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EXHIBIT 10.34
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and
entered into as of September 7, 2005, by
and among OpenTV Corp., a company
organized under the laws of the British
Virgin Islands ("OpenTV"), CAM Systems,
L.L.C., a Delaware limited liability
company ("CAMS"), and StarNet, L.P., a
Pennsylvania limited partnership
("StarNet," and together with CAMS, the
"Initial Holders").
WHEREAS, OpenTV and the Initial Holders are parties to an Asset
Purchase Agreement, dated September 7, 2005
(the "Asset Purchase Agreement"),
pursuant to which OpenTV will acquire
certain assets of the Initial Holders in
exchange for cash and Class A Ordinary
Shares of OpenTV as set forth in the
Asset Purchase Agreement; and
WHEREAS, the Asset Purchase Agreement contemplates that OpenTV
will
enter into this Agreement with the Initial
Holders to provide them with certain
registration rights with respect to the
Class A Ordinary Shares of OpenTV to be
issued to the Initial Holders in accordance
with the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective
representations, warranties, covenants and
agreements set forth below, the
parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used and not
otherwise
defined herein shall have the meaning
ascribed to them in the Asset Purchase
Agreement. The following terms, as used
herein, have the following meanings:
"Affiliate" means with respect to any specified Person, an
"affiliate," as defined in Rule 144, of
such Person.
"Class A Ordinary Shares" means the Class A Ordinary Shares, no
par
value, of OpenTV, or if applicable, the
class of common stock or ordinary shares
of OpenTV into which the Class A Ordinary
Shares of OpenTV may be converted by
reason of any reclassification,
recapitalization, split-up, stock combination,
domestication transaction, exchange of
shares, readjustment or otherwise.
"Commission" means the Securities and Exchange Commission.
"Demand Notice" has the meaning set forth in Section 2.01(a).
"Demand Registration" has the meaning set forth in Section
2.01(a).
"Disclosure Condition" has the meaning set forth in Section
2.01(d).
"Effective Date" has the meaning set forth in Section 2.01(b).
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"Effectiveness Period" has the meaning set forth in Section
2.01(b).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means each of the Initial Holders and each of their
respective Permitted Transferees who agree
to be bound by the provisions of this
Agreement in accordance with Section
2.05.
"Indemnified Party" has the meaning set forth in Section 3.03.
"Indemnifying Party" has the meaning set forth in Section 3.03.
"OpenTV Class A Share Value" as of any date means the last sale
price (or, if no sale price is reported on
such day, the average of the quoted
high bid and low ask prices on such day) of
a Class A Ordinary Share on the
Nasdaq Stock Market (or, if Class A
Ordinary Shares are not traded on the Nasdaq
Stock Market, such other securities
exchange or national market system on which
such shares are traded).
"Permitted Transferee" shall have the meaning set forth in
Section
2.05.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint
venture, governmental authority or other
entity.
"Piggyback Registration" has the meaning set forth in Section
2.02(a).
"Prospectus" means the prospectus related to any Registration
Statement (including, without limitation, a
prospectus that discloses
information previously omitted from a
prospectus filed as part of an effective
Registration Statement in reliance on Rule
415 under the Securities Act), as
amended or supplemented by any amendment or
prospectus supplement, including
post-effective amendments, and all
materials incorporated by reference in such
prospectus.
"Public Offering" means any public offering of Registrable
Securities pursuant to an effective
registration statement under the Securities
Act other than pursuant to a registration
statement on Form S-8 or S-4, or any
successor or similar forms.
"Registrable Securities" means the Class A Ordinary Shares issued
to
the Initial Holders pursuant to the Asset
Purchase Agreement, and any other
Class A Ordinary Shares issued to the
Initial Holders in respect of such shares,
including by way of a stock split or stock
dividend, in connection with a
recapitalization or a merger, consolidation
or other reorganization, or pursuant
to a distribution; provided that such
securities shall cease to be Registrable
Securities if and when (i) a registration
statement with respect to the
disposition of such securities shall have
become effective under the Securities
Act and such securities shall have been
disposed of pursuant to such effective
registration statement, (ii) such
securities shall have been sold under
circumstances in which all of the
applicable conditions of Rule 144 (or any
similar provisions then in force) are met,
(iii) such shares are no longer held
by the Initial Holders or any of their
respective Permitted Transferees, (iv)
such securities may be sold pursuant to
Rule 144(k) or otherwise in the public
market without being registered pursuant to
the Securities Act or (v) such
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securities shall have ceased to be
outstanding; provided that any such
securities that have ceased to be
Registrable Securities pursuant to clauses
(i), (ii) or (iii) above cannot thereafter
become Registrable Securities, and
securities that are issued or distributed
following the date of such sale or
other transfer specified in clauses (i),
(ii) or (iii) above by way of dividends
in respect of such securities that have
ceased to be Registrable Securities
shall not be Registrable Securities.
"Registration Expenses" means all (i) registration,
qualification
and filing fees with the Commission and
other regulatory agencies or
organizations, (ii) fees and expenses of
compliance with securities or blue sky
laws, (iii) printing expenses, (iv) fees
and disbursements of counsel for
OpenTV, (v) customary fees and expenses for
independent certified public
accountants retained by OpenTV (including
the expenses of any comfort letters or
costs associated with the delivery by
independent certified public accountants
of a comfort letter or comfort letters),
and (vi) fees and expenses of listing
the Registrable Securities on a securities
exchange; but shall not include any
underwriting fees or discounts or
commissions attributable to the sale of
Registrable Securities or any fees or
expenses of counsel for any Initial
Holders or any Permitted Transferee.
"Registration Notice" has the meaning set forth in Section
2.01(a).
"Registration Statement" means any Registration Statement of
OpenTV
under the Securities Act that covers any of
the Registrable Securities pursuant
to the provisions of this Agreement,
including the related Prospectus, any
preliminary prospectus, all amendments and
supplements to such registration
statement (including post-effective
amendments), all exhibits and all material
incorporated by references or deemed to be
incorporated by reference in such
registration statement.
"Rule 144" means Rule 144 under the Securities Act including
any
successor statute.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.01. Demand Registration.
(a) Requests for Registration. Subject to the conditions set
forth
in this Agreement, each Initial Holder (and
its Permitted Transferees) shall
have the right, exercisable by written
notice delivered to OpenTV (a "Demand
Notice"), to require OpenTV to register
Registrable Securities under and in
accordance with the Securities Act (a
"Demand Registration"), provided that all,
and not less than all, of the outstanding
Registrable Securities held
beneficially or of record by the demanding
party are registered pursuant to the
Demand Registration and any of the
demanding party's Permitted Transferees (or
if the demanding party is a Permitted
Transferee, all Registrable Securities of
such Permitted Transferee and the Initial
Holder or Initial Holders from whom
such Registrable Securities were
transferred). Within ten (10) days after
receipt of a Demand Notice, OpenTV shall
provide written notice thereof (the
"Registration Notice") to all other Holders
and shall include in any Demand
Registration required under this Section
2.01 all Registrable Securities with
respect to which OpenTV
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receives written requests for inclusion
therein within ten (10) days after such
Registration Notice is given to the
applicable Holder.
(b) Filing and Effectiveness. Subject to Sections 2.01(c) and
2.01(d), OpenTV shall file a Registration
Statement relating to any Demand
Registration as promptly as practicable
(but in any event within 90 days after
receipt of the Demand Notice in the case of
a registration made on Form S-1, or
a comparable successor form, as applicable,
or 30 days after receipt of the
Demand Notice in the case of any
registration eligible to be made on Form S-3,
or a comparable successor form, as
applicable) following the date on which the
Registration Notice is required to be
given, and will use its reasonable efforts
to cause the same to be declared effective
by the Commission as soon as
practicable thereafter (the date such
Registration Statement is declared
effective being hereinafter referred to as
the "Effective Date"). Subject to
Section 2.01(d), OpenTV shall use
reasonable best efforts to cause any
Registration Statement relating to any
Demand Registration to remain effective
until the sooner to occur of the sale of
all of the Registrable Securities
covered by such Registration Statement or
the 180th day following the Effective
Date of such Registration Statement (such
period being the "Effectiveness
Period").
(c) Limitations on Demand Registration. Notwithstanding anything
to
the contrary in any other provision of this
Agreement, OpenTV will not be
required to effect a Demand Registration
pursuant to this Section 2.01:
(i) prior to one hundred eighty (180) days following the
Closing
Date;
(ii) if, on the date it receives any Demand Notice, OpenTV had
previously
filed with the Commission a Registration Statement pursuant to
this
Section 2.01, and is not then eligible to register Registrable
Securities
pursuant to such Demand Notice on Form S-3 or a comparable
successor
form; or
(iii) if OpenTV has previously filed two (2) Registration
Statements
pursuant
to this Section 2.01.
(d) Blackout Periods. With respect to any Registration
Statement
filed or to be filed pursuant to this
Section 2.01, if OpenTV shall determine,
in its good faith judgment, that to
maintain the effectiveness of such
Registration Statement (or, if no
Registration Statement has yet been filed, to
file such a Registration Statement) would
(i) interfere with or adversely affect
any financing, acquisition, corporate
reorganization or other material
transaction or development involving OpenTV
or any of its Affiliates, or (ii)
require OpenTV to disclose matters that
otherwise would not be required to be
disclosed at such time (each, a "Disclosure
Condition"), OpenTV may, for a
period of not more than 120 days from the
date of such determination, require
the suspension by each Holder of the
distribution of any Registrable Securities
(or, if no Registration Statement has yet
been filed, delay the filing thereof)
by giving notice to each Holder; provided,
however, that no single suspension
shall extend for more than 120 days without
the written consent of the affected
Holder(s), nor may the aggregate number of
days in which the Holders are subject
to a suspension during any period of 12
consecutive months exceed 150 days. Any
such notice of suspension or delay need not
specify the reasons for such
suspension or delay if OpenTV determines,
in its good faith judgment, that doing
so could
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interfere with or adversely affect any such
transaction or result in a
Disclosure Condition. In the event that
such notice is given, then until OpenTV
has determined, in its good faith judgment,
that such registration and offering
would no longer result in a Disclosure
Condition and has given notice thereof to
each Holder, OpenTV's obligations under
Section 2.01(b) will be suspended. In
the event of a suspension pursuant to this
Section 2.01(d), the Effectiveness
Period of such Registration Statement shall
be extended for a number of days
equal to the total number of days for which
the distribution of Registrable
Securities included in such Registration
Statement by the Holder has been
suspended under this Section 2.01(d).
(e) Plan of Distribution. Each Holder of Registrable Securities
included in any Registration Statement
filed pursuant to this Section 2.01 shall
be named as a selling stockholder in such
Registration Statement and related
Prospectus in such a manner as to permit
such Holder to deliver such Prospectus
to purchasers of Registrable Securities in
accordance with applicable law under
ordinary circumstances. The "Plan of
Distribution" section of the Registration
Statement and prospectus shall be
substantially in the form of Annex A hereto
(to the extent such inclusion is permitted
under applicable Commission
regulations and is consistent with comments
received from the Commission during
any Commission review of the Registration
Statement). Notwithstanding the
foregoing, if the Holders who hold a
majority in interest of the Registrable
Securities elect to have the distribution
of Registrable Securities pursuant to
any Demand Registration be an underwritten
offering, OpenTV shall have the right
to select a managing underwriter or
co-managing underwriters of national
standing to administer the offering, which
underwriters shall be reasonably
satisfactory to the Holders. If the Holders
do not elect to pursue an
underwritten offering as contemplated in
the previous sentence, OpenTV may, in
its sole discretion, elect that the
distribution be in the form of an
underwritten Public Offering, in which
event OpenTV shall have the right to
select the managing underwriter or
co-managing underwriters for such Public
Offering, which underwriters shall be
reasonably acceptable to the Initial
Holders.
(f) OpenTV's Right to Purchase. Notwithstanding anything to the
contrary contained herein, in the event
OpenTV is required to file a
Registration Statement pursuant to a Demand
Notice and all other Holders are
properly notified of such Demand Notice by
OpenTV in accordance with Section
2.01(a), OpenTV shall have the option, in
lieu of effecting any registration
hereunder, of purchasing or causing one or
more of its designees to purchase all
of the Registrable Securities otherwise
required to be included in such
Registration Statement, and in lieu of
including any portion of such Registrable
Securities in a Registration Statement, of
purchasing or causing the purchase of
such portion of Registrable Securities, in
each case, at a per share price equal
to the OpenTV Class A Share Value thereof
(reduced by an amount per share equal
to the anticipated underwriter or brokerage
discounts and commissions (or other
items constituting compensation to the
anticipated underwriter, agent or
broker-dealer), if any, upon such
registered offering and any other expenses
that would be payable by a Holder pursuant
to Section 2.04) on the date on which
the Demand Notice has been given to OpenTV.
Notice of OpenTV's election to
exercise its option hereunder shall be
furnished in writing by OpenTV to each
Holder whose Registrable Securities were to
be included in the Demand
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Registration within five Business Days
after the expiration of the ten-day
period in which each Holder shall have the
right to notify OpenTV that such
Holder elects to participate in Demand
Registration. Payment for any Registrable
Securities purchased by OpenTV hereunder
shall be made to each Holder whose
Registrable Securities were to be included
in the Demand Registration in
immediately available funds on a Business
Day to be determined by OpenTV within
20 days of the date such Holder receives
notice from OpenTV of OpenTV's decision
to exercise the option provided for in this
Section 2.01(f). Upon any such sale,
each such Holder shall be deemed to have
made the same representations and
warranties concerning its title to and
ownership of its Registrable Securities
that are being so purchased and such
Holder's power and authority to effect such
sale as would customarily be made by a
selling stockholder to an underwriter in
an underwriting agreement with respect to a
secondary distribution.
Section 2.02. Piggyback Registration.
(a) Right to Piggyback. At any time until the earlier of (i)
the
second anniversary of the latest date that
any shares of Series A Common Stock
are issued to any or all of the Initial
Holders pursuant to Section 2.5 of the
Asset Purchase Agreement, and (ii) the
earliest date which a Holder may publicly
sell all of such Holder's Registrable
Securities without restriction pursuant to
Rule 144, each time OpenTV proposes to
register under the Securities Act Class A
Ordinary Shares in a transaction for cash
(other than in connection with a
dividend reinvestment, employee benefit,
stock option or similar plan; an
offering of rights, warrants or securities
directly or indirectly convertible
into or exchangeable or exercisable for
Class A Ordinary Shares; a transaction
registered on Form S-4; or a registration
solely for the account of OpenTV
pursuant to Rule 415 under the Securities
Act), OpenTV shall give each Holder
holding Registrable Securities written
notice of such proposed filing at least
fifteen (15) days before the anticipated
filing date. The notice referred to in
the preceding sentence shall offer Holders
the opportunity to register such
amount of Registrable Securities as each
Holder may request (a "Piggyback
Registration"). Subject to Section 2.02(b),
OpenTV will include in each such
Piggyback Registration all Registrable
Securities with respect to which OpenTV
receives written requests for inclusion
therein within fifteen (15) days after
the written notice from OpenTV is
given.
(b) Priority on Piggyback Registrations. If the proposed method
of
distribution in a Piggyback Registration is
an underwritten public offering and
the managing underwriter thereof determines
that the inclusion of Registrable
Securities would materially adversely
affect the success of the offering, then
OpenTV shall be obligated to include in
such Registration Statement only such
limited portion of the Registrable
Securities with respect to which Holders have
requested inclusion hereunder as the
underwriter shall permit after taking into
account all of the securities to be offered
by OpenTV for its own account, if
any. Any exclusion of Registrable
Securities shall be made pro rata among the
Holders seeking to include Registrable
Securities, in proportion to the number
of Registrable Securities sought to be
included by such Holders; provided,
however, that OpenTV shall not exclude any
Registrable Securities unless it has
first excluded all outstanding securities,
the holders of which are not
contractually entitled to inclusion of such
securities in such Registration
Statement or are not contractually entitled
to pro rata inclusion with the
Registrable Securities; and provided
further, however, that, after giving effect
to the immediately preceding proviso, any
exclusion of Registrable Securities
shall be made pro rata with holders of
other securities having the contractual
right to include such securities in the
Registration Statement other than
holders of securities contractually
entitled to inclusion of their securities in
such Registration Statement by reason of
demand registration rights. No right to
registration of Registrable Securities
under this Section 2.02 shall be
construed to limit any registration
required under Section 2.01 hereof. If an
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offering in connection with which a Holder
is entitled to registration under
this Section 2.02 is an underwritten
offering, then each Holder whose
Registrable Securities are included in such
Registration Statement shall, unless
otherwise agreed by OpenTV, offer and sell
such Registrable Securities in an
underwritten offering using the same
underwriter or underwriters and, subject to
the provisions of this Agreement, on the
same terms and conditions as other
securities included in such underwritten
offering.
(c) Right to Terminate Piggyback Registration. OpenTV may,
without
the consent of any Holder, delay, suspend,
abandon or withdraw any Registration
Statement described in this Section 2.02
and any related proposed offering or
other distribution in which any Holder has
requested the inclusion of such
Holder's Registrable Securities.
Section 2.03. Obligations with Respect to Registration.
(a) Obligations of OpenTV. If and whenever OpenTV is obligated
by
the provisions of Sections 2.01 or 2.02 of
this Agreement to effect the
registration of any Registrable Securities
under the Securities Act, OpenTV
shall:
(i) subject to Sections 2.01(d) and 2.02(c), use reasonable
efforts
to cause
the Registration Statement to remain effective, and to prepare
and file
with the Commission any amendments and supplements to the
Registration Statement and to the Prospectus used in connection
therewith
as may be
necessary to keep the Prospectus current and in compliance in
all
material respects with the provisions of the Securities Act,
during
the
Effectiveness Period;
(ii) notify the Holders of Registrable Securities included in
any
such
Registration Statement, (A) when a Registration Statement
becomes
effective,
(B) when the filing of a post-effective amendment to a
Registration Statement or supplement to the Prospectus is required,
when
the same
is filed, and in the case of a post-effective amendment, when
the
same
becomes effective, (C) of any request by the Commission for any
amendment of or supplement
to a Registration Statement or any Prospectus
relating
thereto or for additional information and (D) of the entry of
any
stop order
suspending the effectiveness of such Registration Statement or
of the
initiation of any proceedings for that purpose;
(iii) furnish to each Holder of Registrable Securities included
in
any such
Registration Statement a conformed copy of the Registration
Statement
as declared eff
