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As filed with the Securities and Exchange Commission on May 19, 2000
Registration No. 333-37196
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
To
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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)
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2000 OpenTV Corp. Exchange Plan
1999 OpenTV Corp. Share Option/Share Issuance Plan
1999 OpenTV, Inc. Employee Stock Purchase Plan
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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)
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Copies to:
Kris F. Heinzelman, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
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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"). Such
documents are not being filed with or included in this Registration Statement
(by incorporation or otherwise) 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 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;
(c) The description of OpenTV's Class A Ordinary Shares contained in the
Registration Statement on Form 8-A referred to in (b) above;
(d) the current report of OpenTV on Form 6-K dated February 3, 2000, as
amended by the current report of OpenTV on Form 6-K/A dated February 7,
2000;
(e) the current report of OpenTV on Form 6-K dated March 30, 2000; and
(f) the current report of OpenTV on Form 6-K dated May 5, 2000.
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:
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"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:
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(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
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<C> <S>
*4.1 Memorandum of Association of OpenTV Corp.
*4.2 Articles of Association of OpenTV Corp.
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>
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* 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.
+ Filed previously.
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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.
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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 19th day of May, 2000.
OPENTV CORP.
/s/ Jan Steenkamp
By: _________________________________
Jan Steenkamp
Chief Executive Officer
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>
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Signature Title Date
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<S> <C> <C>
* Chairman of the Board May 19, 2000
______________________________________
Jacobus D.T. Stofberg
/s/ Jan Steenkamp Chief Executive Officer May 19, 2000
______________________________________ and Director (principal
Jan Steenkamp executive officer
* Chief Financial Officer May 19, 2000
______________________________________ and Director (principal
Randall S. Livingston financial and accounting
officer)
* Director May 19, 2000
______________________________________
Jacobus P. Bekker
* Director May 19, 2000
______________________________________
Stephen Ward
* Director May 19, 2000
______________________________________
William Raduchel
* Director May 19, 2000
______________________________________
Allan M. Rosenzweig
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<TABLE>
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Signature Title Date
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<S> <C> <C>
* Director May 19, 2000
______________________________________
Craig L. Enenstein
* Director May 19, 2000
______________________________________
</TABLE> Paul Haggerty
/s/ Jan Steenkamp
*By: ________________________
Jan Steenkamp
Attorney-in-fact
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<C> <S>
*4.1 Memorandum of Association of OpenTV Corp.
*4.2 Articles of Association of OpenTV Corp.
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>
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* 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.
+ Filed previously.
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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
