- Amended Statement of Ownership: Private Transaction (SC 13E3/A)
November 13 2009 - 1:09PM
Edgar (US Regulatory)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(RULE 14d-100)
Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of
the Securities Exchange Act of 1934
(Amendment No. 7)
OPENTV CORP.
(Name of Subject Company (Issuer))
KUDELSKI INTERACTIVE CAYMAN, LTD.
(Offeror)
an indirect wholly owned subsidiary of
KUDELSKI SA
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Class A Ordinary Shares of No Par Value
(Title of Class of Securities)
G67543101
(Cusip Number of Class of Securities)
Lucien Gani
General Counsel, Head of Legal Affairs
Kudelski SA
22-24, Route de Genève
Case Postale 134
1033 Cheseaux, Switzerland
Tel: +41 21 732 01 01
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
Copies to:
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Jennifer DiNucci, Esq.
Cooley Godward Kronish LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Tel: (650) 843-5000
Fax: (650) 849-7400
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Francis R. Wheeler, Esq.
Cooley Godward Kronish LLP
380 Interlocken Crescent
Suite 900
Broomfield, CO 80021-8023
Tel: (720) 566-4000
Fax: (720) 566-4099
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CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$147,320,103
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$8,103
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*
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For
the purpose only of calculating the filing fee in accordance with Rule 0-11 under the U.S. Securities Exchange Act of 1934, as amended
(the "
Exchange Act
"). Calculated as (A) the sum of (i) 93,455,042, which is the difference between 107,891,190, the number of Class A
ordinary shares of no par value ("
Shares
") of OpenTV Corp. (the "
Company
") outstanding as of
September 30, 2009, and 14,436,148, the number of Shares beneficially owned by Kudelski SA on such date, (ii) 978,383, which is the number of Shares subject to vested and unvested
options outstanding as of September 30, 2009, excluding options that can be confirmed as having exercise prices above the per Share tender offer price, and (iii) 611,803, which we
believe is the maximum number of Shares reserved for issuance upon exchange of shares of the Company's subsidiary, OpenTV, Inc. (the "
Subsidiary
")
as of September 30, 2009, multiplied by (B) $1.55, which is the per Share tender offer price, net to the seller in cash, without interest and less applicable withholding taxes. The
number of outstanding Shares, Shares subject to vested and unvested options and Shares reserved for issuance upon exchange of shares of the Subsidiary is as set forth in the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 2009.
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**
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The
amount of the filing fee calculated in accordance with the Exchange Act equals $55.80 per $1,000,000. The filing fee was calculated in accordance with
Rule 0-11 under the Exchange Act and Fee Rate Advisory #3 for fiscal year 2010, issued October 30, 2009.
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ý
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Check
box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the
filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid: $8,228
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Filing Party:
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Kudelski Interactive Cayman, Ltd. and Kudelski SA
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Form or Registration No.: Schedule TO-T
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Date Filed:
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October 5, 2009
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o
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Check
the box if the filing relates solely to preliminary communications made before the commencement of a
tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
ý
third-party
tender offer subject to Rule 14d-1
o
issuer tender offer subject to Rule 13e-4
ý
going-private transaction subject to Rule 13e-3
o
amendment to Schedule 13D under Rule 13d-2
Check the following box if the filing is a final amendment reporting the results of the tender offer:
o
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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o
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Rule 13e4(i)
(Cross-Border Issuer Tender Offer)
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o
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Rule 14d1(d)
(Cross-Border Third-Party Tender Offer)
This Amendment No. 7 amends and supplements the Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO (together
with any amendments and supplements thereto, the "
Schedule TO
") with the Securities and Exchange Commission on October 5, 2009 by
(a) Kudelski Interactive Cayman, Ltd., an exempted company organized under the laws of the Cayman Islands (the "
Purchaser
") and an
indirect wholly owned subsidiary of Kudelski SA, a public limited company organized under the laws of Switzerland ("
Parent
"), and
(b) Parent. The Schedule TO relates to the offer (the "
Offer
") by the Purchaser to purchase all outstanding Class A ordinary shares
of no par value ("
Shares
") of OpenTV Corp., a company incorporated and registered under the laws of the British Virgin Islands (the
"
Company
"), that are not already owned by Parent or its wholly owned subsidiaries at a purchase price of $1.55 per Share, net to the seller in cash,
without interest and less applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 5, 2009 (together with any amendments and
supplements thereto, the "
Offer to Purchase
"), and in the related Letter of Transmittal.
Item 1. Summary Term Sheet; Item 4. Terms of the Transaction; Item 11. Additional Information.
Items 1,
4 and 11 of the Schedule TO are hereby amended and supplemented to add following information:
The
Offer expired at 11:00 p.m., New York City time, on Thursday, November 12, 2009. According to Computershare Trust Company, N.A., the Depositary for the Offer, a total
of approximately 56,382,588 Shares (including 8,277,113 Shares tendered by guaranteed delivery procedures), representing
approximately 60% of the Shares not already owned by Parent or its wholly owned subsidiaries, were validly tendered and not withdrawn prior to the expiration of the Offer. All Shares that were validly
tendered and not withdrawn have been accepted for payment in accordance with the terms of the Offer, and the Purchaser will promptly pay for such Shares.
On
November 13, 2009, Parent issued a press release, a copy of which is attached hereto as Exhibit (a)(1)(xviii) and incorporated herein by reference, announcing the
results of the Offer and the commencement of a subsequent offering period for all Shares that were not tendered in the initial offering period. The subsequent offering period will expire at
5:00 p.m., New York City time, on Friday, November 20, 2009, unless extended as described in the Offer to Purchase.
During
the subsequent offering period, holders of Shares that were not previously tendered in the Offer may tender their shares in exchange for the same offer price of $1.55 per share,
net to the seller in cash, without interest and less applicable withholding taxes, that will be paid for Shares tendered in the initial offering period. Any Shares that are validly tendered during the
subsequent offering period will be immediately accepted for payment. Shares tendered during the subsequent offering period cannot be tendered by the guaranteed delivery procedure described in the
Offer to Purchase and may not be withdrawn.
Item 12. Exhibits.
Item 12
of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
(a)(1)(xviii) Press
Release issued by Kudelski Group, dated November 13, 2009
(a)(5)(viii) Supplemental
Excerpt from Kudelski SA Transaction Website
2
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
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KUDELSKI INTERACTIVE CAYMAN, LTD.
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By:
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/s/ LUCIEN GANI
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Name:
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Lucien Gani
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Title:
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Director
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Date:
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November 13, 2009
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By:
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/s/ SANTINO RUMASUGLIA
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Name:
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Santino Rumasuglia
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Title:
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Director
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Date:
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November 13, 2009
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KUDELSKI SA
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By:
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/s/ LUCIEN GANI
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Name:
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Lucien Gani
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Title:
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General Counsel and
Head of Legal Affairs
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Date:
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November 13, 2009
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By:
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/s/ MAURO SALADINI
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Name:
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Mauro Saladini
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Title:
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Executive Vice President and
Chief Financial Officer
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Date:
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November 13, 2009
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3
EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(i)
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Offer to Purchase dated October 5, 2009*
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(a)(1)(ii)
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Letter of Transmittal*
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(a)(1)(iii)
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Notice of Guaranteed Delivery*
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(a)(1)(iv)
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies, Custodians, and Other Nominees*
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(a)(1)(v)
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies, Custodians and Other Nominees*
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(a)(1)(vi)
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Instructions for Completing Substitute Form W-9*
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(a)(1)(vii)
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Instructions for Completing Substitute Form W-8BEN*
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(a)(1)(viii)
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Summary Advertisement*
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(a)(1)(ix)
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Press Release issued by Kudelski Group, dated October 5, 2009*
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(a)(1)(x)
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Excerpts from Kudelski SA Transaction Website*
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(a)(1)(xi)
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Letter to OpenTV Corp. Shareholders from Kudelski Group, dated October 13, 2009*
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(a)(1)(xii)
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Press Release issued by Kudelski Group, dated October 26, 2009*
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(a)(1)(xiii)
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Letter to OpenTV Corp. Shareholders from Kudelski Group, dated October 30, 2009*
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(a)(1)(xiv)
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Press Release issued by Kudelski Group, dated October 30, 2009*
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(a)(1)(xv)
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Press Release issued by Kudelski Group, dated November 2, 2009*
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(a)(1)(xvi)
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Press Release issued by Kudelski Group, dated November 3, 2009*
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(a)(1)(xvii)
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Press Release issued by Kudelski Group, dated November 9, 2009*
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(a)(1)(xviii)
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Press Release issued by Kudelski Group, dated November 13, 2009
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(a)(5)(i)
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Complaint of Charles Michael Foley against Kudelski SA, Kudelski Interactive Cayman, Ltd., and André Kudelski, filed in the Superior Court of the State of California, County of San Francisco, and
dated October 8, 2009*
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(a)(5)(ii)
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Kudelski Group Investor Presentation, dated October 2009*
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(a)(5)(iii)
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Supplemental Excerpt from Kudelski SA Transaction Website*
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(a)(5)(iv)
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Complaint of Salvatore L. Giordano against OpenTV Corp., André Kudelski, Nigel Bennett, Joseph Deiss, Lucien Gani, Alex Osadzinski, Pierre Roy, Mauro Saladini, James A. Chiddix, Clause Smadja, Jerry
Machovina, Kudelski SA, and Kudelski Interactive Cayman, Ltd., filed in the United States District Court for the Northern District of California, and dated October 23, 2009*
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(a)(5)(v)
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Complaint of Joseph Weiss against Kudelski SA, Kudelski Interactive Cayman, Ltd., and André Kudelski, filed in the United States District Court for the Northern District of California, and dated
October 26, 2009*
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(a)(5)(vi)
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Supplemental Excerpt from Kudelski SA Transaction Website*
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4
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Exhibit No.
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Description
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(a)(5)(vii)
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Complaint of Douglas Grimes against Kudelski SA, Kudelski Interactive Cayman, Ltd., and André Kudelski, filed in the United States District Court for the Northern District of California, and dated
November 2, 2009*
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(a)(5)(viii)
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Supplemental Excerpt from Kudelski SA Transaction Website
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(b)
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Credit Facility Agreement, dated as of October 3, 2009, by and among Kudelski SA, Kudelski Interactive USA, Inc., Credit Suisse, as facility agent, lender, and arranger, and Banque Cantonale Vaudoise,
as lender and arranger*
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(c)
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None
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(d)(i)
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Share Purchase Agreement, dated as of October 18, 2006, by and among Liberty Media Corporation, Liberty IATV, Inc., Liberty IATV Holdings, Inc., Kudelski SA, Kudelski Interactive USA, Inc.,
and Kudelski Interactive Cayman, Ltd. (incorporated by reference to Exhibit 7(i) to Amendment No. 3 to the Schedule 13D of Liberty Media Corporation with respect to Class A Ordinary Shares of OpenTV Corp. filed on
October 20, 2006)*
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(d)(ii)
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OpenTV Corp. 2005 Incentive Plan (incorporated by reference to Annex A to the 2005 Proxy Statement on Schedule 14A of OpenTV Corp., as filed by OpenTV Corp. on October 14, 2005)*
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(d)(iii)
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Form of Independent Director Stock Option Agreement for OpenTV Corp. 2005 Incentive Plan (incorporated by reference to Exhibit 4.5 to the Registration Statement on Form S-8 of OpenTV Corp., as filed by
OpenTV Corp. on December 21, 2005)*
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(f)
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Sections 176 and 179 of the British Virgin Islands Companies Act, 2004, as amended (included as Schedule C to the Offer to Purchase)*
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(g)
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None
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(h)
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None
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5
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