EXHIBIT 4.3
OPTION AGREEMENT
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OPTION AGREEMENT, as amended, dated as of August 1, 1989
between ACTV, Inc. a Delaware corporation (the "Corporation"), and
XXXXXXX X. XXXXXXX, having a residence at 0 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Optionee").
The Corporation desires to grant to the Optionee three
options, which in the aggregate would give optionee the right and
option to purchase up to 400,000 shares of the outstanding shares
(the "Option Shares") of Common Stock (the "Common Stock"), of the
Corporation on the date hereof, on the terms and subject to the
conditions hereinafter set forth. This Option Agreement supersedes
any prior option agreements, which prior option agreements are
hereby canceled.
NOW, THEREFORE, in consideration of the receipt of $1.00,
and other-good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
SECTION 1. Option to Purchase Common Stock.
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(a) Option A for 120,000 of the outstanding shares of
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Common Stock. Subject to Section 7 hereof, (i) commencing on the
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date hereof and on the first day of each month hereafter until
January 1, 1991, the Corporation grants to the Optionee the fully
vested right and option (collectively, the "Option A") to purchase
from the Corporation 6,666 shares ("Option A Shares") at a purchase
price of $2.50 per Option A Share (the "Option A Price") and (ii)
commencing on February 1, 1991, the Corporation grants to the
Optionee the Option A to purchase from the Corporation 6,678 Option
A Shares, at the Option A Price. Said rights shall be cumulative
so that as of February 1, 1991, Optionee shall have the right to
purchase 120,000 Option A Shares, which shares are subject to
adjustment pursuant to Section 4(a) and (b) hereof.
(b) Option B for 140,000 of the outstanding shares of
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Common Stock. Subject to Section 7 hereof, commencing on the date
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hereof, and vesting on July 1, 1992, the Corporation grants to the
Optionee the fully vested right and option (collectively, the
"Option B") to purchase from the Corporation 140,000 shares
("Option B Shares"), at a purchase price of $2.50 per Option B
Share (the "Option B Price"). The Option B Shares are subject to
adjustment pursuant to Section 4(a) hereof.
(c) Option C for 140,000 of the outstanding shares of
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Common Stock. Subject to Section 7 hereof, (i) commencing on the
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date hereof and on the first day of each month from July 1, 1992
through May 1, 1993, the Corporation grants to the Optionee the
fully vested right and option (collectively, the "Option C") (the
Option A, Option B and Option C are collectively referred to
hereinafter as the "Option") to purchase from the Corporation
11,666 shares ("Option C Shares"), at a purchase price of $2.50 per
option C Share (the "Option C Price"), (ii) commencing on June 1,
1993, the Corporation grants to the Optionee the Option C to
purchase from the Corporation 11,674 Option C Shares at the Option
C Price. Said rights shall be cumulative so that as of June 1,
1993, Optionee shall have the right to the purchase of 140,000
Option C Shares, which shares are subject to adjustment pursuant to
Section 4(a) hereof.
(d) Exercise Option. The Option may be exercised by the
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holder of this Option, in whole or in part, by delivery to the
Corporation, at any time during the respective Option Period (as
defined below in subsection (a) and (b) of Section 7 hereof) of a
written notice (the "Option Notice"), which Option Notice shall
state such holder's intention to exercise the Option, the date on
which the holder proposes to purchase the Option Shares (the
"Closing Date") and the number of Option Shares to be purchased on
the Closing Date, which Closing Date shall be no later than 30 days
nor earlier than 10 days following the date of the Option Notice.
Upon receipt by the Corporation of an Option Notice from the holder
of this Option, the Corporation shall be obligated to sell, and the
holder of this Option shall be obligated to purchase, that number
of Option Shares to be purchased on the Closing Date set forth in
the Option Notice.
(e) Delivery of Shares. The purchase and sale of Option
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Shares acquired pursuant to the terms of this Agreement shall be
made on the Closing Date at the offices of the Corporation.
Delivery of the stock certificate or other instrument registered in
the name of the holder of this Option, evidencing the Option Shares
being purchased on the Closing Date, shall be made by the
Corporation to the holder of this Option on the Closing Date
against the delivery to the Corporation of a check in the full
amount of the aggregate purchase price therefor.
SECTION 2. Representations and Warranties of the
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Holder. The holder of this Option hereby represents and warrants
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to the Corporation that in the event he acquires any Option Shares,
such Option Shares will be acquired for his own account, for
investment and not with a view to the distribution thereof. The
holder of this Option understands that the Option Shares will not
be registered under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of their issuance in a transaction
exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof and that they must be held
indefinitely unless a subsequent disposition thereof is registered
under the Securities Act or the transaction is exempt from
registration.
SECTION 3. Reorganizations; Mergers; Sales; Etc.
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(a) Reorganization, Reclassification, Merger and Sale in
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connection with ACTV, Inc., a Delaware corporation. If, at any
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time during the Option Period, there shall be any capital
reorganization in connection with the merger with or into ACTV,
Inc., a Delaware corporation ("ACTV-Delaware"), reclassification of
Common Stock, in connection with the merger with ACTV-Delaware, the
consolidation or merger of the Corporation with or into ACTV-
Delaware or the sale of all or substantially all of the properties
and assets of the Corporation as an entirety to ACTV-Delaware, this
Option shall, after such reorganization, reclassification,
consolidation, merger or sale, be exercisable for the kind and
number of shares of stock or other securities or property of the
Corporation or of ACTV-Delaware resulting from properties and
assets shall have been sold to which such holder would have been
entitled if such holder had held shares of Common Stock issuable
upon the exercise hereof immediately prior to such reorganization,
reclassification, consolidation, merger or sale. For purposes of
this Agreement references to the Corporation shall include ACTV-
Delaware.
(b) Capital Reorganizations and Reclassifications in
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General. If, at any time during the Option Period, thee shall be
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any reorganization or reclassification of Common Stock (other than
a change in par value or from par value to no par value or from no
par value to par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), this Option shall,
after such reclassification be exercisable for the kind and number
of shares of stock or other securities or property of the
Corporation result from such reorganization or reclassification
to which such holder would have been entitled if such holder had
held shares of Common Stock issuable upon the exercise hereof
immediately prior to such capital reorganization or
reclassification.
(c) Mergers or Sale of substantially all of the capital
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stock and/or assets. If, at any time during the Option Period,
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there shall be any consolidation or merger of the Corporation with
or into another corporation or of sale of fifty percent or more of
the properties and assets of the Corporation as an entirety to
another corporation or person in one transaction or a series of
related transactions, this Option shall, after such consolidation,
merger or sale, be immediately exercisable, without reference to
any conditions described in Section 1(b) hereof, for the balance of
the Option Period for the kind and number of shares of stock or
other securities or property of the Corporation or of the surviving
corporation resulting from such properties and assets shall have
been sold, to which such holder would have been entitled if such
holder had held shares of Common Stock issuable upon the exercise
hereof immediately prior to such consolidation, merger or sale.
SECTION 4. Adjustment of Option Shares and Option Price.
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The Option Price shall be subject to adjustment from time
to time as follows:
(a) If, at any time during the Option Period, the number
of shares of Common Stock outstanding is altered by a stock
dividend payable in shares of Common Stock or by a subdivision or
split-up or combination of shares of Common Stock, then,
immediately following the record date fixed for the determination
of holders of shares of Common Stock, entitled to receive such
subdivision or split-up or combination, the Option Price shall be
appropriately increased or decreased and the number of shares of
Common Stock issuable upon the exercise hereof shall be increased
or decreased, all in proportion to such increase or decrease in
outstanding shares.
(b) If, at any time during the first 48 months of the
Option Periods, the Corporation issues any previously unissued
Common Stock as the result of any financing, acquisition, joint
venture or other business transaction, then, during such period the
number of shares subject to the Option shall be adjusted such that
the holder thereof shall have the right to exercise the Option for
the same percentage of the issued and outstanding Common Stock of
the Corporation after giving effect to such transaction (including
the future conversion or exercise of any option or warrants issued
in such transaction during the term of the Option, but converted
thereafter) as he held options for immediately prior to such
transaction.
SECTION 5. Piggyback Registration. If, at any time
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commencing after the date hereof and expiring seven (7) years
thereafter, the Corporation proposes to register any of its
securities under the Act (other than in connection with a merger
securities under the Act (other than in connection with a merger
or pursuant to Form S-8 or other comparable Form) it will give
written notice by registered mail, at least thirty (30) days prior
to the filing of each such registration statement, to the Optionee
of its intention to do so. If the Optionee notifies the
Corporation within twenty (20) days after receipt of any such
notice of his desire to include any Common Stock owned by him in
such proposed registration Statement, the Corporation shall afford
the Optionee the opportunity to have any of his of Common Stock
registered under such registration statement; provided that (i)
that in the opinion of counsel for the Corporation such inclusion
does not pose any significant legal problem and (ii) that if such
Registration Statement is filed pursuant to an underwritten public
offering, the underwriter approves such inclusion; provided that if
the underwriter does not approve of the inclusion of any or all
such securities, that no principal shareholder is permitted to
include a higher percentage of shares of common stock owned by him
in such Registration Statement.
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The Optionee shall bear his proportional exercise of any
such registration.
Notwithstanding the provisions of this Section 5, the
Corporation shall have the right at any time after it shall have
given written notice pursuant to this Section 5 (irrespective of
whether a written request for inclusion of any such securities
shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing
but prior to the effective date thereof.
SECTION 6 Transfer of Option; Successors and Assigns.
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This Agreement (including the Option) and all rights hereunder
shall not be transferable to at any time without the prior written
consent of the Corporation. This Agreement and all the rights
hereunder shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns and
transferees.
SECTION 7. Termination. Options A, B and C shall
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terminate shall no longer be exercisable on the date eight (8)
years from the date each allotment is granted.
SECTION 8. Notices. All notices or other communications
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which are required or permitted hereunder shall be in writing and
sufficient if delivered personally or sent by registered or
certified mail, postage prepaid, return receipt requested,
addressed as follows:
If the Corporation, to:
ACTV, Inc.
1270 Avenue of the Americas - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Chairman
With a copy to:
Xxx Xxxxxxxxx, Esquire
Gersten, Savage, Kaplowitz & Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Optionee, to:
Xxxxxxx X. Xxxxxxx
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as the party to whom notice is to be given
may have furnished to the other party in writing in accordance
herewith. If mailed as aforesaid, any such communication shall be
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deemed to have been given on the third business day following the
day on which the piece of mail containing such communication is
posted.
SECTION 9. Governing Law. This Agreement shall be
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governed by, and construed in accordance with the laws of the State
of New York.
SECTION 10. Entire Agreement. This Agreement contains
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the entire agreement between the parties hereto with respect to the
transactions contemplated herein an supersedes all previously
written or oral negotiations, commitments, representations and
agreements.
SECTION 11. Execution in Counterpart. This Agreement
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may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the
same instrument.
SECTION 12. Amendments and Modifications. This
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Agreement, or any provision hereof, may not be amended, changed or
modified without the prior written consent of each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Option Agreement to be executed and delivered as of the date first
above written.
ACTV, INC.
By: /s/ Xxxxxxx Xxxxxxx, Phd.,
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Xxxxxxx Xxxxxxx, Phd.,
Chairman, CEO
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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