NO NEED TO TENDER
<<(iii) On October 20, 2009, Charles Michael Foley, Plaintiff in the first-filed action (described in Amendment No. 1 to the Schedule-TO) now pending in the United States District Court for the Northern District of California (the "Court"), Case No. C 09-04896 (MHP) (the "Action") filed a motion for preliminary injunction, requesting that the Court enjoin the Offer. On October 27, 2009, Plaintiff filed a motion to consolidate the Giordano Action and the Weiss Action with the Action and to appoint lead counsel. On October 29, 2009, Plaintiff and the Purchaser reached a tentative settlement of the Action providing, among other things, for the dismissal with prejudice of the Action and a release of any and all claims that Plaintiff or the class may have against the Purchaser, Parent, André Kudelski, the Company, the members of the Company's board of directors and/or any of their legal and financial advisors arising out of the Offer or the facts alleged in the complaint. On the same day, counsel for the parties executed a Memorandum of Understanding documenting the terms of the tentative settlement. The MOU provides, among other things, that the parties have agreed in principle to settle the Action on the terms set forth in the MOU, including the following: (1) "Unless Defendants cause OpenTV to redeem all OpenTV Class A shares, Defendants will not seek to have OpenTV de-listed from the NASDAQ Global Market for at least six months from the expiration of the Transaction"; (2) "If at the expiration of the Transaction, Defendants have obtained 90% or more of the Class A shares of OpenTV eligible to tender, Defendants will, forthwith, cause OpenTV to redeem the remaining OpenTV Class A shares at least at the same price per share as paid to those who tendered their Class A shares in the Transaction. If at the expiration of the Transaction, Defendants have obtained 90% or more of the voting power of OpenTV, and if Defendants choose to cause OpenTV to redeem the remaining OpenTV Class A shares within eighteen months of the expiration of the Transaction, they will cause OpenTV to redeem the remaining OpenTV Class A shares at least at the same price per share as paid to those who tendered their Class A shares in the Transaction"; (3) "Defendants will disclose in their amended TO Statement that they do not intend to take any actions to transform OpenTV into a passive foreign investment company"; and (4) "Defendants agree to include in an amendment to their Schedule TO certain additional disclosures" as reflected throughout this Amendment No. 3. The settlement is subject to, among other things, confirmatory discovery by Plaintiff, documentation in a formal agreement and approval by the Court. >>