Counterparts. This Agreement may be executed in any number
------------
of counterparts and by different parties hereto in separate counterparts,
with the same effect as if all parties had signed the same document. All
such counterparts shall be deemed an original, shall be construed together
and shall constitute one and the same instrument.
(i) No Strict Construction. The parties hereto have
----------------------
participated jointly in the negotiation and drafting of this Agreement. In
the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto,
and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any of the provisions of this
Agreement.
(j) Consent to Exclusive Jurisdiction. EACH PARTY HERETO HEREBY
---------------------------------
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO OR ARISING
OUT OF THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN SUCH COURTS.
EACH PARTY HERETO HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE,
IN ANY SUCH ACTION, SUIT, OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT
PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT IT IS IMMUNE
FROM EXTRATERRITORIAL INJUNCTIVE RELIEF OR OTHER INJUNCTIVE RELIEF, THAT
ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY
SUCH ACTION, SUIT, OR PROCEEDING MAY NOT BE BROUGHT OR MAINTAINED IN ONE OF
THE ABOVE-NAMED COURTS, THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT OR
MAINTAINED IN ONE OF THE ABOVE-NAMED COURTS SHOULD BE DISMISSED ON THE
GROUNDS OF FORUM NON CONVENIENS, SHOULD BE TRANSFERRED TO ANY COURT OTHER
THAN ONE OF THE ABOVE-NAMED COURTS, OR THAT THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF MAY NOT BE ENFORCED IN OR BY ANY OF THE ABOVE-NAMED COURTS.
EACH OF THE PARTIES HERETO HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY
SUCH ACTION, SUIT, OR PROCEEDING IN ANY MANNER PERMITTED BY THE LAWS OF THE
STATE OF CALIFORNIA, AGREES THAT
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<PAGE>
SERVICE OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO THE PERSONS AND AT THE ADDRESSES SET FORTH IN SECTION 10(b)
OR ANNEX A, AS THE CASE MAY BE, IS REASONABLY CALCULATED TO GIVE ACTUAL
NOTICE, AND WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE, IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY CLAIM THAT SUCH
SERVICE OF PROCESS DOES NOT CONSTITUTE GOOD AND SUFFICIENT SERVICE OF
PROCESS.
(k) Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ITS
--------------------
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF OR THEREOF. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. THIS SECTION 10(k) HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES
HERETO AND THESE PROVISIONS SHALL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH
PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH
LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF)
THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS
A WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
(l) Specific Performance. The parties hereto acknowledge and
--------------------
agree that a breach or threatened breach by any party of its covenants or
obligations contained in this Agreement will result in irreparable and
continuing damage to the other parties to this Agreement for which they
have no adequate remedy at law and that any party may, in addition to the
other remedies that may be available to it, commence proceedings in equity
for specific performance and/or an injunction preliminarily or permanently
enjoining any other party from breaching or threatening any such breach of
any such covenant or agreement. No bond or other security shall be
necessary with respect to such relief.
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<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by a duly authorized representative thereof as of the day and year
first above written.
COMPANY:
OpenTV Corp.
By: /s/ Scott H. Ray
--------------------------------
Name: Scott H. Ray
------------------------------
Title: Executive Vice President and Chief Financial Officer
-----------------------------------------------------
INVESTORS:
IN WITNESS WHEREOF the parties hereto have executed this document as a deed on
------------------
the date appearing at the head hereof.
Signed by
/s/ Jasper Smith
-----------------------
JASPER SMITH
Signed by
/s/ Wayne Thornhill (as attorney)
---------------------------------
MARK ROCK
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<PAGE>
Signed by
/s/ Paul Bustin
------------------------
authorised signatory
for and on behalf of
MEDIA & TECHNOLOGY
GROUP LIMITED
Signed by
/s/ Wayne Thornhill (as attorney)
---------------------------------
JAMES BEVERIDGE
Signed by
/s/ Wayne Thornhill (as attorney)
---------------------------------
HOWARD WATERFALL
Signed by
/s/ Christian Fernandez
-----------------------
CHRISTIAN FERNANDEZ
Signed by
/s/ Wayne Thornhill (as attorney)
---------------------------------
NOAH HARRIS
Signed by
/s/ Wayne Thornhill (as attorney)
---------------------------------
NICHOLAS BRIGGS
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<PAGE>
Signed by
/s/ Wayne Thornhill
-----------------------
WAYNE THORNHILL
Signed by
/s/ Andrew Fearon
-----------------------
ANDREW FEARON
Signed by
/s/ Rose Blundell
-----------------------
for and on behalf of
SKY NEW MEDIA VENTURES PLC
Signed by
/s/ David Wright
----------------------
for and on behalf of
HSBC INVESTMENT BANK PLC
Signed by
CAZENOVE NEW EUROPE ACCESS FUND NO. 1 LIMITED PARTNERSHIP
acting by its general partner
CAZENOVE NEW EUROPE (GP) LIMITED,
acting by its duly authorised attorney /s/ [Illegible]
(without personal liability)
______________________
in the presence of:
Signature of Witness: /s/ Catrina Holme
Name: Catrina Holme
Address: 28-29 Mydellton Sq.
London EC1R 14E
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<PAGE>
Occupation: V.C.
Signed by
CAZENOVE NEW EUROPE ACCESS FUND NO. 2 LIMITED PARTNERSHIP acting by its
general partner
CAZENOVE NEW EUROPE (GP) LIMITED,
acting by its duly authorised attorney /s/ [Illegible]
(without personal liability)
______________________
in the presence of:
Signature of Witness: /s/ Catrina Holme
Name: Catrina Holme
Address: 28-29 Myddleton Sq. London EC1R 14E
Occupation: V.C.
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
-17-
<PAGE>
ANNEX A
INVESTORS
----------------------------------------------------------------------
NAME and ADDRESS SHARES
----------------------------------------------------------------------
Mr Jasper Smith 627,775 Class A Shares
96 Oakley Street (plus, if and to the
London SW3 5NR extent issued pursuant to
the earnout provisions of
England the Principal Share
Purchase Agreement,
228,297 Class A Shares)
----------------------------------------------------------------------
Mr Mark Rock 627,648 Class A Shares
20 Berwyn Road (plus, if and to the
London SE24 9DB extent issued pursuant to
the earnout provisions of
England the Principal Share
Purchase Agreement,
228,251 Class A Shares)
----------------------------------------------------------------------
Media & Technology Group Limited 468,361 Class A Shares
Tropic Isle Building (plus, if and to the
PO Box 438 extent issued pursuant to
Road Town the earnout provisions of
Tortola the Principal Share
Purchase Agreement,
British Virgin Islands 170,324 Class A Shares)
----------------------------------------------------------------------
James Beveridge Westwood 17,620 Class A Shares
Hedgerow Buckinghamshire
SL9 OHD
----------------------------------------------------------------------
Howard Waterfall 51,825 Class A Shares
Flat 3
50 Dorchester Road
London
W2 6ET
----------------------------------------------------------------------
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----------------------------------------------------------------------
Christian Fernandez 85,956 Class A Shares
Flat 10
24 Rathbone Street
London W1T 1NY
----------------------------------------------------------------------
Noah Harris 38,868 Class A Shares
Flat 1
6 King Edwards Road
London Fields
London E9 7SF
----------------------------------------------------------------------
Nicholas Briggs 38,868 Class A Shares
Unit 3
6-12 Triangle Road
London E8 3RP
----------------------------------------------------------------------
Wayne Thornill 17,066 Class A Shares
62A Clapham Common
West Side
London SW4 9AV
----------------------------------------------------------------------
Andrew Fearon 16,298 Class A Shares
"Brooms"
Langley Lower Green
Saffron Walden
CB11 lJB
----------------------------------------------------------------------
Sky New Media Ventures Plc 323,903 Class A Shares
Grant Way
Isleworth
Middlesex
TW7 5QD
----------------------------------------------------------------------
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----------------------------------------------------------------------
HSBC Investment Bank Plc 144,004 Class A Shares
Thames Exchange
10 Queen Street
London
EC4R 1BL
----------------------------------------------------------------------
Cazenove New Europe Access Fund No 1 Limited 260,856 Class A Shares
Partnership and Cazenove New Europe Access
Fund No 2 Limited Partnership, each through
their nominee, Greenwood Nominees Limited
(Account CNEAF).
----------------------------------------------------------------------
Total 2,719,048 Class A Shares
(plus, if and to the
extent issued pursuant
to the earnout provisions
of the Principal Share
Purchase Agreement, 626,872
Class A Shares)
----------------------------------------------------------------------
C-1