- Amended Statement of Beneficial Ownership (SC 13D/A)
November 27 2009 - 4:58PM
Edgar (US Regulatory)
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SECURITIES AND EXCHANGE COMMISSION
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Washington, DC 20549
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SCHEDULE 13D/A
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Under the Securities Exchange Act
of 1934
(Amendment No. 8)*
(Name of Issuer)
Class
A ordinary shares of no par value
(Title of Class of
Securities)
(CUSIP Number)
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)
(Date of Event Which
Requires Filing of this Statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box.
o
Note
: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
*
The
remainder of this cover page shall be filled out for a reporting persons
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this
cover page shall not be deemed to be filed for the purpose of Section 18 of
the Securities Exchange Act of 1934 (Act) or otherwise subject to the
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes)
1
CUSIP No.
G67543101
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1.
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Name of Reporting Persons
Kudelski SA
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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x
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
AF, SC, WC, BK, OO
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Switzerland
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
0
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8.
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Shared Voting Power
122,319,451(1)
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9.
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Sole Dispositive Power
0
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10.
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Shared Dispositive Power
122,319,451 (1)
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person
122,319,451 (1)
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row 11
88.6% (2)
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14.
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Type of Reporting Person
(See Instructions)
CO
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2
CUSIP No.
G67543101
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1.
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Name of Reporting Persons
André Kudelski
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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x
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
OO
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Switzerland
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
100,000
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8.
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Shared Voting Power
122,319,451 (1)
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9.
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Sole Dispositive Power
100,000
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10.
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Shared Dispositive Power
122,319,451 (1)
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person
122,419,451 (1)
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row 11
88.6%(2)
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14.
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Type of Reporting Person
(See Instructions)
IN
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3
CUSIP No.
G67543101
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1.
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Name of Reporting Persons
Kudelski Interactive USA, Inc.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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x
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
OO
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
0
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8.
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Shared Voting Power
30,206,154(3)
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9.
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Sole Dispositive Power
0
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10.
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Shared Dispositive Power
30,206,154(3)
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person
30,206,154(3)
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row 11
21.9%(4)
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14.
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Type of Reporting Person
(See Instructions)
CO
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4
CUSIP No.
G67543101
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1.
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Name of Reporting Persons
Kudelski Interactive Cayman, Ltd.
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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x
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
AF, SC, WC, BK, OO
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Cayman Islands
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7.
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Sole Voting Power
0
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8.
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Shared Voting Power
84,211,100
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9.
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Sole Dispositive Power
0
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10.
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Shared Dispositive Power
84,211,100
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person
84,211,100
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row 11
78.1%
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14.
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Type of Reporting Person
(See Instructions)
CO
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5
(1)
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Includes
7,902,197 Class A ordinary shares of the Issuer held of record by
Kudelski SA, 6,533,951 Class A ordinary shares of the Issuer held of
record by Kudelski Interactive Cayman, Ltd. (Kudelski Cayman), an indirect
wholly owned subsidiary of Kudelski SA, 77,677,149 Class A ordinary
shares tendered in the Offer described in Item 3 below and accepted for
payment by Kudelski Cayman and 30,206,154 Class A ordinary shares of the
Issuer issuable upon conversion of the same number of Class B ordinary
shares of the Issuer held by Kudelski Interactive USA, Inc. (Kudelski
US), an indirect wholly owned subsidiary of Kudelski SA. André Kudelski
controls a majority of the voting securities of Kudelski SA.
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(2)
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Calculated
in accordance with Rule 13d-3 promulgated under the Securities Exchange
Act of 1934 (the Act), based upon 107,891,190 Class A ordinary shares
of the Issuer and 30,206,154 Class B ordinary shares of the Issuer
issued and outstanding as of September 30, 2009 (as reported in the
Issuers Quarterly Report on 10-Q for the period ended September 30,
2009 filed by the Issuer on November 4, 2009 (the Q3 2009 10-Q)).
Assumes the conversion of 30,206,154 Class B ordinary shares of the
Issuer held by Kudelski US into the same number of Class A ordinary
shares of the Issuer. Because the Issuers Class B ordinary shares are
entitled to ten votes per share on matters submitted to shareholders of the
Issuer, the Class A ordinary shares and Class B ordinary shares
beneficially owned by the Reporting Person constitute approximately 96.2% of
the voting power of the outstanding ordinary shares of the Issuer.
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(3)
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Includes
30,206,154 Class A ordinary shares of the Issuer issuable upon
conversion of the same number of Class B ordinary shares of the Issuer
held by Kudelski US.
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(4)
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Calculated
in accordance with Rule 13d-3 promulgated under the Act, based upon
107,891,190 Class A ordinary shares of the Issuer and 30,206,154
Class B ordinary shares of the Issuer issued and outstanding as of
September 30, 2009 (as reported in the Q3 2009 10-Q). Assumes the
conversion of 30,206,154 Class B ordinary shares of the Issuer held by
Kudelski US into the same number of Class A ordinary shares of the
Issuer. Because the Issuers Class B ordinary shares are entitled to ten
votes per share on matters submitted to shareholders of the Issuer, the
Class B ordinary shares beneficially owned by the Reporting Person
constitute approximately 73.7% of the voting power of the outstanding ordinary
shares of the Issuer.
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(5)
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Calculated
in accordance with Rule 13d-3 promulgated under the Act, based upon
107,891,190 Class A ordinary shares of the Issuer issued and outstanding
as of September 30, 2009 (as reported in the Q3 2009 10-Q).
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6
Item 1.
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Security
and Issuer.
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Item 1 is hereby amended, in pertinent part,
by the following:
This Amendment No. 8
(this Amendment No. 8) relates to and amends the statement on
Schedule 13D of Kudelski SA, a public limited company organized under the
laws of Switzerland, Kudelski Interactive USA, Inc., a Delaware
corporation and an indirect wholly owned subsidiary of Kudelski SA (Kudelski
US), Kudelski Interactive Cayman, Ltd., an exempt company organized under the
laws of the Cayman Islands and an indirect wholly owned subsidiary of Kudelski
SA (Kudelski Cayman), and André Kudelski, a Swiss citizen (collectively, the Reporting
Persons), as such Schedule 13D has been amended through the date hereof, with
respect to the 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 Issuer).
This Amendment No. 8 also relates to the Shares issuable upon
conversion of Class B ordinary shares of the Issuer. The address of the Issuers principal
executive offices is 275 Sacramento Street, San Francisco, California 94111.
Item 3.
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Source
and Amount of Funds.
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Item 3 is hereby amended, in pertinent part,
by the following:
Kudelski SA (collectively
with its subsidiaries, the Kudelski Group) and Kudelski Cayman will need
$120,399,581 to purchase the 77,667,149 Shares validly tendered in the Offer
(as defined in Amendment No. 5 to this Schedule 13D) and in the Subsequent
Offering Period (as defined in Amendment No. 7 to this Schedule 13D) and
accepted for payment as of 12:00 midnight, New York City time, on November 25,
2009, which was the expiration time of the Subsequent Offering Period.
Kudelski SA will cause
Kudelski Cayman to be provided with sufficient funds to satisfy those
obligations from (i) borrowings under the Credit Facility (as defined in
Amendment No. 5 to this Schedule 13D) and (ii) available cash held by
the Kudelski Group.
The terms of the Credit
Facility are set forth in the Credit Agreement (as defined in Amendment No. 5
to this Schedule 13D) and are summarized in Amendment No. 5 to this
Schedule 13D. The Credit Agreement is
included as Exhibit 7.2 hereto and is incorporated herein by reference.
Item 4.
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Purpose
of Transaction.
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Item 4 is hereby amended, in pertinent part,
by the following:
On November 27, 2009,
Kudelski SA issued a press release announcing the expiration of the Subsequent
Offering Period. The press release
announcing the expiration of the Subsequent Offering Period is attached hereto
as Exhibit 7.3 and is incorporated herein by reference.
Item 5.
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Interest
in Securities of the Issuer.
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Item 5(a), insofar as it relates to the
beneficial ownership of Shares and Class B ordinary shares of the Issuer
by Kudelski SA, André Kudelski, Kudelski US and Kudelski Cayman, is hereby
amended and restated as follows:
(a) Kudelski SA may be deemed to be the beneficial owner of
92,113,297 Shares and 30,206,154 Class B ordinary shares of the Issuer.
The Class B ordinary shares are convertible at any time into an equal
number of Shares. Based upon 107,891,190 Shares and 30,206,154 Class B
ordinary shares of the Issuer issued and outstanding as of September 30,
2009 (as reported in the Issuers Quarterly Report on Form 10-Q for the
period ended September 30, 2009 filed by the Issuer on November 4,
2009 (the Q3 2009 10-Q)), and
7
assuming the conversion of 30,206,154 Class B
ordinary shares held by Kudelski US into the same number of Shares, Kudelski SA
beneficially owns approximately 88.6% of the Shares, calculated in accordance
with Rule 13d-3(d)(1) under Section 13 of the Securities
Exchange Act of 1934 (the Act). André Kudelski may also be deemed to be the
beneficial owner of the Shares and the Class B ordinary shares of the
Issuer beneficially owned by Kudelski SA through his control of a majority of
the voting securities of Kudelski SA. In
addition, André Kudelski directly owns 100,000 Shares pursuant to a grant under
the OpenTV 2005 Incentive Plan, which Shares are restricted from sale or
transfer for a period of four years from the date of grant.
Kudelski US is the
beneficial owner of 30,206,154 Class B ordinary shares of the Issuer. The Class B
ordinary shares are convertible at any time into an equal number of Shares.
Based upon
107,891,190
Shares and
30,206,154 Class B ordinary shares of the Issuer issued and outstanding as
of September 30, 2009 (as reported in the Q3 2009 10-Q), and assuming the
conversion of 30,206,154 Class B ordinary shares held by Kudelski US into
the same number of Shares, Kudelski US beneficially owns approximately 21.9% of
the Shares, calculated in accordance with Rule 13d-3(d)(1) under Section 13
of the Act. Kudelski SA may also be
deemed to be the beneficial owner of the ordinary shares of the Issuer
beneficially owned by Kudelski US since Kudelski US is an indirect wholly owned
subsidiary of Kudelski SA.
Kudelski Cayman beneficially
owns 48,211,100 Shares. Based upon
107,891,190
Shares issued and
outstanding as of September 30, 2009 (as reported in the Q3 2009 10-Q),
Kudelski Cayman beneficially owns approximately 78.1% of the Shares, calculated
in accordance with Rule 13d-3(d)(1) under Section 13 of the
Act. Kudelski SA may also be deemed to
be the beneficial owner of the Shares beneficially owned by Kudelski Cayman
since Kudelski Cayman is an indirect wholly owned subsidiary of Kudelski SA.
Item 5(c) is hereby amended, in
pertinent part, by the following:
During the past 60 days
prior to the date of the filing of this Amendment No. 8, Kudelski Cayman
has accepted for payment the Shares tendered in the Offer, including Shares
tendered in the Subsequent Offering Period, as described in Item 3 above. Kudelski SA may also be deemed to be the
beneficial owner of the Shares beneficially owned by Kudelski Cayman since
Kudelski Cayman is an indirect wholly owned subsidiary of Kudelski SA. André Kudelski may also be deemed to be the
beneficial owner of the Shares beneficially owned by Kudelski SA through his
control of a majority of the voting securities of Kudelski SA.
8
Item 7.
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Material
to be Filed as Exhibits
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Item
7 is hereby amended to include the following:
Exhibit 7.1
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Joint Filing Agreement,
dated February 26, 2009, among André Kudelski, Kudelski SA, Kudelski
Interactive Cayman, Ltd., and Kudelski Interactive USA, Inc.
(incorporated by reference to Exhibit 7.1 to Amendment No. 3 to
Schedule 13D filed by the Reporting Persons with the Securities and Exchange
Commission on February 27, 2009).
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Exhibit 7.2
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Credit Facility Agreement,
dated as of October 3, 2009, by and among Kudelski SA, Kudelski
Interactive USA, Inc., Credit Suisse and Banque Cantonale Vaudoise
(incorporated by reference to Exhibit (b) of the Tender Offer
Statement and Rule 13e-3 Transaction Statement
filed
under cover of Schedule TO by Kudelski SA and Kudelski Interactive
Cayman, Ltd. on October 5, 2009 (the Schedule TO)).
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Exhibit 7.3
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Press Release issued by
Kudelski SA on November 27, 2009 (incorporated by reference to
Exhibit (a)(1)(xx) to Amendment No. 9 to the Schedule TO filed by
Kudelski SA and Kudelski Interactive Cayman, Ltd. on November 27, 2009).
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Exhibit 7.4
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Power of Attorney, dated
November 23, 2009, by Andr
é
Kudelski.
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9
SIGNATURE
After reasonable 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.
Dated: November 27, 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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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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/s/ Santino Rumasuglia
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Santino Rumasuglia, as
attorney-in-fact for André Kudelski
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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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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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Kudelski Interactive
USA, Inc.
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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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President and Chief
Executive Officer
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