-----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, RcyMfhmU6f7KgD5laswDuXELkH4SMWVF3Qjul1f0TpwJuCzCQT10JLUyuNe/8y3Z pfaDDy6/5nNud2iDCYm65Q== 0000912057-02-038250.txt : 20021010 0000912057-02-038250.hdr.sgml : 20021010 20021010164603 ACCESSION NUMBER: 0000912057-02-038250 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20021010 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ACTV INC /DE/ CENTRAL INDEX KEY: 0000854152 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 942907258 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-41394 FILM NUMBER: 02786582 BUSINESS ADDRESS: STREET 1: 1270 AVE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 2122622571 MAIL ADDRESS: STREET 1: 12270 AVE OF THE AMERICAS #2401 STREET 2: 12270 AVE OF THE AMERICAS #2401 CITY: NEW YORK STATE: NY ZIP: 10020 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: LIBERTY MEDIA CORP /DE/ CENTRAL INDEX KEY: 0001082114 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 841288730 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 9197 SOUTH PEORIA STREET CITY: ENGLEWOOD STATE: CO ZIP: 80112 BUSINESS PHONE: 7208755400 MAIL ADDRESS: STREET 1: 9197 SOUTH PEORIA STREET CITY: ENGLEWOOD STATE: CO ZIP: 80112 SC 13D/A 1 a2091078zsc13da.txt SC 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 4) ACTV, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $.10 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 00 88E 10 4 ---------------------------------------------------------------- (CUSIP Number) Elizabeth M. Markowski Senior Vice President Liberty Media Corporation 12300 Liberty Boulevard Englewood, Colorado 80112 (720) 875-5400 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 26, 2002 - -------------------------------------------------------------------------------- (Date of Event which Require 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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box / / NOTE. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) 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 the disclosures provided in a prior cover page. The information required in 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, (the "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). (Continued on following pages) (Page 1 of 11 pages) CUSIP NO. G675431 ================================================================================ NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) 1 Liberty Media Corporation 84-1288730 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) /X/* - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS 00 - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 8,805,000* NUMBER OF -------------------------------------------------------------- SHARES 8 SHARED VOTING POWER 0* BENEFICIALLY -------------------------------------------------------------- OWNED BY EACH 9 SOLE DISPOSITIVE POWER 8,805,000* REPORTING -------------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER 0* - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,805,000* - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/* - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.8%* - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- * Item 4 of this Statement on Schedule 13D describes certain provisions of a Voting Agreement, dated as of September 26, 2002 (the "Voting Agreement"), among OpenTV Corp., David Reese, William Samuels and Bruce Crowley (the "Stockholders"). As a result of the execution and delivery of the Voting Agreement, the Reporting Person may be deemed to be the beneficial owner of shares of Common Stock held by the Stockholders. The Stockholders currently hold 2,397,694 shares of Common Stock. The Reporting Person disclaims beneficial ownership of shares of Common Stock held by the Stockholders, and the share numbers and percentages appearing on this table do not reflect beneficial ownership by the Reporting Person of such shares. (Page 2 of 11 pages) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A (AMENDMENT NO. 4) STATEMENT OF LIBERTY MEDIA CORPORATION PURSUANT TO SECTION 13(D) OF THE SECURITIES EXCHANGE ACT OF 1934 IN RESPECT OF ACTV, INC. The Schedule 13D with respect to shares of common stock, par value $.10 per share ("Common Stock"), of ACTV, Inc., a Delaware corporation ("ACTV" or the "Issuer"), filed on March 29, 1999, as heretofore amended by Amendment No. 1 filed on October 28, 1999, Amendment No. 2 filed on July 13, 2000 and Amendment No. 3 filed on May 29, 2002 (collectively, the "Original Statement"), is hereby further amended as follows (capitalized terms not otherwise defined herein have the meanings assigned thereto in the Original Statement): ITEM 2. IDENTITY AND BACKGROUND. The penultimate and final paragraphs of Item 2 of the Original Statement are hereby amended and restated to read in their entirety as follows: Liberty's principal business address is 12300 Liberty Boulevard, Englewood, Colorado 80112. Schedule 1 attached to this Statement amends and restates Schedule 1 as filed with the Original Statement and contains the following information concerning each director, executive officer and controlling person of the Reporting Person: (i) name and residence or business address, (ii) principal occupation or employment and (iii) the name, principal business and address of any corporation or other organization in which such employment is conducted. Schedule 1 is incorporated herein by reference. Each person listed on Schedule 1 (collectively, the "Schedule 1 Persons") is a United States citizen, except for (a) David J.A. Flowers, who is a citizen of Canada and (b) David E. Rapley, who is a citizen of the United States, Canada and the United Kingdom. During the last five years, neither the Reporting Person nor any of the Schedule 1 Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the last five years, neither the Reporting Person nor any of the Schedule 1 Persons has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, is or was subject to a judgment, decree or final order enjoining future violations (Page 3 of 11 pages) of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS. Item 3 of the Original Statement is hereby amended and supplemented to include the following information: The information set forth in Item 4 of this Statement is incorporated by reference herein. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of the Original Statement is hereby amended and supplemented to include the following information: Subsequent to the execution of the Letter Agreement, representatives of the Reporting Person and of Liberty Broadband Interactive Television, Inc., a Delaware corporation and a wholly-owned subsidiary of the Reporting Person, commenced a due diligence investigation of ACTV's business and assets as well as negotiations with ACTV of definitive documentation for the Proposed Transaction. The Letter Agreement was subsequently amended on July 8, 2002, August 14, 2002 and September 12, 2002. During the course of its investigation, the Reporting Person determined that the business and assets of ACTV could be compatible with the business and assets of OpenTV Corp., a British Virgin Islands corporation in which the Reporting Person acquired a controlling interest on August 27, 2002 ("OpenTV"), and that it might be desirable for OpenTV, rather than the Reporting Person, to acquire ACTV. Following the Reporting Person's acquisition of a controlling interest in OpenTV, representatives of the Reporting Person proposed to the Board of Directors of OpenTV that OpenTV, rather than the Reporting Person, consider acquiring ACTV. After consideration of such proposal, the Board of Directors of OpenTV determined that an acquisition of ACTV would be in the best interests of OpenTV, and thereafter representatives of OpenTV and ACTV commenced negotiations regarding the acquisition by OpenTV of ACTV. On September 26, 2002, OpenTV and ACTV entered into an Agreement and Plan of Merger (the "Merger Agreement"), which provides for OpenTV to acquire ACTV in a merger transaction (the "Merger"). In the Merger, each share of Common Stock, including shares of Common Stock beneficially owned by the Reporting Person, will be converted into a number of A Ordinary Shares, no par value ("OpenTV A Ordinary Shares"), of OpenTV specified in the Merger Agreement. The transactions contemplated by the Merger Agreement are subject to certain conditions, including (a) the receipt of required regulatory approvals, including the expiration or termination of the waiting period imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, (b) the approval of the Merger Agreement by the stockholders of ACTV and (c) the approval of the issuance of OpenTV A Ordinary Shares pursuant to the Merger Agreement by the stockholders of OpenTV. As a result of its controlling stake in OpenTV, the Reporting Person will be able to control the vote of OpenTV's stockholders with respect to the approval of the issuance of OpenTV A Ordinary Shares pursuant to the Merger Agreement. In connection with, and as a condition to, the execution and delivery of the Merger Agreement, OpenTV entered into a Voting Agreement, dated September 26, 2002 (the "Voting (Page 4 of 11 pages) Agreement"), with David Reese, William Samuels and Bruce Crowley (the "Stockholders"). Pursuant to the Voting Agreement each of the Stockholders agreed to deliver to OpenTV a proxy to vote the shares of Common Stock owned by such Stockholder in favor of approval and adoption of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement and against matters relating to certain other transactions. The Voting Agreement also provides that the Stockholders will not (a) participate in any proxy solicitation in opposition to or competition with the transactions contemplated by the Merger Agreement, (b) transfer any shares of Common Stock owned by them or (c) acquire any shares of Common Stock, except pursuant to the exercise of outstanding options, provided that the Stockholder executes a proxy to OpenTV with respect to any such shares of Common Stock acquired pursuant to the exercise of outstanding options. The Stockholders hold an aggregate of 2,397,694 shares of Common Stock and options to acquire an aggregate of 6,165,000 shares of Common Stock, all of which shares and options are subject to the Voting Agreement. The description of the Merger Agreement and the Voting Agreement contained in this Statement is qualified in its entirety by reference to the text of the Merger Agreement and the Voting Agreement, which are filed or incorporated by reference as exhibits to this Statement and are hereby incorporated by reference herein. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5(a) of the Original Statement is hereby amended and restated to read in its entirety as follows: (a) The Reporting Person presently beneficially owns 8,805,000 shares of Common Stock. The Original Statement erroneously reported that the Reporting Person beneficially owned 8,810,000 shares of Common Stock. Based on 55,931,181 shares of Common Stock issued and outstanding at August 12, 2002, as reported in the Quarterly Report on Form 10-Q of the Issuer for the quarterly period ended June 30, 2002, the Reporting Person beneficially owns approximately 15.8% of the issued and outstanding Common Stock, calculated pursuant to Rule 13d-3 promulgated under the Exchange Act. By virtue of the Voting Agreement, the Reporting Person may be deemed to share with the Stockholders voting power and dispositive power over shares of Common Stock subject to the Voting Agreement. However, the Reporting Person (i) is not entitled to any rights as a stockholder of the Issuer as to the shares of Common Stock covered by the Voting Agreement and (ii) disclaims any beneficial ownership of the shares of Common Stock covered by the Voting Agreement. The information set forth in Item 4 with respect to the Voting Agreement is incorporated herein by reference. (Page 5 of 11 pages) ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 of the Original Statement is hereby amended and supplemented to include the following information: The information set forth in Item 4 of this Statement is incorporated by reference herein. (Page 6 of 11 pages) ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. Item 7 is hereby amended and supplemented to include the following exhibits: EXHIBIT NO. EXHIBIT - ----------- ------- 7(a) Agreement and Plan of Merger, dated as of September 26, 2002, among ACTV, Inc., ACTV Merger Sub, Inc. and OpenTV Corp. (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K of ACTV, Inc. filed on October 2, 2002). 7(b) Voting Agreement, dated as of September 26, 2002, by and among OpenTV Corp., David Reese, William Samuels and Bruce Crowley. (Page 7 of 11 pages) 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: October 10, 2002 LIBERTY MEDIA CORPORATION By: /s/ ELIZABETH M. MARKOWSKI ------------------------------------------ Elizabeth M. Markowski Senior Vice President (Page 8 of 11 pages) EXHIBIT INDEX EXHIBIT NO. EXHIBIT - ----------- ------- 7(a) Agreement and Plan of Merger, dated as of September 26, 2002, among ACTV, Inc., ACTV Merger Sub, Inc. and OpenTV Corp. (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K of ACTV, Inc. filed on October 2, 2002). 7(b) Voting Agreement, dated as of September 26, 2002, by and among OpenTV Corp., David Reese, William Samuels and Bruce Crowley. (Page 9 of 11 pages) SCHEDULE 1 DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSON The name and present principal occupation of each director and executive officer of the Reporting Person are set forth below. Unless otherwise noted, the business address for each person listed below is c/o Liberty Media Corporation, 12300 Liberty Boulevard, Englewood, Colorado 80112. All executive officers and directors listed on this Schedule 1 are United States citizens, except for (a) David J.A. Flowers, who is a citizen of Canada and (b) David E. Rapley, who is a citizen of the United States, Canada and the United Kingdom.
NAME AND BUSINESS ADDRESS PRINCIPAL OCCUPATION ------------------------- -------------------- John C. Malone Chairman of the Board and Director of Liberty Media Robert R. Bennett President, Chief Executive Officer and Director of Liberty Media Donne F. Fisher Director of Liberty Media; President of Fisher Capital Partners Ltd. Gary S. Howard Executive Vice President, Chief Operating Officer and Director of Liberty Media; Chairman of the Board and Director of Liberty Satellite & Technology, Inc.; Chairman of the Board and Director of On Command Corporation Paul A. Gould Director of Liberty Media; Managing Director of Allen & Company Incorporated Allen & Company Incorporated 711 5th Avenue, 8th Floor New York, NY 10022 Jerome H. Kern Director of Liberty Media; Consultant, Kern Kern Consulting LLC Consulting LLC 4600 S. Syracuse Street Denver, CO 80237 Kim Magness Director of Liberty Media David E. Rapley Director of Liberty Media Larry E. Romrell Director of Liberty Media David J.A. Flowers Senior Vice President and Treasurer of Liberty Media Elizabeth M. Markowski Senior Vice President of Liberty Media Charles Y. Tanabe Senior Vice President, General Counsel and Secretary of Liberty Media Albert E. Rosenthaler Senior Vice President of Liberty Media
(Page 10 of 11 pages)
Christopher W. Shean Senior Vice President and Controller of Liberty Media
(Page 11 of 11 pages) EX-7.(B) 3 a2091078zex-7_b.txt EXHIBIT 7(B) EXHIBIT 7(B) VOTING AGREEMENT THIS VOTING AGREEMENT dated as of September 26, 2002 (this "AGREEMENT"), by and among OpenTV Corp., a company organized under the laws of the British Virgin Islands ("PARENT") and the stockholders of ACTV, Inc., a Delaware corporation (the "COMPANY"), listed on Exhibit A attached hereto (each, a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS"). Capitalized terms used but not defined herein shall have the meaning set forth in the Merger Agreement (as defined below). RECITALS WHEREAS, Parent, the Company and ACTV Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("MERGER SUB"), propose to enter into an Agreement and Plan of Merger dated as of the date hereof (as such agreement may be modified or amended from time to time, the "MERGER AGREEMENT"), providing for the merger of Merger Sub with and into the Company, with the Company as the surviving corporation in the merger (the "MERGER"), upon the terms and subject to the conditions set forth in the Merger Agreement; WHEREAS, each Stockholder owns certain shares of common stock, par value $0.10 per share, of the Company (the "COMMON STOCK"); and WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have requested that each Stockholder enter into this Agreement. NOW, THEREFORE, to induce Parent and Merger Sub to enter into, and in consideration of their entering into, the Merger Agreement, and in consideration of the promises and the representations, warranties and agreements contained herein, the parties agree as follows: 1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each of the Stockholders represents and warrants to Parent that (a) such Stockholder owns beneficially (as defined below) the number of shares of Common Stock set forth opposite such Stockholder's name on Exhibit A attached hereto (such shares of Common Stock, the "SUBJECT SHARES"), free and clear of all Liens or Restrictions and, except for this Agreement and the Merger Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which such Stockholder is a party relating to the pledge, disposition or Voting (as defined in Section 2) of such Subject Shares and there are no Voting trusts or Voting agreements with respect to such Subject Shares, (b) such Stockholder does not beneficially own any shares of Common Stock other than such Stockholder's Subject Shares and does not have any options, warrants or other rights to acquire any additional shares of capital stock of the Company or any security exercisable for or convertible into shares of capital stock of the Company other than those options, warrants or other rights set forth opposite such Stockholder's name on Exhibit A hereto (such Stockholder's "OPTIONS") and each Stockholder represents and warrants that such Stockholder shall not exercise any such Options prior to the termination of this Agreement except in accordance with Section 7 of this Agreement, (c) such Stockholder has not appointed or granted any proxy, which appointment or grant is still effective with respect to the Subject Shares or any New Shares, (d) if such Stockholder is not a natural person, such Stockholder is duly incorporated or organized and validly existing under the laws of its jurisdiction of incorporation or organization and is duly authorized to do business and is in good standing under the laws of its jurisdiction of incorporation or organization and if such Stockholder is a natural person, such Stockholder has the capacity to enter into this Agreement, (e) such Stockholder has full power and authority to enter into, execute and deliver this Agreement and to perform fully such Stockholder's obligations hereunder and this Agreement has been duly executed and delivered and constitutes the legal, valid and binding obligation of such Stockholder enforceable against such Stockholder in accordance with its terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, or by principles governing the availability of equitable remedies), (f) other than filings under the Exchange Act, no notices, reports or other filings are required to be made by such Stockholder with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by such Stockholder from, any Governmental Entity, in connection with the execution and delivery of this Agreement by such Stockholder, and (g) the execution, delivery and performance of this Agreement by such Stockholder does not, and the consummation by such Stockholder of the transactions contemplated hereby will not, (i) violate, conflict with or constitute a breach of, or a default under, the certificate of incorporation or by-laws of such Stockholder or any or their comparable governing instruments (if such Stockholder is not a natural person), (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice or the passage of time or both) under any Contract to which such Stockholder is a party or by which any of its assets are bound, (iii) will not result in the creation of any Lien on any of the assets of such Stockholder or (iv) result in a violation of, under or pursuant to any law, rule, regulation, order, judgment or decree applicable to such Stockholder or by which any of its assets are bound. For the purposes of this Agreement, a Person "beneficially" owns a security if such Person, directly or indirectly, through any contract, arrangement, understanding or otherwise has (A) the power to vote, or direct the vote of such security and (B) the power to dispose, or direct the disposition of such security. 2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders severally agrees to deliver to Parent on the date hereof an irrevocable proxy substantially in the form attached hereto as Exhibit B to Vote such Stockholder's Subject Shares (a) in favor of approval and adoption of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement (the Merger together with such transactions, collectively, the "TRANSACTIONS") at any meeting of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof, (b) against any action, approval or agreement that would compete with or materially impede, interfere with, adversely affect or tend to discourage the Transactions or inhibit the timely consummation of the Transactions, including, without limitation, any Alternative Proposal, (c) against any action, approval or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of the Company under the Merger Agreement and (d) except for the Transactions, against any merger, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of the Company or its subsidiaries, in each case, to the same extent and with the same effect as such Stockholder might or could do under applicable law, rules and regulations. The proxy delivered by each of the Stockholders pursuant to this Section 2 shall be irrevocable during the term of this Agreement to the extent permitted under Delaware law. For purposes of this Agreement, "VOTE" shall include voting in person or by proxy in favor of or against any action, otherwise consenting or withholding consent in respect of any action (including, without limitation, consenting in accordance with Section 228 of the DGCL) or taking other action in favor of or against any action. "VOTING" shall have a correlative meaning. Each of the Stockholders hereby revokes any and all previous proxies granted with respect to any of the Subject Shares and shall not hereafter, unless and until this Agreement terminates pursuant to Section 10 hereof, purport to grant any other proxy or power of attorney with respect to any of the Subject Shares or the New Shares or enter into any agreement (other than this Agreement), arrangement or understanding with any Person, directly or indirectly, to vote, grant any proxy or give instructions with respect to the voting of any of the Subject Shares or the New Shares covering the subject matter hereof. Each Stockholder also severally agrees to use its reasonable best efforts to take, or cause to be taken, all action, and do, or cause to be done, all things necessary or advisable in order to consummate and make effective the transactions contemplated by this Agreement. Each of the Stockholders acknowledges receipt and review of a copy of the Merger Agreement. 3. NO PROXY SOLICITATIONS. Each of the Stockholders severally agrees that such Stockholder will not, nor will such Stockholder permit any entity or person under such Stockholder's control, (a) to solicit proxies or become a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) in opposition to or in competition with the consummation of the Transactions or otherwise encourage or assist any party in taking or planning any action which would compete with or materially impede, interfere with, adversely effect or tend to discourage the Transactions or inhibit the timely consummation of such Transactions, (b) to directly or indirectly encourage, initiate or cooperate in a stockholders' Vote or action by consent of the Company's stockholders in opposition to or in competition with the consummation of the Transactions or (c) to become a member of a "group" (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company for the purpose of opposing or competing with the consummation of the Transactions. 4. FIDUCIARY DUTIES. Notwithstanding anything to the contrary in this Agreement, none of the agreements of the Stockholders contained herein shall restrict any Stockholder who is a director or an officer of the Company from taking any action, in his or her capacity, respectively, (a) as a director, if such director believes such action is necessary to satisfy such director's fiduciary duties to the stockholders of the Company, or (b) as an officer, if such officer is acting at the direction of the Company Board and in accordance with the terms and provisions of the Merger Agreement, including, without limitation, Section 6.5 thereof. 5. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall be deemed to vest in Parent or Merger Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Stockholders, and Parent and Merger Sub shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Stockholders in the voting of any of the Subject Shares, except as otherwise provided herein. 6. TRANSFER AND ENCUMBRANCE. On or after the date hereof and during the term of this Agreement, each of the Stockholders agrees not to transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any of such Stockholder's Subject Shares, Options or New Shares (as defined in Section 7). 7. ADDITIONAL PURCHASES. Each of the Stockholders severally agrees that such Stockholder will not purchase or otherwise acquire beneficial ownership of any shares of Common Stock after the execution of this Agreement, including, but not limited to, acquisition by virtue of exercising any Option (such shares of Common Stock, "NEW SHARES"), nor will any Stockholder voluntarily acquire the right to Vote or share in the Voting of any shares of Common Stock other than the Subject Shares, unless such Stockholder agrees to deliver to Parent immediately after such purchase or acquisition an irrevocable proxy substantially in the form attached hereto as Exhibit C with respect to such New Shares. Each of the Stockholders also severally agrees that any New Shares acquired or purchased by such Stockholder shall be subject to the terms of this Agreement to the same extent as if they constituted Subject Shares. 8. NO VOTING TRUSTS. Each of the Stockholders severally agrees that such Stockholder will not, nor will such Stockholder permit any Person under such Stockholder's control to, deposit any of such Stockholder's Subject Shares or New Shares in a Voting trust or subject any of such Stockholder's Subject Shares or New Shares to any arrangement with respect to the Voting of the Subject Shares or New Shares inconsistent with this Agreement. 9. SPECIFIC PERFORMANCE. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly, each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law. Each party hereto severally agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with any other party's seeking or obtaining equitable relief. 10. TERM AND TERMINATION. Subject to Section 14(i), the term of this Agreement shall commence on the date hereof, and such term and this Agreement shall terminate upon the earliest to occur of (i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms. 11. CERTAIN EVENTS. Each of the Stockholders severally agrees that this Agreement and the obligations hereunder shall attach to such Stockholder's Subject Shares or New Shares and shall be binding upon any entity or person to which legal or beneficial ownership of such Subject Shares or New Shares shall pass, whether by operation of law or otherwise, including such Stockholder's heirs, guardians, administrators or successors. 12. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including the Exhibits and the other documents and instruments referred to herein) constitutes the entire agreement and supersedes all prior agreements and understandings, written or oral, among the parties with respect to the subject matter hereof. This Agreement may not be amended, supplemented or modified, and no provisions hereof may be modified or waived, except by an instrument in writing signed by each of the parties hereto. No waiver of any provisions hereof by any party shall be deemed a waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party. 13. NOTICES. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally (by courier service or otherwise) or mailed, certified or registered mail with postage prepaid, or sent by confirmed telecopier, as follows: (a) If to Parent: OpenTV Corp. 401 East Middlefield Road Mountain View, California 94043 Attention: James Ackerman Facsimile: (650) 237-0821 with a copy to: Liberty Broadband Interactive Television, Inc. 2431 East 61st Street, Suite 800 Tulsa, Oklahoma 74135 Attention: Peter C. Boylan III Facsimile: (918) 743-2301 with an additional copy to: Baker Botts L.L.P. 30 Rockefeller Plaza New York, New York 10112 Attention: Lee D. Charles, Esq. Facsimile: (212) 408-2501 (b) If to a Stockholder: c/o ACTV, Inc. 233 Park Avenue South, 10th Floor New York, New York 10003-1601 Attention: David Reese Facsimile: (212) 497-7001 with a copy to: Gersten, Savage, Kaplowitz, Wolf & Marcus, LLP 101 East 52nd Street, 9th Floor New York, New York 10022 Attention: Jay M. Kaplowitz, Esq. Facsimile: (212) 980-5192 or to such other Person or address as any party shall specify by notice in writing to the other party. Any such notice shall be deemed to have been given (i) upon actual delivery, if delivered by hand, (ii) on the third (3rd) business day following deposit of such notice, properly addressed with postage prepaid, with the United States Postal Service if mailed by registered or certified mail, return receipt requested, or (iii) upon sending such notice, if sent via facsimile, with confirmation of receipt, except that any notice of change of address shall be effective only upon actual receipt thereof. 14. MISCELLANEOUS. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. (b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably submit to the jurisdiction of the courts of the State of Delaware and the Federal courts of the United States of America located in the State of Delaware solely in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a Delaware State or Federal court. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 13 of this Agreement or in such other manner as may be permitted by law shall be valid and sufficient service thereof. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14(b). (c) SEVERABILITY. In the event that any provision of the Agreement is held to be illegal, invalid or unenforceable in a final, unappealable order or judgment (each such provision, an "invalid provision"), then such provision shall be severed from this Agreement and the remaining provisions of this Agreement shall remain binding on the parties hereto. Without limiting the generality of the foregoing sentence, in the event a change in any applicable law, rule or regulation makes it unlawful for a party to comply with any of its obligations hereunder, the parties shall negotiate in good faith a modification to such obligation to the extent necessary to comply with such law, rule or regulation that is as similar in terms to the original obligation as may be possible while preserving the original intentions and economic positions of the parties as set forth herein to the maximum extent feasible. (d) COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. (e) FURTHER ASSURANCES. Each party hereto shall execute and deliver such additional instruments and other documents and shall take such further actions as may be necessary or desirable to effectuate, carry out and comply with all of the terms of this Agreement and the transactions contemplated hereby. (f) HEADINGS. All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction or reference shall be derived therefrom. (g) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT. (h) ASSIGNMENT. Neither any Stockholder nor Parent may assign any of his, her or its rights or obligations under this Agreement without the prior written consent of the other parties hereto, except that Parent may assign its rights and obligations hereunder to any of its direct or indirect wholly owned subsidiaries (including Merger Sub), but no such assignment shall relieve Parent of its obligations hereunder if such transferee does not perform such obligations. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. (i) EFFECTIVENESS. The obligations of the Stockholders set forth in this Agreement shall not be effective or binding upon the Stockholders until after such time as the Merger Agreement is executed and delivered by Parent, Merger Sub and the Company. (j) JOINT PARTICIPATION IN DRAFTING THIS AGREEMENT. The parties acknowledge and confirm that each of their respective attorneys have participated jointly in the drafting, review and revision of this Agreement and that it has not been written solely by counsel for one party and that each party has had the benefit of its independent legal counsel's advice with respect to the terms and provisions hereof and its rights and obligations hereunder. Each party hereto, therefore, stipulates and agrees that the rule of construction to the effect that any ambiguities are to be or may be resolved against the drafting party shall not be employed in the interpretation of this Agreement to favor any party against another and that no party shall have the benefit of any legal presumption or the detriment of any burden of proof by reason of any ambiguity or uncertain meaning contained in this Agreement. (k) EXPENSES. Whether or not the Transactions are consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such cost or expense. (l) PUBLIC ANNOUNCEMENTS. Without the prior written consent of Parent, none of the Stockholders shall issue any press release or make any public statements with respect to this Agreement, the Merger Agreement or the Transactions, except as may be required by applicable law or court process. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. OPENTV CORP. By: ____________________________________ Name: Title: DAVID REESE ---------------------------------------- WILLIAM SAMUELS By: ____________________________________ Name: Title: BRUCE CROWLEY By: ____________________________________ Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----