Exhibit 4.2
_________________________________________
NON-PRINCIPAL SHARE PURCHASE AGREEMENT
___________________________________________
By and Among
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (1)
▇▇▇▇▇▇ WATERFALL (2)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (3)
▇▇▇▇ ▇▇▇▇▇▇ (4)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (5)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (6)
▇▇▇▇▇▇ ▇▇▇▇▇▇ (7)
SKY NEW MEDIA VENTURES PLC (8)
HSBC INVESTMENT BANK PLC (9)
CAZENOVE NEW EUROPE ACCESS FUND NO. 1 LIMITED PARTNERSHIP (10)
CAZENOVE NEW EUROPE ACCESS FUND NO. 2 LIMITED PARTNERSHIP (11)
OPENTV CORP. (12)
DATED as of 13 June 2001
CONTENTS
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Clauses Pages
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1. Definitions and Interpretation........................................................ 3
2. Sale of Sale Shares, Sale of the Loan Notes and surrender of Options.................. 10
3. Consideration......................................................................... 11
4. Conditions............................................................................ 13
5. Completion............................................................................ 15
6. United States Securities Law Compliance............................................... 19
7. Warranties............................................................................ 20
8. Restriction on Announcements.......................................................... 23
9. Confidentiality of Information Received............................................... 24
10. Costs............................................................................... 24
11. General............................................................................. 25
12. Notices............................................................................. 28
13. Governing Law and Submission to Jurisdiction........................................ 30
SCHEDULE 1A
The Vendors...................................................................... 32
SCHEDULE 1B
Principal Shareholders and Optionholders......................................... 34
SCHEDULE 2
Details of the Company........................................................... 36
SCHEDULE 3
The Subsidiaries................................................................. 38
SCHEDULE 4A
Warranties....................................................................... 41
SCHEDULE 4B
Additional Acknowledgements of the Canadian Shareholder.......................... 45
SCHEDULE 4C
Purchaser's Warranties........................................................... 46
SCHEDULE 5
Principal Share Purchase Agreement............................................... 51
DATE: 13 June 2001
PARTIES:
(1) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("JB");
(2) ▇▇▇▇▇▇ WATERFALL, of ▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("HW");
(3) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, of ▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("CF");
(4) ▇▇▇▇ ▇▇▇▇▇▇, of ▇▇▇▇ ▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Fields, London E9 7SF
("NH");
(5) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, of ▇▇▇▇ ▇, ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("NB")
(6) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("WT");
(7) ▇▇▇▇▇▇ ▇▇▇▇▇▇, of "Brooms" ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
("AF");
(8) SKY NEW MEDIA VENTURES PLC, a company registered in England with number
387976 whose registered office is at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ("Sky");
(9) HSBC INVESTMENT BANK PLC, a company registered in England with number
976092 whose registered office is at Thames Exchange, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("HSBC");
(10) CAZENOVE NEW EUROPE ACCESS FUND NO. 1 LIMITED PARTNERSHIP acting by its
general partner Cazenove New Europe (GP) Limited, a company registered in
England and Wales, whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
(11) CAZENOVE NEW EUROPE ACCESS FUND NO. 2 LIMITED PARTNERSHIP acting by its
general partner Cazenove New Europe (GP) Limited, a company registered in
England and Wales, whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (together with Cazenove New Europe Access Fund No.1 Limited
Partnership, "Cazenove"); and
(12) OPENTV CORP., an international business company incorporated under the laws
of the British Virgin Islands having its registered office at the offices
of Havelet Trust Company (BVI) Limited, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Purchaser").
RECITALS:
(A) The Vendors are the registered holders and beneficial owners of some of the
issued shares in and options over the capital of Static 2358 Holdings
Limited ("the Company"). Particulars of the Company are set out in
Schedule 2.
(B) The Vendors wish to sell or procure the sale of and the Purchaser wishes to
purchase the said shares and the Optionholders wish to surrender their
Options in accordance with the terms and conditions of this Agreement and
the Option Surrender Agreements.
(C) The Principal Shareholders (as defined below) wish to sell and the
Purchaser proposes to buy their shareholdings in the Company in accordance
with the terms and conditions of the Principal Share Purchase Agreement (as
defined below).
2
TERMS AGREED:
1. Definitions and Interpretation
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1.1 In this Agreement where the context so admits the following words and
expressions shall have the following meanings:
"Associate" the meaning given to that term in section
430E(4) of the Companies ▇▇▇ ▇▇▇▇;
"BSB" British Sky Broadcasting Limited, a company
registered in England with number 2906991
whose registered office is at ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or its
subsidiaries and Associates;
"Cash Component" the aggregate amount in Pounds Sterling
payable on Completion as part of the
Consideration as set out in column (4) of
Schedule 1A;
"Company" Static 2358 Holdings Limited, details of
which are set out in Schedule 2;
"Company Shares" all issued shares in the capital of the
Company, including the Sale Shares;
"Companies Acts" the Companies ▇▇▇ ▇▇▇▇, Part V of the
Criminal Justice ▇▇▇ ▇▇▇▇, the Companies
Consolidation (Consequential Provisions) ▇▇▇
▇▇▇▇ and the Companies ▇▇▇ ▇▇▇▇;
"Completion" completion of the sale and purchase of the
Sale Shares as specified in clause 5;
"Completion Date" the later of 1 July 2001 and the date of
satisfaction of the Conditions (or, subject
to clause 3, such
3
later date as the parties may agree);
"Completion Schedules
and Calculations" shall take its meaning from the Principal
Share Purchase Agreement;
"Conditions" the conditions specified in clause 4.1;
"Consideration" the aggregate of the consideration for the
Sale Shares to be sold by the Vendors and for
the entering into of the Option Surrender
Agreements by the Optionholders, being as
calculated in accordance with clause 3 and
Schedule 1C and as set out in columns (4) and
(5) of Schedule 1A;
"Directors" the persons listed as directors of the
Company in Schedule 2;
"Earnout Component" shall take its meaning from the Principal
Share Purchase Agreement;
"Escrow Shares" those shares set out in column (5) of
Schedule 1B, as adjusted pursuant to clause
3;
"First Series Convertible the 2,450,000 zero coupon convertible
Loan Notes" unsecured loan notes issued to HSBC pursuant
to the terms of a loan note instrument
executed by the Company on 26 May 2000;
"Greenwood" Greenwood Nominees Limited (Account CNEAF);
"Group" the group of companies comprising the
Company and its Subsidiaries. The expression
"member of the Group" shall be construed
accordingly;
4
"HSBC Fees" the fees and expenses payable by the Company to
HSBC in connection with its services to the
Company pursuant to an engagement letter dated 6
April 2000 (including HSBC's legal fees and
expenses) in the agreed amount of
(Pounds)1,047,983.34 plus any applicable VAT;
"Interim Bridge Loan" the loan of up to (Pounds)1,000,000 and further
funding to be advanced of up to (Pounds)2,050,664
made or to be made by the Purchaser to the
Company pursuant to loan documentation in the
approved terms;
"Loan Notes Consideration the full face value of the Loan Notes at their
maturity date, being, in aggregate
(Pounds)3,650,000;
"Loan Notes" the First Series Convertible Loan Notes and the
Second Series Convertible Loan Notes;
"material" with respect to any entity or group of entities
means any material event, change, condition or
effect related to the condition (financial or
otherwise), properties, assets (including
intangible assets), liabilities, business,
operations, results of operations or prospects of
such entity or group of entities;
"Material Adverse Event" with respect to any entity or group of entities
means any event, change or effect that, when
taken individually or together with all other
adverse changes and effects, is or is reasonably
likely to be materially adverse to the condition
(financial or otherwise), properties, assets
(including intangible assets), liabilities,
business, operations, results of operations or
prospects of such entity and its subsidiaries,
taken as a whole,
5
or to prevent or materially delay consummation of
the transactions contemplated under this Agreement
(including the sale of shares by other
shareholders of the Company to the Purchaser on
the date of Completion) or otherwise to prevent
such entity and its subsidiaries from performing
their obligations under this Agreement;
"New OpenTV Shares" new OpenTV Shares issued pursuant to this
Agreement;
"OpenTV Shares" Class A Ordinary Shares in the share capital of
the Purchaser;
"Optionholder" a holder of Options;
"Options" all the options, warrants and convertible
securities over unissued shares in the capital of
the Company (excluding the Loan Notes) as set out
in column (3) of Schedule 1A;
"Option Surrender Agreements" agreements in the approved terms between the
Optionholders and the Company for the surrender
of Options;
"Principal Shareholders" all holders of shares in the capital of the
Company other than the Vendors as set out in
column (1) of Schedule 1B;
"Principal Share Purchase
Agreement" the Principal Share Purchase Agreement in the
approved terms between the Purchaser and the
Principal Shareholders to be dated on the date
hereof in the form attached to this Agreement at
Schedule 5;
"Purchaser's Conditions" the conditions set out in clause 4.4;
6
Purchaser's Solicitors" ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"Registration Rights Agreement" the Registration Rights Agreement
between the Purchaser and the Vendors
and the Principal Shareholders in the
approved terms;
"Sale Shares" in aggregate, all those shares in the
capital of the Company set out in
column (2) of Schedule 1A opposite
each of the names of the Vendors;
"Schedule 1C" Schedule 1C of the Principal Share
Purchase Agreement;
"Second Series Convertible the 1,200,000 zero coupon convertible
Loan Notes unsecured loan notes issued to HSBC
pursuant to the terms of a loan note
instrument executed by the Company on
24 October 2000;
"Securities Act" the US Securities Act of 1933, as
amended;
"Shareholders' Agreement" the subscription and shareholders'
agreement dated 4 February 2000 made
between ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ Rock, ▇▇▇▇
▇▇▇▇▇▇, Media & Technology Group
Limited, BSB, Sky and Static 2358
Limited, as amended by supplemental
agreements dated 7 April 2000, 7
August 2000 and 25 August 2000
respectively;
"Shares Component" the aggregate number of New OpenTV
Shares payable as part of the
Consideration, as set out in column
(5) of Schedule 1A;
"Subsidiaries" the subsidiaries and subsidiary
undertakings of the Company, all of
which are listed in Schedule 3;
7
"subsidiary undertaking" the meaning given to that term in
section 258 Companies ▇▇▇ ▇▇▇▇;
"Sky Commercial Agreements" (i) the Shareholders' Agreement
(including, without limitation,
Schedule 5 of the Shareholders'
Agreement, being the Capacity,
Uplinking and Facilities Agreements)
as amended by a side letter dated
today's date between the parties to
the Shareholders' Agreement, as
referred to in Clause 5.2.1.12, (ii)
the EPG Services Agreement, (iii) the
Application Signing Agreement
(including the side letter dated 7
December 2000 thereto), (iv) the
Marketing Agreement and (v) the letter
dated 6 March 2001 from BSB agreeing
to lease 1 megabit of additional
bandwidth at the rates set out in the
Schedule 5 of the Shareholders'
Agreement;
"Tax" all forms of taxation, withholdings,
duties, imposts, levies, social
security contributions and rates
imposed by any local, municipal,
governmental, state, federal, or other
body in the United Kingdom or
elsewhere and any interest, penalty,
surcharge or fine in connection
therewith;
"Total Consideration" the total consideration payable in
Pounds Sterling and New OpenTV Shares
for the entire share capital of the
Company (comprising the Company Shares
and the surrender of the Options)
pursuant to this Agreement, the
Principal Share Purchase Agreement and
the Option Surrender Agreements, as
adjusted in accordance with the
provisions of clause 3;
8
"Vendors" JB, HW, CF, NH, NB, WT, AF, Sky, HSBC
and Cazenove;
"Vendors' Representative" ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇;
"Warranties" the warranties contained or referred
to in clause 7 and Schedules 4A and
4B.
1.2 Save where the context otherwise requires words and phrases the definitions
of which are contained or referred to in Part XXVI of the Companies ▇▇▇
▇▇▇▇ shall be construed as having the meaning thereby attributed to them.
1.3 Any references, express or implied, to statutes or statutory provisions
shall be construed as references to those statutes or provisions as
respectively amended or re-enacted or as their application is modified from
time to time by other provisions (whether before or after the date hereof)
and shall include any statutes or provisions of which they are re-
enactments (whether with or without modification) and any orders,
regulations, instruments or other subordinate legislation under the
relevant statute or statutory provision, except to the extent that the
liability of any party is thereby increased or extended. References to
sections of consolidating legislation shall wherever necessary or
appropriate in the context be construed as including references to the
sections of the previous legislation from which the consolidating
legislation has been prepared.
1.4 References in this Agreement to clauses and schedules are to clauses in and
schedules to this Agreement (unless the context otherwise requires). The
recitals and schedules to this Agreement shall be deemed to form part of
this Agreement.
1.5 Headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.6 The expression "the Vendors" includes their respective personal
representatives in the case of JB, HW, CF, NH, NB, WT and AF and their
successors and assigns in the case
9
of Sky, HSBC and Cazenove and the expression "the Purchaser" includes its
successors and assigns.
1.7 References to "persons" shall include bodies corporate, unincorporated
associations and partnerships (whether or not having separate legal
personality).
1.8 References to writing shall include any methods of reproducing words in a
legible and non-transitory form.
1.9 The masculine gender shall include the feminine and neuter and the singular
number shall include the plural and vice versa.
1.10 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by more than one person are given or
entered into severally only and not jointly and the respective liability of
the Vendors shall be several.
1.11 A document expressed to be "in the approved terms" means a document the
terms of which have been approved by or on behalf of the parties to this
Agreement and a copy of which has been signed for the purposes of
identification by or on behalf of those parties.
1.12 Each reference to "(Pounds)10.43" in this Agreement is to the exact amount
in Pounds Sterling arising from the division of 15.00 by 1.438.
2. Sale of Sale Shares, Sale of the Loan Notes and surrender of Options
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2.1 Subject to the terms of this Agreement and with effect from the Completion
Date, each of the Vendors holding Sale Shares shall sell or shall procure
the sale of with full title guarantee and the Purchaser shall purchase the
number of Sale Shares set opposite his or its name in column (2) of
Schedule 1A, free from all liens, charges and encumbrances and together
with all rights now or hereafter attaching to them, including all rights to
any dividend or other distribution declared, made or paid after the date of
this Agreement.
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2.2 Subject to the terms of this Agreement and with effect from the Completion
Date, HSBC shall sell with full title guarantee and the Purchaser (or the
Purchaser's nominee) shall purchase all of the Loan Notes free from all
liens, charges and encumbrances and together with all rights now or
hereafter attaching to them.
2.3 Each of the Vendors hereby waives, and in the case of Cazenove, Cazenove
agrees to procure the waiver by Greenwood, of any restrictions on transfer
(including pre-emption rights) which may exist in relation to the Company
Shares and the Loan Notes, whether under the articles of association of the
Company, the Shareholders' Agreement, the instruments constituting the Loan
Notes or otherwise.
2.4 Each of the Vendors holding Options shall with effect from the Completion
Date surrender all those Options set opposite his name in column (3) of
Schedule 1A.
3. Consideration
-- -------------
3.1 Subject to the provisions of this clause, the Consideration for the Sale
Shares attributable to each Vendor shall be that amount of the Cash
Component and the Shares Component as shall be set out in columns (4) and
(5) of Schedule 1A, as calculated in accordance with Schedule 1C.
3.2 A pro forma example (extracted from the attached Excel spreadsheet in the
approved terms) of inter alia the allocation of the Cash Component and the
Shares Component among each of the Vendors, Principal Shareholders and
Optionholders is set out in Schedule 1C. The basis used to calculate the
numbers in that pro-forma example is set out in that Schedule. The sale of
the Company Shares, other than the Sale Shares, is dealt with by the
Principal Share Purchase Agreement and not this Agreement.
3.3 At any time prior to the date two days before the Completion Date, the
Purchaser may give notice to the Vendors' Representative in writing that,
instead of delivering New OpenTV Shares at Completion, it will deliver cash
in Pounds Sterling in lieu of such New OpenTV Shares, in relation to any
proportion of such New OpenTV Shares up to and including 100% of such New
OpenTV Shares. If the Purchaser delivers such notice, the Purchaser's
obligations to deliver such New OpenTV Shares shall be replaced with an
obligation to deliver cash in Pounds Sterling for the relevant number
11
of New OpenTV Shares on the basis of (Pounds)10.43 for each New OpenTV
Share (or such other Pounds Sterling amount as the Purchaser's
Accountants determine to be fair and reasonable in the event of any
consolidation, sub-division, stock split, reclassification or reduction
of the share capital of the Purchaser or any rights issue, taking place
after the date of this Agreement). If the Purchaser exercises its rights
under this clause 3.3, the additional cash payable in accordance with
this clause 3.3 shall be allocated amongst the Vendors in proportion to
that part of the Total Consideration payable to them respectively.
3.4 The terms of clauses 3.4, 3.5, 3.7 and 3.8 of the Principal Share
Purchase Agreement are hereby acknowledged and agreed. The parties agree
that upon the final determination of the Total Consideration to be made
pursuant to clauses 3.4, 3.5, 3.7 and 3.8 of the Principal Share
Purchase Agreement, Schedules 1A and 1B hereof shall be adjusted to
reflect:
3.4.1 the effect of any notice served by the Purchaser in accordance with
clause 3.3 hereof; and
3.4.2 the revised Schedule 1A which arises from the application of clauses
3.4, 3.5, 3.7 and 3.8 of the Principal Share Purchase Agreement.
3.5 The Consideration shall be due and payable on Completion in accordance
with clause 5.3 on the basis of the Completion Schedules and
Calculations prepared by the Purchaser and delivered at Completion and
shall be calculated in accordance with clauses 3.4, 3.5, 3.7 and 3.8 of
the Principal Share Purchase Agreement.
3.6 Within seven days of the determination of the Completion Schedules and
Calculations in accordance with clause 3.8 of the Principal Share
Purchase Agreement;
3.6.1 if, according to the Completion Schedules and Calculations, any
Vendor has received too little Consideration, the Purchaser will, for
the account of the relevant Vendor:
3.6.1.1 pay to the Vendors' Representative (whose receipt shall be an
absolute discharge therefor) an amount in Pounds Sterling equal to
the Cash
12
Component element of such shortfall and, if applicable, interest
thereon as specified in clause 3.7 and the Purchaser shall not be
concerned to see to the distribution of the monies so paid; and
3.6.1.2 cause to be transferred or issued to such Vendor New OpenTV Shares
(valued at (Pounds)10.43 per New OpenTV Share) equal to the Shares
Component element of such shortfall (but excluding any fractional
entitlements) and cause OpenTV Certificates representing such New
OpenTV Shares (as defined in clause 5.3.2 below) to be delivered to
the Vendors' Representative in accordance with the provisions of
clause 5.3.2, subject to clause 6.3;
3.6.2 if, according to the Completion Schedules and Calculations, any
Vendor has received too much Consideration, such Vendor will:
3.6.2.1 pay to the Purchaser an amount in Pounds Sterling equal to the Cash
Component element of such excess, and, if applicable, interest
thereon as specified in clause 3.7; and
3.6.2.2 transfer to the Purchaser New OpenTV Shares (valued at (Pounds)10.43
per New OpenTV Share) equal to the Shares Component element of such
excess (but excluding any fractional entitlements) and cause OpenTV
Certificates (as defined in clause 5.3.2 below) representing such New
OpenTV Shares to be delivered to the Purchaser as soon as
practicable, having regard to the provisions of clauses 5.3.2 and
6.3.
3.7 The interest payable on the amount of any excess or shortfall pursuant to
clause 3.6 shall accrue from day to day and be compounded at monthly
intervals at the Base Rate from time to time of National Westminster Bank
plc from and including the Completion Date to the date of payment, save
that if such interest payable by or to all parties is less than
(Pounds)1,000 in aggregate, then no interest shall be due or payable.
4. Conditions
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4.1 The sale and purchase of the Sale Shares is conditional upon:
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4.1.1 the Warranties remaining true, accurate and not misleading in all
material respects at Completion as if they were deemed repeated at
Completion; and
4.1.2 all Principal Shareholders having satisfied the conditions contained
in clause 4.1 of the Principal Share Purchase Agreement and all steps
for Completion having been completed, save for the obligations of the
Purchaser under clauses 6.3.1 and 6.3.2 of the Principal Share
Purchase Agreement.
4.2 The Purchaser may waive either or both of the Conditions contained in
clause 4.1 at any time by notice in writing to the Vendors'
Representative, save that in the event that the Purchaser agrees to waive
the Condition in clause 4.1.2, it will complete under both the Principal
Share Purchase Agreement and this Agreement.
4.3 Each Vendor shall use his or its reasonable endeavours to procure the
fulfilment of the Conditions applicable to his or its Associates on or
before the Completion Date.
4.4 The sale and purchase of the Sale Shares is conditional on:
4.4.1 the representations and warranties of the Purchaser set out in
Schedule 4C remaining true and accurate and not misleading in all
material respects at Completion as if they were deemed repeated at
Completion; and
4.4.2 in the reasonable opinion of the Vendors, there shall not have
occurred since the date of this Agreement any Material Adverse Event
in respect of the Purchaser's Group, other than any Material Adverse
Event caused solely by a deterioration in general worldwide economic
conditions or comprising any fluctuation in the price of OpenTV Shares
on the NASDAQ National Market (other than as a result of a Material
Adverse Event).
4.5 The Vendors acting jointly (and not alone) may waive all or any of the
Purchaser's Conditions at any time by notice in writing to the Purchaser's
Solicitors.
4.6 The Purchaser shall use its reasonable endeavours to procure the fulfilment
of the Purchaser's Conditions on or before the Completion Date.
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4.7 In the event that any of the Conditions or Purchaser's Conditions
shall not have been fulfilled (or waived pursuant to clauses 4.2 or
4.5) prior to 31 August 2001 then the Purchaser and the Vendors shall
not be bound to proceed with the sale or purchase of the Sale Shares,
and this Agreement shall cease to be of any effect except clauses 1,
9, 10, 11, 12 and 13 which shall remain in force and save in respect
of claims arising out of any antecedent breach of this Agreement.
5 Completion
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5.1 Subject to the provisions of clause 4, Completion shall take place on
the Completion Date at the offices of the Purchaser's Solicitors when
all (but not some only) of the events described in this clause 5 shall
occur.
5.2 At Completion, each Vendor shall (to the extent applicable to him or
it):
5.2.1 deliver to the Purchaser:
5.2.1.1 (in respect of the Vendors owning Sale Shares) duly executed
transfers of all of the Sale Shares set opposite that Vendor's
name in column (2) of Schedule 1A in favour of the Purchaser or
its nominees together with the relative share certificates;
5.2.1.2 in the case of HSBC, duly executed transfers in respect of all
the Loan Notes in favour of the Purchaser or its nominee,
together with the Certificates representing the Loan Notes and
written resolutions signed by HSBC as the sole holder of all the
outstanding Loan Notes, in the approved terms, modifying the
terms of the Loan Notes in respect of transfers and the Company's
confirmation of its consent to such modifications, in the
approved terms;
5.2.1.3 (in respect of the Vendors holding Options) duly executed Option
Surrender Agreements together with a banker's draft in respect of
any tax liability owing pursuant to the terms of such Option
Surrender Agreements;
15
5.2.1.4 written confirmation from each Vendor that he or it is not aware of
any matter or thing which is a material breach of or materially
inconsistent with any of the Warranties given by him or it;
5.2.1.5 waiver of all restrictions on transfer by Greenwood, as the registered
holder of the Sale Shares set opposite Cazenove's name in column (2)
of Schedule 1A;
5.2.1.6 a certified copy of any power of attorney under which any of the
documents referred to in this clause 5.2 is executed or evidence
satisfactory to the Purchaser of the authority of any person signing
on each Vendor's behalf;
5.2.1.7 a duly executed power of attorney, in the approved terms, in favour of
the Purchaser or such person as may be nominated by the Purchaser
generally in respect of the Sale Shares and in particular to enable
the Purchaser (or its nominees) to attend and vote at General Meetings
of the Company;
5.2.1.8 releases duly executed as deeds in the approved terms, releasing the
Company and the Subsidiaries from any liability whatsoever (whether
actual or contingent) which may be owing to the relevant Vendor by the
Company or the Subsidiaries at Completion, save in respect of the Sky
Commercial Agreements or in respect of their capacity as Directors,
employees or consultants to any member of the Group;
5.2.1.9 a Registration Rights Agreement in the approved terms duly executed by
it;
5.2.1.10 a transfer duly executed by AF, and in a form acceptable to the
Purchaser, transferring all rights, title and interest in the shares
in Static 2358 France Sarl held by AF to OpenTV Holdings B.V.;
5.2.1.11 a letter in the approved terms from BSB relating to certain
confirmations regarding the Sky Commercial Agreements;
5.2.1.12 a letter in the approved terms amongst the parties to the
Shareholders' Agreement amending the terms of that agreement and duly
executed by it;
16
5.2.1.13 an undertaking from the Vendors' Representative not to release to any
person the OpenTV Certificates (as defined in clause 5.3.2 below) for
a period of 40 days after the Completion Date;
5.2.1.14 subject to compliance by the Purchaser with its obligations under this
Agreement, written confirmation from the Vendors' Representative of
receipt of the cash referred to in clause 5.3.1; and
5.2.2 pay and shall procure that their respective Associates shall pay all
monies (if any) then owing by them to each member of the Group,
whether due for payment or not, save in respect of the Sky Commercial
Agreements.
5.3 At Completion, the Purchaser shall:
5.3.1 pay or procure the payment of (i) the Cash Component and (ii) the Loan
Notes Consideration and procure the payment by the Company of the HSBC
Fees in Pounds Sterling by CHAPS automated transfer to the Vendors'
Representative (whose receipt shall be an absolute discharge therefor
and the Purchaser shall not be concerned to see to the distribution of
the moneys represented thereby), such payment to be made
simultaneously as one single payment by the Purchaser together with
the consideration due and payable under the Principal Share Purchase
Agreement;
5.3.2 deliver, if available, the certificates representing the Shares
Component to the Vendors' Representative (the "OpenTV Certificates")
(whose receipt shall be an absolute discharge therefor and the
Purchaser shall not be concerned to see to the distribution of the
OpenTV Certificates), failing which such certificates shall be
delivered as soon as reasonably practicable after Completion and the
provisions of clause 5.4 below shall apply;
5.3.3 deliver to the Vendors' Representative certified copies of any powers
of attorney under which any of the documents referred to in this
clause 5.3 is executed or other evidence satisfactory to the Vendors'
Representative of the authority of the person signing on the
Purchaser's behalf;
17
5.3.4 sign and deliver the Registration Rights Agreement; and
5.3.5 deliver to the Vendors' Representative a copy of the Purchaser's
irrevocable instructions to its Transfer Agent requesting the issue of
the New OpenTV Shares.
5.4 In the event that prior, to the delivery of the OpenTV Certificates to the
Vendors' Representative, the Purchaser discovers a breach by any of the
Vendors of any of the Warranties or any provision of this Agreement, the
Purchaser undertakes and agrees not to withhold or delay delivery of any of
the OpenTV Certificates to the Vendors' Representative or to apply any form
of set-off, against the Vendors in respect of the OpenTV Certificates.
5.5 Following Completion, the Purchaser shall make on a timely basis all
applicable or required filings for the New OpenTV Shares with the NASDAQ
National Market and the Amsterdam Stock Exchange.
5.6 Without prejudice to any other remedies available to the Purchaser, if in
any material respect the provisions of clause 5 are not complied with by
any of the Vendors on the Completion Date the Purchaser may:
5.6.1 defer Completion to a date not more than 28 days after the Completion
Date (and so that the provisions of this clause 5.6 shall apply to
Completion as so deferred); or
5.6.2 proceed to Completion so far as practicable (without prejudice to its
rights under this Agreement); or
5.6.3 give notice to each defaulting Vendor specifying its failure to comply
and if such failure is not remedied within seven (7) business days it
shall be entitled to rescind this Agreement, subject to clause 10.1.1,
provided that if each such defaulting Vendor remedies the relevant
breach within seven (7) business days of such request the provisions
of clauses 5.6.1 and 5.6.2 shall then apply.
18
5.7 Without prejudice to any other remedies available to the Vendors, if in any
material respect the provisions of clause 5.3 are not complied with by the
Purchaser on the Completion Date the Vendors may:
5.7.1 defer Completion to a date not more than 28 days after the Completion
Date (and so that the provisions of this clause 5.7 shall apply to
Completion as so deferred); or
5.7.2 proceed to Completion so far as practicable (without prejudice to its
rights under this Agreement); or
5.7.3 give notice to the Purchaser specifying its failure to comply and if
such failure is not remedied within seven (7) business days the
Vendors (or any one of them, and the exercise of this right by one
Vendor shall operate as the exercise of this right by all Vendors)
shall be entitled to rescind this Agreement, subject to clause 10.1.2,
provided that if the Purchaser remedies the relevant breach within
seven (7) business days of such request, the provisions of clauses
5.7.1 and 5.7.2 shall then apply.
6. United States Securities Law Compliance
---------------------------------------
6.1 The New OpenTV Shares to be issued pursuant to this Agreement shall not be
registered under the Securities Act, in reliance upon the exemption
contained in Section 4(2) of the Securities Act and/or Regulation S
promulgated thereunder and in reliance upon the representations and
warranties of the Vendors contained in paragraph 2.5 of Schedule 4A.
6.2 The OpenTV Certificates issued pursuant to this Agreement shall bear such
restrictive legend or legends as required by the securities laws of any
applicable state or any other applicable jurisdiction provided that if:
6.2.1 the OpenTV Certificates are held in escrow by the Vendor's
Representative for 40 days after the Completion Date; and
6.2.2 the Warranties set out in paragraph 2.5 of Schedule 4A remain true and
correct,
19
then the OpenTV Certificates shall not bear any restrictive legends in
respect of any United States Federal or state securities laws.
6.3 Each Vendor due to receive New OpenTV Shares in accordance with the
provisions of this Agreement hereby severally undertakes to the Purchaser
and agrees not to, for a period of 40 days after the Completion Date:
6.3.1 instruct the Vendors' Representative to release to any person any of
the OpenTV Certificates; or
6.3.2 transfer any interest (whether legal or equitable) or right attaching
to any New OpenTV Shares for a period of 40 days after the Completion
Date.
7. Warranties
----------
7.1 Each of the Vendors severally warrants to the Purchaser that each of the
statements set out in Schedule 4A and, in the case of HW who resides in the
province of Ontario, Canada, each of the statements in Schedule 4B, is now
and will at Completion be true and accurate on the basis that references to
the "Vendor" therein are references to himself or itself only and not to
any other Vendor, provided that HSBC only shall give the Warranties in
paragraphs 1.3 and 1.4 of Schedule 4A.
7.2 The Vendors acknowledge that the Purchaser has entered into this Agreement
in reliance upon the Warranties and has been induced by them to enter into
this Agreement. The Purchaser acknowledges separately to each Vendor that
in entering into this Agreement it has not relied on any warranties,
representations and covenants from that Vendor except to the extent set out
or referred to in this Agreement.
7.3 Each of the Warranties shall be separate and independent and, save as
expressly provided to the contrary, shall not be limited by reference to or
inference from any other Warranty or any other term of this Agreement.
7.4 Each of the Vendors hereby agrees with the Purchaser (for itself and as
trustee for the Company and each of the Subsidiaries) to waive any rights
which he may have in
20
respect of any misrepresentation or inaccuracy in, or omission from, any
information or advice supplied or given by the Company or its Subsidiaries
or its or their officers, employees or advisers in connection with the
giving of the Warranties.
7.5 Each Vendor shall procure that (save only as may be necessary to give
effect to this Agreement) he shall not do, allow or procure any act or
omission before Completion which would constitute a breach of any of the
Warranties given by it or him if they were given at Completion or which
would make any of those Warranties inaccurate or misleading if they were so
given.
7.6 Each of the Vendors hereby agrees to disclose promptly to the Purchaser in
writing as soon as reasonably practicable upon becoming aware of the same,
any matter, event or circumstance (including any omission to act) which may
arise or become known to it after the date of this Agreement and before
Completion which constitutes a breach of or is inconsistent with any of the
Warranties given by him or it in any material respect.
7.7 In the event of it becoming apparent on or before Completion that any
Vendor is in material breach of any of the Warranties which is not
remedied before Completion the Purchaser may (without any liability on its
part) rescind this Agreement by notice in writing to the Vendors'
Representative whereupon the obligations of the parties shall automatically
terminate to the intent that no party shall have any claim or right of
action against another save as provided in clause 10.1.1.
7.8 The benefit of the Warranties (subject to clause 7.10) may be assigned in
whole or in part and without restriction by the person for the time being
entitled thereto provided that the Purchaser provides notice to the Vendors
thereof (but no such notice is required if the Warranties are assigned to a
direct or indirect subsidiary of the Purchaser).
7.9 If any sum payable by the Vendors under this clause 7 shall be subject to
Tax (whether by way of deduction or withholding or direct assessment of the
person entitled thereto) such payment shall be increased by such an amount
as shall ensure that after deduction, withholding or payment of such Tax
the recipient shall have received a net
amount equal to the payment otherwise required hereby to be made, but
subject to the limitation in clause 7.10.
7.10 No Vendor shall have liability in respect of a claim for breach of Warranty
to the extent that the breach in respect of which the claim is made is
remedied by that relevant Vendor within 30 days of the date on which such
Vendor is given written notice by the Purchaser of the circumstances to
which the claim relates. The maximum liability of each Vendor in the event
of a breach of Warranty by it or him shall be limited to:
7.10.1 the aggregate amount of the Cash Component received by that Vendor (as
set out in column (4) of Schedule 1A), and the amount of the realised
proceeds actually received by the relevant Vendor in cash from the
sale of New OpenTV Shares issued to the Vendor pursuant to this
Agreement ("Prior Realised Proceeds") prior to the date on which the
claim for breach of Warranty is settled or agreed (the "Settlement
Date"); or
7.10.2 if the Vendor has not sold all such New OpenTV Shares on or before the
Settlement Date, the aggregate of the Cash Component, the Prior
Realised Proceeds and the amount of the value of the remaining New
OpenTV Shares not sold by such Vendor at the last sale price on the
NASDAQ National Market on the Settlement Date,
unless the relevant claim or claims has arisen by reason of fraud, wilful
concealment, dishonesty or deliberate non-disclosure on the part of the
relevant Vendor in which event there shall be no limit on the amount
recoverable by the Purchaser from the relevant Vendor in respect of such
claim.
7.11 The Purchaser represents, warrants and undertakes to and with the Vendors
that each of the statements set out in Schedule 4C is now and will at
Completion be true and accurate (the "Purchaser Warranties").
7.12 The liability of the Purchaser under the Purchaser Warranties to each
Vendor who has a claim against the Purchaser for breach of a Purchaser
Warranty shall be limited to
22
the value of the Consideration due to that Vendor, as calculated in
accordance with clause 3 and Schedule 1C.
7.13 The Purchaser may at its sole option satisfy any Purchaser Warranty claim
by cash in Pounds Sterling or with New OpenTV Shares valued at
(Pounds)10.43 per share. Any payment or delivery of an OpenTV Share under
this clause shall be made by the delivery of a certificate therefor in the
name of the relevant Vendor and delivered to the Vendors' Representative,
whose receipt shall be an absolute discharge therefor and the Purchaser
shall not be concerned to see the distribution of the moneys represented
thereby.
7.14 In the event of it becoming apparent on or before Completion that the
Purchaser is in material breach of any of the Purchaser Warranties, the
Vendors (or any one of them, and the exercise of this right by one Vendor
shall operate as the exercise of this right by all Vendors) may (without
any liability on its or their part) rescind this Agreement by notice in
writing to the Purchaser whereupon the obligations of the parties shall
automatically terminate to the intent that no party shall have any claim or
right of action against another save as provided in clause 10.1.2.
7.15 If any sum payable by the Purchaser under this clause 7 shall be subject to
Tax (whether by way of deduction or withholding or direct assessment of the
person entitled thereto) such payment shall be increased by such an amount
as shall ensure that after deduction, withholding or payment of such Tax
the recipient shall have received a net amount equal to the payment
otherwise required thereby to be made, but subject to the limitation in
clause 7.12.
8. Restriction on Announcements
----------------------------
Each of the parties undertakes that he or it will not (save as required by law
or by any securities exchange or any supervisory or regulatory body to whose
rules any party to this Agreement is subject) make any announcement in
connection with this Agreement unless in the approved terms.
23
9. Confidentiality of Information Received
---------------------------------------
9.1 Each of the parties undertakes with each other that they shall treat as
strictly confidential all information received or obtained by them or their
employees, agents or advisers as a result of entering into or performing
this Agreement which relates to the provisions of this Agreement, the
negotiations leading up to this Agreement, the subject matter of this
Agreement or the business or affairs of the parties or, in the case of the
Vendors only, any of the Purchaser's Associates or any member of the
Group (post Completion) and subject to the provisions of clause 9.2 that
they will not at any time hereafter make use of or disclose or divulge to
any person any such information and shall use their best endeavours to
prevent the publication or disclosure of any such information.
9.2 The restrictions contained in clause 9.1 shall not apply so as to prevent
the parties from:
9.2.1 making any disclosure required by law or by any securities exchange or
supervisory or regulatory or governmental body pursuant to rules to
which the relevant party is subject; or
9.2.2 making any disclosure to any professional adviser for the purposes of
obtaining advice or making any disclosure for the purposes of
clearance or consents from a tax or governmental authority (provided
always that the provisions of this clause 9 shall apply to, and the
parties shall procure that, they apply to and are observed in relation
to, the use or disclosure by such professional adviser of the
information provided to him).
9.3 The restrictions contained in clause 9.1 shall not apply in respect of any
information which was in the public domain before it was furnished to the
parties or comes into the public domain otherwise than by a breach of this
clause 9 by any party.
10. Costs
-----
10.1 Each party to this Agreement shall pay its own costs of and incidental to
this Agreement and the sale and purchase hereby agreed to be made provided
that:
24
10.1.1 if the Purchaser shall lawfully exercise its right not to proceed with
the purchase of the Sale Shares pursuant to this Agreement, the Vendor
or Vendors whose breach has entitled the Purchaser to rescind this
Agreement shall indemnify, and if more than one Vendor has so breached
this Agreement, in proportion to their respective entitlements to the
Consideration the Purchaser against all reasonable fees, expenses and
disbursements incurred by the Purchaser in the preparation and
negotiation of this Agreement and the Vendors shall have no other
liabilities to the Purchaser pursuant to this Agreement; or
10.1.2 if the Vendors (or any one of them, and the exercise of the right by
one Vendor shall operate as the exercise of the right by all Vendors)
shall lawfully exercise their, his or its right not to proceed with
the sale of the Sale Shares pursuant to this Agreement, the Purchaser
shall indemnify the Vendors against all reasonable fees, expenses and
disbursements incurred by the Vendors in the preparation and
negotiation of this Agreement and the Purchaser shall have no other
liabilities to the Vendors pursuant to this Agreement.
10.2 The Vendors confirm that no expense of whatever nature relating to the sale
of the Sale Shares has been or is to be borne by any member of the Group.
11. General
-------
11.1 Save as expressly provided in clause 11.2 a person who is not a party to
this Agreement shall not have or acquire any right to enforce any term of
this Agreement (including but not limited to any right to enforce or have
the benefit of any exclusion or limitation of liability contained in this
Agreement). This clause shall override any other clause in this Agreement,
which is or may be inconsistent with it.
11.2 This Agreement shall be binding upon and ensure for the benefit of the
estates, personal representatives or successors of the parties. No party
shall be entitled to assign the benefit of this Agreement save that the
Purchaser shall be entitled to assign the benefit of this Agreement in
whole or in part and without restriction. Nothing in
25
this clause shall prohibit or restrict the sale by any of the Vendors of
its New OpenTV Shares (subject, however, to clause 6.3 and any applicable
securities law of the United States).
11.3 This Agreement (together with any documents referred to herein or executed
contemporaneously by the parties in connection herewith) constitutes the
whole agreement between the parties hereto and supersedes any previous
agreements or arrangements between them (whether written or oral) relating
to the subject matter hereof; it is expressly declared that no variations
hereof shall be effective unless made in writing signed by duly authorised
representatives of the parties.
11.4 Each party waives its rights against the other in respect of warranties and
representations (whether written or oral) relating to the sale of the Sale
Shares and the Loan Notes not expressly set out or referred to in this
Agreement or the Registration Rights Agreement.
11.5 Unless and to the extent only expressly provided otherwise in this
Agreement or in the Registration Rights Agreement:
11.5.1 the Vendors give no promise, warranty, undertaking or representation
to the Purchaser;
11.5.2 to the extent allowable, all other warranties on the part of the
parties express or implied by law or otherwise are expressly excluded.
11.6 Nothing in clauses 11.4 and 11.5 limit or exclude liability for fraud,
wilful concealment or deliberate non-disclosure.
11.7 The Purchaser and the Vendors acknowledge that they have had the benefit of
legal advice on the effects of clauses 11.4, 11.5 and 11.6 and confirm that
they consider such clauses to be reasonable in all the circumstances of
this Agreement.
11.8 All of the provisions of this Agreement shall remain in full force and
effect notwithstanding Completion (except insofar as they set out
obligations which have been fully performed at Completion).
26
11.9 If any provision or part of a provision of this Agreement shall be, or be
found by any authority or court of competent jurisdiction to be, invalid
or unenforceable, such invalidity or unenforceability shall not affect the
other provisions or parts of such provisions of this Agreement, all of
which shall remain in full force and effect.
11.10 If any liability of one or more but not all of the Vendors shall be or
become illegal, invalid or unenforceable in any respect, such circumstance
shall not affect or impair the liabilities of the other Vendors under this
Agreement.
11.11 No failure to exercise any right of rescission expressly conferred upon
the Purchaser under this Agreement shall constitute a waiver by the
Purchaser of any other right or remedy. No party shall have any right to
rescind this Agreement after Completion, provided that this sentence shall
not apply to any warranty given fraudulently.
11.12 The Purchaser may release or compromise the liability of any of the
Vendors hereunder or grant to any Vendor time or other indulgence without
affecting the liability of any other Vendor hereunder.
11.13 No failure of the Purchaser to exercise, and no delay or forbearance in
exercising, any right or remedy in respect of any provision of this
Agreement shall operate as a waiver of such right or remedy.
11.14 Upon and after Completion each Vendor and the Purchaser shall do and
execute or procure to be done and executed all such further acts, deeds
and documents and things as may be necessary to give effect to the
performance of the relevant party's obligations under the terms of this
Agreement and, pending the registration (in the name of the Purchaser (or
its nominee)) of the transfer of the Sale Shares owned by such Vendor,
such Vendor shall as from Completion hold the legal estate in the Sale
Shares in trust for the Purchaser.
11.15 This Agreement may be executed in one or more counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least
27
one counterpart and each such counterpart shall constitute an original of
this Agreement but all the counterparts shall together constitute one and
the same instrument.
11.16 The parties acknowledge and agree that to the extent the Purchaser
suffers or incurs any loss as a result of a breach by more than one
Vendor of any of the Warranties or of its obligations under this
Agreement (a "Defaulting Vendor"), the liability of each of the
Defaulting Vendors to the Purchaser for such loss shall be limited
proportionately to the amount of Consideration received by all such
Defaulting Vendors respectively as set out in columns (4) and (5) of
Schedule 1A.
11.17 The Purchaser undertakes to the Vendors that it shall not alter or vary
any material term of the Principal Share Purchase Agreement to the extent
that such term directly affects Cazenove, HSBC or Sky, without the prior
written consent of Cazenove, HSBC and Sky, such consent not to be
unreasonably withheld or delayed.
12. Notices
-------
12.1 Save as otherwise provided in this Agreement any notice, demand or other
communication to be served under this Agreement shall be in writing in
the English language and shall be served upon any party hereto only by
posting by first class post (if to an address in the same country) or air
mail (if to an address in a different country) or delivering the same by
hand or by courier, to its address given or referred to in this clause or
sending the same by facsimile transmission to the number given in this
clause for the addressee or at such other address or number as it may
from time to time notify in writing to the other parties hereto.
12.2 A notice, demand or other communication served by first class post shall
be deemed duly served on an address in the same country 48 hours
(disregarding days which are not business days) after posting, a notice,
demand or other communication served by air mail shall be deemed duly
served on an addressee in a different country five business days after
posting and a notice, demand or other communication sent by facsimile
transmission shall be deemed to have been served at the time of
transmission (save that if the transmission occurs after 6.00 p.m. the
notice, demand
28
or other communication shall be deemed to have been served at 8.30 a.m.
on the next business day following transmission) and in proving service
of the same it will be sufficient to prove, in the case of a letter, that
such letter was left at or delivered to the correct address of the party
to be served as provided in this Agreement or, in the case of properly
stamped or franked first class post or air mail, addressed to the address
of the party to be served given in this clause and placed in the post
and, in the case of facsimile transmission, that such facsimile was duly
transmitted to the number of the party to be served given in this clause
and an electronic acknowledgement was received.
12.3 All notices, demands or other communications given under this Agreement,
shall be given to the following addresses:
If to the Vendors: the Vendors' Representative
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax Number: 020 7760 1111
Telephone Number: ▇▇▇ ▇▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to the Purchaser: c/o Havelet Trust Company
(BVI) Limited
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
For the attention of: General Counsel
Copy to: (1) ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ 9403
Fax Number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telephone Number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
(2) ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP
Old Federal Reserve Bank
Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telephone Number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
If to Sky: British Sky Broadcasting Ltd
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax Number: 020 7705 3254
Telephone Number: ▇▇▇ ▇▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇▇ ▇▇▇▇▇, Legal & Business
Affairs
12.4 For the purposes of this clause "business day" means a day (other than a
Saturday or a Sunday) on which banks are generally open for business in
London.
13. Governing Law and Submission to Jurisdiction
--------------------------------------------
13.1 This Agreement shall be governed by and construed in accordance with
English law. The parties submit to the non-exclusive jurisdiction of the
English courts for the purpose of enforcing any claim arising hereunder.
The Purchaser hereby appoints ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ to be its agent for service of process in England. CF and
HW hereby appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
30
of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ to be their agent for
service of process in England. Should the agent for service appointed
pursuant to this clause, or should a party who has not appointed an agent,
leave England permanently, the Appointor or party, as the case may be,
shall forthwith appoint another agent for service of process resident in
England, failing which its solicitors pursuant to this transaction shall
become such agent for service. Any change of the appointment of agent for
service of process in England to any other such agent resident in England
may be made on notice to the other parties at any time.
31
SCHEDULE 1A
The Vendors
(1) (2) (3) (4) (5)
Name and Address of Number of Sale Cash Component Shares Escrow
Vendor Shares Component
(including Shares
Escrow Shares)
Open TV Open TV
shares shares
(Pounds)
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 15,774,589 ordinary
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 963,822 627,775 108,028
England 3,183 "A" ordinary
shares
Mr ▇▇▇▇ Rock 15,774,589 ordinary
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ shares 963,627 627,648 108,006
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Media & 11,771,242 719,073 468,361 80,596
Technology Group Limited ordinary shares
Tropic Isle Building
PO Box 438
Road town
Tortola
British Virgin Islands
SCHEDULE 1B
Non-Principal Shareholders and Option holders
(1) (2) (3) (4) (5)
Name and Address of Number of Number of Options Cash Shares
Vendor Company Component Component
Shares
(Pounds) (Open TV
shares)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 324,750 - 19,838 17,620
▇▇▇▇▇▇ Waterfall 955,148 58,347 51,825
▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 19,102 Options (approved) 1,706 (*) -
▇▇▇▇▇▇ ▇▇ ▇▇▇ granted at (Pounds)0.157 per share
159,191 Options (approved) - -
granted at (Pounds)1.04 per share
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 955,148 58,347 51,825
▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 191,029 Options (approved) 16,929 (*) -
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ granted at (Pounds)0.157 per share
420,262 Options (approved) 37,680 (*) -
granted at (Pounds)0.157 per share
1,273,528 Options (unapproved)
granted at 227,538 (*) 34,131 (*)
(Pounds)0.157 per share
▇▇▇▇ ▇▇▇▇▇▇ 716,361 43,761 38,868
▇▇▇▇ ▇
▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 19,102 Options (approved) 1,706 (*) -
London Fields granted at (Pounds)0.157 per share
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 716,361 43,761 38,868
▇▇▇▇ ▇
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 19,102 Options (approved) 1,706 (*) -
▇▇▇▇▇▇ ▇▇ ▇▇▇ granted at (Pounds)0.157 per share
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 477,600 Options
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (unapproved) granted at 113,775 (*) 17,066 (*)
West Side 0 (Pounds)0.157 per share
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 159,200 Options (unapproved)
granted at (Pounds)0.157 per share
▇▇▇▇▇▇ ▇▇▇▇▇▇ 608,144 Options (unapproved)
"Brooms" 0 granted at (Pounds)0.157 per share 108,655 (*) 16,298 (*)
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Sky New Media Ventures Plc 5,969,677 - 364,671 323,903
Grant Way
Isleworth
Middlesex TW7 QD
HSBC Investment Bank Plc 2,654,058 - 162,129 144,004
Thames Exchange
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Greenwood Nominees 4,807,692 - 293,689 260,856
Limited (Account CNEAF)
(*) Tax to be withheld at source by the Company on the aggregate value of these
gross amounts based on the marginal tax rates of the Optionholders on the date
of Completion.
-------------------------------------------------------------------------------------------------------------
Name of Option holder with Number of Options Cash Component (*)
Approved Options
-------------------------------------------------------------------------------------------------------------
Options granted at (Pounds)0.157 per
share
-------------------------------------------------------------------------------------------------------------
D Park 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
T Swift 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
D Toll 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
N ▇▇▇▇▇ 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
A ▇▇▇▇▇▇▇▇▇ 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
S ▇▇▇▇▇▇▇▇ 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
S ▇▇▇▇▇▇▇▇▇ 114,617 (Pounds) 10,239
-------------------------------------------------------------------------------------------------------------
S Lebreton 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
A Sandoz 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
A ▇▇▇▇▇▇ 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇▇▇ 318,381 (Pounds) 28,442
-------------------------------------------------------------------------------------------------------------
N ▇▇▇▇▇▇▇▇ 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
A ▇▇▇▇▇▇ 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
A ▇▇▇▇▇ 318,381 (Pounds) 28,442
-------------------------------------------------------------------------------------------------------------
S Law 0
-------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇▇ 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
C Rose 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
N ▇▇▇▇▇▇▇ 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
A Fox 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
C ▇▇▇▇▇▇▇▇ 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
D Still 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
M Charras 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
C ▇▇▇▇▇▇ 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇ 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
A Park 19,102 (Pounds) 1,706
-------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ 120,985 (Pounds) 10,808
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
Philippe Fau 57,308 (Pounds) 5,120
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ Pasinisi 9,551 (Pounds) 853
-------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ 9,551 (Pounds) 853
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
Number of Options (Approved)
Name of Option holder with Options granted at (Pounds)1.04 per
Approved Options share) Cash Component
-------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ 57,308 (Pounds) 0
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 19,102 (Pounds) 0
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 57,308 (Pounds) 0
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ 114,617 (Pounds) 0
-------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ 31,828 (Pounds) 0
-------------------------------------------------------------------------------------------------------------
(*) Tax to be withheld at source by the Company on the aggregate value of these
gross amounts based on the marginal tax rates of the Optionholders on the date
of Completion.
SCHEDULE 2
Details of the Company
THE COMPANY
-----------
1. Registered number: 03982630
2. Address of registered office: Static 2358 Holdings Limited
▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
3. Date and place of incorporation: 28/04/2000 England and Wales
4. Authorised share capital: (Pounds)15,000,000
120,600,000 Ordinary Shares of 10p each
6,000,000 A Ordinary Shares of 10p each; and
2,340,000 B Shares at (Pound)1 each.
5. Issued share capital: 60,422,797 Ordinary Shares
3,183 A Ordinary Shares
6. First Series Zero Coupon
Convertible Unsecured Loan
Notes 2002: 2,450,000 (issued on 26 May 2000) in
the name of HSBC Investment Bank Plc
Second Series Zero Coupon
Convertible Unsecured Loan
Notes 2002: 1,200,000 (issued on 24 October
2000) in the name of HSBC Investment
Bank Plc
36
7. Directors: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
8. Secretary: ▇▇▇▇▇▇ ▇▇▇▇▇▇
9. Accounting Reference Date: 31 December
10. Auditors: Ernst & Young
37
SCHEDULE 3
The Subsidiaries
Name of Subsidiary: Static 2358 Limited
Registered Number: 03364451
Date and place of Incorporation: 28/04/1997 - England and Wales
Address of Registered Office: Static 2358 Limited
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Directors: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ Rock
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Secretary: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Auditors: Ernst & Young
Accounting Reference Date: 30/06/2001
Authorised Share Capital: 200,000 Ordinary Shares of 10p each
25,000 A Ordinary Shares of 10p each
Issued Share Capital: 174,670 Ordinary Shares of 10p each and 11 A
Ordinary Shares of 10p each
Registered Shareholders & identity of beneficial owners: The Company
38
Company number: B430 085 191
Registered name: STATIC ▇▇▇▇ ▇▇▇▇▇▇ SARL
Registered address: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Date of incorporation: 28 March 2000
Former name(s) (if any) N/A
Date of name changes (if any): N/A
Authorised share capital: 765,294 Euros
Shareholders: (1) Static 2358 Limited
(2) ▇▇▇▇▇▇ ▇▇▇▇▇▇
Directors and Co. Sec: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Auditors: Ernst & Young
39
Company number: 001432106
Registered name: STATIC 2358 (US) Inc
Former name(s) (if any): Static 2358 (US) Ltd Inc
Date of name changes (if any): 25 August 2000
Date of incorporation: 10 July 2000
Registered Office: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ of ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Executive Office: ▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇
Authorised share capital: 1,000 shares of common stock of the par value
of US$0.01 each
100 shares allocated
Shareholders: Static 2358 Limited
Directors and Co. Sec: ▇▇▇▇▇▇ ▇▇▇▇▇ (Chairman, President and CEO)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (CFO and treasurer)
▇▇▇▇▇▇ ▇▇▇▇▇▇ (General Counsel and Secretary)
▇▇▇▇▇▇ Waterfall (Chief Technology Officer)
Fiscal year: ends 31/st/ December
Auditors: Ernst & Young
40
SCHEDULE 4A
Warranties
1. Corporate Matters
-----------------
1.1 The Vendor is the beneficial owner of the Sale Shares set opposite his or
its name in column (2) of Schedule 1A, and sells, or procures the sale,
free and clear of any lien, charge, option, right of pre-emption or other
encumbrance or third party right whatsoever (other than those set out in
the Articles of Association and/or the Shareholders' Agreement). The Sale
Shares of the Vendor that are being sold to the Purchaser hereunder when
sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully paid
and free of restrictions on transfer (other than those set out in the
Articles of Association of the Company and/or the Shareholders' Agreement)
and will be sold in compliance with all applicable UK securities laws.
1.2 The information set out opposite the relevant Vendor's name in Schedule 1A,
columns (1), (2) and (3) is true, complete and accurate.
1.3 HSBC is the beneficial owner of the Loan Notes, free and clear of any lien,
charge, option, right of pre-emption or other encumbrance or third party
right whatsoever. The Loan Notes that are being assigned to the Purchaser
hereunder when assigned and delivered in accordance with the terms hereof
for the consideration expressed herein, will be duly and validly
transferred and free of restrictions on transfer. [This Warranty is given
by HSBC only]
1.4 The information regarding the Loan Notes set out in Schedule 2 is true and
accurate. True, complete and accurate copies of the Loan Notes have been
supplied to the Purchaser. [This Warranty is given by HSBC only.]
41
2. Power, Title, Authorisation and Regulation S
--------------------------------------------
2.1 The Vendor has all requisite legal and, to the extent applicable, corporate
power, and authority to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated by this Agreement
to be consummated by the Vendor. The execution, delivery and performance
of this Agreement by the Vendor and the consummation of such transactions
have been duly and validly authorised by all necessary action, including,
if applicable, corporate action, by or on behalf of the Vendor. This
Agreement and the agreements contemplated hereby to which the Vendor is a
party has been duly executed and delivered by the Vendor and constitutes a
valid and binding obligation of the Vendor, subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief and
equitable remedies. No consent, approval, order or authorisation of, or
registration, declaration or filing with, any governmental entity or third
party is required by or with respect to the Vendor in connection with the
execution and delivery of this Agreement by the Vendor or the consummation
by each Vendor of the transactions contemplated hereby.
2.2 The Vendor represents that he has or will have, as at Completion, full
right, power and authority to sell, transfer and deliver such Sale Shares
to the Purchaser, and, upon delivery of the certificate or certificates
therefor to the Purchaser and the Purchaser's payment for and acceptance
thereof, will transfer to the Purchaser the Sale Shares with full title
guarantee free and clear of any restriction, claim, lien, charge,
encumbrance or equity whatsoever. No Vendor is party to any voting trust,
agreement or arrangement affecting the exercise of the voting rights of the
relevant shares.
2.3 There is no action, proceeding, claim or, to the Vendor's knowledge and
belief, investigation against the Vendor or any of the Vendor's assets,
properties or, as applicable, any of the Vendor's respective officers or
directors, pending or, to the Vendor's knowledge and belief, threatened, at
law or in equity, or before any court, arbitrator or other tribunal, or
before any administrative law judge, hearing officer or administrative
agency relating to or in any other manner impacting upon the ability of the
Vendor to sell, and/or the title to, the Sale Shares owned by the Vendor.
42
2.4 The Vendor hereby acknowledges that he or it has read this Agreement and
the other documents to be delivered by him or it in connection with the
consummation of the transactions contemplated hereby and has made an
independent examination of the transactions contemplated hereby
(including the tax consequences thereof). The Vendor acknowledges that he
has had an opportunity to consult with and has relied solely upon the
advice, if any, of the Vendor's legal counsel, financial advisors, or
accountants with respect to the transactions contemplated hereby to the
extent the Vendor has deemed necessary, and has not been advised or
directed by the Purchaser, the Company or their respective legal counsel
or other advisors in respect of any such matters and has not relied on
any such parties in connection with this Agreement and the transactions
contemplated hereby.
2.5 The Vendor represents in respect of the New OpenTV Shares that:
2.5.1 the Vendor acknowledges that none of the New OpenTV Shares to be issued
to him or it have been or will be registered under the Securities Act,
and such securities, to the extent offered, are being offered to the
Vendor outside the United States in reliance on Regulation S under the
Securities Act ("Regulation S");
2.5.2 the Vendor is not a US person (as defined in Regulation S) and is not
acquiring the New OpenTV Shares for the account or benefit of any such US
person, and, if the Vendor is a resident of Ontario, Canada, each the
Vendor makes the additional acknowledgements set out in Schedule 4B.
2.5.3 for a period of 40 days following the Completion, the Vendor will not
resell the New OpenTV Shares except: (i) pursuant to registration of the
New OpenTV Shares under the Securities Act, (ii) in offshore transactions
outside the United States in accordance with Rule 903 or 904 of
Regulation S, or (iii) pursuant to another available exemption from the
registration requirements of the Securities Act; and the Vendor will not
engage in hedging transactions with regard to the New OpenTV Shares
unless in compliance with the Securities Act;
2.5.4 the Vendor acknowledges and accepts that the Purchaser is required
pursuant to Regulation S to refuse to register the transfer of any New
OpenTV Shares in violation of the restrictions stated in paragraph 2.5.3
of this Schedule, and in the event any
43
Vendor breaches either paragraph 2.5.2 or 2.5.3 of this Schedule, then
such Vendor accepts that the Purchaser is entitled to legend any relevant
Certificate with the appropriate and applicable US securities legend.
44
SCHEDULE 4B
Additional Acknowledgements of the Canadian Shareholder
In addition to the representations set out in Schedule 4A, HW who is a resident
of Ontario, Canada hereby acknowledges and confirms his agreement with the
Purchaser that:
1.1 the New OpenTV Shares are being issued pursuant to exemptions from the
prospectus filing and dealer registration requirements of applicable
Canadian securities legislation; and
1.2 the New OpenTV Shares will be subject to resale restrictions under
applicable Canadian securities legislation.
45
SCHEDULE 4C
Purchaser's Warranties
1. The Purchaser and each subsidiary of the Purchaser which is a significant
subsidiary as such term is defined under Rule 1.02 of Regulation S-X
promulgated under the Exchange Act (collectively, the "Purchaser
Subsidiaries") has been duly organised and is validly existing and in good
standing under the laws of its jurisdiction of incorporation or
organisation, as the case may be, and has the requisite power and authority
and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted. The
Purchaser and each Purchaser Subsidiary is duly qualified or licensed to do
business, and is in good standing, in each jurisdiction where the character
of the properties owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, except for such
failures to be so qualified or licensed and in good standing that,
individually or in the aggregate, have not resulted and could not
reasonably be expected to result in a Material Adverse Event for the
Purchaser.
2. The copies of the Purchaser's Memorandum of Association and Articles of
Association, each as amended through the date of this Agreement, that are
available with the SEC, are current, complete and correct copies of those
documents. The Purchaser is not in violation of any of the provisions of
such Memorandum of Association and Articles of Association.
3. The authorized capital stock of the Purchaser consists of (i) 500,000,000
Class A Ordinary Shares, (ii) 200,000,000 Class B Ordinary Shares, and
(iii) 500,000,000 Preference Shares. As of 31 December, 2000 34,829,632
Class A Ordinary Shares, 30,631,746 Class B Ordinary Shares and no
Preference Shares were issued and outstanding, all of which issued and
outstanding Shares were validly issued and are fully paid, nonassessable
and, except as set forth in the Investors' Rights Agreement included as an
Exhibit to the Purchaser's SEC Reports (as defined in clause 10 below), not
subject to pre-emptive rights.
46
4. The New OpenTV Shares, upon issuance on the terms and conditions specified
in this Agreement (i) will be duly authorised, validly issued, fully paid,
nonassessable, (ii) will not be subject to pre-emptive rights, and (iii)
will be free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, charges and other
encumbrances or any nature whatsoever, other than as specifically
contemplated by this Agreement or by law.
5. The Purchaser has all necessary corporate power and authority to execute
and deliver this Agreement and to perform its obligations under this
Agreement and to consummate the transactions contemplated by this Agreement
to be consummated by the Purchaser. The execution and delivery of this
Agreement by the Purchaser and the consummation by the Purchaser of such
transactions have been duly and validly authorised by all necessary
corporate action and no other corporate proceedings on the part of the
Purchaser are necessary to authorise this Agreement or to consummate such
transactions. This Agreement has been duly authorised and validly executed
and delivered by the Purchaser and constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms.
6. The execution and delivery of this Agreement by the Purchaser does not, and
the performance of this Agreement by the Purchaser will not:
6.1. conflict with or violate any provision of the Purchaser's Memorandum of
Association or Articles of Association;
6.2. assuming that all relevant consents, approvals, authorisations and other
actions have been obtained and all relevant filings and obligations have
been made, conflict with or violate any law applicable to the Purchaser or
by which any property or asset of the Purchaser is or may be bound or
affected, except for any such conflicts or violations that, individually or
in the aggregate, have not resulted and could not reasonably be expected to
result in a Material Adverse Event for the Purchaser; or
6.3. result in any breach of or constitute a default (or an event which with or
without notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or
cancellation of, or result in the
47
creation of a lien on any property or asset of the Purchaser under, any
contract to which the Purchaser is a party or by which any of them or their
assets or properties is or may be bound or affected, except for any such
breaches, defaults or other occurrences which, individually or in the
aggregate, have not resulted and could not reasonably be expected to result
in a Material Adverse Event for the Purchaser.
7. The execution and delivery of this Agreement by the Purchaser does not, and
the performance of this Agreement by the Purchaser will not, require any
consent, approval, authorisation or permit of, or filing with or
notification to, any third party or governmental entity except (i) for
applicable requirements of the Exchange Act, applicable requirements of the
Securities Act, applicable requirements of Blue Sky Laws, the rules and
regulations of the NASDAQ National Market and the Amsterdam Stock Exchange,
applicable requirements of takeover statutes, applicable notification
requirements of the anti-trust laws or any other laws, and (ii) where
failure to obtain such consents, approvals, authorisations or permits, or
to make such filings or notifications, individually or in the aggregate,
have not resulted and could not reasonably be expected to result in a
Material Adverse Event for the Purchaser.
8. The Purchaser is a "Foreign Issuer" as that term is defined in Regulation S
promulgated under the Securities Act.
9. Each of the Purchaser and the Purchaser Subsidiaries is in possession of
all franchises, grants, authorisations, licenses, permits, easements,
variances, exceptions, consents, certificates, approvals and orders of any
governmental entity necessary for the Purchaser or any Purchaser Subsidiary
to own, lease and operate its properties or to carry on its business as it
is now being conducted (collectively, the "Purchaser Permits"), except
where the failure to have, or the suspension or cancellation of, any of the
Purchaser Permits, individually or in the aggregate, has not resulted and
could not reasonably be expected to result in a Material Adverse Event for
the Purchaser, and, as of the date of this Agreement, no such suspension or
cancellation of any of the Purchaser Permits is pending or, to the
knowledge of the Purchaser, threatened, except where the failure to have,
or the suspension or cancellation of, any of the Purchaser Permits,
individually or in the aggregate, has not resulted and could not reasonably
be expected to result in a Material Adverse Event for the Purchaser.
Neither the
48
Purchaser nor any Purchaser Subsidiary is in conflict with, or in default
or violation of, (i) any law applicable to the Purchaser or any Purchaser
Subsidiary or by which any property or asset of the Purchaser or any
Purchaser Subsidiary is or may be bound or affected or (ii) any Purchaser
Permits, except for any such conflicts, defaults or violations that,
individually or in the aggregate, have not resulted and could not
reasonably be expected to result in a Material Adverse Event for the
Purchaser.
10. The Purchaser has filed all forms, reports, schedules, statements and other
documents (including all exhibits, annexes, supplements and amendments to
such documents) required to be filed by it under the Exchange Act and the
Securities Act (collectively, including any such documents filed subsequent
to the date of this Agreement, the "Purchaser SEC Reports"). The Purchaser
SEC Reports, including any financial statements or schedules included or
incorporated therein by reference, at the time they were filed, (i)
complied in all material respects with the requirements of the Exchange Act
or the Securities Act or both, as the case may be, applicable to those
Purchaser SEC Reports and (ii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated or
necessary in order to make the statements made in those Purchaser SEC
Reports, in the light of the circumstances under which they were made, not
misleading. No Purchaser Subsidiary is subject to the periodic reporting
requirements of the Exchange Act or is otherwise required to file any
documents with the SEC or any national securities exchange or quotation
service or comparable governmental entity.
11. Each of the consolidated balance sheets included in or incorporated by
reference into the Purchaser SEC Reports (including the related notes and
schedules) fairly presented, in all material respects, the consolidated
financial position of the Purchaser as of the dates set forth in those
consolidated balance sheets. Each of the consolidated statements of income
and of cash flows included in or incorporated by reference into the
Purchaser SEC Reports (including any related notes and schedules) fairly
presented, in all material respects, the consolidated results of operations
and cash flows, as the case may be, of the Purchaser for the periods set
forth in those consolidated statements of income and of cash flows, in each
case in conformity with US Generally Accepted Accounting Principles
("GAAP") consistently applied throughout the periods indicated. All of
such balance sheets and statements complied
49
as to form in all material respects with applicable accounting requirements
and with the published rules and regulations of the SEC with respect
thereto; provided, however, that the quarterly and annual profit and loss
statements contained in those Purchaser SEC Reports made on Form 6-K and
Form 6-K/A that have incorporated the Purchaser's quarterly earnings press
releases were accounted in accordance with GAAP but presented in a format
alternative to GAAP presentation.
12. Except as and to the extent set forth on the consolidated balance sheet of
the Purchaser as of December 31, 2000, including the related notes, neither
the Purchaser nor any Purchaser Subsidiary has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or
otherwise) that would be required to be reflected on a balance sheet or in
the related notes prepared in accordance with GAAP, except for liabilities
or obligations incurred in the ordinary course of business since December
31, 2000 that, individually or in the aggregate, have not resulted and
could not reasonably be expected to result in a Material Adverse Event for
the Purchaser.
13. Since 31 December, 2000 except as set forth in the Purchaser SEC Reports,
the Purchaser has conducted its business only in the ordinary course and in
a manner consistent with past practice and, since such date, there has not
been any Material Adverse Event for the Purchaser.
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SCHEDULE 5
Principal Share Purchase Agreement
51
IN WITNESS WHEREOF the parties hereto have executed this document on the date
------------------
appearing at the head hereof.
Signed by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signed by
/s/ ▇▇▇▇▇▇ Waterfall
------------------------
▇▇▇▇▇▇ WATERFALL
Signed by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signed by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
▇▇▇▇ ▇▇▇▇▇▇
Signed by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Signed by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signed by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
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Signed by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
for and on behalf of
SKY NEW MEDIA VENTURES PLC
Signed by
/s/ [Illegible]
---------------------------
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------
(without personal liability)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
in the presence of:
Signature of Witness: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: Venture Capitalist
53
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
(without personal liability)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
in the presence of:
Signature of Witness: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: As above
Address: As above
Occupation: As above
Signed by
/s/ ▇▇▇▇▇ ▇▇▇
-----------------------
for and on behalf of
OPENTV CORP
54