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COOPERATIVE VENTURE AGREEMENT
BY AND AMONG
HYPERTV NETWORKS, INC.,
LIBERTY LIVEWIRE, LLC
AND
HYPERTV WITH LIVEWIRE, LLC
DATED: APRIL 13, 2000
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TABLE OF CONTENTS
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<S> <C>
ARTICLE 1 - DEFINITIONS..................................................................................4
1.1. Definitions............................................................................4
ARTICLE 2 - ACTIVITIES, RESPONSIBILITIES AND COMPENSATION
OF THE PARTIES ..........................................................................................7
2.1. Responsibilities of the Parties - General..............................................7
2.2. The Company............................................................................8
2.3. Livewire...............................................................................9
2.4. HTVN .................................................................................10
ARTICLE 3 - LIVEWIRE COMMON STOCK PURCHASE WARRANT .....................................................11
3.1. The Warrant...........................................................................11
3.2. Registration Rights...................................................................12
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF THE PARTIES ..............................................12
4.1. Representations and Warranties of HTVN................................................12
4.2. Representations and Warranties of Livewire............................................14
4.3. Survival..............................................................................15
ARTICLE 5 - ADDITIONAL COVENANTS OF THE PARTIES ........................................................15
5.1. Additional DVD Revenue Opportunities..................................................15
5.2. Provision of Competitive Services.....................................................15
5.3. Additional Services to the Company....................................................15
5.4. Business Opportunities................................................................15
5.5. Confidentiality.......................................................................16
5.6. Pursuit of Rights.....................................................................16
5.7. Delivery of Bills.....................................................................16
ARTICLE 6 - DISPOSITION OF THE PARTIES' INTERESTS
IN THE COMPANY .........................................................................................16
ARTICLE 7 - INDEMNIFICATION.............................................................................17
ARTICLE 8 - LIMITATION OF LIABILITY....................................................................17
ARTICLE 9 - INSURANCE..................................................................................17
ARTICLE 10 - NON-SOLICITATION...........................................................................17
ARTICLE 11 - TERM AND TERMINATION.......................................................................18
11.1. Term..................................................................................18
11.2. Termination...........................................................................18
11.3. Effect of Termination.................................................................18
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ARTICLE 12 - MISCELLANEOUS..............................................................................19
12.1. Limits of the Parties.................................................................19
12.2. Expenses..............................................................................19
12.3. Termination of Covenants, Representations and Warranties..............................19
12.4. Notices...............................................................................19
12.5. Entire Agreement; Modifications; Waiver...............................................20
12.6. Successors and Assigns ..............................................................20
12.7. Execution and Counterparts............................................................20
12.8. Governing Law and Severability........................................................21
12.9. Publicity.............................................................................21
12.10. Captions..............................................................................21
12.11. Schedules and Exhibits................................................................21
SCHEDULES AND EXHIBITS
SCHEDULES:
HTVN - Compliance ............................................................................................4.1.4
Livewire - Compliance ........................................................................................4.2.4
EXHIBITS:
Company/Livewire License..........................................................................................A
HyperTV Patents and Pending Patents...............................................................................B
ACTV Individualized Television Patents and Pending Patents........................................................C
Registration Rights Agreement.....................................................................................D
Warrant...........................................................................................................E
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COOPERATIVE VENTURE AGREEMENT
This Agreement (the "Agreement") is entered into this 13th day of
April, 2000 by and among HYPERTV NETWORKS, INC., a Delaware corporation, having
an office at 1270 Avenue of the Americas, New York, NY 10020 ("HTVN"), LIBERTY
LIVEWIRE, LLC, a Delaware limited liability company, having an office at 9197
South Peoria Street, Englewood, CO 80112 ("Livewire") and HYPERTV WITH LIVEWIRE,
LLC, a Delaware limited liability company whose sole members are HTVN and
Livewire (the "Company"). HTVN, Livewire and the Company are referred to herein
each individually as a "Party" and collectively as the "Parties."
RECITALS:
WHEREAS, HTVN and Livewire desire to enter into a cooperative
relationship to:
(a) promote the widespread development of the HyperTV
Technology (as defined below) to enhance the
experience of television viewers, programmers and
advertisers;
(b) use and promote the HyperTV Technology as the defacto
solution for synchronous delivery of web and
television content, for both narrowband and broadband
applications as provided in the patents and pending
patents listed in Schedule B attached hereto; and
(c) protect the competitive advantages conferred by the
HyperTV Technology;
WHEREAS, HTVN and Livewire have formed the Company, whose primary
responsibility will be the coordination and management of the marketing and
sales of the HyperTV Technology in the Field of Use (as defined below);
WHEREAS, HTVN is granting a license to the Company and Livewire to
perform and provide certain services with respect to the HyperTV Technology; and
WHEREAS, HTVN, the Company and Livewire are assuming certain
responsibilities and expect to derive certain revenues through the Company in
connection with the HyperTV Technology as set forth herein.
NOW, THEREFORE, the Parties, intending to be legally bound hereby,
agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS: As used herein, the following terms shall have the
corresponding meanings:
1.1.1 ACTV means ACTV, Inc., a Delaware corporation.
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1.1.2 AFFILIATE of any person or entity means another
person or entity, of which the first person or entity
owns, directly or through one or more Affiliates,
capital stock or other ownership interests
representing, on a fully-diluted basis, a majority of
the total equity interests and a majority of the
total equity voting power.
1.1.3 AUTHORING SERVICES means the creation of any content
for HyperTV Distributed Community Networks.
1.1.4 CLIENTS means the clients who have purchased HyperTV
Technology products and services marketed and sold by
or on behalf of (i) the Company or (ii) Livewire as
provided in Section 2.3.4.
1.1.5 COMPANY/LIVEWIRE LICENSE means the worldwide,
perpetual, fully-paid license granted to the Company
and Livewire by HTVN with respect to the HyperTV
Technology, which license shall be exclusive in the
Field of Use, substantially in the form of Exhibit A
hereto.
1.1.6 DCN means the Distributed Community Network
UNIX-based software package, which provides the
foundational end user connection management, chat and
synchronization means for the HyperTV Technology and
all releases, updates, enhancements and modifications
thereof.
1.1.7 DVD means a Digital Versatile Disc, a popular
consumer device used for the high quality display of
full motion MPEG video/audio content on a DVD
playback device.
1.1.8 EVENT BROADCAST SERVICES means the operation and
monitoring of HyperTV Distributed Community Networks
to support the broadcast of HyperTV events, whether
automated or manually-controlled and whether live or
prerecorded.
1.1.9 FIELD OF USE means any use of HyperTV Technology in
connection with all television, video and filmed
content of any kind, including without limitation
long-form television programming of any kind
(including serials, specials, mini-series, movies of
the week, news, and infotainment), commercial
advertising (including both infomercials and
short-form spots), music videos, theatrical releases,
and non-theatrical feature films of any kind,
pay-per-view, foreign language, business-to-business
programming represented by corporate communications,
fully programmed non-commercial television networks
that are biographical, informational, educational or
non-fiction such as PBS, promotional programming, and
specialty programming such as used by On Command, in
any case whether distributed to the viewer by
over-the-air broadcast, cable, satellite, streaming
media, DVD, videotape or other method (whether
narrowband or broadband). Anything contained herein
to the
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contrary notwithstanding, the Field of Use
excludes: (i) e-School-Registered Trademark-'s
educational and instructional programming, whether
distributed to the learner/student by over-the-air
broadcast, cable, satellite, streaming media, DVD,
videotape or other method (whether narrowband or
broadband); (ii) training programming for corporations
and government agencies (provided that if Livewire has
an existing relationship with an existing client,
HTVN and Livewire will work together to apportion the
provision of services to such client by and among
each other in an equitable manner); and (iii)
Authoring Services provided in conjunction with
ACTV's Individualized Television.
The Parties anticipate that business-to-business
programming will fall within either of two areas:
corporate communications or training. If the
business-to-business programming is not in one of
those two areas, the Parties agree to allocate, in
good faith, the respective responsibilities and
Revenues relating to such business-to-business
programming.
1.1.10 HOSTING SERVICES means the distribution and hosting
of content and services for Clients to utilize, and
for consumers to access, HyperTV Distributed
Community Networks. Hosting Services include the
facilities, hardware, bandwidth and technical
expertise necessary to support the HyperTV
experience.
1.1.11 HYPERTV DISTRIBUTED COMMUNITY NETWORKS means the
overall hardware and software platform (including the
DCN) required for delivery of the HyperTV experience.
1.1.12 HYPERTV TECHNOLOGY means the HyperTV patents and
patent applications listed on Exhibit B hereto, and
all technology, trade secrets and know-how of ACTV,
HTVN or any other direct or indirect subsidiary of
ACTV related to the synchronized delivery of video,
on the one hand, and Web-based programming or other
content, on the other hand, including proprietary
software technologies, software methods, and
plug-ins. HyperTV Technology explicitly includes the
selection of the video and/or content based on stored
user profiling; wherein such profile information is
collected over the Internet or World Wide Web.
1.1.13 HVPERTV TECHNOLOGY LICENSE FEE means a fee payable to
HTVN, charged by the Parties or incorporated by the
Parties in any quotations, billings, invoices or
other charges to Clients, for the use of the HyperTV
Technology.
1.1.14 IMPROVEMENTS means any and all improvements,
refinements, enhancements, upgrades, revisions, bug
fixes, and other modifications of the HyperTV
Technology.
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1.1.15 INDIVIDUALIZED TELEVISION means video programming
that is enhanced with additional video, graphic
and/or audio signals related in content and time such
that viewers see and/or hear only certain of the
signals at a given moment and the others remain
transparent, and in response to the viewer's inputs
to programming options or to stored selection
criteria (e.g., personal profile) the individualized
programming switches from one signal to another,
giving the viewer an appropriate response.
Individualized Television includes all technology,
trade secrets and know-how of ACTV or any other
direct or indirect subsidiary of ACTV related to such
video programming and the ACTV patents and pending
patents listed on Exhibit C hereto.
1.1.16 REGISTRATION RIGHTS AGREEMENT means the agreement
pursuant to which Livewire agrees to cause the issuer
to register, for the benefit of HTVN, or its
assignee, the shares of common stock underlying the
Warrant, in substantially the form of Exhibit D
hereto.
1.1.17 REVENUES means any and all sums paid by Clients or
other third parties to any Party, in cash or in kind,
in connection with, or for the use of, the HyperTV
Technology and/or services to be provided by the
Parties as described herein, without any deduction.
1.1.18 TECHNICAL QUALITY CONTROL SERVICES means the review
of content to ensure that content is compatible with
HyperTV Distributed Community Networks and conforms
to the Client's specifications.
1.1.19 VENTURE means the business venture that is the
subject of this Agreement.
1.1.20 WARRANT means the common stock purchase warrant
issued by Livewire to HTVN, or its assignees, as
described in Article 3 of this Agreement,
substantially in the form of Exhibit E hereto.
ARTICLE 2
ACTIVITIES, RESPONSIBILITIES AND COMPENSATION OF THE PARTIES
2.1 RESPONSIBILITIES OF THE PARTIES - GENERAL:
2.1.1 The Venture is a cooperative venture whose success
depends on each of the Parties performing the tasks
for which it is responsible under this Article 2, and
each Party shall render all services to be provided
hereunder to Clients in a competent and workmanlike
manner.
2.1.2 Livewire and HTVN will each be solely responsible
for establishing the terms and conditions on which
they will provide to Clients, directly or through the
Company, the services to be provided by such Parties
in connection with this Agreement, including the fees
and expenses to be charged by such Parties for such
services. Subject to the first sentence of this
Section 2.1.2, the Parties shall actively consult
with one another and
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cooperate in good faith to coordinate such terms,
conditions, fees and expenses, with the goal of
maximizing the success of the Venture.
2.2 THE COMPANY:
2.2.1 The Company is intended to be the primary sales and
billing entity for HyperTV Technology and will
coordinate and manage the marketing and sale of
HyperTV Technology in the Field of Use.
2.2.2 The Company will use commercially reasonable efforts
to diligently and actively develop, promote, market
and sell products and services incorporating the
HyperTV Technology in agreed upon markets, in
accordance with and subject to the limitations set
forth in this Agreement.
2.2.3 Clients will have the opportunity to purchase
Authoring Services, Hosting Services, use of the
HyperTV Technology, e-commerce and advertising
enabling, data management services and any other
services offered by or through the Company from time
to time on either a bundled or "a la carte" basis,
with the aggregate fees and expenses for such
services quoted and billed by the Company on such
basis as the Company shall determine from time to
time to be appropriate (including, where the Company
determines appropriate, single price or "all-in"
pricing for the services purchased). Such services
will be provided by Livewire and HTVN as provided for
in this Agreement.
2.2.4 The Company will (a) pay Livewire and HTVN a fee
determined pursuant to Section 2.1.2 for all services
provided by Livewire and HTVN through the Company or
(b) allocate and remit to Livewire and HTVN,
respectively, the fees collected by the Company for
such services from Clients, in each case in
accordance with procedures established by the Company
from time to time and approved in writing by Livewire
and HTVN (which approval will not be unreasonably
withheld or delayed). The Company shall not retain
any fees and expenses collected from Clients, except
by the mutual consent of the Parties.
2.2.5 The Parties will work together to minimize
expenditures at the Company level, and, to that end,
the Company will have limited personnel, if any. HTVN
and Livewire will make available to the Company, on a
fair and commercially reasonable basis, marketing and
sales personnel as well as personnel to perform
administrative and bookkeeping functions. If the
Parties determine that the Company needs to have its
own personnel, they will mutually agree on a budget
for such personnel. Neither HTVN nor Livewire will
authorize any expenditures by the Company, or for
which the Company may be liable, without the prior
written consent of the other (which consent shall not
be unreasonably withheld or delayed), or in
accordance with a budget approved in writing by both
Parties.
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2.2.6 Initially, the Company will focus its sales and
marketing efforts on the United States and Europe,
and will expand into other markets upon the mutual
agreement of the Parties, which agreement shall not
be unreasonably withheld or delayed.
2.2.7 HTVN and Livewire shall each own fifty percent (50%)
of the equity interests and voting power of the
Company and shall each appoint an equal number of
representatives to the managing body of the Company.
The Company's managing body will initially consist of
Bruce Crowley and Bill Airy, representing HTVN and
Livewire, respectively.
2.2.8 The Company shall provide to both HTVN and Livewire
all financial statements and reports of the Company
necessary to allow HTVN and Livewire and their
Affiliates to make their required Securities and
Exchange Commission filings in a timely fashion.
2.3 LIVEWIRE:
Livewire will be responsible for, and will derive Revenue from, the
following activities:
2.3.1 Livewire shall provide distribution and Hosting
Services to Clients at facilities operated or
contracted for by Livewire from time to time, and
shall have the exclusive right to provide such
services to third parties in the Field of Use.
Livewire's right of exclusivity for distribution and
Hosting Services shall not preclude any Client or its
Affiliate from performing its own distribution and
Hosting Services for HyperTV Distributed Community
Networks, utilizing primarily its own personnel,
through facilities owned and operated by such Client
or Affiliate. If HTVN or the Company license the
HyperTV Technology to any person outside the Field of
Use and such person does not intend to provide its
own Hosting Services, HTVN or the Company, as
applicable, shall use commercially reasonable efforts
to provide Livewire with an opportunity to bid on the
provision of such services.
2.3.2 Livewire shall provide Event Broadcast Services and
Technical Quality Control Services to Clients using
qualified personnel at facilities operated by or
contracted for by Livewire from time to time, and
shall have the exclusive right to provide such
services; provided, that, during the transition
period, HTVN shall provide such services concurrently
with Livewire and cooperate with Livewire to provide
the training and technology support necessary for
Livewire to provide such services after such
transition period.
2.3.3 Livewire shall provide Authoring Services to Clients,
and shall have the exclusive right to provide such
services in the Field of Use, except as provided in
the following two sentences. Livewire's right of
exclusivity for Authoring Services shall not preclude
any Client or its Affiliate from
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performing its own Authoring Services for HyperTV
Distributed Community Networks, utilizing primarily
its own personnel, through facilities owned and
operated by such Client or Affiliate. In addition HTVN
will have the right to provide Authoring Services, (i)
outside the Field of Use and (ii) on a limited basis,
in the Field of Use, as mutually agreed upon by the
Parties. In the event Livewire chooses not to provide
Authoring Services to certain Clients, HTVN may, in
its own discretion, provide Authoring Services to such
Clients.
2.3.4 Livewire may from time to time provide Authoring
Services, Hosting Services and other services
relating to HyperTV to Clients in conjunction with
Livewire's general production, post-production,
transmission, archiving and related services. In that
connection, the Company may from time to time
authorize Livewire to provide the HyperTV Technology
to Livewire's clients, on behalf of the Company, on
such basis as the Company shall determine to be
appropriate. In such event, Livewire will collect the
HyperTV Technology License Fee on behalf of the
Company and remit such fee to HTVN in accordance with
procedures established for such circumstances by the
Company. The Company may from time to time authorize
HTVN to provide e-commerce enabling, advertising
enabling and data management services (excluding
Hosting Services and Authoring Services) to the
Company's clients, on behalf of the Company, on such
basis as the Company shall determine to be
appropriate.
2.3.5 With respect to the provision of Hosting Services,
Livewire will use commercially reasonable efforts to
support a minimum of one million (1,000,000)
concurrent users in one or more data centers by
September 30, 2000.
2.4 HTVN:
HTVN will be responsible for, and will derive Revenue from the
following:
2.4.1 The HyperTV Technology License Fee, which may be
expressed as a separate line item or may be bundled
into the services provided by the Parties.
2.4.2 e-commerce enabling such as striping, encoding,
filtering, targeting, technical integration,
transactional quality control, reporting
click-through and associated data and fulfillment.
2.4.3 Advertising enabling such as striping, encoding,
inserting, filtering, targeting, sequencing,
reporting click-through and associated data,
permission based marketing and fulfillment.
2.4.4 Data management services.
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2.4.5 Initially providing Event Broadcast Services and
Technical Quality Control Services during the
transition period.
2.4.6 HTVN shall maintain and develop ongoing Improvements
to the HyperTV Technology, including software
updates, revisions and modifications thereto, as HTVN
and/or the Company shall reasonably request.
2.4.7 HTVN shall have the responsibility to defend the
HyperTV Technology against infringements or
violations. In general, upon the discovery of any
infringement of the HyperTV Technology, HTVN shall
have the sole right to take appropriate action to
suppress such infringement, including the sole right
to determine whether or not any action shall be taken
on account of such infringement or violation of the
HyperTV Technology, and the right to negotiate and
enter into a pre-litigation or pending-litigation
settlement with the identified infringer and HTVN
shall receive any sums recovered in such suits or
settlements. Any such settlement by HTVN may include
the grant of a non-exclusive license to use all or
part of the HyperTV Technology PROVIDED that no such
license shall conflict with or limit in any material
respect Livewire's rights of exclusivity
with respect to the provision of Authoring Services
and Hosting Services in the Field of Use without the
prior written consent of Livewire, which consent
shall not be unreasonably withheld or delayed.
HTVN shall from time to time consult with Livewire in
good faith with respect to any infringements and
violations, and if Livewire so requests, will provide
Livewire with a reasonable opportunity to join HTVN
in any action to suppress such infringements or
violations near the onset of such suits, provided
that in such event all costs, expenses, and attorneys
fees incurred shall be shared equally between the
Parties herein and neither Party shall settle any
such action without the consent of the other, which
consent shall not be unreasonably withheld or
delayed. In such a jointly prosecuted suit, any sums
recovered in the suit or in settlement thereof shall
be used, first, to pay any outstanding bills for
expenses arising from the prosecution and any
settlement of the suit, and to reimburse the Parties
herein for their contributions to such expenses; and,
then, any remainder shall be shared by the Parties.
ARTICLE 3
LIVEWIRE COMMON STOCK PURCHASE WARRANT
3.1 THE WARRANT: Upon the execution of this Agreement, Livewire shall issue
to HTVN, or its designee, the Warrant. The Warrant, in substantially
the form of Exhibit D attached hereto, shall entitle HTVN, or its
assignees, to purchase up to 2,500,000 shares of the Class A Common
Stock of the Todd-AO Corporation ("Todd") as in effect immediately
following the reclassification provided for in the Agreement and Plan
of Merger dated as of December 10, 1999 among Todd, Liberty Media
Corporation, B-Group Merger Corp.
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and AT& T Corp., at an exercise price of $30.00 per share for a period
of fifteen (15) years from the date of this Agreement.
3.2 REGISTRATION RIGHTS HTVN shall be entitled to registration rights with
respect to shares of the Class A Common Stock issuable upon exercise of
the Warrant (as set forth in the Registration Rights Agreement in the
form of Exhibit E hereto).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
4.1 REPRESENTATIONS AND WARRANTIES OF HTVN: Except as set forth herein,
including the Schedules to this Agreement, HTVN hereby represents and
warrants to Livewire as of the date of this Agreement as follows:
4.1.1 ORGANIZATION, STANDING, AND POWER. HTVN is a
corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware
and has full corporate power and authority to conduct
its business as currently conducted and to enter into
and perform this Agreement and to carry out the
transactions contemplated by this Agreement.
4.1.2 AUTHORITY FOR AGREEMENT. The execution, delivery,
and performance of this Agreement by HTVN have been
duly authorized by all necessary corporate action,
and this Agreement constitutes the valid and binding
obligation of HTVN enforceable against it in
accordance with its terms, except as enforceability
may be affected by bankruptcy, insolvency or other
laws of general application affecting the enforcement
of creditors' rights. The execution and consummation
of the transactions contemplated by this Agreement
and compliance with its provisions by HTVN will not
violate any provision of law and will not conflict
with or result in any breach of any of the terms,
conditions, or provisions of, or constitute a default
under, HTVN's Certificate of Incorporation or By-Laws
or any indenture, lease, loan agreement or other
material agreement or instrument to which HTVN is a
party or by which it or any of its properties is
bound or any decree, judgment, order, statute, rule
or regulation applicable to HTVN.
4.1.3 GOVERNMENTAL CONSENT. No material consent, approval,
order or authorization of, or registration,
qualification, designation, declaration or filing
with, any governmental authority is required on the
part of HTVN in connection with the execution and
delivery of this Agreement, or the consummation of
the transactions contemplated by this Agreement.
4.1.4 COMPLIANCE. HTVN is not in violation of its
Certificate of Incorporation or By-Laws, or any
material term of any instrument, indenture, loan
agreement, or other agreement, or any judgment,
decree, order, statute, rule or regulation applicable
to HTVN. HTVN has complied in all
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material respects with all laws and regulations
applicable to its business, except as otherwise
disclosed in Schedule 4.1.4. attached hereto.
4.1.5 SEC AND OTHER DOCUMENTS. HTVN has furnished to
Livewire a true, correct and complete copy of each
statement, report, and other document filed with the
United States Securities and Exchange Commission by
ACTV and/or HTVN since December 31, 1998 and a true,
correct and complete copy of the License Agreement
dated March 8, 1999, by and among ACTV and HTVN.
4.1.6 INTELLECTUAL PROPERTY. HTVN is the holder of all of
the rights, titles and interests that are necessary
for the grant of the use licenses provided in this
Agreement and the Company/Livewire License. The
business of HTVN is being carried out without, to the
knowledge of HTVN, conflict with any U.S. patents,
licenses, trademarks, copyrights, trade names and
trade secrets of any other persons.
To the best knowledge of HTVN, no interferences,
reexaminations or reissues are currently being
conducted within the United States Patent and
Trademark Office with respect to any of the patent or
patent applications listed in Exhibit B. No statutory
disclaimers were filed within the United States
Patent and Trademark Office with respect to any of
the patent or patent applications listed in Exhibit
B, other than any terminal disclaimers that would not
result in any such patent expiring prior to the 20th
anniversary of the earliest priority date applicable
to any of the patents and patent applications listed
in Exhibit B.
HTVN shall indemnify Livewire from and against all
liabilities or losses, including without limitation
reasonable attorneys' fees, arising out of any final
non-appealable judgment by a U.S. court of competent
jurisdiction ("Judgment") to the effect that the use
of the HyperTV Technology alone by the Company or
Livewire in accordance with this Agreement violates
or infringes any valid and enforceable U.S. patent,
copyright, trade secret or other intellectual
property right of any other person existing on the
date of this Agreement, without regard to the
knowledge of HTVN, or conflicts with any license
heretofore granted by HTVN or any of its predecessors
or Affiliates; PROVIDED, HOWEVER, that (i) the
aggregate liability of HTVN to Livewire under this
sentence shall in no event exceed the value of the
Warrant paid by HTVN at the date of the Judgment,
plus any appreciation theretofore realized or accrued
by HTVN in respect of shares acquired upon exercise
of the Warrant (determined on an after tax basis, if
applicable), and (ii) if HTVN shall have any
liability to Livewire under this sentence, HTVN shall
have the right to satisfy that liability in whole or
in party by (A) canceling Share Purchase Rights (as
defined in the Warrant) and/or (B) surrendering
shares of common stock acquired upon exercise of the
Warrant, in either case having an aggregate value at
the date of such Judgment equal to such liability of
HTVN hereunder.
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4.1.7 BOARD AND STOCKHOLDER APPROVAL. The Board of
Directors of HTVN and ACTV, as sole stockholder of
HTVN, have approved this Agreement and the
transactions contemplated hereby.
4.2 REPRESENTATIONS AND WARRANTIES OF LIVEWIRE: Except as set forth herein,
including the Schedules to this Agreement, Livewire hereby represents
and warrants to HTVN as of the date of this Agreement as follows:
4.2.1 ORGANIZATION, STANDING, AND POWER. Livewire is a
limited liability company duly organized, validly
existing and in good standing under the laws of the
State of Delaware and has full power and authority as
a limited liability company to conduct its business
as currently conducted and to enter into and perform
this Agreement and to carry out the transactions
contemplated by this Agreement.
4.2.2 AUTHORITY FOR AGREEMENT. The execution, delivery,
and performance of this Agreement by Livewire have
been duly authorized by all necessary company action,
and this Agreement constitutes the valid and binding
obligation of Livewire enforceable against it in
accordance with its terms, except as enforceability
may be affected by bankruptcy, insolvency or other
laws of general application affecting the enforcement
of creditors' rights. The execution and consummation
of the transactions contemplated by this Agreement
and compliance with its provisions by Livewire will
not violate any provision of law and will not
conflict with or result in any breach of any of the
terms, conditions, or provisions of, or constitute a
default under, Livewire's Certificate of Formation or
operating agreement or any indenture, lease, loan
agreement or other material agreement or instrument
to which Livewire is a party or by which it or any of
its properties is bound, or any decree, judgment,
order, statute, rule or regulation applicable to
Livewire.
4.2.3 GOVERNMENTAL CONSENT. No material consent, approval,
order or authorization of, or registration,
qualification, designation, declaration or filing
with, any governmental authority is required on the
part of Livewire in connection with the execution and
delivery of this Agreement, or the consummation of
the transactions contemplated by this Agreement.
4.2.4 COMPLIANCE. Livewire is not in violation of its
Certificate of Formation or operating agreement, or
any material term of any instrument, indenture, loan
agreement, other agreement, or any judgment, decree,
order, statute, rule or regulation applicable to
Livewire. Livewire has complied in all material
respects with all laws and regulations applicable to
its business, except as otherwise disclosed in
Schedule 4.2.4. hereto.
14
<PAGE>
4.2.5 DOCUMENTATION. Livewire has provided ACTV and HTVN
with drafts of the preliminary proxy statement of
Todd pursuant to HTVN's due diligence request.
4.2.6 MEMBER APPROVAL. In its capacity as sole member of
Livewire, Liberty Media Corporation has authorized
Livewire to enter into this Agreement and the
transactions contemplated hereby.
4.3 SURVIVAL. Each of the representations and warranties
set forth in Sections 4.1 and 4.2 shall survive the
execution and delivery of this Agreement,
notwithstanding any prior due diligence or other
investigation by the Parties hereunder.
ARTICLE 5
ADDITIONAL COVENANTS OF THE PARTIES
5.1 ADDITIONAL DVD REVENUE OPPORTUNITIES: In the event that any application
of the HyperTV Technology for use with DVDs results in incremental
revenue opportunities not contemplated by this Agreement (i.e. revenue
opportunities not related to Authoring Services, Hosting Services and
DVD mastering services for Livewire, or the HyperTV Technology License
Fee, e-commerce and advertising enabling, and data management services
for HTVN), the Parties shall negotiate reasonably and in good faith
with respect to the apportionment of such additional DVD revenue
opportunities and the associated responsibilities. Notwithstanding the
foregoing, the Parties acknowledge and agree that HTVN is required to
obtain approval from Thomas R. Wolzein with respect to applications of
the HyperTV Technology for use with DVDs pursuant to the Assignment
Purchase Agreement dated April 7, 1999 by and among Thomas R. Wolzein
and Media Online Services, Inc.
5.2 PROVISION OF COMPETITIVE SERVICES: HTVN and Livewire acknowledge that
either HTVN and/or Livewire may from time to time market and provide
other products and services to third parties generally in the
interactive TV and convergence field, some of which may be
complementary to the HyperTV Technology. Livewire will not, however,
sell any services that infringe upon or violate in any material respect
any intellectual property rights of HTVN in the HyperTV Technology.
5.3 ADDITIONAL SERVICES TO THE COMPANY: In the event that either Party
agrees to provide any services to the Company in addition to the
specific responsibilities provided for herein, such Party shall be
entitled to fair and equitable compensation therefor, as negotiated by
the Parties reasonably and in good faith.
5.4 BUSINESS OPPORTUNITIES: Nothing herein shall prevent either HTVN or
Livewire from taking advantage of any other business opportunities that
may become available to such Party from time to time during the term of
this Agreement, or require either such Party to offer any such business
opportunity to the Company or the other Party.
15
<PAGE>
5.5 CONFIDENTIALITY: Each party hereto shall maintain in strict confidence
and shall not at any time whether before or after the expiration or
termination of this Agreement, utilize for any purpose other than as
permitted hereunder or cause, enable, assist or permit anyone else to
utilize any of the HyperTV Technology, Improvements and/or related
information (the "Confidential Information,") which is not generally
available to the public unless: (i) through no act of such party
contrary to the obligations imposed hereby, such Confidential
Information becomes known to the public prior to the date of such Party
disclosure; (ii) such Confidential Information is approved for public
release by HTVN; (iii) such Confidential Information is rightfully
received by such Party from a third party without restrictions and
without breach of such Party's obligations hereunder; (iv) such
Confidential Information is independently developed by such Party
without breach of this Agreement, and such Party can so demonstrate by
a preponderance of the evidence; or (v) such Confidential Information
is required to be disclosed by judicial or governmental proceeding.
Notwithstanding the foregoing, such Party may disclose such
Confidential Information to its employees who need to know such
information in order to use and exploit the HyperTV Technology pursuant
to the terms of this Agreement if it has taken reasonable steps to
impose the aforesaid covenants of confidentiality on said employees and
to ensure that said employees will not violate said covenants,
including but not limited to, causing said employees to enter into
written agreements in which said covenants of confidentiality are
effectively imposed upon them. Each Party will copy the Confidential
Information only to the extent reasonably necessary to enable each
party to exercise its rights hereunder. In making any such copies, each
Party agrees to reproduce faithfully all notices respecting copyright,
trade secrets, and other proprietary rights. Nothing contained herein
shall prevent each Party from disclosing in general terms the nature of
its relationship with HTVN.
5.6 PURSUIT OF RIGHTS: In the event a Client is in default of its
obligations under this Agreement, either Party may pursue its rights
with respect to such Client independently of the other Party.
5.7 DELIVERY OF BILLS: Whenever HTVN or Livewire shall individually bill
any Client, each Party shall thereupon provide copies of such bill to
the other Party.
ARTICLE 6
DISPOSITION OF THE PARTIES' INTERESTS IN THE COMPANY
Each Party hereby agrees that it will not, at any time during the term of this
Agreement, engage in any sale, assignment or transfer or any other disposition
of any or all of its interest in the Company, including, without limitation, by
means of any pledge, hypothecation, mortgage, lien or encumbrance, without the
consent of the other Party, except that (i) Livewire will have the right to
assign or otherwise transfer its rights in the Company and/or its rights under
this Agreement to any Affiliate of Liberty Media Corporation or any Affiliate of
the entity that survives the pending acquisition of Todd by an Affiliate of
Liberty Media Corporation, and (ii) HTVN will have the right to assign or
otherwise transfer its rights in the Company and/or its rights under this
Agreement to any Affiliate of ACTV or HTVN.
16
<PAGE>
ARTICLE 7
INDEMNIFICATION
Each Party shall indemnify, defend and hold harmless the other Party, its parent
and Affiliated companies, successors and assigns, and each of its and their
directors, officers, agents and employees, from and against all liabilities or
losses, including, without limitation, reasonable attorneys' fees, arising out
of any claims, lawsuits or judgments, whether threatened or actual, fixed or
contingent, known or unknown, matured or unmatured, arising out of the breach of
any representation, warranty or covenant by the indemnifying party under this
Agreement. Each Party shall promptly inform the other in writing of any such
claim, demand or suit and shall fully cooperate in the defense thereof.
ARTICLE 8
LIMITATION OF LIABILITY
Notwithstanding anything to the contrary contained herein, neither Party shall
under any circumstances be liable to the other for any consequential, indirect
or incidental, special or exemplary damages arising out of any claims, lawsuits
or judgments, whether threatened or actual, fixed or contingent, known or
unknown, arising out of the breach of any representation, warranty or covenant
under this Agreement, including but not limited to lost profits, loss of
business, lost savings, or lost revenue
ARTICLE 9
INSURANCE
During the term of this Agreement, each of the Parties shall maintain, at its
own expense, in full force and effect, with a responsible insurance carrier,
reasonably acceptable to the other Party, such errors and omissions insurance as
is customary for businesses of the type, nature and size of the Parties,
pursuant to which each Party shall designate the other party as a beneficiary.
Either Party shall, from time to time upon the reasonable request of the other
Party, promptly furnish or cause to be furnished to the other Party, a
certificate evidencing the insurance required hereby.
ARTICLE 10
NON-SOLICITATION
During the term of this Agreement and for a period of two years thereafter,
without the permission of the other party, neither Party shall solicit or hire
(nor shall either Party cause or permit any of its wholly-owned subsidiaries to
solicit or hire), either as an employee or independent contractor, any employee
of the other Party or of any Affiliate of such other Party or any person who had
been an employee of such other Party or of any Affiliates of such other Party
within six (6) months prior to such solicitation or hiring. The Parties
acknowledge that a violation of this paragraph could cause irreparable harm to
such other Party or to the respective Affiliate of such Party, and accordingly
it is agreed that, in addition to any other remedies available, such other Party
or the respective Affiliate of such other Party shall be entitled to obtain
temporary, preliminary and permanent injunctive relief against any threatened
breach or
17
<PAGE>
any continuation of any breach hereunder, without the necessity of
proving irreparable injury, which injury shall be presumed.
ARTICLE 11
TERM AND TERMINATION
11.1 TERM: This Agreement shall be effective as of the date first written
above and shall automatically terminate, unless terminated earlier
pursuant to the terms herein, upon the twenty-one (21) year anniversary
of the execution of this Agreement.
11.2 TERMINATION: This Agreement may be terminated as follows:
11.2.1 By the mutual written consent of HTVN and Livewire;
Upon thirty (30) calendar days prior written notice
from HTVN to Livewire in the event of: (i) the
commencement of any case, proceeding or other action
under any jurisdiction relating to bankruptcy,
insolvency, reorganization or relief of debtors or
seeking to ajudicate Livewire a bankrupt or seeking
reorganization, arrangement, composition or other
relief with respect to such Party or such Party's
debts; or the appointment of a receiver, trustee or
custodian for all or a substantial part of Livewire's
assets; or (ii) a material breach of this Agreement
by Livewire that continues for sixty (60) calendar
days without cure, after written notice thereof from
HTVN to Livewire specifying such breach;
11.2.2 Upon thirty (30) calendar days prior written notice
from Livewire to HTVN in the event of (i) the
commencement of any case, proceeding or other action
under any jurisdiction relating to bankruptcy,
insolvency, reorganization or relief of debtors or
seeking to ajudicate HTVN a bankrupt or seeking
reorganization, arrangement, composition or other
relief with respect to such party or such Party's
debts; or the appointment of a receiver, trustee or
custodian for all or a substantial part of HTVN's
assets; or (ii) a material breach of this Agreement
by HTVN that continues for sixty (60) calendar days
without cure, after written notice thereof from
Livewire to HTVN specifying such breach; or
11.2.3 By HTVN, in its sole discretion, in the event that a
business combination among Livewire and Todd and Four
Media Company has not occurred by July 30, 2000.
11.3 EFFECT OF TERMINATION: Anything contained herein to the contrary
notwithstanding, a termination of this Agreement shall not result in a
termination of the use licenses provided to existing Clients hereunder
or the Company/Livewire License. In such event, Livewire shall continue
to remit to HTVN the license fees due to HTVN pursuant to the HyperTV
Technology licenses then in effect, and shall be entitled to grant use
licenses (on behalf of HTVN) to any new and existing HyperTV Technology
clients, serviced by Livewire from
18
<PAGE>
time to time after such termination, upon such terms and conditions
as the Parties shall in such event determine by reasonable good
faith negotiation; provided that in no event shall such terms and
conditions be, in the aggregate, less favorable to Livewire than the
best terms and conditions provided generally by HTVN, or any person
on its behalf, to any unaffiliated third party.
ARTICLE 12
MISCELLANEOUS
12.1 LIMITS OF THE PARTIES: With respect to the management of the Company,
except as expressly provided in this Agreement, neither Party shall
have any authority to act for, or assume any obligations or
responsibilities on behalf of, or bind the other Party or the Company.
12.2. EXPENSES: HTVN, on the one hand, and Livewire, on the other hand, shall
bear its own costs, including attorneys' fees, incurred in negotiating
this Agreement and consummating the transactions contemplated hereby.
12.3 TERMINATION OF COVENANTS, REPRESENTATIONS AND WARRANTIES: All
covenants, representations and warranties contained herein or made in
connection with the transactions contemplated hereby shall remain in
effect for the duration of this Agreement.
12.4. NOTICES: All notices, requests, consents and other communications herein
shall be in writing and shall be mailed by first class or certified mail,
postage prepaid, or personally delivered or sent by overnight courier service
which obtains evidence of delivery to the Party and its counsel as follows:
If to HTVN: HyperTV Networks, Inc.
c/o ACTV, Inc.
1270 Avenue of the Americas
Suite 24101
New York, New York 10020
Attention: William C. Samuels
with copies to: Gersten, Savage & Kaplowitz.LLP
101 East 52nd Street, 9th Floor
New York, New York 10022
Attention: Jay M. Kaplowitz, Esq.
and
19
<PAGE>
Day L. Patterson
SVP/General Counsel
HyperTV Networks, Inc.
c/o ACTV, Inc.
1270 Avenue of the Americas
Suite 24101
New York, New York 10020
If to Livewire: Liberty Livewire LLC
9197 South Peoria Street, Englewood,
Colorado 80112
Attention: David Beddow
with a copy to: Baker & Botts, LLP
599 Lexington Avenue, 29th Floor
New York, New York 10022
Attention: Marc A. Leaf, Esq.
or to such other address that the respective Parties may designate by
means of written notice in compliance with the terms hereof.
12.5. ENTIRE AGREEMENT; MODIFICATIONS; WAIVER: This Agreement and the
documents and other agreements specifically referred to herein
constitute the entire agreement and understanding of the Parties with
respect to the subject matter hereof and supersede any and all prior
agreements, understandings, discussions and letters of intent with
respect thereto. No amendment or modification of this Agreement and no
waiver of any provision or condition hereof or granting of any consent
contemplated hereby, shall be valid unless it is in writing, expressly
refers to this Agreement and states that it is an amendment,
modification or waiver and signed by all Parties, in the case of an
amendment or modification, or the Party granting the waiver, in the
case of a waiver. No waiver by any Party of any term or condition of
this Agreement, in any one or more instances, shall be deemed or
construed as a waiver of the same term or condition or any other term
or condition of this Agreement on any future occasion. Each Party
acknowledges that it has participated fully in the drafting of this
Agreement and that in the event of any ambiguity in any of the terms or
provisions hereof, no such ambiguity shall be construed against either
Party as the draftsperson thereof.
12.6 SUCCESSORS AND ASSIGNS: All of the terms of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
respective successor and assigns of the Parties hereto; provided, that
no Party may assign this Agreement or any of its rights under this
Agreement without the written consent of the other Party, except as
provided in Article 6.
12.7 EXECUTION AND COUNTERPARTS: This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall
constitute one instrument.
20
<PAGE>
12.8 GOVERNING LAW AND SEVERABILITY: This Agreement shall be governed by the
laws of the State of New York as applied to agreements entered into and
to be performed in such State. If any provision of this Agreement or
any application thereof is held to be unenforceable, the remainder of
the Agreement and any application of such provision shall not be
affected thereby and to the extent permitted by law, there shall be
substituted for the provisions held unenforceable, provisions which
shall, as nearly as possible, have the same economic effect as the
provisions held unenforceable.
12.9 PUBLICITY: Except for disclosure required by law, the timing and
content of any announcements and press releases made prior to the
execution of this Agreement concerning the transactions contemplated by
this Agreement shall be determined by joint consultation of the
Parties.
12.10 CAPTIONS: The captions in this Agreement are for convenience only and
shall not be considered a part of or affect the construction or
interpretation of any provisions of this Agreement.
12.11 SCHEDULES AND EXHIBITS: All of the schedules and exhibits to this
Agreement are hereby incorporated in this Agreement and shall be deemed
and construed to be a part of this Agreement for all purposes.
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
HyperTV Networks, Inc.
By: /s/ WILLIAM C. SAMUELS
-------------------------
Name: William C. Samuels
Title: Chairman
Liberty Livewire, LLC
By: /S DAVID P. BEDDOW
-------------------------
Name: David P. Beddow
Title: Vice President
HyperTV with Livewire, LLC
By: /s/ BRUCE J. CROWLEY
-------------------------
Name: Bruce J. Crowley
By: /s/ WILLIAM W. AIRY
-------------------------
Name: William W. Airy
22
<PAGE>
SCHEDULE 4.1.4
HTVN - COMPLIANCE
23
<PAGE>
SCHEDULE 4.2.4
LIVEWIRE - COMPLIANCE
24
<PAGE>
EXHIBIT A
COMPANY/LIVEWIRE LICENSE
25
<PAGE>
EXHIBIT B
HYPERTV PATENTS
U.S. PATENTS ISSUED:
<TABLE>
<CAPTION>
------------------------- -------------------------- -------------------------------------------------------------------
PATENT NO. ISSUE DATE TITLE
------------------------- -------------------------- -------------------------------------------------------------------
<S> <C> <C>
------------------------- -------------------------- -------------------------------------------------------------------
5778181 July 7, 1998 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
5774664 June 30, 1998 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
5761606 June 2, 1998 Media Online Services Access Via Address Embedded in Video or
Audio Program
------------------------- -------------------------- -------------------------------------------------------------------
6018768 Jan. 25, 2000 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
5907322 May 25, 1999 Television Event Marking System
------------------------- -------------------------- -------------------------------------------------------------------
</TABLE>
U.S. PENDING APPLICATIONS:
<TABLE>
<CAPTION>
------------------------- -------------------------- -------------------------------------------------------------------
APPLICATION NO. APPLICATION DATE TITLE
------------------------- -------------------------- -------------------------------------------------------------------
<S> <C> <C>
------------------------- -------------------------- -------------------------------------------------------------------
09/396693 September 15, 1999 Enhanced Video Programming System and Method for Providing a
Distributed Community Network
------------------------- -------------------------- -------------------------------------------------------------------
------------------------- -------------------------- -------------------------------------------------------------------
Not yet assigned December 23, 1999 Enhanced Video Programming System and Method for Incorporating
and Displaying Retrieved Integrated Internet Information Segments
------------------------- -------------------------- -------------------------------------------------------------------
09/054740 April 3, 1998 Media Online Services Access Via Address Embedded in Video or
Audio Program
------------------------- -------------------------- -------------------------------------------------------------------
Not yet assigned December 21, 1999 Media Online Services Access Via Address Embedded in Video or
Audio Program
------------------------- -------------------------- -------------------------------------------------------------------
</TABLE>
26
<PAGE>
EXHIBIT B (CONTINUED)
HYPERTV PATENTS
U.S. PENDING APPLICATIONS (CONTINUED):
<TABLE>
<CAPTION>
------------------------- -------------------------- -------------------------------------------------------------------
APPLICATION NO. APPLICATION DATE TITLE
------------------------- -------------------------- -------------------------------------------------------------------
<S> <C> <C>
------------------------- -------------------------- -------------------------------------------------------------------
09/397298 September 15, 1999 Enhanced Video Programming System and Method Utilizing a Web Page
Staging Area
------------------------- -------------------------- -------------------------------------------------------------------
09/409305 September 29, 1999 Enhanced Video Programming System and Method Utilizing User
Profile Information
------------------------- -------------------------- -------------------------------------------------------------------
09/411939 October 4, 1999 Enhanced Video Programming System and Method Utilizing Shared
Whiteboard
------------------------- -------------------------- -------------------------------------------------------------------
09/461808 December 16, 1999 Enhanced Video Programming System and Method Using a Local Host
for Communication
------------------------- -------------------------- -------------------------------------------------------------------
</TABLE>
27
<PAGE>
EXHIBIT C
ACTV INDIVIDUALIZED TELEVISION PATENTS AND PENDING PATENTS
ACTV U.S. PATENTS ISSUED:
<TABLE>
<CAPTION>
-------------------- ------------------------ ------------------------------------------------------------------
PATENT NO. REG. DATE TITLE
-------------------- ------------------------ ------------------------------------------------------------------
<S> <C> <C>
------------------------- -------------------------- -------------------------------------------------------------------
5861881 January 19, 1999 Interactive computer system providing an interactive
presentation with personalized video, audio and graphics
responses for multiple viewers
-------------------- ------------------------ ------------------------------------------------------------------
5724091 March 3, 1998 Compressed Digital Data Interactive Program System
-------------------- ------------------------ ------------------------------------------------------------------
5682196 October 28, 1997 Three-Dimensional (3D) Video Presentation System Providing
Interactive 3D Presentation with Personalized Audio Responses
for Multiple Viewers
-------------------- ------------------------ ------------------------------------------------------------------
5632007 May 20, 1997 Interactive System and Method for Offering Expert Based
Interactive Programs
-------------------- ------------------------ ------------------------------------------------------------------
5585858 Dec. 17, 1996 Simulcast of Interactive signals with a Conventional Video Signal
-------------------- ------------------------ ------------------------------------------------------------------
5537141 July 16, 1996 Distance Learning System Providing Individual Television
Participation, Audio Responses and Memory for Every Student
-------------------- ------------------------ ------------------------------------------------------------------
RE 34340 (reissue August 10, 1993 Closed Circuit Television System Having Seamless Interactive
of 4918516) Television Programming and Expandable User Participation
-------------------- ------------------------ ------------------------------------------------------------------
5068733 Nov. 26, 1991 Multiple Access Television
-------------------- ------------------------ ------------------------------------------------------------------
4847700 July 11, 1989 Interactive Television System for Providing Full Motion Synched
Compatible Audio/Visual Displays from Transmitted Television
Signals
-------------------- ------------------------ ------------------------------------------------------------------
4847699 July 11, 1989 Method for Providing an Interactive Full Motion Synched
Compatible Audio/Visual Television Display
-------------------- ------------------------ ------------------------------------------------------------------
4847698 July 11, 1989 Interactive Television System for Providing Full Motion Synched
Compatible Audio/Visual displays
-------------------- ------------------------ ------------------------------------------------------------------
4602279 July 22, 1986 Method for Providing Targeted Profile Interactive CATV Displays
-------------------- ------------------------ ------------------------------------------------------------------
4573072 Feb. 25, 1986 Method for Expanding Interactive CATV displayable Choices for a
Given Channel Capacity
-------------------- ------------------------ ------------------------------------------------------------------
4507680 March 26, 1985 One-Way Interactive Multisubscriber Communication System
-------------------- ------------------------ ------------------------------------------------------------------
28
<PAGE>
EXHIBIT C (CONTINUED)
ACTV INDIVIDUALIZED TELEVISION PATENTS AND PENDING PATENTS
-------------------- ------------------------ ------------------------------------------------------------------
4264925 April 28, 1981 Interactive Cable Television System
-------------------- ------------------------ ------------------------------------------------------------------
4264924 April 28, 1981 Dedicated Channel Interactive Cable Television System
-------------------- ------------------------ ------------------------------------------------------------------
</TABLE>
ACTV U.S. PENDING APPLICATIONS:
<TABLE>
<CAPTION>
-------------------- ----------------------- ------------------------------------------------------------------------
APPL. NO. APPL. DATE TITLE
-------------------- ----------------------- ------------------------------------------------------------------------
<S> <C> <C>
-------------------- ----------------------- ------------------------------------------------------------------------
08/887314 July 3, 1997 Compressed Digital-Data Interactive Television System with Digital
Delay
-------------------- ----------------------- ------------------------------------------------------------------------
09/154069 Sept. 16, 1998 Compressed Digital-Data Interactive Television System with Digital
Delay
-------------------- ----------------------- ------------------------------------------------------------------------
08/815168 March 11, 1997 Digital Interactive System for Providing Full Interactivity with Live
Programming Events
-------------------- ----------------------- ------------------------------------------------------------------------
09/335372 June 17, 1999 Compressed Digital Seamless Video
-------------------- ----------------------- ------------------------------------------------------------------------
09/429851 October 28, 1999 Compressed Digital Data Interactive Program System
-------------------- ----------------------- ------------------------------------------------------------------------
09/429850 October 28, 1999 Compressed Digital Data Interactive Program System
-------------------- ----------------------- ------------------------------------------------------------------------
09/429852 October 28, 1999 Compressed Digital Data Interactive Program System
-------------------- ----------------------- ------------------------------------------------------------------------
</TABLE>
29
<PAGE>
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
30
<PAGE>
EXHIBIT E
WARRANT
31
