<PAGE>
As filed with the Securities and Exchange Commission on May 17, 2000
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
OPENTV CORP.
(Exact name of registrant as specified in its charter)
British Virgin Islands 98-021376
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
401 East Middlefield Road Mountain View, CA 94043
(Address of Principal Executive Offices)
----------------
2000 OpenTV Corp. Exchange Plan
1999 OpenTV Corp. Share Option/Share Issuance Plan
1999 OpenTV, Inc. Employee Stock Purchase Plan
----------------
James F. Brown, Esq.
General Counsel
OpenTV Corp.
401 East Middlefield Road
Mountain View, CA 94043
(650) 429-5500
(Name, address and telephone number, including area code, of agent for
service)
----------------
Copies to:
Kris F. Heinzelman, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
CALCULATION OF REGISTRATION FEE
<TABLE>
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
<CAPTION>
Title of Amount Proposed maximum Proposed maximum
securities to be offering price aggregate Amount of
to be registered registered(1) per share offering price registration fee(2)
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Ordinary Shares,
no par value 13,465,955 $62.125 $836,572,455 $220,856
</TABLE>
- -------------------------------------------------------------------------------
(1) Includes (i) up to 5,141,114 shares of common stock of OpenTV, Inc. which
may be purchased upon the exercise of options granted under the 1998
OpenTV, Inc. Stock Option/Stock Issuance Plan, as amended and restated
from time to time, that were assigned to and assumed by the registrant
and now represent the right to purchase an identical number of Class A
Ordinary Shares of the registrant pursuant to the terms of the 1999
OpenTV Corp. Share Option/Share Issuance Plan, as amended and restated
from time to time, (ii) up to 161,000 shares of common stock of OpenTV,
Inc. that may be purchased upon the exercise of options granted under the
1998 OpenTV, Inc. Stock Option/Stock Issuance Plan, as amended and
restated from time to time, that may be exchanged in the future for an
identical number of Class A Ordinary Shares of the registrant, pursuant
to the 2000 OpenTV Corp. Exchange Plan, (iii) 1,470,955 shares of common
stock of OpenTV, Inc. that may be exchanged for an identical number of
Class A Ordinary Shares of the registrant pursuant to the 2000 OpenTV
Corp. Exchange Plan, (iv) 1,572,886 Class A Ordinary Shares of the
registrant that are either issued directly or upon exercise of options
granted pursuant to the 1999 OpenTV Corp. Share Option/Share Issuance
Plan, as amended and restated from time to time, and (v) 5,120,000 Class
A Ordinary Shares of the registrant that may be issued pursuant to the
1999 OpenTV, Inc. Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) promulgated under the Securities
Act of 1933, as amended, on the basis of the highest and lowest prices of
the registrant's Class A Ordinary Shares reported on The Nasdaq National
Market on May 11, 2000.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified in Rule 428(b)
(1) of the Securities Act of 1933, as amended (the "Securities Act"), in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"). These documents and the documents incorporated
by reference into this Registration Statement pursuant to Item 3 of Part II of
this Registration Statement, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Commission are
incorporated by reference herein and shall be deemed a part hereof:
(a) The description of the Class A Ordinary Shares, no par value per
share (the "Shares") of OpenTV Corp., a British Virgin Islands
international business company ("OpenTV"), contained in OpenTV's
Registration Statement on Form F-1 (File No: 333-89609) filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Securities and Exchange Commission on October 25,
1999 and any amendment or report filed for the purpose of updating any such
description;
(b) OpenTV's Registration Statement on Form 8-A, filed with the
Commission on November 16, 1999; and
(c) The description of OpenTV's Class A Ordinary Shares contained in the
Registration Statement on Form 8-A referred to in (b) above.
All documents filed by OpenTV pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Articles of Association of OpenTV (Sections 116-122) provide the
following:
1
<PAGE>
"LIMITATION OF LIABILITY
116. To the full extent permitted by the Act or any other applicable laws
presently or hereafter in effect, no director of the Company shall be
personally liable to the Company or its members for or with respect to
any acts or omissions in the performance of his or her duties as a
director of the Company. Any repeal or modification of this Regulation
116 by a resolution of members shall not adversely affect the right or
protection of a director of the Company existing at the time of such
repeal or modification with respect to acts or omissions occurring prior
to such repeal or modification.
INDEMNIFICATION
117. Subject to the limitations hereinafter provided the Company may
indemnify against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred
in connection with legal, administrative or investigative proceedings
any person who
a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil, criminal,
administrative or investigative, by reason of the fact that the person
is or was a director, an officer or a liquidator of the Company; or
b) is or was, at the request of the Company, serving as a director,
officer or liquidator of, or in any other capacity is or was acting
for, another company or a partnership, joint venture, trust or other
enterprise.
118. The Company may only indemnify a person if the person acted honestly and
in good faith with a view to the best interests of the Company, and in
the case of criminal proceedings, the person had no reasonable cause to
believe that his conduct was unlawful.
119. The decision of the directors as to whether the person acted honestly
and in good faith and with a view to the best interests of the Company
and as to whether the person had no reasonable cause to believe that his
conduct was unlawful is, in the absence of fraud, sufficient for the
purposes of these Articles, unless a question of law is involved.
120. The termination of any proceedings by any judgment, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself,
create a presumption that the person did not act honestly and in good
faith and with a view to the best interests of the Company or that the
person had reasonable cause to believe that his conduct was unlawful.
121. If a person to be indemnified has been successful in defense of any
proceedings referred to above the person is entitled to be indemnified
against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the
person in connection with the proceedings.
122. The Company may purchase and maintain insurance in relation to any
person who is or was a director, an officer or a liquidator of the
Company, or who at the request of the Company is or was serving as a
director, an officer or a liquidator of, or in any other capacity is or
was acting for, another company or a partnership, joint venture, trust
or other enterprise, against any liability asserted against the person
and incurred by the person in that capacity, whether or not the Company
has or would have had the power to indemnify the person against the
liability as provided in these Articles."
Sections 57 and 58 of the British Virgin Islands International Business
Companies Act permit the following:
"(S)57. Indemnification (International Business Companies)
(1) Subject to subsection (2) and any limitations in its Memorandum or
Articles, a company incorporated under this Ordinance may indemnify against
all expenses, including legal fees, and against all judgments, fines and
amounts paid in settlement and reasonably incurred in connection with legal,
administrative or investigative proceedings any person who:
2
<PAGE>
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil, criminal,
administrative or investigative, by reason of the fact that the person is
or was a director, an officer or a liquidator of the company or;
(b) is or was, at the request of the company, serving as a director,
officer or liquidator of, or in any other capacity is or was acting for,
another company or a partnership, joint venture, trust or other enterprise.
(2) Subsection (1) only applies to a person referred to in that subsection
if the person acted honestly and in good faith with a view to the best
interests of the company and, in the case of criminal proceedings, the person
had no reasonable use to believe that his conduct was unlawful.
(3) The decision of the directors as to whether the person acted honestly
and in good faith and with a view to the best interests of the company and as
to whether the person had no reasonable cause to believe that his conduct was
unlawful is in the absence of fraud, sufficient for the purposes of this
section, unless a question of law is involved.
(4) The termination of any proceedings by any judgment, order, settlement,
conviction or the entering of a nolle prosequi does not, by itself, create a
presumption that the person did not act honestly and in good faith and with a
view to the best interests of the company or that the person had reasonable
cause to believe that his conduct was unlawful.
(5) If a person referred to in subsection (1) has been successful in defense
of any proceedings referred to in subsection (1), the person is entitled to be
indemnified against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred by the
person in connection with the proceedings.
(S)58. Insurance (International Business Companies)
A company incorporated under the Ordinance may purchase and maintain
insurance in relation to any person who is or was a director, an officer or a
liquidator of the company, or who at the request of the company is or was
serving as a director, an officer or a liquidator of, or in any other capacity
is or was acting for, another company or a partnership, joint venture, trust
or other enterprise, against any liability asserted against the person and
incurred by the person in that capacity, whether or not the company has or
would have had the power to indemnify the person against the liability under
subsection (1) of section 57."
In addition, OpenTV maintains directors' and officers' liability insurance
policies.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
5.1 Opinion, dated May 17, 2000, of Harney Westwood & Riegels with respect
to the validity of the securities being offered
10.1 OpenTV Corp. 2000 Exchange Plan
*10.2 OpenTV, Inc. 1999 Employee Stock Purchase Plan
OpenTV Corp. 1999 Share Option/Share Issuance Plan, as amended and
*10.3 restated
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Harney Westwood & Riegels (included in Exhibit 5.1)
Power of Attorney (included on the signature page to this Registration
24.1 Statement)
</TABLE>
- --------
* Incorporated by reference to the Exhibits with the corresponding exhibit
numbers in the Registration Statement on Form F-1 (File No: 333-89609) of
OpenTV Corp. filed with the Securities and Exchange Commission on October 25,
1999 and any amendments thereto.
3
<PAGE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Mountain View, State of California,
on this 17th day of May, 2000.
OPENTV CORP.
/s/ Jan Steenkamp
By: _________________________________
Jan Steenkamp
Chief Executive Officer
We, the undersigned officers and directors of OpenTV Corp., hereby severally
constitute and appoint Jan Steenkamp, Randall S. Livingston and Allan M.
Rosenzweig, and each of them, with full power of substitution, our true and
lawful attorney with full power to him singly to sign for us and in our names
in the capacities indicated below the Registration Statement on Form S-8 filed
herewith and any and all pre-effective and post-effective amendments to said
Registration Statement, and, in connection with any registration of additional
securities, to sign any abbreviated registration statement and any and all
amendments thereto, and to file the same, with all exhibits thereto and other
documents in connection therewith, in each case, with the Securities and
Exchange Commission, and generally to do all such things in our names and on
our behalf in our capacities as officers and directors to enable OpenTV Corp.
to comply with the provisions of the Securities Act of 1933, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorney to
said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jacobus D.T. Stofberg Chairman of the Board May 17, 2000
______________________________________
Jacobus D.T. Stofberg
/s/ Jan Steenkamp Chief Executive Officer May 17, 2000
______________________________________ and Director (principal
Jan Steenkamp executive officer
/s/ Randall S. Livingston Chief Financial Officer May 17, 2000
______________________________________ and Director (principal
Randall S. Livingston financial and accounting
officer)
/s/ Jacobus P. Bekker Director May 17, 2000
______________________________________
Jacobus P. Bekker
/s/ Stephen Ward Director May 17, 2000
______________________________________
Stephen Ward
/s/ William Raduchel Director May 17, 2000
______________________________________
William Raduchel
/s/ Allan M. Rosenzweig Director May 17, 2000
______________________________________
Allan M. Rosenzweig
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director May 17, 2000
______________________________________
Craig L. Enenstein
/s/ Paul Haggerty Director May 17, 2000
______________________________________
Paul Haggerty
</TABLE>
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
5.1 Opinion, dated May 17, 2000, of Harney Westwood & Riegels with respect
to the validity of the securities being offered
10.1 OpenTV Corp. 2000 Exchange Plan
*10.2 OpenTV, Inc. 1999 Employee Stock Purchase Plan
OpenTV Corp. 1999 Share Option/Share Issuance Plan, as amended and
*10.3 restated
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Harney Westwood & Riegels (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page to this Registration
Statement)
</TABLE>
- --------
* Incorporated by reference to the Exhibits with the corresponding exhibit
numbers in the Registration Statement on Form F-1 (File No: 333-89609) of
OpenTV Corp. filed with the Securities and Exchange Commission on October
25, 1999 and any amendments thereto.
1
<PAGE>
EXHIBIT 5.1
Harney Westwood & Riegels
Barristers, Solicitors, Notaries, Patent and Trade Mark Agents
Craigmuir Chambers, PO Box 71
Road Town, Tortola, British Virgin Islands
Telephone: (284) 494-2233 Fax: (284) 494-3547
e-mail: [email protected] web-site: www.harneys.com
17 May 2000
OpenTV Corp.
401 East Middlefield Road
Mountain View
CA 94043
USA
Dear Sirs
OpenTV Corp. - IBC No. 346535
We have been asked as counsel to Open TV Corp., a British Virgin Islands company
(the "Company"), to provide this legal opinion in connection with the
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"), of 13,465,955 Class A Ordinary Shares of no par value in the
Company (the "Shares") to be offered by the Company to certain current and
former employees of the Company, OpenTV, Inc., a Delaware corporation ("OpenTV,
Inc.") and majority-owned subsidiary of the Company, and the Company's other
direct and indirect subsidiaries, pursuant to the Company's 2000 Exchange Plan,
the Company's 1999 Share Option/Share Issuance Plan and the OpenTV, Inc. 1999
Employee Stock Purchase Plan.
1. For the purpose of this opinion we have reviewed the following documents:
(a) the Registration Statement on Form S-8 provided to us by Cravath,
Swaine & Moore (the "Registration Statement") and filed by the
Company with the United States Securities and Exchange Commission
on 16 May 2000 for the purpose of registering the Shares;
(b) (i) a copy the Company's 2000 Exchange Plan;
(ii) a copy of the Company's 1999 Share Option/Share Issuance
Plan; and
(iii) a copy of the OpenTV, Inc. 1999 Employee Stock Purchase
Plan.
(items (i-iii) are collectively referred to as the "Plans")
<PAGE>
(c) the Memorandum and Articles of Association and certificate of
incorporation of the Company obtained from the British Virgin Islands
Companies Registry on 29 April 2000;
(d) a facsimile copy of a Secretary's Certificate, issued by James F.
Brown, dated 16 May 2000 attaching a copy of the resolutions of the
directors of the Company approving the Company's entry into, and
authorising;
(i) the entry into the Company's 2000 Exchange Plan and the filing of
the Registration Statement; and
(ii) the issuance of the Shares;
and certifying that (i) the resolutions were duly adopted by the Board
of Directors of the Company at a special meeting of the Board held,
pursuant to notice duly given or waived, on 12 May 2000 and (ii) the
resolutions have not been amended or rescinded and remain in full force
and effect as of the date of the Certificate.
(e) a Registered Agent's Certificate dated 5 May 2000 issued by Havelet
Trust Company (BVI) Limited, the Registered Agent of the Company in the
British Virgin Islands;
(f) the public records of the Company as at 15 May 2000 on file with, and
available for inspection at, the Companies Registry in the British
Virgin Islands; and
(g) the records of proceedings on file with, and available for inspection
on 15 May 2000 at the Hight Court of Justice, British Virgin Islands.
2. This legal opinion is confined to and given on the basis of the laws of the
British Virgin Islands at the date hereof and as currently applied by the
courts of the British Virgin Islands. We have not investigated and we do
not express or imply nor are we qualified to express or imply any opinion
on the laws of any other jurisdiction.
3. Based on the foregoing, we are of the opinion that:-
(a) the Company is a company limited by shares, duly incorporated,
validly existing, and in good standing as a separate legal entity
under the laws and regulations of the British Virgin Islands;
(b) the Company has full statutory authority, corporate power and legal
right to own, lease and operate its properties and to conduct its
business as described in the Registration Statement; and
(c) the Shares to be offered and sold by the Company have been legally
authorised and, when sold pursuant to the terms described in the
Registration Statement, and paid for at least to the extent of their
par value, will be legally issued, fully paid and non-assessable.
4. In connection with the above opinion, we hereby consent to the filing of
this opinion as an exhibit to the Registration Statement.
This opinion is addressed to you and may be relied upon by you and your
counsel. This opinion is limited to the matters detailed herein and is not to
be read as an opinion with respect to any other matter.
Yours faithfully
HARNEY WESTWOOD & RIEGELS
2
<PAGE>
EXHIBIT 10.1
OPENTV CORP.
2000 EXCHANGE PLAN
Adopted by the Board of Directors of OpenTV Corp. on May 12, 2000
ARTICLE ONE
GENERAL PROVISIONS
1. PURPOSE.
This 2000 EXCHANGE PLAN (the "Plan") is intended to promote the interests
of OpenTV, Inc., a Delaware corporation ("OpenTV, Inc."), OpenTV Corp., an
international business company organized under the laws of the British Virgin
Islands (the "Company"), and any direct or indirect subsidiary of OpenTV, Inc.
and the Company by providing liquidity to all current and former employees of
OpenTV, Inc., the Company and any direct or indirect subsidiary of OpenTV, Inc.
or the Company (the "Holders") that hold shares of Class A Common Stock, par
value $0.001 per share of OpenTV, Inc. and Class B Common Stock, par value
$0.001 per share of OpenTV, Inc. (collectively, the "Common Stock") and options
to purchase shares of Common Stock, issued pursuant to the OpenTV, Inc. 1998
Stock Option/Stock Issuance Plan, as amended and restated from time to time (the
"1998 Plan") by granting the Holders the right to exchange vested shares of
Common Stock for an equal number of Class A Ordinary Shares, no par value per
share (the "Ordinary Shares") of the Company.
Capitalized terms used herein but not otherwise defined herein shall have
the meanings assigned to such terms in the attached Appendix.
2. STRUCTURE OF PLAN.
Any right granted under the Plan to exchange vested shares of Common
Stock for Ordinary Shares shall be referred to herein as a "Right". The
provisions of Articles One, Two and Three shall apply to all Rights under the
Plan and shall accordingly govern the interests of all Participants under the
Plan.
3. ADMINISTRATION OF THE PLAN.
a. The Plan shall be administered by the Board. However, any or all
administrative functions otherwise exercisable by the Board may be delegated to
a committee composed of not fewer than two (2) Directors (the "Committee"), and
may also be, in the discretion of the Board, Outside Directors. If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board (and references in this Plan to the Board shall thereafter be to
the Committee), subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
b. The Board shall have full power and authority (subject to the
provisions of the Plan) to establish such rules and regulations as it may deem
appropriate for proper administration of the Plan and to make such
determinations under and interpretations
<PAGE>
2
of the Plan and any outstanding Rights thereunder as it may deem necessary or
advisable. Decisions of the Board shall be final and binding on all parties who
have an interest in the Plan or any Right thereunder.
4. ELIGIBILITY.
a. The persons eligible to participate in the Plan are those current
and former employees of OpenTV, Inc., the Company and any direct or indirect
subsidiary of OpenTV, Inc. and the Company, including current and former
employees of OpenTV EURL, that hold shares of Common Stock and options to
purchase shares of Common Stock issued pursuant to the 1998 Plan.
b. The Board shall have full authority to determine which
Participants are to receive Rights, the time or times when such Rights are to be
granted, the number of shares of Common Stock covered by the Rights and the
consideration to be paid by the Participant, if any, for the Ordinary Shares to
be issued in exchange for the shares of Common Stock covered by each Right.
c. The Board shall have the absolute discretion to grant Rights.
5. SHARES SUBJECT TO THE PLAN
a. The Ordinary Shares issuable under the Plan shall be authorized
but unissued or reacquired Ordinary Shares. Subject to the provisions of
subsection 1.c. of this Section 5 relating to adjustments upon changes in the
capitalization of the Company and OpenTV, Inc., the maximum number of Ordinary
Shares which may be issued in exchange for shares of Common Stock over the term
of the Plan shall not exceed 1,631,955 Ordinary Shares.
b. Ordinary Shares issuable in exchange for vested shares of Common
Stock shall be available for subsequent issuance under the Plan to the extent
(i) the Rights expire or terminate for any reason prior to exercise in full or
(ii) the Rights are cancelled in accordance with the cancellation-regrant
provisions of Article Two. Unvested Ordinary Shares issued under the Plan and
subsequently repurchased by the Company pursuant to the Company's repurchase
rights under the Plan shall be added back to the number of Ordinary Shares
reserved for issuance under the Plan and shall accordingly be available for
reissuance through one or more subsequent Rights under the Plan.
c. If any change is made in the shares of Common Stock subject to
the Plan, the Ordinary Shares issuable under the Plan, or subject to any Right
(through merger, consolidation, reorganization, recapitalization,
reincorporation, share dividend, dividend in property other than cash, share
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or other transaction not involving the receipt of
consideration by the Company or OpenTV, Inc.), the Plan will be appropriately
adjusted in the class(es) and number of shares and price per share of shares of
Common Stock subject to such outstanding Rights and Ordinary Shares issuable
upon exercise of such Rights. Such adjustments shall be made by the Board or
the Committee, the determination of which shall be final, binding and
conclusive.
<PAGE>
3
ARTICLE TWO
RIGHTS AND EXCHANGE PROGRAM
1. TERMS OF RIGHTS
a. Exercise and Term of Rights. Each Right shall be exercisable at
such time or times, during such period and for such number of Ordinary Shares as
shall be determined by the Board. However, no Right shall have a term in excess
of fifteen (15) years measured from the Right grant date.
b. Shareholder Rights. The holder of a Right shall have no
shareholder rights with respect to the Ordinary Shares issuable pursuant to
Rights granted under the Plan until such person shall have exercised the Right
and become a holder of record of the Ordinary Shares received upon exercise of
the Right.
c. Unvested Shares of Common Stock. The Board may not grant Rights
which are exercisable in exchange for unvested shares of Common Stock and
Participants may only exchange vested shares of Common Stock for Ordinary Shares
pursuant to Rights granted under the Plan.
d. Limited Transferability of Rights. During the lifetime of the
Participant, the Rights shall be exercisable only by the Participant and shall
not be assignable or transferable other than by will or by the laws of descent
and distribution following the Participant's death; provided, however, that,
-------- -------
pursuant to local law or the applicable law of descent, Participants may
transfer Rights to charitable trusts and other charitable organizations in the
event that the shares of Common Stock subject to such Rights have also been
transferred by such Participant to such charitable trust or organization.
e. Withholding. The Company's obligation to deliver Ordinary Shares
upon the exercise of any Right granted under the Plan shall be subject to the
satisfaction of all applicable federal, state and local income and employment
tax withholding requirements.
2. CANCELLATION AND REGRANT OF RIGHTS
The Board shall have the authority to effect, at any time and from
time to time, with the consent of the affected Right holders, the cancellation
of any or all outstanding Rights under the Plan and to grant in substitution
therefor new Rights covering the same or different number of shares of Common
Stock but with exchange terms with respect to the Ordinary Shares that are no
less favorable than those exchange terms in the Plan on the new Right grant
date.
3. EXCHANGE TERMS
Ordinary Shares may be issued in exchange for vested shares of Common
Stock under the Exchange Program through direct and immediate issuances. Each
such issuance shall be evidenced by a Notice of Exchange in form and substance
satisfactory to the Company.
4. CORPORATE TRANSACTION
<PAGE>
4
a. The shares of Common Stock subject to each Right outstanding
under the Plan at the time of a Corporate Transaction shall automatically vest
in full so that each such Right shall, immediately prior to the effective date
of the Corporate Transaction, become fully exercisable for all of the Ordinary
Shares into which such shares of Common Stock may be exchanged at the time
subject to that Right and may be exercised for any or all of those Ordinary
Shares as fully-vested Ordinary Shares. However, the shares of Common Stock
subject to an outstanding Right shall not vest on such an accelerated basis if
and to the extent (i) such Right is assumed by the successor corporation (or
parent thereof) in the Corporate Transaction and OpenTV, Inc.'s repurchase
rights with respect to the unvested Right shares are concurrently assigned to
such successor corporation (or parent thereof) or (ii) such Right is to be
replaced with a cash incentive program of the successor corporation which
preserves the spread existing on the unvested Right shares at the time of the
Corporate Transaction and provides for subsequent payout in accordance with the
same vesting schedule applicable to those unvested Right shares or (iii) the
acceleration of such Right is subject to other limitations imposed by the Board
at the time of the Right grant.
b. All outstanding repurchase rights under the Plan shall also
terminate automatically, and the shares of Common Stock subject to those
terminated rights shall immediately vest in full, in the event of any Corporate
Transaction, except to the extent (i) those repurchase rights are assigned to
the successor corporation (or parent thereof) in connection with such Corporate
Transaction or (ii) such accelerated vesting is precluded by other limitations
imposed by the Board at the time the repurchase right was issued.
c. Immediately following the consummation of the Corporate
Transaction, all outstanding Rights shall terminate and cease to be outstanding,
except to the extent assumed by the successor corporation (or parent thereof).
d. Each Right which is assumed in connection with a Corporate
Transaction shall be appropriately adjusted, immediately after such Corporate
Transaction, to apply to the number and class of securities which would have
been issuable to the Participant in consummation of such Corporate Transaction,
had the Right been exercised immediately prior to such Corporate Transaction.
Appropriate adjustments shall also be made to the number and class of securities
available for issuance under the Plan following the consummation of such
Corporate Transaction.
e. The Board shall have the discretion, exercisable either at the
time the Right is granted or at any time while the Right remains outstanding, to
provide for the automatic acceleration (in whole or in part) of one or more
outstanding Rights (and the immediate termination of OpenTV, Inc.'s repurchase
rights with respect to the shares subject to those Rights) upon the occurrence
of a Corporate Transaction, whether or not those Rights are to be assumed in the
Corporate Transaction.
f. The Board shall also have full power and authority, exercisable
either at the time the Right is granted or at any time while the Right remains
outstanding, to structure such Right so that the shares of Common Stock subject
to that Right will automatically vest on an accelerated basis should the
Participant's Service terminate by reason of an Involuntary Termination within a
designated period (not to exceed eighteen (18) months) following the effective
date of any Corporate Transaction in which the Right is assumed and the
repurchase rights applicable to those shares do not otherwise terminate. Any
Right so accelerated shall remain exercisable for the fully-vested Right shares
until the earlier of (i) the expiration of the Right term or (ii) the expiration
of the one (1)-year period
<PAGE>
5
measured from the effective date of the Involuntary Termination. In addition,
the Board may provide that one or more of the outstanding repurchase rights with
respect to shares of Common Stock held by the Participant at the time of such
Involuntary Termination shall immediately terminate on an accelerated basis, and
the shares subject to those terminated rights shall accordingly vest at that
time.
h. The grant of Rights under the Plan shall in no way affect the
right of OpenTV, Inc. or the Company to adjust, reclassify, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
i. The Board shall have the discretionary authority, exercisable at
any time while OpenTV, Inc.'s repurchase rights with respect to those shares
remain outstanding, to provide that those rights shall automatically terminate
on an accelerated basis, and the shares of Common Stock subject to those
terminated rights shall immediately vest, in the event the Participant's Service
should subsequently terminate by reason of an Involuntary Termination within a
designated period (not to exceed eighteen (18) months) following, the effective
date of any Corporate Transaction in which those repurchase rights are assigned
to the successor corporation (or parent thereof).
ARTICLE THREE
MISCELLANEOUS
1. EFFECTIVE DATE AND TERM OF PLAN
a. The Plan shall become effective when adopted by the Board.
b. The Plan shall terminate upon the earliest of (i) May 12, 2015,
(ii) the date on which all shares of Common Stock subject to the Plan have been
exchanged for Ordinary Shares or (iii) the termination of all outstanding Rights
in connection with a Corporate Transaction. All Rights and unvested share
issuances outstanding at that time under the Plan shall continue to have full
force and effect in accordance with the provisions of the documents evidencing
such Rights or issuances.
2. AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects. However, no such amendment or
modification shall adversely affect the rights and obligations with respect to
Rights or interested share issuances at the time outstanding under the Plan
unless the Participant consents to such amendment or modification. In addition,
certain amendments may require shareholder approval pursuant to applicable laws
and regulations.
3. WITHHOLDING
The Company's obligation to deliver Ordinary Shares upon the exercise
of any Rights issued under the Plan shall be subject to the satisfaction of all
United States and foreign applicable federal, state and local income and
employment tax withholding requirements.
<PAGE>
6
4. REGULATORY APPROVALS
The implementation of the Plan, the granting of any Rights under the
Plan and the issuance of any Ordinary Shares upon the exercise of any Right
shall be subject to OpenTV, Inc.'s and the Company's procurement of all
approvals and permits required by regulatory authorities having jurisdiction
over the Plan, the Rights granted under it and the Ordinary Shares issued
pursuant to it.
5. NO EMPLOYMENT OR SERVICE RIGHTS
Nothing in the Plan shall confer upon the Participant any right to
continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of OpenTV, Inc., the Company or of the
Participant, which rights are hereby expressly reserved by each, to terminate
such person's Service at any time for any reason, with or without cause.
<PAGE>
7
APPENDIX
The following definitions shall be in effect under the Plan:
Board shall mean the Company's Board of Directors.
-----
Code shall mean the Internal Revenue Code of 1986, as amended.
----
Committee shall have the meaning as set forth in Section 3 of Article
---------
One.
Ordinary Shares shall mean the Company's Class A Ordinary Shares.
-------- ------
Company shall mean OpenTV Corp., an international business company
-------
organized under the laws of the British Virgin Islands.
Corporate Transaction shall mean either of the following shareholder-
---------------------
approved transactions to which either the Company or OpenTV, Inc. is a party:
(a) a merger or consolidation in which securities possessing more
than fifty percent (50%) of the total combined voting power of the
Company's or OpenTV, Inc.'s outstanding securities are transferred to
a person or persons different from the persons holding those
securities immediately prior to such transaction, or
(b) the sale, transfer or other disposition of all or
substantially all of the Company's or OpenTV, Inc.'s assets in
complete liquidation or dissolution of the Company or OpenTV, Inc.
Director means a member of the Board.
--------
Disability shall mean the inability of the Participant to engage in
----------
any substantial gainful activity by reason of any medically determinable
physical or mental impairment and shall be determined by the Board on the basis
of such medical evidence as the Board deems warranted under the circumstances.
Employee shall mean an individual who is in the employ of the Company,
--------
OpenTV, Inc. or any direct or indirect subsidiary of OpenTV, Inc. and the
Company, subject to the control and direction of the employer entity as to both
the work to be performed and the manner and method of performance.
Exchange Program shall mean the exchange program in effect under the
----------------
Plan.
Involuntary Termination shall mean the termination of the Service of
-----------------------
any individual which occurs by reason of:
(a) such individual's involuntary dismissal or discharge by the
Company, OpenTV, Inc. or any direct or indirect subsidiary of OpenTV,
Inc. and the Company for reasons other than misconduct,
<PAGE>
8
(b) such individual's voluntary resignation following (i) a
change in his or her position with the Company, OpenTV, Inc. or any
direct or indirect subsidiary of OpenTV, Inc. and the Company which
materially reduces his or her level of responsibility, (ii) a
reduction in his or her level of compensation (including base salary,
fringe benefits and target bonuses under any corporate-performance
based bonus or incentive programs) by more than fifteen percent (15%)
or (iii) a relocation of such individual's place of employment by more
than fifty (50) miles, provided and only if such change, reduction or
relocation is effected without the individual's consent, or
(c) such other circumstances as the Board may from time to time
determine.
Notice of Exchange shall mean the agreement entered into by the
------------------
Company and the Participant in connection with issuance of Ordinary Shares under
the Exchange Program.
Outside Director shall mean a Director who either (i) is not a current
----------------
employee of the Company or an "affiliated corporation" (within the meaning of
Treasury regulations promulgated under Section 162(m) of the Code), is not a
former employee of the Company or an "affiliated corporation" receiving
compensation for prior services (other than benefits under a tax qualified
pension plan), was not an officer of the company or an "affiliated corporation"
at any time, and is not currently receiving direct or indirect remuneration from
the Company or an "affiliated corporation" for services in any capacity other
than as a Director, or (ii) is otherwise considered an "outside director" for
purposes of Section 162(m) of the Code.
Participant shall mean any person to whom a Right is granted under the
-----------
Plan, including current and former French employees of OpenTV EURL.
Plan shall mean the Company's 2000 Exchange Plan as set forth in this
----
document.
Service shall mean the provision of services to OpenTV, Inc., the
-------
Company or any direct or indirect subsidiary of OpenTV, Inc. and the Company by
a person in the capacity of an Employee, a non-employee member of the board of
directors or a consultant or independent advisor, except to the extent otherwise
specifically provided in the documents evidencing the Right grant.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated January 25, 2000, except for Note
12 for which the date is March 26, 2000 relating to the financial statements
and financial statement schedule of OpenTV Corp. as of December 31, 1998 and
1999 and for the three years in the period ended December 31, 1999, which
appear in OpenTV Corp's Form F-4 as filed with the Securities and Exchange
Commission on May 12, 2000.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
May 15, 2000
