EXHIBIT 1.1
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OPENTV CORP.
(a British Virgin Islands international business company)
__________
7,500,000 Class A Ordinary Shares
U.S. PURCHASE AGREEMENT
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Dated: November , 1999
TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties............................................4
(a) Representations and Warranties by the Company........................4
(b) Officers' Certificates..............................................11
(c) Representations and Warranties of OpenTV, Inc.......................11
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing..........................12
(a) Initial Securities..................................................12
(b) Option Securities...................................................12
(c) Payment.............................................................12
(d) Denominations: Registration.........................................13
SECTION 3. Covenants of the Company.................................................13
(a) Compliance with Securities Regulations and Commission Requests......13
(b) Filing of Amendments................................................14
(c) Delivery of Registration Statements.................................14
(d) Delivery of Prospectuses............................................14
(e) Continued Compliance with Securities Laws...........................14
(f) Blue Sky Qualifications.............................................15
(g) Rule 158............................................................15
(h) Use of Proceeds.....................................................15
(i) Listing.............................................................15
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(j) Restriction on Sale of Securities...................................15
(k) Reporting Requirements..............................................16
(l) Compliance with NASD Rules..........................................16
(m) Compliance with Rule 463............................................16
SECTION 4. Payment of Expenses......................................................16
(a) Expenses............................................................16
(b) Termination of Agreement............................................17
SECTION 5. Conditions of U.S. Underwriters' Obligations.............................17
(a) Effectiveness of Registration Statement.............................17
(b) Opinion of Counsel for Company......................................18
(c) Opinion of Counsel for U.S. Underwriters............................18
(d) Officers' Certificate...............................................18
(e) Accountant's Comfort Letter.........................................18
(f) Bring-down Comfort Letter...........................................19
(g) Approval of Listing.................................................19
(h) No Objection........................................................19
(i) Lock-up Agreements..................................................19
(j) Purchase of Initial International Securities........................19
(k) Conditions to Purchase of U.S. Option Securities....................19
(l) Additional Documents................................................20
(m) Termination of Agreement............................................20
SECTION 6. Indemnification..........................................................20
(a) Indemnification of U.S. Underwriters................................20
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(b) Indemnification of Company, Directors and Officers..................21
(c) Actions Against Parties: Notification...............................22
(d) Settlement Without Consent if Failure To Reimburse..................22
SECTION 7. Contribution.............................................................23
SECTION 8. Representations Warranties and Agreements To Survive Delivery............24
SECTION 9. Termination of Agreement.................................................24
(a) Termination: General................................................24
(b) Liabilities.........................................................25
SECTION 10. Default by One or More of the U.S. Underwriters.........................25
SECTION 11. Notices.................................................................26
SECTION 12. Parties.................................................................26
SECTION 13. GOVERNING LAW AND TIME..................................................26
SECTION 14. Agent for Service Submission to Jurisdiction: Waiver of Immunities......26
SECTION 15. Judgment Currency.......................................................27
SECTION 16. Effect of Headings......................................................27
SECTION 17. Counterparts............................................................27
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OpenTV Corp.
(a British Virgin Islands international business company)
7,500,000 Class A Ordinary Shares
(No Par Value)
U.S. PURCHASE AGREEMENT
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November , 1999
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
as U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Each of OpenTV Corp., an international business company organized
under the laws of the British Virgin Islands (the "Company") and Open TV, Inc.,
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a corporation organized under the laws of Delaware ("OpenTV, Inc."), confirms
its agreement with ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
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▇▇▇▇▇") and each of the other U.S. Underwriters named in Schedule A hereto
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(collectively, the "U.S. Underwriters," which term shall also include any
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underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC are acting as representatives (in
such capacity, the "U.S. Representatives"), with respect to the issue and sale
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by the Company and the purchase by the U.S. Underwriters, acting severally and
not jointly, of the respective numbers of Class A Ordinary Shares, no par value,
of the Company ("Class A Ordinary Shares") set forth in said Schedule A, and
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with respect to the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 562,500 additional Class A Ordinary Shares to cover
over-allotments, if any. The 3,750,000 Class A Ordinary Shares referred to in
Schedule A (the "Initial U.S. Securities") to be purchased by the U.S.
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Underwriters and all or any part of the 562,500 Class A Ordinary Shares subject
to the option described in Section 2(b) hereof (the "U.S. Option Securities")
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are hereinafter called, collectively, the "U.S. Securities."
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2
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
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providing for the offering by the Company of an aggregate of 3,750,000 Class A
Ordinary Shares (the "Initial International Securities") through arrangements
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with certain underwriters outside the United States and Canada (the
"International Managers") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Partners LLC and MeesPierson N.V. are acting as the international
representatives (the "International Representatives") and the grant by the
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Company to the International Managers, acting severally and not jointly, of an
option to purchase all or any part of the International Managers' pro rata
portion of up to 562,500 additional Class A Ordinary Shares solely to cover
over-allotments, if any (the "International Option Securities" and, together
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with the U.S. Option Securities, the "Option Securities"). The Initial
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International Securities and the International Option Securities are hereinafter
called the "International Securities." It is understood that the Company is not
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obligated to sell, and the U.S. Underwriters are not obligated to purchase, any
Initial U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
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Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities and the International Securities
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are hereinafter collectively called the "Securities."
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The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
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the coordination of certain transactions among the Underwriters under the
direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International (in such capacity, the "Global
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Coordinator").
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The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
The Company and the U.S. Underwriters agree that up to ______ shares
of the Initial U.S. Securities to be purchased by the U.S. Underwriters and up
to ______ shares of the Initial International Securities to be purchased by the
International Managers (collectively, the "Reserved Securities") shall be
reserved for sale by the Underwriters to certain eligible employees and persons
having business relationships with the Company, as part of the distribution of
the Initial Securities by the Underwriters, subject to the terms of this
Agreement and the International Purchase Agreement, the applicable U.S. and
foreign rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. and all other applicable laws, rules and regulations.
To the extent that such Reserved Securities are not orally confirmed for
purchase by such eligible employees and persons having relationships with the
Company by the end of the first business day after the date of this Agreement,
such Reserved Securities may be offered to the public as part of the public
offering contemplated hereby.
3
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-1 (No. 333-89609) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
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Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
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(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
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the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
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"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b).
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Two forms of prospectus are to be used in connection with the offering and sale
of the Securities: one relating to the U.S. Securities (the "Form of U.S.
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Prospectus") and one relating to the International Securities (the "Form of
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International Prospectus"). The Form of International Prospectus is identical
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to the Form of U.S. Prospectus, except for the front cover and back cover pages
and the information under the caption "Underwriting" and the inclusion in the
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Form of International Prospectus of sections under the captions "Additional
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Information" and "Certain Netherlands Tax Consequences." The information
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included in any such prospectus or in any such Term Sheet, as the case may be,
that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
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referred to as "Rule 434 Information." Each Form of U.S. Prospectus and Form of
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International Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
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thereto and schedules thereto, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
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to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
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462(b) Registration Statement," and after such filing the term "Registration
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Statement" shall include the Rule 462(b) Registration Statement. The final Form
of U.S. Prospectus and the final Form of International Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering of
the Securities are herein called the "U.S. Prospectus" and the "International
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Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
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relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
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refer to the preliminary U.S. Prospectus dated November 10, 1999 and the
preliminary International Prospectus dated November 10, 1999, respectively, each
together with the applicable Term Sheet, and all references in this Agreement to
the date of such Prospectuses shall mean the date of the applicable Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the U.S. Prospectus, the International Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
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SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company
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represents and warrants to and agrees with each U.S. Underwriter as of the date
hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of
each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees
with each U.S. Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
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Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectuses, any preliminary prospectuses and any
supplements thereto or prospectus wrappers prepared in connection
therewith, at their respective times of issuance and at the Closing Time,
complied and will comply in all material respects with any applicable laws
or regulations of foreign jurisdictions in which the Prospectuses and such
preliminary prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the offer and sale of Reserved Securities.
Neither of the Prospectuses nor any amendments or supplements thereto
(including any prospectus wrapper), at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time (and,
if any U.S. Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with
the requirements of Rule 434 and the Prospectuses shall not be "materially
different," as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any U.S. Underwriter
through the U.S. Representatives expressly for use in the Registration
Statement or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the
5
requirements of the 1933 Act and the 1933 Act Regulations and each
preliminary prospectus and each Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in the
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Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the entities
to which they relate as of the dates indicated and their respective results
of operations, shareholders' equity and cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles under United States Accounting
Standards ("U.S. GAAP") applied on a consistent basis throughout the
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periods involved. The supporting schedules included in the Registration
Statement present fairly in accordance with U.S. GAAP the information
required to be stated therein. The selected and summary financial data
included in the Prospectuses present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(iv) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
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been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(v) Good Standing of the Company. The Company has been duly
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organized and is validly existing as an international business company in
good standing under the laws of the British Virgin Islands and has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not, singly or in the aggregate, result in a Material
Adverse Effect.
6
(vi) Good Standing of Subsidiaries. Each "significant subsidiary" of
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the Company (as such term is defined in Rule 1-02 of Regulation S-X) and
OpenTV, Inc. (each a "Subsidiary" and, collectively, the "Subsidiaries")
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has been duly organized and is validly existing as a corporation, general
partnership, limited partnership, limited liability company or similar
entity in good standing under the laws of the jurisdiction of its
organization, has organizational power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation (or other such
entity) to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not, singly or in the
aggregate, result in a Material Adverse Effect. Except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock or other ownership interests of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares
of capital stock or other ownership interests of any Subsidiary was issued
in violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Registration Statement and (b)
certain other subsidiaries which, considered in the aggregate as a single
subsidiary, do not constitute a "significant subsidiary" as defined in Rule
1-02 of Regulation S-X.
(vii) Capitalization. The authorized, issued and outstanding capital
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stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to agreements or
employee benefit plans referred to in the Prospectuses or pursuant to the
exercise of options referred to in the Prospectuses). The shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable. None of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any direct or indirect
securityholder of the Company.
(viii) Authorization of Agreement. The execution, delivery and
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performance of this Agreement and the International Purchase Agreement have
been duly authorized by all requisite corporate action on the part of the
Company. This Agreement and the International Purchase Agreement have been
duly executed and delivered by the Company.
(ix) Authorization and Description of Securities. The Securities to
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be purchased by the U.S. Underwriters and the International Managers from
the Company have been duly authorized for issuance and sale to the U.S.
Underwriters pursuant to this Agreement and the International Managers
pursuant to the International Purchase Agreement, respectively, and, when
issued and delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment of the
consideration set forth herein and in the International Purchase Agreement,
respectively, will
7
be validly issued, fully paid and non-assessable. The Class A Ordinary
Shares conform in all material respects to all statements relating thereto
contained in the Prospectuses and such description conforms to the rights
set forth in the instruments defining the same. No holder of the Securities
will be subject to personal liability by reason of being such a holder and
the issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor any
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of its subsidiaries is in violation of its charter or by-laws (or
equivalent constitutive documents) or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments") except
--------------------------
for such defaults that would not, singly or in the aggregate, result in a
Material Adverse Effect. The execution, delivery and performance of this
Agreement and the International Purchase Agreement and the consummation of
the transactions contemplated in this Agreement, the International Purchase
Agreement and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
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Proceeds") and compliance by the Company with its obligations under this
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Agreement and the International Purchase Agreement have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not, singly or in the aggregate, result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws (or equivalent constitutive documents) of the
Company or any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
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condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(xi) Absence of Labor Dispute. No labor dispute with the employees
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of the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is threatened, and the Company is not aware of any existing or
threatened labor disturbance by the employees of any of its or any of its
subsidiaries' principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to, singly or in the
aggregate, result in a Material Adverse Effect.
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(xii) Absence of Proceedings. There is no action, suit, proceeding,
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inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which, singly or in the
aggregate, may reasonably be expected to result in a Material Adverse
Effect, or which, singly or in the aggregate, may reasonably be expected to
materially and adversely affect the properties or assets of the Company or
any of its subsidiaries or the consummation of the transactions
contemplated in this Agreement and the International Purchase Agreement or
the performance by the Company of its obligations hereunder or thereunder.
The aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, singly or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents
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which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
---------------------
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, may reasonably be
expected to result in a Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
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authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities under this Agreement and the International Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement and the International Purchase Agreement, except such as have
been already obtained and are in full force and effect or as may be
required (i) under the 1933 Act or the 1933 Act Regulations or state
securities laws, (ii) under the laws and regulations of jurisdictions
outside of the United States and Canada where the International Managers
may offer and sell the International Securities
9
and (iii) under the laws and regulations in jurisdictions outside the
United States in which the Reserved Shares are offered.
(xvi) Possession of Licenses and Permits. Except as otherwise
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disclosed in the Registration Statement, the Company and its subsidiaries
possess such permits, licenses (including, without limitation, television
broadcast frequency allocations and licenses), approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by the
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appropriate national, provincial, state or local regulatory agencies or
bodies necessary to conduct the business now operated by them. The Company
and its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, result in a Material Adverse Effect. All
of the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or
in the aggregate, result in a Material Adverse Effect. Neither the Company
nor any of its subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xvii) Title to Property. The Company and its subsidiaries have good
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and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Prospectuses or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any of
its subsidiaries. All of the leases and subleases material to the business
of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectuses, are in full force and effect, and neither
the Company nor any of its subsidiaries has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of
the Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or
any of its subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xviii) Compliance with Research Guidelines. The Company, directly
-----------------------------------
or indirectly, has not taken and will not take any action that is
inconsistent with the guidelines set forth in the memorandum dated
September 2, 1999 of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ relating to research
reports, and, without limiting the foregoing, has not distributed and will
not distribute, in any manner, any research report contemplated by such
research guidelines or any portion thereof.
(xix) Compliance with Cuba Act. The Company has complied with, and is
------------------------
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the
10
rules and regulations thereunder (collectively, the "Cuba Act") or is
--------
exempt therefrom.
(xx) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
--------
(xxi) Environmental Laws. Except as described in the Registration
------------------
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any applicable national, provincial, state
or local statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or a administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
-------------------
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
------------------
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxii) Registration Rights. Except as disclosed in the Prospectuses,
-------------------
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxiii) Year 2000. Any reprogramming required to permit the proper
---------
functioning, in and following the year 2000, of (i) the Company's and the
Subsidiaries' computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with
which the Company's and the Subsidiaries' systems interface) and the
testing of all such systems and equipment, as so reprogrammed, has been
completed. The cost to the Company and its Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences of
year 2000 to the Company and its Subsidiaries (including, without
limitation, reprogramming errors and the failure of
11
others' systems or equipment) will not result in a Material Adverse Effect.
Except for such of the reprogramming referred to in the preceding sentence
as may be necessary, the computer and management information systems of the
Company and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue to be, sufficient to permit the Company and its
Subsidiaries to conduct its business without a Material Adverse Effect.
(xxiv) Passive Foreign Investment Company. The Company, based on its
----------------------------------
current operations and assets and taking into consideration the proceeds of
the offering, believes that it is not a passive foreign investment company
(a "PFIC") within the meaning of Section 1291 et seq. of the United States
Internal Revenue Code of 1986, as amended (the "Code"), and is not likely
to become a PFIC.
(xxv) Foreign Personal Holding Company. The Company, to the best of
--------------------------------
its knowledge, believes that it is not a foreign personal holding company
(a "FPHC") within the meaning of Section 551 et seq. of the Code.
(xxvi) Statistical and Market-Related Data. The statistical and
-----------------------------------
market-related data included in the Prospectuses are based on or derived
from sources which the Company believes to be reliable and accurate in all
material respects or represent the Company's good faith estimates that are
made on the basis of data derived from such sources.
(b) Officers' Certificates. Any certificate signed by any officer of
----------------------
the Company or any of its subsidiaries delivered to the Global Coordinator, the
U.S. Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
12
(c) Representations and Warranties of OpenTV, Inc. OpenTV, Inc.
---------------------------------------------
represents and warrants to and agrees with each U.S. Underwriter as of the date
hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of
each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees
with each U.S. Underwriter, as follows:
(i) Good Standing of OpenTV, Inc. OpenTV, Inc. has been duly
----------------------------
organized and is validly existing as a corporation in good standing under
the laws of Delaware and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this
Agreement. OpenTV, Inc. is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not, singly or in the aggregate,
result in a Material Adverse Effect.
(ii) Authorization of Agreement. The execution, delivery and
--------------------------
performance of this Agreement and the International Purchase Agreement have
been duly authorized by all requisite corporate action on the part of
OpenTV, Inc. This Agreement and the International Purchase Agreement have
been duly executed and delivered by OpenTV, Inc.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
-----------------------------------------------
(a) Initial Securities. The Company agrees to sell to each U.S.
------------------
Underwriter, severally and not jointly, and on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, each U.S. Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
----------
Initial U.S. Securities set forth in Schedule A opposite the name of such U.S.
----------
Underwriter, plus any additional number of Initial U.S. Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, the Company hereby grants an
-----------------
option to the U.S. Underwriters, severally and not jointly, to purchase up to an
additional 562,500 Class A Ordinary Shares at the price per share set forth in
Schedule B, less an amount per share equal to any dividends or distributions
----------
declared by the Company and payable on the Initial U.S. Securities but not
payable on the U.S. Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial U.S. Securities
upon notice by the Global Coordinator to the Company setting forth the number of
U.S. Option Securities as to which the several U.S. Underwriters are then
exercising the option and the time and date of payment and delivery for such
U.S. Option Securities. Any such time and date of delivery for the U.S. Option
Securities (a "Date of
-------
13
Delivery") shall be determined by the Global Coordinator, but shall not be later
--------
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the U.S. Option Securities, each of the
U.S. Underwriters, acting severally and not jointly, on the basis of the
representations and warranties of the Company contained herein and subject to
the terms and conditions herein set forth, will purchase that proportion of the
total number of U.S. Option Securities then being purchased which the number of
Initial U.S. Securities set forth in Schedule A opposite the name of such
----------
U.S. Underwriter bears to the total number of Initial U.S. Securities, subject
in each case to such adjustments as the Global Coordinator in its discretion
shall make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
-------
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such
other place as shall be agreed upon by the Global Coordinator and the Company,
at 9:00 A.M. (Eastern time) on November 29, 1999 (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Global Coordinator
and the Company (such time and date of payment and delivery being herein called
"Closing Time").
------------
In addition, in the event that any or all of the U.S. Option
Securities are purchased by the U.S. Underwriters, payment of the purchase price
for, and delivery of certificates for, such U.S. Option Securities shall be made
at the abovementioned offices, or at such other place as shall be agreed upon by
the Global Coordinator and the Company, on each Date of Delivery as specified in
the notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of U.S. dollars
of immediately available funds to a bank account designated by the Company,
against delivery to the U.S. Representatives for the respective accounts of the
U.S. Underwriters of certificates for the U.S. Securities to be purchased by
them. It is understood that each U.S. Underwriter has authorized the U.S.
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Initial U.S. Securities and the U.S.
Option Securities, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the U.S. Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Initial U.S.
Securities or the U.S. Option Securities, if any, to be purchased by any U.S.
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such U.S. Underwriter from its obligations hereunder.
(d) Denominations: Registration. Certificates for the Initial U.S.
---------------------------
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in The City of New
York not later than 10:00 A.M.
14
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
--------------------------------------------------------------
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
--------------------
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the Global
Coordinator or counsel for the U.S. Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished
-----------------------------------
or will deliver to the U.S. Representatives and counsel for the U.S.
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the U.S.
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the U.S. Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each U.S.
------------------------
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Under-
15
writer reasonably requested, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will furnish to each
U.S. Underwriter, without charge, during the period when the U.S. Prospectus is
required to be delivered under the 1933 Act or the Securities Exchange of 1934
(the "1934 Act"), such number of copies of the U.S. Prospectus (as amended or
--------
supplemented) as such U.S. Underwriter may reasonably request. The U.S.
Prospectus and any amendments or supplements thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
-----------------------------------------
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement, the International Purchase Agreement and the Prospectuses. If at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the U.S.
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectuses will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement any Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectuses comply
with such requirements, and the Company will furnish to the U.S. Underwriters
such number of copies of such amendment or supplement as the U.S. Underwriters
may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
-----------------------
in cooperation with the U.S. Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and of any
Rule 462(b) Registration Statement; provided, however, that the Company shall
-------- -------
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and of any
Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
--------
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
16
(h) Use of Proceeds. The Company will use the net proceeds received
---------------
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds."
---------------
(i) Listing. The Company will use its best efforts to effect the
-------
listing of the Class A Ordinary Shares (including the Securities) on the
Amsterdam Stock Exchange and comply with the requirements of such exchange to
maintain such listing. In addition, the Company will use its best efforts to
effect and maintain the quotation of the Class A Ordinary Shares (including the
Securities) on the Nasdaq National Market and will file with the Nasdaq National
Market all documents and notices required by the Nasdaq National Market of
companies that have securities that are traded in the over-the-counter market
and quotations for which are reported by the Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period of 180 days
---------------------------------
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise dispose of or transfer any Class A Ordinary Shares or any
securities convertible into or exercisable or exchangeable for Class A Ordinary
Shares (including, without limitation, the Class B Ordinary Shares, no par
value, of the Company) or file any registration statement under the 1933 Act
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Class A Ordinary
Shares, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Class A Ordinary Shares or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the sale of
the Securities hereunder or under the International Purchase Agreement, (B) the
issuance of any Class A Ordinary Shares by the Company upon the exercise of
options or warrants or the conversion of securities outstanding on the date
hereof and referred to in the Prospectuses or (C) the issuance of any Class A
Ordinary Shares or options to purchase Class A Ordinary Shares granted pursuant
to existing employee benefit plans of the Company referred to in the
Prospectuses. In addition, during a period of one year from the date of the
Prospectuses, the Company will not, without the prior written consent of the
Global Coordinator, file any registration statement under the 1933 Act for the
benefit of any person (or any of their transferees) listed on #1 through #__ of
Schedule C hereto.
----------
(k) Reporting Requirements. The Company, during the period when the
----------------------
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act and rules and regulations of the Commission thereunder within the time
periods referred to therein.
(l) Compliance with NASD Rules. The Company hereby agrees that it
--------------------------
will ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules
----
from sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The U.S. Underwriters will notify
the Company as to which persons will need to be so restricted. At the
17
request of the U.S. Underwriters, the Company will direct the transfer agent to
place a stop transfer restriction upon such securities for such period of time.
Should the Company release, or seek to release, from such restrictions any of
the Reserved Securities, the Company agrees to reimburse the Underwriters for
any reasonable expenses (including, without limitation, legal expenses) they
incur in connection with such release.
(m) Compliance with Rule 463. The Company will file with the
------------------------
Commission such reports as may be required pursuant to Rule 463 of the 1933 Act
Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
--------
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the U.S. Underwriters of
this Agreement, any Agreement among U.S. Underwriters and such other documents
as may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer of
the Securities between the U.S. Underwriters and the International Managers,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) one-half of all "roadshow" expenses of
the Company and the Underwriters, (vii) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (viii) the
preparation, printing and delivery to the Underwriters of copies of any Blue Sky
Survey and any supplement thereto, (ix) the fees and expenses of any transfer
agent or registrar for the Securities, (x) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (xi)
the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market and the Amsterdam Stock Exchange and
(xii) all costs and expenses of the Underwriters, including the fees and
disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities which are designated by the Company for sale
to employees and others having a business relationship with the Company.
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
U.S. Representatives in accordance with the provisions of Section 5 hereof
(other than in accordance with paragraph (j) as a result of the failure of the
International Managers to comply with their obligations under the International
Purchase Agreement) or Section 9(a)(i) hereof, the Company shall reimburse the
U.S. Underwriters for all of their out-of-pocket expenses incurred by the U.S.
Underwriters in connection with this Agreement or the offering of the Securities
contemplated
18
hereunder, including the reasonable fees and disbursements of counsel and
special counsel for the U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
--------------------------------------------
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
------------------------------
Representatives shall have received the favorable opinion, dated as of Closing
Time, of each of (i) Cravath, Swaine & ▇▇▇▇▇, counsel for the Company and
OpenTV, Inc., (ii) ▇▇▇▇▇▇ Westwood & Riegels, special British Virgin Islands
counsel for the Company, (iii) ▇▇▇▇▇ Dutilh, special Dutch regulatory counsel
for the Company, and (iv) PricewaterhouseCoopers LLP, special Dutch tax counsel
for the Company, each in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letters for each
of the other U.S. Underwriters to the effect set forth in Exhibits A-1 through
A-5 hereto, respectively.
(c) Opinion of Counsel for U.S. Underwriters. At Closing Time, the
----------------------------------------
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the U.S.
Underwriters, and O'▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special British
Virgin Islands counsel to the U.S. Underwriters, together with signed or
reproduced copies of such letter for each of the other U.S. Underwriters as to
such matters as are reasonably requested by the Representatives.
(d) Officers' Certificate. At Closing Time, there shall not have
---------------------
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
U.S. Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief
19
accounting officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending or are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
---------------------------
this Agreement, the U.S. Representatives shall have received from
PricewaterhouseCoopers Inc. a letter dated such date, in form and substance
satisfactory to the U.S. Representatives, together with signed or reproduced
copies of such letter for each of the other U.S. Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectuses.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
-------------------------
shall have received from PricewaterhouseCoopers Inc. a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall have
-------------------
been approved for listing on the Amsterdam Stock Exchange and shall have been
approved for inclusion in the Nasdaq National Market, in each case, subject only
to official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not raised any
------------
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the U.S.
------------------
Representatives shall have received an agreement substantially in the form of
Exhibit B hereto signed by the persons listed on Schedule C hereto.
(j) Purchase of Initial International Securities. Contemporaneously
--------------------------------------------
with the purchase by the U.S. Underwriters of the Initial U.S. Securities under
this Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(k) Conditions to Purchase of U.S. Option Securities. In the event
------------------------------------------------
that the U.S. Underwriters exercise their option provided in Section 2(b) hereof
to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary of the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the U.S. Representatives shall have received:
20
(i) Officers' Certificate. A certificate, dated such Date of Delivery,
---------------------
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion, dated as of
------------------------------
such Date of Delivery, of each of counsels listed in Section 5(b), each in
form and substance satisfactory to counsel for the U.S. Underwriters,
relating to the U.S. Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iii) Opinion of Counsel for U.S. Underwriters. The favorable opinion
----------------------------------------
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the U.S. Underwriters, and of
O'▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special British Virgin
Islands counsel to the U.S. Underwriters, each dated such Date of
Delivery, relating to the U.S. Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from PricewaterhouseCoopers
-------------------------
Inc., in form and substance satisfactory to the U.S. Representatives and
dated such Date of Delivery, substantially in the same form and substance
as the letter furnished to the U.S. Representatives pursuant to Section
5(f) hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days prior
to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
--------------------
Delivery, counsel for the U.S. Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the U.S. Representatives and counsel for the U.S. Underwriters.
(m) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant Option
Securities, may be terminated by the U.S. Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
21
SECTION 6. Indemnification.
---------------
(a) Indemnification of U.S. Underwriters. Each of the Company and
------------------------------------
OpenTV, Inc. agree jointly and severally to indemnify and hold harmless each
U.S. Underwriter and each person, if any, who controls any U.S. Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
laws or regulations of foreign jurisdictions where Reserved Securities have
been offered and (B) any untrue statement or alleged untrue statement of a
material fact included in the supplement or prospectus wrapper material
distributed in foreign jurisdictions in connection with the reservation and
sale of the Reserved Securities to eligible employees and persons having
relationships with the Company or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, when
considered in conjunction with the Prospectus or preliminary prospectus,
not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission or
in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, to the extent that any such expense is not paid under
(i), (ii) or (iii) above; provided, however, that this indemnity agreement
-------- -------
shall not apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or
22
alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any U.S.
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement (or any amendment or supplement thereto), including
the Rule 430A Information and the Rule 434 Information, if applicable, or
any preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each U.S.
--------------------------------------------------
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such U.S. Underwriter through the U.S. Representatives expressly for
use in the Registration Statement (or any amendment or supplement thereto) or
such preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto).
(c) Actions Against Parties: Notification. Each indemnified party
-------------------------------------
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇
▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
-------- -------
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
23
(d) Settlement Without Consent if Failure To Reimburse. If at any
--------------------------------------------------
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(iii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) Indemnification for Reserved Securities. In connection with the
---------------------------------------
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of eligible employees and persons having
relationships with the Company to pay for and accept delivery of Reserved
Securities which, by the end of the first business day following the date of
this Agreement, were subject to a properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the U.S. Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
U.S. Underwriters on the other hand in connection with the statements or
omissions, or in connection with any violation of the nature referred to in
Section 6(a)(ii)(A) hereof, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
U.S. Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material
24
fact relates to information supplied by the Company or by the U.S. Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or any violation of
the nature referred to in Section 6(a)(ii)(A) hereof.
Each of the Company, OpenTV, Inc. and the U.S. Underwriters agrees
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section ll(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
----------
SECTION 8. Representations Warranties and Agreements To Survive
----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
------------------------
25
(a) Termination: General. The U.S. Representatives may terminate
--------------------
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the U.S.
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the U.S. Representatives, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission, the Amsterdam Stock Exchange or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
if a banking moratorium has been declared by British Virgin Island, Dutch,
United States Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
-----------
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one
-----------------------------------------------
or more of the U.S. Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the U.S. Representatives
--------------------
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting U.S. Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, each of the non-
defaulting U.S. Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of U.S. Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation of
the U.S. Underwriters to purchase and of
26
the Company to sell the Option Securities to be purchased and sold on such Date
of Delivery shall terminate without liability on the part of any non-defaulting
U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the obligation
of the U.S. Underwriters to purchase and the Company to sell the relevant U.S.
Option Securities, as the case may be, either the U.S. Representatives or the
Company shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives c/o Merrill ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇, attention of Investment Banking;
and notices to the Company shall be directed to it at OpenTV Corp., Abbot
Building, Mount Street, Tortola, Road Town, British Virgin Islands, attention of
-----------.
SECTION 12. Parties. This Agreement shall each inure to the benefit
-------
of and be binding upon the U.S. Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the U.S. Underwriters and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 6 and
7, and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the U.S. Underwriters and the
Company and their respective successors, and said controlling persons and
officers and directors, and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any U.S. Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICT OF LAWS. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Agent for Service Submission to Jurisdiction: Waiver of
-------------------------------------------------------
Immunities. By the execution and delivery of this Agreement, the Company (i)
----------
acknowledges that
27
it has, by separate written instrument, designated and appointed CT Corporation
System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (and any successor entity), as
its authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement that may be instituted in any
Federal or state court in the Borough of Manhattan, City of New York, State of
New York, or brought under the United States Federal or state securities laws,
and acknowledges that CT Corporation System has accepted such designation, (ii)
submits to the non-exclusive jurisdiction of any such court in any such suit or
proceeding and (iii) agrees that service of process upon CT Corporation System
and written notice of said service to the Company in accordance with Section 11
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as any of the Class A
Ordinary Shares shall be outstanding; provided, however, that the Company may,
-------- -------
by written notice to the U.S. Representatives, designate such additional or
alternative agent for service of process under this Section 14 that (i)
maintains an office located in the Borough of Manhattan, City of New York, in
the State of New York and (ii) is either (x) counsel for the Company or (y) a
corporate service company which acts as agent for service of process for other
persons in the ordinary course of its business. Such written notice shall
identify the name of such agent for process and the address of the office of
such agent for service of process in the Borough of Manhattan, City of New York,
State of New York.
To the extent that the Company or any of its properties, assets or
revenues may or may hereafter become entitled to, or have attributed to the
Company, any right of immunity, on the grounds of sovereignty or otherwise, from
any legal action, suit or proceeding, from the giving of any relief in any such
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any New York or U.S. federal court, from service of process,
from attachment upon or prior to judgment, from attachment in aid of execution
of judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any such
court in which proceedings may at any time be commenced, with respect to the
obligations and liabilities of the Company, or any other matter under or arising
out of or in connection with this Agreement or the International Purchase
Agreement, the Company hereby irrevocably and unconditionally waives such right,
and agrees not to plead or claim any such immunity, and consents to such relief
or enforcement.
SECTION 15. Judgment Currency. The Company agrees to indemnify each
-----------------
U.S. Underwriter and each person, if any, who controls any U.S. Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any loss incurred by such party as a result of any judgment or order
being given or made against the Company for any U.S. dollar amount due under
this Agreement and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than United States dollars and as a result of
-----------------
any variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the spot rate of exchange in The City of New York at
which such party on the date of payment of such judgment or order is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by such party if such party had utilized such amount of Judgment
Currency to
28
purchase United States dollars as promptly as practicable upon such party's
receipt thereof. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States dollars.
SECTION 16. Effect of Headings. The Section headings herein and the
------------------
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 17. Counterparts. This Agreement may be executed in one or
------------
more counterparts and, when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
OPENTV CORP.
By: ________________________________
Name:
Title:
OPENTV, INC.
By: ________________________________
Name
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ____________________________________
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
SCHEDULE A
Number of Initial
Name of U.S. Underwriter U.S. Securities
------------------------ -----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated...
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC........................... ---------
Total................................................ 3,750,000
=========
SCHEDULE B
OPEN TV CORP.
___________
Class A Ordinary Shares
(No Par Value)
1. The initial public offering price per share for the Securities,
determined as provided in Section 2, shall be $_____.
2. The purchase price per share for the U.S. Securities to be paid by
the several U.S. Underwriters shall be $_____, being an amount equal to the
initial public offering price set forth above less $_____ per share; provided
that the purchase price per share for any U.S. Option Securities purchased upon
the exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial U.S. Securities but not payable on the
U.S. Option Securities.
SCHEDULE C
List of Persons and Entities Subject
to Lock-Up
1. Myriad International Holdings BV (MIH Limited)
2. Sun TSI Subsidiary, Inc (Sun Microsystems, Inc.)
3. America Online, Inc.
4. General Instrument Corp.
5. Liberty Digital, Inc.
6. News America Incorporated
7. Warner Bros., a division of Time Warner Entertainment Company, L.P. and
▇▇▇▇▇▇ Broadcasting System, Inc.
8. Jan Steenkamp
9. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
10. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
11. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
12. ▇▇▇▇ ▇▇▇▇▇▇▇
13. Regis Saint Girons
14. ▇▇▇▇▇ ▇▇▇▇▇
15. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
16. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
17. ▇▇▇▇ ▇▇▇▇▇▇
18. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
19. ▇▇▇▇ ▇▇▇▇▇▇▇
20. ▇▇▇▇▇▇ Boccon Gibod
21. ▇▇▇ ▇▇▇▇▇
22. ▇▇▇▇ ▇▇▇▇▇▇
23. ▇▇▇▇▇-▇▇ ▇▇▇▇
24. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
25. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
26. ▇▇▇▇-▇▇▇▇ Menand
27. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Exhibit A-1
-----------
FORM OF OPINION OF CRAVATH, SWAINE & ▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) OpenTV, Inc. has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) OpenTV, Inc. has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) OpenTV, Inc. is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Purchase Agreement has been duly authorized, executed and delivered
by OpenTV, Inc.
(vi) The Purchase Agreement has been duly authorized, executed and
delivered by MIH Limited.
(vii) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(viii) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus and each amendment or supplement to the Registration
Statement and Prospectus as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we need express no opinion) complied as to form
in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(ix) If Rule 434 has been relied upon, the Prospectus was not "materially
different," as such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time it became effective.
(x) The form of certificate used to evidence the Class A Ordinary Shares
complies in all material respects with all applicable requirements of the Nasdaq
National Market.
(xi) To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
(xii) The information in the Prospectus under "Description of Capital
Stock", "Business--Intellectual Property", "Business--Legal Proceedings",
"United States Federal Income Tax Consequences" and in the Registration
Statement under Item 14, to the extent that it constitutes matters of law,
summaries of legal matters, OpenTV, Inc.'s charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in all
material respects; and the opinion of such firm set forth under "United States
Federal Income Tax Consequences" is confirmed.
(xiii) To the best of our knowledge, there are no Federal or New York
State statutes or regulations that are required to be described in the
Prospectus that are not described as required.
(xiv) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(xv) To the best of our knowledge, neither the Company nor any subsidiary
is in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xvi) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of
Proceeds") and compliance by the Company with its obligations under the Purchase
Agreement do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(x) of the Purchase Agreement) under
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the Company or
any subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
(xvii) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by OpenTV, Inc. with its obligations under the Purchase Agreement do not and
will not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(x) of the Purchase Agreement) under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of OpenTV, Inc. or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which OpenTV, Inc. or any subsidiary is
a party or by which it or any of them may be bound, or to which any of the
property or assets of OpenTV, Inc. or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of OpenTV, Inc. or any subsidiary, or
any applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over OpenTV, Inc. or any subsidiary or any of their
respective properties, assets or operations.
(xviii) To the best of our knowledge, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the 1933 Act.
(xix) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which we need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of the British Virgin Islands, upon the
opinion of ▇▇▇▇▇▇ Westwood & Riegels, special counsel to the Company (which
opinion shall be dated and furnished to the Representatives at the Closing Time,
shall be satisfactory in form and substance to counsel for the Underwriters and
shall expressly state that the Underwriters may rely on such opinion as if it
were addressed to them), provided that Cravath, Swaine & ▇▇▇▇▇ shall state in
their opinion that they believe that they and the Underwriters are justified in
relying upon such opinion, and (B) as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion shall not state that
it is to be governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
Exhibit A-2
-----------
FORM OF OPINION OF ▇▇▇▇▇▇ WESTWOOD & RIEGELS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly organized and is validly existing as an
international business company in good standing under the laws of the British
Virgin Islands.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant to
the Purchase Agreement or pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v) The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreement and, when issued and delivered
by the Company pursuant to the Purchase Agreement against payment of the
consideration set forth in the Purchase Agreement, will be validly issued and
fully paid and non-assessable and no holder of the Securities is or will be
subject to personal liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to preemptive or other
similar rights of any securityholder of the Company.
(vii) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, to the best
of our knowledge, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary.
(viii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The form of certificate used to evidence the Class A Ordinary Shares
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of the Company.
(x) To the best of our knowledge, there are no British Virgin Islands
statutes or regulations that are required to be described in the Prospectus that
are not described as required.
(xi) To the best of our knowledge, neither the Company nor any subsidiary
is in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xii) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign (other than under the 1933 Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need express
no opinion) is necessary or required in connection with the due authorization,
execution and delivery of the Purchase Agreement or for the offering, issuance
or sale of the Securities.
(xiii) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by the Company with its obligations under the Purchase Agreement do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(x) of the Purchase Agreement) under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company or any subsidiary is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company
or any subsidiary is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their respective properties, assets
or operation.
(xiv) The choice of New York law to govern the Purchase Agreement
constitutes a valid choice of law insofar as the law of the British Virgin
Islands is concerned. The submission by the Company to the non-exclusive
jurisdiction of any federal or state court sitting in New York County, New York
is a valid submission insofar as the law of the British Virgin Islands is
concerned.
(xv) Any final and conclusive monetary judgment for a definite sum which
is not subject to a stay of execution obtained against the Company in the courts
of the State of New York in respect of the Purchase Agreement would be treated
by the courts of the British Virgin Islands as a cause of action in itself so
that no retrial of the issues would be necessary.
(xvi) The Company has the corporate power and authority to conduct its
business as described in the Registration Statement, and the conduct of such
business does not violate the provisions of its Memorandum of Association or
Articles of Association or any applicable law, regulation, order or decree in
the British Virgin Islands.
(xvii) Neither the Memorandum of Association nor the Articles of
Association of the Company nor any applicable British Virgin Islands law,
regulation or decree imposes any pre-emptive or similar rights on the issuance
and sale of the Shares by the Company.
(xviii) The certificates evidencing the Shares are in due and proper form
and comply with all applicable statutory requirements of the British Virgin
Islands and with the Memorandum and Articles of Association of the Company.
(xix) The statements set forth in the Prospectuses under the headings
"Description of Capital Stock", "Risk Factors -- Because we British Virgin
Island company, you may have difficulty protecting your interests in respect of
decisions made by our board of directors" and " -- Because we are a British
Virgin Island company, you may not be able to enforce judgments against us that
are obtained in U.S. courts" and in the Registration Statement under Item 14 to
the extent that they constitute a description of the laws and regulations of the
British Virgin Islands, or its respective agencies, authorities or other
governmental bodies, or documents, or proceedings or conclusions of British
Virgin Islands law, are correct in all material respects.
(xx) To the best of our knowledge, there are no proceedings pending before
any court, tribunal, arbitrator, government agency or administrative body within
the British Virgin Islands against or threatened against the Company of any of
its assets which if adversely determined could or might result in any material
adverse change in the business, assets or condition (financial or otherwise) of
the Company or the ability of the Company to perform any obligations required by
the terms and conditions of the Purchase Agreement.
(xxi) MIH Limited has been duly organized and is validly existing as an
international business company in good standing under the laws of the British
Virgin Islands.
(xxii) MIH Limited has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(xxiii) MIH Limited is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(xxiv) The Purchase Agreement has been duly authorized, executed and
delivered by MIH Limited.
(xxv) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by MIH Limited with its obligations under the Purchase Agreement do not and will
not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(x) of the Purchase Agreement) under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of MIH Limited or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which MIH Limited or any subsidiary is
a party or by which it or any of them may be bound, or to which any of the
property or assets of MIH Limited or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of MIH Limited or any subsidiary, or
any applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over MIH Limited or any subsidiary or any of their
respective properties, assets or operation.
Exhibit A-3
-----------
FORM OF OPINION OF ▇▇▇▇▇ DUTILH
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The signing by the Parties of the Purchase Agreements and the performance by
them of their respective obligations thereunder, and the issuance and sale
of the Shares and the use of proceeds for such sale indirectly by any of the
Dutch subsidiaries as described in the Prospectuses under the caption "Use
of Proceeds", do not in themselves, on the face of the Transaction
Documents, violate Netherlands Law.
2. There are no statues or regulations of Netherlands Law or the Official
Segment of Amsterdam Exchanges N.V. ("AEX") rules which are required by
Netherlands Law or the AEX Rules to be described in the Prospectuses that
are not described therein to the extent so required.
3. No consents or approvals and no licenses, authorizations or orders from or
notices to or filings with any regulatory authority or governmental body of
The Netherlands are required for the execution and delivery of the Purchase
Agreements or the offering, issuance, sale or delivery of the Shares in The
Netherlands, except (i) filing, notice and approval requirements under the
AEX Rules including, without limitation, approval by the AEX of the
prospectuses and the application for admission of the Shares to listing on
the ASE, and (ii) notice requirements to The Netherlands Central Bank ("De
Nederlandsche Bank N.V.") pursuant to the Act on Foreign Financial Relations
("Wet Financiele Betrekkingen Buitenland") and regulations promulgated
thereunder, provided, however, that the failure to observe the latter notice
requirements would not adversely affect the validity of the Purchase
Agreements.
Exhibit A-4
-----------
FORM OF OPINION OF PRICEWATERHOUSECOOPERS LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
The information in the prospectus under the caption "Certain Netherlands Tax
Consequences" has been reviewed by us and is correct in all material respects.
Exhibit B
---------
, 1999
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower
World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
MEESPIERSON N.V.
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
c/o Merrill ▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Re: Agreement not to sell or otherwise dispose of securities of
-----------------------------------------------------------
OpenTV Corp.
------------
Ladies and Gentlemen:
The undersigned understands that OpenTV Corp. (the "Company") proposes
to file a registration statement on Form F-1 (the "Registration Statement") with
the United States Securities and Exchange Commission in connection with the
initial public offering (the "Offering") of ordinary shares ("Shares") of the
Company. The undersigned further understands that the Company proposes to enter
into one or more purchase agreements (collectively, the "Purchase Agreement")
with you as representative of the underwriters of the Offering (the
"Underwriters").
In recognition of the benefit that the Offering will confer upon the
undersigned as a securityholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Company and the Underwriters to enter into the Purchase
Agreement and to proceed with the Offering, the undersigned hereby agrees, that
from the date hereof until [the first anniversary of]/1/ [the date which is 180
days after]/2/ the date of the Purchase Agreement, the undersigned will not,
without
--------------------------
/1/ For persons 1-__ on Schedule C.
/2/ For persons __-15 on Schedule C.
2
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer
(collectively, a "Covered Sale") any Shares (other than any Shares registered in
------------
the Offering) or any securities convertible into or exchangeable or exercisable
for any Shares, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition (collectively, the "Locked Shares") or request the filing of any
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to any of the foregoing (it being understood
---------------
that such a request shall not be deemed to have been made pursuant to any
registration rights agreement until a request is made thereunder and the mere
entering into of any registration rights agreement shall not be deemed such a
request) or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of Shares, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of the Shares or other
securities, in cash or otherwise.
3
[Notwithstanding the foregoing, on or after the date which is 181 days after the
date of the Purchase Agreement, the undersigned may make a Covered Sale of any
Locked Shares, pursuant to a private sale exempt from registration under the
Securities Act and without engaging in any marketing activities, other than to
any broker dealer, bank, investment fund, investment company, insurance company,
trust fund, employee benefit plan or similar financial institution; provided,
--------
however, that (x) the aggregate number of transferees (including subsequent
-------
transferees) who hold Locked Shares prior to the first anniversary of the date
of the Purchase Agreement shall not exceed five and (y) each such transferee
(including any subsequent transferee) must agree in writing to be bound by the
terms of this agreement as if a party hereto.]/3/
--------------------------
/3/ For persons 1-__ on Schedule C.
Sincerely,
Name of Securityholder:
_________________________________
(Print)
Signature:
_________________________________
Name:
Title:
(If not a natural person)