-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H8vQKkm/G1l3upjS6GbAvFqgZsEQu4YbNuqrCn/26TXXHs5QBYOXOPf4a2u3hF84 bj77uGEET9gHhevrgcjDEw== 0001104659-09-064852.txt : 20091113 0001104659-09-064852.hdr.sgml : 20091113 20091113131328 ACCESSION NUMBER: 0001104659-09-064852 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20091113 DATE AS OF CHANGE: 20091113 GROUP MEMBERS: ANDRE KUDELSKI GROUP MEMBERS: KUDELSKI INTERACTIVE CAYMAN, LTD. GROUP MEMBERS: KUDELSKI INTERACTIVE USA, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: OPENTV CORP CENTRAL INDEX KEY: 0001096958 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 980212376 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58285 FILM NUMBER: 091180413 BUSINESS ADDRESS: STREET 1: ABBOTT BUILDING STREET 2: MOUNT STREET TORTOLA CITY: ROAD TOWN COUNTY BUSINESS PHONE: 6504295500 MAIL ADDRESS: STREET 1: ABBOTT BUILDING STREET 2: MOUNT STREET TORTOLA CITY: ROAD TOWN COUNTRY FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Kudelski SA CENTRAL INDEX KEY: 0001387734 IRS NUMBER: 000000000 STATE OF INCORPORATION: V8 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: RTE DE GENEVE 22-24 STREET 2: P.O. BOX 134 CITY: CHESEAUX STATE: V8 ZIP: 103 BUSINESS PHONE: 41-21-728-5059 MAIL ADDRESS: STREET 1: RTE DE GENEVE 22-24 STREET 2: P.O. BOX 134 CITY: CHESEAUX STATE: V8 ZIP: 103 SC 13D/A 1 a09-28201_34sc13da.htm SC 13D/A

 

 

SECURITIES AND EXCHANGE COMMISSION

 

 

Washington, DC 20549

 

 

 

 

 

SCHEDULE 13D/A

 

 

Under the Securities Exchange Act of 1934
(Amendment No. 7)*

 

OpenTV Corp.

(Name of Issuer)

 

Class A ordinary shares of no par value

(Title of Class of Securities)

 

G67543101

(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)

 

November 13, 2009

(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 person's 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)

 


 

CUSIP No. G67543101

 

 

1.

Name of Reporting Persons
Kudelski SA

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
AF, SC, WC, BK, OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
Switzerland

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
0

 

8.

Shared Voting Power
92,747,777(1)

 

9.

Sole Dispositive Power
0

 

10.

Shared Dispositive Power
92,747,777(1)

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
92,747,777(1)

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row 11
67.1%(2)

 

 

14.

Type of Reporting Person (See Instructions)
CO

 

2


 

CUSIP No. G67543101

 

 

1.

Name of Reporting Persons
André Kudelski

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
Switzerland

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
100,000

 

8.

Shared Voting Power
92,747,777(1)

 

9.

Sole Dispositive Power
100,000

 

10.

Shared Dispositive Power
92,747,777(1)

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
92,847,777(1)

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row 11
67.2%(2)

 

 

14.

Type of Reporting Person (See Instructions)
IN

 

3


 

CUSIP No. G67543101

 

 

1.

Name of Reporting Persons
Kudelski Interactive USA, Inc.

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
0

 

8.

Shared Voting Power
30,206,154(3)

 

9.

Sole Dispositive Power
0

 

10.

Shared Dispositive Power
30,206,154(3)

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
30,206,154(3)

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row 11
21.9%(4)

 

 

14.

Type of Reporting Person (See Instructions)
CO

 

4


 

CUSIP No. G67543101

 

 

1.

Name of Reporting Persons
Kudelski Interactive Cayman, Ltd.

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 x

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
AF, SC, WC, BK, OO

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
Cayman Islands

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
0

 

8.

Shared Voting Power
54,639,426

 

9.

Sole Dispositive Power
0

 

10.

Shared Dispositive Power
54,639,426

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
54,639,426

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row 11
50.6%(5)

 

 

14.

Type of Reporting Person (See Instructions)
CO

 

5


 

CUSIP No. G67543101

 

(1)

 

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, 48,105,475 Class A ordinary shares tendered in the Offer described in Item 4 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.

 

 

 

(2)

 

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 Issuer’s 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 Issuer’s 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 88.9% of the voting power of the outstanding ordinary shares of the Issuer.

 

 

 

(3)

 

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.

 

 

 

(4)

 

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 Issuer’s 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.

 

 

 

(5)

 

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).

 

6


 

CUSIP No. G67543101

 

ITEM 1.        SECURITY AND ISSUER.

 

Item 1 is hereby amended, in pertinent part, by the following:

 

This Amendment No. 7 (this “Amendment No. 7”) 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. 7 also relates to the Shares issuable upon conversion of Class B ordinary shares of the Issuer.  The address of the Issuer’s principal executive offices is 275 Sacramento Street, San Francisco, California 94111.

 

ITEM 3.        SOURCE AND AMOUNT OF FUNDS.

 

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 $74,563,486 to purchase the 48,105,475 Shares validly tendered in the Offer (as defined in Amendment No. 5 to this Schedule 13D) as of expiration of the Offer at 11:00 p.m., New York City time, on November 12, 2009 and accepted for payment.  Kudelski SA and Kudelski Cayman will need $12,829,525 to purchase the 8,277,113 Shares tendered into the Offer pursuant to guaranteed delivery procedures if all such Shares are validly tendered following the expiration of the Offer.  Kudelski SA and Kudelski Cayman estimate that they will need approximately $59,927,092 to acquire all of the remaining Shares sought in the Offer if all of such Shares are validly tendered during the Subsequent Offering Period (as defined in Item 4 below).

 

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.       PURPOSE OF TRANSACTION.

 

Item 4 is hereby amended, in pertinent part, by the following:

 

On November 13, 2009, Kudelski SA issued a press release announcing (a) Kudelski Cayman’s acceptance for payment of all of the Shares validly tendered and not withdrawn prior to expiration of the Offer, and (b) commencement of a subsequent offering period (the “Subsequent Offering Period”) during which holders of Shares not tendered in the Offer may tender their Shares in exchange for the same purchase 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.  The press release announcing expiration of the Offer and commencement of the Subsequent Offering Period is attached hereto as Exhibit 7.3 and is incorporated herein by reference.

 

7


 

CUSIP No. G67543101

 

ITEM 5.        INTEREST IN SECURITIES OF THE ISSUER.

 

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 62,541,623 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 Issuer’s 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 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 67.1% 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 54,639,426 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 50.6% 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.

 

8


 

CUSIP No. G67543101

 

ITEM 7.        MATERIAL TO BE FILED AS EXHIBITS

 

Item 7 is hereby amended to include the following:

 

Exhibit 7.1

 

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).

 

 

 

Exhibit 7.2

 

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”)).

 

 

 

Exhibit 7.3

 

Press Release issued by Kudelski SA on November 13, 2009 (incorporated by reference to Exhibit (a)(1)(xviii) to Amendment No. 7 to the Schedule TO filed by Kudelski SA and Kudelski Interactive Cayman, Ltd. on November 13, 2009).

 

9


 

CUSIP No. G67543101

 

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 13, 2009

 

 

 

Kudelski SA

 

 

 

 

By:

/s/ Lucien Gani

 

Name:

Lucien Gani

 

Title:

General Counsel and Head of Legal Affairs

 

 

 

 

By:

/s/ Mauro Saladini

 

Name:

Mauro Saladini

 

Title:

Executive Vice President and Chief Financial Officer

 

 

 

 

 

 

 

/s/ André Kudelski

 

André Kudelski

 

 

 

Kudelski Interactive Cayman, Ltd.

 

 

 

 

By:

/s/ Lucien Gani

 

Name:

Lucien Gani

 

Title:

Director

 

 

 

 

By:

/s/ Santino Rumasuglia

 

Name:

Santino Rumasuglia

 

Title:

Director

 

 

 

 

Kudelski Interactive USA, Inc.

 

 

 

 

By:

/s/ Lucien Gani

 

Name:

Lucien Gani

 

Title:

President and Chief Executive Officer

 

10

 

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