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As filed with the Securities and Exchange Commission on December 19, 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 98-0212376
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
401 East Middlefield Road
Mountain View, CA 94043
(650) 429-5500
(Address of Principal Executive Offices)
_______________________________
CSS ACQUISITION CORPORATION 2000 SPECIAL STOCK INCENTIVE PLAN
CSS ACQUISITION CORPORATION 2000 STOCK PLAN
(Full Title of the Plans)
_______________________________
Randall S. Livingston
Executive Vice President
401 East Middlefield Road
Mountain View, CA 94043
(650) 429-5500
(Name, address and telephone number of agent for service)
Copy to:
Lawrence T. Kane, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
(415) 392-1122
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Amount Proposed Proposed Amount of
Title of Securities to be Registered To Be Maximum Offering Maximum Aggregate Registration
Registered (1)(2) Price Per Share (3) Offering Price Fee
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<S> <C> <C> <C> <C>
Class A Ordinary Shares (no par value)
issuable under:
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CSS Acquisition Corporation 2000 Special 135,188 $1.94 $262,848.00 $69.39
Stock Incentive Plan
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CSS Acquisition Corporation 2000 Stock 12,843 $1.94 $ 24,970.00 $ 6.59
Plan
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Total 148,031 $1.94 $287,818.00 $75.98
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</TABLE>
(1) This Registration Statement shall also cover any additional Class A
Ordinary shares which become issuable under any of the Plans by reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration
which results in an increase in the number of the Registrant's outstanding
Class A Ordinary shares.
(2) For the sole purpose of calculating the registration fee, the maximum
number of shares to be registered under this Registration Statement
includes two subtotals which represent outstanding options that have not
been exercised under CableSoft Corporation's option plans. Shares
underlying CableSoft Corporation's options have been converted to OpenTV
Corp. shares based on an exchange ratio of 1.285799.
(3) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), solely for the purpose of
computing the amount of the registration fee based on the weighted average
exercise price shown per share of OpenTV Corp. Class A Ordinary Shares
covering outstanding but unexercised options under the CableSoft
Corporation option plans.
================================================================================
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) OpenTV's Annual Report on Form 20-F (File No. 001-15473) filed
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), with the Securities Exchange
Commission on June 30, 2000.
(b) OpenTV's reports on Form 6-K, filed with the Commission on
February 3, 2000, March 31, 2000, May 5, 2000, May 25, 2000,
August 15, 2000, August 30, 2000, September 30, 2000, November
17, 2000; and December 1, 2000.
(c) The description of OpenTV's Class A Ordinary Shares contained in
OpenTV's Amendment No. 1 to the Registration Statement on Form F-
1, File No. 333-89609, filed with the Commission on November 10,
1999 and any amendment or report filed for purposes of updating
any such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Articles of Association of OpenTV (Sections 116-122) provide the
following:
"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:
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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.
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:
(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
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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
Exhibit
Number Name
------ ----
4.1* Memorandum of Association of OpenTV Corp.
4.2* Articles of Association of OpenTV Corp.
4.3 CSS Acquisition Corporation 2000 Special Stock Incentive
Plan
4.4 CSS Acquisition Corporation 2000 Stock Plan
5.1 Opinion, dated December 19, 2000 of Harney Westwood &
Riegels with respect to the validity of the securities being
offered
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney is included on signature page of this
Registration Statement
* Incorporated herein by reference from OpenTV's Registration
Statement on Form F-1, File No. 333-89609, dated October 25, 1999 and
any amendments thereto.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) 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; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities 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, 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 the 15th of
December, 2000.
OPENTV CORP.
(Registrant)
By: /s/ Jan Steenkamp
---------------------------
Jan Steenkamp
Chief Executive Officer
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS: that each person whose signature appears
below constitutes and appoint Randall S. Livingston, acting individually, as his
or her attorney-in-fact for him in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying the confirming that said
attorney-in-fact, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, 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/ Jacbous D.T. Stofberg
---------------------------------
Jacbous D.T. Stofberg Chairman of the Board December 15, 2000
/s/ Jan Steenkamp
---------------------------------
Jan Steenkamp Chief Executive Officer and Director December 15, 2000
(Principle Executive Officer)
/s/ Randall S. Livingston
---------------------------------
Randall S. Livingston Executive Vice President, Office of the December 15, 2000
CEO, Financial Officer and Director
(Principal Financial and Accounting
Officer)
/s/ Jacbous P. Bekker
---------------------------------
Jacbous P. Bekker Director December 15, 2000
/s/ Craig L. Enenstein
---------------------------------
Craig L. Enenstein Director December 15, 2000
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ William Raduchel
---------------------------------
William Raduchel Director December 15, 2000
/s/ Allan M. Rosenweig
---------------------------------
Allan M. Rosenweig Director December 15, 2000
/s/ Stephen F. Ward
---------------------------------
Stephen F. Ward Director December 15, 2000
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Name
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4.1* Memorandum of Association of OpenTV Corp.
4.2* Articles of Association of OpenTV Corp.
4.3 CSS Acquisition Corporation 2000 Special Stock Incentive Plan
4.4 CSS Acquisition Corporation 2000 Stock Plan
5.1 Opinion, dated December 19, 2000 of Harney Westwood & Riegels with
respect to the validity of the securities being offered
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney is included on signature page of this
Registration Statement
* Incorporated herein by reference from OpenTV's Registration Statement
on Form F-1, File No. 333-89609, dated October 25, 1999 and any
amendments thereto.
