EXHIBIT 7(B)
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AS AMENDED, AND MAY NOT BE TRANSFERRED IN
VIOLATION OF SUCH ACT, THE RULES AND REGULATIONS THEREUNDER OR THE PROVISIONS OF
THIS WARRANT.
No. of Stock Units: 2,500,000 Warrant No. LMC-1
Grant Date: September 21, 1998
WARRANT
To Purchase Common Stock of
ACTV, INC.
THIS IS TO CERTIFY THAT
For value received, ACTV, Inc., a Delaware corporation (the
"Company"), grants to Liberty Media Corporation ("Liberty") the right to
purchase, prior to the Expiration Date (as defined below) 2,500,000 Stock Units
(as defined below), in whole or in part, at a purchase price of $2.00 per Stock
Unit. The price per Stock Unit and the number of Stock Units that may be
purchased are subject to adjustment under the terms and conditions of this
Warrant.
ARTICLE 1. DEFINITIONS
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As used in this Warrant, unless the context otherwise requires, the
following terms have the respective means set forth below:
"Business Day" shall mean any day that is not Saturday or Sunday or a
day on which banks are required or permitted to be closed in the State of New
York.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" shall mean the authorized common stock, $.10 par value
per share, of the Company as constituted on the Closing Date, and any capital
stock into which such common stock may thereafter be changed, and shall also
include (i) capital stock of the Company of any other class (regardless of how
described or denominated) issued to the holders of shares of
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common stock upon any reclassification thereof which is also not preferred as to
dividends or assets over any other class of stock of the Company and which is
not subject to redemption and (ii) shares of common stock of any successor or
acquiring corporation (as defined in Section 4.2) received by or distributed to
the holders of common stock of the Company in the circumstances contemplated by
Section 4.2.
"Company" shall mean ACTV, Inc., a Delaware corporation.
"Convertible Securities" shall mean evidences of indebtedness, shares
of stock or other securities which are convertible into or exchangeable for
shares of Common Stock, with or without payment of additional consideration in
cash or property, either immediately or upon the occurrence of a specified date
or a specified event.
"Current Market Price" per share of Common Stock on any date herein
specified shall be deemed to be the Appraised Value per share of Common Stock as
at such date or, if there shall then be a public market for the Common Stock,
the average of the daily market prices for 20 consecutive Business Days
commencing 25 Business Days before such date. The daily market price of each
such Business Day shall be (i) the last sale price on such day on the principal
stock exchange on which such Common Stock is then listed or admitted to trading
(including the NASDAQ Small Cap Market System if such Common Stock is admitted
to trading thereon), (ii) if no sale takes place on such date on any such
exchange, the average of the reported closing bid and asked prices on such day
as officially noted on any such exchange, or (iii) if the Common Stock is not
then listed or admitted to trading on any stock exchange, the average of the
reported closing bid and asked prices on such day in the over-the-counter
market, as furnished by the National Quotation Bureau, Inc., or if such
corporation is not at that time engaged in the business of reporting such
prices, as furnished by any similar firm then engaged in such business and
selected by the Company; provided, however, that if during such 20-day period
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there occurs a stock dividend, stock split or other transaction affecting the
daily market price, then the Current Market Price shall be appropriately
adjusted. "Appraised Value" per share of Common Stock on any date herein
specified shall be the fair salable value of such Common Stock, computed as the
total value of the Company divided by the number of shares of Common Stock
outstanding as of the last day of the first fiscal month to end within 60 days
prior to such date, as determined, in good faith and in the exercise of
reasonable business judgment, by the Board of Directors of the Company.
"Excepted Securities" shall mean (i) all shares of Common Stock issued
or issuable pursuant to the stock options, warrants and other securities
convertible or exchangeable into Common Stock which are
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outstanding on the date hereof and set forth on Exhibit A (which disclosure on
Exhibit A shall identify each such option, warrant and other security and the
issuer and holder, number thereof, the exercise, conversion or exchange rights
relating thereto, and the number of shares of Common Stock issuable thereunder
as of the date hereof); provided, however, that any amendment after the date of
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this Warrant of the terms of such outstanding options, warrants or other
securities that decreases the price per share of Common Stock to be received by
the Company upon exercise, conversion or exchange thereof shall constitute the
issuance or sale of a new Convertible Security for purposes of this Warrant; and
(ii) any Common Stock issued pursuant to this Warrant and the Warrant
Agreement.
"Exercise Price" shall mean the price per share at which the Stock
Units may be purchased pursuant to this Warrant.
"Existing Percentage Securities" shall mean those options and other
securities set forth on Exhibit A which are exercisable, convertible or
exchangeable into a percentage, rather than a number of shares, of Common Stock
and which are so noted on Exhibit A by appropriate footnote or otherwise.
"Expiration Date" shall mean 5:00 p.m. Denver, Colorado time on
September 22, 2008.
"fair market value" shall mean, as to any securities or other
property, the price at which a willing seller would sell and a willing buyer
would buy such property having full knowledge of the factors, in an arm's-length
transaction without time constraints, and without being under any compulsion to
buy or sell.
"Holder" shall mean the Person in whose name the Warrant set forth
herein is registered on the books of the Company maintained for such purpose.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, incorporated organization, association, corporation,
limited liability company, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
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"Restricted Common Stock" shall mean shares of Common Stock that are
or, that upon their issuance on the exercise of this Warrant would be, evidenced
by a certificate bearing the restrictive legend set forth in Section 6.2. The
Holder of this Warrant shall be deemed to be the holder of the Restricted Common
Stock consisting of Common Stock issuable upon the exercise in full or in part
of any such Warrant.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Stock Unit" shall mean one share of Common Stock as such stock was
constituted on the Closing Date, and thereafter shall mean such number of shares
(including any fractional share) of Common Stock as shall result from the
adjustments specified in Article 4.
"Subsidiary" shall mean (i) any corporation more than 50% of the
voting stock of which is owned by the Company (directly or indirectly through
one or more Subsidiaries) and (ii) any partnership, joint venture or other
entity (other than a corporation) more than 50% of the profits interests in
which is at the time owned by the Company directly or indirectly through one or
more Subsidiaries.
"Transfer," as used in Article 6, shall include any sale, transfer or
other disposition (whether gratuitous or upon giving of any consideration) of
any Warrant or Warrant Stock or of any interest in either thereof.
"Transfer Notice" shall have the meaning set forth in Section 6.3.
"Warrant" shall mean this Warrant and all warrants issued upon
transfer, division or combination of, or in substitution for, any thereof. All
Warrants shall at all times be identical as to terms and conditions and date,
except as to the number of Stock Units for which they may be exercised.
"Warrant Stock" shall mean the shares of Common Stock or other
securities issued or subject to issuance upon exercise of this Warrant.
ARTICLE 2. EXERCISE OF WARRANT
-------------------
2.1 Time and Manner of Exercise. This Warrant may be exercised by Holder
---------------------------
on any Business Day at any time or from time to time for all or any part,
including a fractional part, of the number of Stock Units purchasable at
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such exercise time; provided, however, that this Warrant shall be void and all
-----------------
rights represented hereby shall cease unless exercised on or before the
Expiration Date. In order to exercise this Warrant, in whole or in part, Holder
shall deliver to the Company (i) a written notice of Holder's election to
exercise this Warrant, which notice shall specify the number of Stock Units to
be purchased, (ii) a bank wire transfer of good funds or a bank cashier's check
payable to the order of the Company in an amount equal to the aggregate purchase
price for all Stock Units as to which this Warrant is exercised and (iii) this
Warrant. Such notice shall be substantially in the form of the subscription form
attached as Exhibit B to this Warrant, duly executed by Holder or Holder's agent
or attorney. Upon receipt thereof, the Company shall, as promptly as
practicable, and in any event within 5 Business Days thereafter, execute or
cause to be executed and delivered to Holder a certificate or certificates
representing the aggregate number of full shares of Common Stock issuable upon
such exercise, as hereinafter provided. Unless otherwise requested by Holder in
the notice, the stock certificate or certificates so delivered shall be
registered in the name of Holder or, subject to Article 6, such other name as
shall be designated in the notice. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have been
issued, and Holder or any other person so designated to be named therein shall
be deemed to have become a holder of record of the Warrant Stock for which
exercise is made for all purposes, as of the date the notice, the bank wire
transfer or cashier's check and this Warrant are received by the Company as
described above and all taxes required to be paid by Holder pursuant to Section
2.3 prior to the issuance of such shares have been paid. If this Warrant shall
have been exercised in part or if the Holder desires to transfer a portion of
the Warrant in accordance with the provisions of this Warrant, the Company
shall, at the time of delivery of the certificate or certificates, deliver to
Holder a new Warrant evidencing the rights of Holder to purchase the Stock Units
as to which this Warrant has not been exercised under the terms of this Warrant,
and, in the case of transfer, a certificate evidencing the rights of the
transferee to purchase the transferred Stock Units, which new Warrant shall in
all other respects be identical with this Warrant, or, at the request of Holder,
appropriate notation may be made on this Warrant and the same returned to
Holder.
2.2 Validity. All shares of Common Stock issuable upon the exercise of
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this Warrant shall be validly issued, fully paid and nonassessable. From and
after the date of this Warrant, the Company shall at all times reserve and keep
available for issue upon an exercise of Warrants such number of its authorized
but unissued shares of Common Stock as will be sufficient to permit the exercise
in full of all outstanding Warrants.
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2.3 Taxes. The Company shall pay all expenses in connection with, and all
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taxes and other governmental charges that may be imposed with respect to, the
issue or delivery of this Warrant or the issuance of any Warrant Shares upon the
exercise of this Warrant, unless such tax or charge is imposed by law upon
Holder, in which case such taxes or charges shall be paid by Holder. The
Company shall not be required, however, to pay any tax or other charge imposed
in connection with the issuance of any certificate for shares of Common Stock
issuable upon exercise of this Warrant in any name other than that of Holder,
and in such case the Company shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid or it has been
established to the reasonable satisfaction of the Company that no such tax or
other charge is due.
2.4 No Fractional Warrants or Fractional Shares of Warrant Stock. No
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fractional shares of Common Stock shall be issued upon the exercise of this
Warrant. The Company shall pay to the Holder an amount of cash equal to such
fraction multiplied by the Current Market Price of a share of Common Stock, in
lieu of issuance of any such fractional share of Common Stock.
ARTICLE 3. TRANSFER, DIVISION AND COMBINATION
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3.1 Transfer. Subject to Article 6, any transfer of this Warrant and all
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rights hereunder, in whole or in part, shall be registered on the books of the
Company to be maintained for such purpose, upon surrender of this Warrant to the
Company together with a written assignment of this Warrant substantially in the
form of Exhibit C hereto duly executed by Holder or Holder's agent or attorney
and funds sufficient to pay any stock transfer taxes payable upon the making of
such transfer. Upon such surrender and, if required, such payment, the Company
shall, subject to Article 6, execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denomination specified in such
instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be canceled. A Warrant, if properly assigned in compliance with
Article 6, may be exercised by a new Holder for the purchase of shares of Common
Stock without having a new Warrant issued.
3.2 Division and Combination. Subject to Article 6, this Warrant may be
------------------------
divided or combined with other Warrants upon presentation hereof to the Company,
together with a written notice specifying the names and
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denominations in which new Warrants are to be issued, signed by Holder or
Holder's agent or attorney. Subject to compliance with Section 3.1 and with
Article 6, as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in
exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice.
3.3 Expenses. The Company shall prepare, issue and deliver at its own
--------
expense (other than stock transfer taxes) the new Warrant or Warrants under this
Article 3.
3.4 Maintenance of Books. The Company agrees to maintain, at its
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aforesaid office or agency, books for the registration of transfers of the
Warrants.
ARTICLE 4. ADJUSTMENTS
-----------
The number of shares of Common Stock comprising a Stock Unit, and the price
at which a Stock Unit may be purchased upon exercise of this Warrant, shall be
subject to adjustment from time to time as set forth in this Article 4.
4.1 Stock Dividends, Subdivisions and Combinations. If at any time the
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Company shall:
(a) take a record of the holders of its Common Stock for the purpose
of entitling them to receive a dividend payable in, or other distribution of,
shares of Common Stock,
(b) subdivide its outstanding shares of Common Stock into a larger
number of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then the number of shares of Common Stock
comprising a Stock Unit immediately after the happening of any such event shall
be adjusted to consist of the number of shares of Common Stock which a record
holder of the number of shares of Common Stock comprising a Stock Unit
immediately prior to the happening of such event would own or be entitled to
receive after the happening of such event.
4.2 Reorganization, Reclassification, Dividends or Distributions, Merger,
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Consolidation or Disposition of Assets. If the Company shall
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reorganize its capital or reclassify its capital stock (except as set forth in
Section 4.1), pay any dividend or make any distribution to holders of Common
Stock (whether of cash, stock of any class, evidence of indebtedness, or other
securities, rights or property) (except as set forth in Section 4.1(a)),
consolidate with or merge with or into another corporation (whether or not the
Company is the surviving corporation), or sell, transfer or otherwise dispose of
all or substantially all its property, assets, or business and, pursuant to the
terms of such reorganization, reclassification, dividend or distribution,
merger, consolidation or disposition of assets, shares of common stock of the
successor or acquiring corporation, or any cash, shares of stock, evidence of
indebtedness, or other securities, rights or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation or payable on
account of Common Stock of the Company ("Other Property"), are to be received
by or distributed to the holders of Common Stock of the Company, then the Holder
shall have the right thereafter to receive, upon exercise of this Warrant, the
number of shares of common stock of the successor or acquiring corporation or
Other Property receivable upon or as a result of reorganization,
reclassification, dividend or distribution, merger, consolidation or disposition
of assets by a holder of the number of shares of Common Stock comprising a Stock
Unit immediately prior to such event. The Company shall not effect any such
reorganization, reclassification, dividend or distribution, merger,
consolidation or disposition of assets where the Company is not the surviving
corporation, unless prior to or simultaneously with the consummation thereof,
the successor or acquiring corporation or entity, or the corporation or entity
to which such assets are transferred, shall expressly assume, by written
agreement duly executed and delivered to Holder, the obligation to deliver the
Other Property in accordance with the foregoing provisions. For purposes of
this Section 4.2, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The provisions of this
Section 4.2 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
4.3 Adjustment of Price and Number of Warrant Shares. The number of
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shares of Common Stock comprising a Stock Unit shall be subject to adjustment
from time to time as hereinafter provided. Whenever the number of
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shares of Warrant Stock purchasable upon the exercise of this Warrant is
adjusted pursuant to Section 4.4 through 4.9, the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to such
adjustment by a fraction, the numerator of which shall be the number of shares
of Warrant Stock purchasable upon the exercise of this Warrant immediately prior
to such adjustment, and the denominator of which shall be the number of shares
of Warrant Stock purchasable immediately thereafter.
4.4 Adjustment of Number of Stock Units upon Issuance of Common Stock. If
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and whenever after the date hereof, the Company shall issue or sell any shares
of Common Stock for a consideration per share less than the Current Market Price
at the time of such issue or sale (except for issuances of Excepted Securities)
then, forthwith upon the date of such issue or sale (the "Record Date"), the
number of shares of Common Stock comprising a Stock Unit shall be adjusted in
accordance with the following formula:
O + A x M
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P
W/2/ = W/1/ x
------------------------
O + A
where:
W/2/ = the adjusted number of shares of Common Stock comprising a Stock
Unit.
W/1/ = the current number of shares of Common Stock comprising a Stock
Unit.
O = the number of shares of Common Stock Outstanding on the Record
Date.
A = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares of Common
Stock offered.
M = the Current Market Price per share of Common Stock on the Record
Date.
"Outstanding" as used in this Section 4.4 shall mean, at any date as of
which the number of shares thereof is to be determined, (i) all issued shares of
Common Stock, except shares then owned or held by or for the account of the
Company, (ii) all shares issuable in respect of outstanding scrip or any
35
certificates representing fractional interests in shares of Common Stock; (iii)
all Excepted Securities; (iv) all shares of Common Stock then issuable upon the
exercise of any rights granted by the Company (whether directly or by assumption
in a merger or otherwise) to subscribe for or to purchase, or any options for
the purchase of, Common Stock or Convertible Securities or upon conversion or
exchange of any Convertible Securities issued or sold by the Company, whether or
not the rights to exchange or convert thereunder are immediately exercisable (as
of the date of granting of such rights or options or the date of such issue or
sale of such Convertible Securities); provided, however, that all shares of
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Common Stock issuable upon exercise, conversion or exchange of any Existing
Percentage Securities or of any other options or securities which are then
exercisable, convertible or exchangeable into a percentage, rather than a number
of shares, of Common Stock (the Existing Percentage Securities and such other
options and securities are referred to collectively as the "Percentage
Securities") shall be deemed Outstanding for purposes of making the adjustment
required by this Section 4.4, but any additional shares of Common Stock (the
"Additional Percentage Securities Shares") thereafter issuable in respect of the
Percentage Securities due solely to the increase pursuant to this Section 4.4 in
the number of shares of Common Stock comprising a Stock Unit shall not
constitute the issuance or sale of shares of Common Stock for purposes of making
further increases in the number of shares of Common Stock comprising a Stock
Unit that would otherwise be required by this Section 4.4 as a result of the
Additional Percentage Securities Shares.
4.5 Issuance of Rights or Options. In case at any time the Company shall
-----------------------------
grant (whether directly or by assumption in a merger or otherwise) any rights
(other than the Excepted Securities) to subscribe for or to purchase, or any
options for the purchase of, Common Stock or Convertible Securities whether or
not such rights or options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the price per share for
which Common Stock is issuable upon the exercise of such rights or options or
upon conversion or exchange of such Convertible Securities (determined as
provided below) shall be less than the Current Market Price determined as of the
date of granting such rights or options, then the total maximum number of shares
of Common Stock issuable upon the exercise of such rights or options or upon
conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such rights or options shall (as of the
date of granting of such rights or options) be deemed to be outstanding and to
have been issued for such price per share. Except as provided in Section 4.7, no
further adjustments of the number of shares of Common Stock comprising a Stock
Unit shall be made upon the
36
actual issue of such Common Stock or of such Convertible Securities upon
exercise of such rights or options or upon the actual issue of such Common Stock
upon conversion or exchange of such Convertible Securities. For the purposes of
this Section 4.5, the price per share for which Common Stock is issuable upon
the exercise of any such rights or options or upon conversion or exchange of any
such Convertible Securities shall be determined by dividing (x) the total
amount, if any, received or receivable by the Company as consideration for the
granting of such rights or options, plus the minimum aggregate amount of
additional consideration payable to the Company upon the exercise of all such
rights or options, plus, in the case of such rights or options which relate to
Convertible Securities, the minimum aggregate amount or additional
consideration, if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (y) the total maximum
number of shares of Common Stock issuable upon the exercise of such rights or
options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such rights or options.
4.6 Issuance of Convertible Securities. In case the Company shall issue
----------------------------------
(whether directly or by assumption in a merger or otherwise) or sell any
Convertible Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per share for which Common
Stock is issuable upon conversion or exchange of such Convertible Securities
(determined as provided below) shall be less than the Current Market Price,
determined as of the date of such issue or sale of such Convertible Securities,
then the total maximum number of shares of Common Stock issuable upon conversion
or exchange of all such Convertible Securities shall (as of the date of the
issue or sale of such Convertible Securities) be deemed to be outstanding and to
have been issued for such price per share, provided that (i) except as provided
in Section 4.7, no further adjustments of the number of shares of Common Stock
comprising a Stock Unit shall be made upon the actual issue of such Common Stock
upon conversion or exchange of such Convertible Securities, and (ii) if such
issue or sale of such Convertible Securities is made upon exercise of any rights
to subscribe for or to purchase or any option to purchase any such Convertible
Securities for which adjustments have been or are to be made pursuant to other
provisions of this Article 4, no further adjustment of the number of shares of
Common Stock comprising a Stock Unit shall be made by reason of such issue or
sale. For the purposes of this Section 4.6, the price per share for which Common
Stock is issuable upon conversion or exchange of Convertible Securities shall be
determined by dividing (x) the total amount received or receivable by the
Company as consideration for the issue or sale of such Convertible Securities,
plus the minimum aggregate amount of additional consideration, if any,
37
payable to the Company upon the conversion or exchange thereof, by (y), the
total maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities.
4.7 Change in Option Price or Conversion Rate. If the purchase price
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provided for in any rights or options referred to in Section 4.5, or the
additional consideration, if any, payable upon the conversion or exchange of
Convertible Securities referred to in Sections 4.5 and 4.6, or the rate at which
any Convertible Securities referred to in Sections 4.5 and 4.6 are convertible
into or exchangeable for Common Stock, shall change (other than under or by
reason of provisions designed to protect against dilution), then the number of
shares of Common Stock comprising a Stock Unit at the time of such event shall
forthwith be readjusted to the number of shares of Common Stock which would have
comprised a Stock Unit at such time had such rights, options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold; and on the expiration of any such option or
right or the termination of any such right to convert or exchange such
Convertible Securities, the number of shares of Common Stock comprising a Stock
Unit shall forthwith be decreased to the number of shares of Common Stock which
would have comprised a Stock Unit at the time of such expiration or termination
had such right, option or Convertible Security, to the extent outstanding
immediately prior to such expiration or termination, never been issued, and the
Common Stock issuable thereunder shall no longer be deemed to be outstanding.
If the purchase price provided for in any such right or option referred to in
Section 4.5 or the rate at which any Convertible Securities referred to in
Sections 4.5 or 4.6 are convertible into or exchangeable for Common Stock shall
decrease at any time under or by reason of provisions with respect thereto
designed to protect against dilution, then in case of the delivery of Common
Stock upon the exercise of any such right or option or upon conversion or
exchange of any such Convertible Security, the number of shares of Common Stock
then comprising a Stock Unit then shall forthwith be adjusted to such respective
amount as would have comprised a Stock Unit had such right, option or
Convertible Security never been issued as to such Common Stock and had
adjustments been made upon the issuance of the shares of Common Stock delivered
as aforesaid, but only if as a result of such adjustment the number of shares of
Common Stock comprising a Stock Unit is thereby increased.
4.8 Consideration for Stock. In case any shares of Common Stock or
-----------------------
Convertible Securities or any rights or options to purchase any such Common
Stock or Convertible Securities shall be issued or sold for cash, the
38
consideration received therefor shall be deemed to be the amount received by the
Company therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. In case any shares of Common Stock or Convertible
Securities or any rights or options to purchase any such Common Stock or
Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the Company
shall be deemed to be the fair market value of such consideration as determined,
in good faith and in the exercise of reasonable business judgment, by the Board
of Directors of the Company, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. In case any shares of Common Stock or Convertible
Securities or any rights or options to purchase such shares of Common Stock or
Convertible Securities shall be issued in connection with any merger or
consolidation in which the Company is the surviving corporation (other than any
consolidation or merger in which the previously outstanding shares of Common
Stock of the Company shall be changed into or exchanged for the stock or other
securities of another corporation), the amount of consideration therefor shall
be deemed to be the fair market value as determined, in good faith and in the
exercise of reasonable business judgment, by the Board of Directors of the
Company of such portion of the assets and business of the non-surviving
corporation as such Board may determine to be attributable to such shares of
Common Stock, Convertible Securities, rights or options, as the case may be. In
the event of any consolidation or merger of the Company in which the Company is
not the surviving corporation or in which the previously outstanding shares of
Common Stock of the Company shall be changed into or exchanged for the stock or
other securities of another corporation or in the event of any sale of all or
substantially all of the assets of the Company for stock or other securities of
any corporation, the Company shall be deemed to have issued a number of shares
of its Common Stock for stock or securities or other property of the other
corporation computed on the basis of the actual exchange ratio on which the
transaction was predicated and for a consideration equal to the fair market
value on the date of such transaction of all such stock or securities or other
property of the other corporation, and if any such calculation results in
adjustment of the number of shares of Common Stock comprising a Stock Unit, the
determination of the adjusted Exercise Price, for purposes of Section 4.3 shall
be made after giving effect to such adjustment.
4.9 Certain Events. If any event occurs as to which in the reasonable
--------------
opinion of the Company, in good faith, the other provisions of this Article 4
are not strictly applicable but the lack of any adjustment would not in the
opinion
39
of the Company fairly protect the purchase rights of the Holder of this
Warrant in accordance with the basic intent and principles of such provisions,
or if strictly applicable would not fairly protect the purchase rights of the
Holder of this Warrant in accordance with the basic intent and principles of
such provisions, then the Company, by action of its Board of Directors, shall
make an adjustment, on a basis consistent with the basic intent and principles
established in the other provisions of this Article 4, as may be necessary to
preserve, without dilution, the exercise rights of the registered Holder of this
Warrant.
4.10 Minimum Adjustment of Exercise Price. Regardless of anything to the
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contrary in this Article 4, no adjustment of any Exercise Price, however, shall
be made in an amount less than $.0l per share, but any such lesser adjustment
shall be carried forward and shall be made at the time of, and together with,
the next subsequent adjustment which together with any adjustments so carried
forward shall amount to $.0l per share or more.
4.11 No Reduction of Exercise Price Below Par Value Per Share.
--------------------------------------------------------
Notwithstanding anything herein to the contrary, the Holder agrees that upon any
actual exercise of this Warrant, the Holder shall pay an exercise price per
share of Common Stock purchased at least equal to the par value per share of
Common Stock in effect as of the date of exercise.
4.12 Limitation on Current Market Price Adjustments. Notwithstanding
----------------------------------------------
anything herein to the contrary, no adjustment of the Exercise Price shall be
made pursuant to Section 4.4, Section 4.5 or Section 4.6 if, on the date of an
event that otherwise would require an adjustment to the Exercise Price pursuant
to any of those Sections, the Current Market Price is higher than $10.00 (as it
may be adjusted pursuant to this Section 4.12, the ACeiling Market Price@).
The Ceiling Market Price shall be adjusted from time to time as may be
appropriate to reflect (a) any stock dividend or any subdivision or combination
affecting the Common Stock that requires an adjustment in the number of shares
comprising a Stock Unit pursuant to Section 4.1 or (b) any reorganization,
reclassification, dividend, distribution, merger, consolidation or disposition
of assets described in Section 4.2.
ARTICLE 5 NOTICES TO WARRANT HOLDERS
--------------------------
5.1 Notice of Adjustments. Whenever the numbers of shares of Common Stock
---------------------
comprising a Stock Unit, or the price at which a Stock Unit may be purchased
upon exercise of the Warrants, shall be adjusted or the composition of a Stock
Unit is changed pursuant to Article 4, the Company shall prepare a certificate
to be executed by the chief financial officer of the
40
Company setting forth, in reasonable detail, the event requiring the adjustment
and the method by which such adjustment was calculated, specifying the number of
shares of Common Stock comprising a Stock Unit and (if such adjustment was made
pursuant to Section 4.2, describing the number and kind of any other shares of
stock or Other Property comprising a Stock Unit) any change in the purchase
price or prices thereof, after giving effect to such adjustment or change. The
Company shall as promptly as practicable, but in any case within 7 Business Days
of the event requiring the adjustment, cause a signed copy of such certificate
to be delivered to each Holder. The Company shall keep at its principal office
copies of all such certificates and cause the same to be available for
inspection at said office during normal business hours by any Holder or any
prospective purchaser of a Warrant designated by a Holder.
5.2 Advance Notice of Certain Corporate Action. In case the Company shall
------------------------------------------
propose (a) to pay any dividend (whether payable in cash, in stock of any class,
evidence of indebtedness, or other securities, rights or property) to the
holders of its Common Stock or to make any other distribution of cash, evidence
of indebtedness, securities, rights or property to the holders of its Common
Stock, (b) to effect any capital reorganization, (c) to effect any
consolidation, merger, sale, transfer or other disposition of all or
substantially all its or any material Subsidiary's property, assets or business,
(d) to effect the liquidation, dissolution or winding up of the Company, (e) to
effect any issuance of, or to register under the Securities Act, shares of
Common Stock or securities exercisable for or convertible into shares of Common
Stock, which shares represent more than 2% of the shares of Common Stock
outstanding as of the date the Company proposes to take such action, or (f) to
effect any event not specified above requiring an adjustment pursuant to Article
4, which adjustment would cause the Exercise Price to be changed by an amount
exceeding 2% of the Exercise Price in effect immediately prior to such event,
then, in each such case, the Company shall give to each Holder a notice of such
proposed action, which shall specify the date on which a record is to be taken
for the purposes of such dividend or distribution, or the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution or winding up is to take place and the
date of participation therein by the holders of Common Stock, if any such date
is to be fixed, and shall also set forth such facts with respect thereto as
shall be reasonably necessary to indicate the effect of such action on the
Common Stock and any Other Property or any property that will comprise a Stock
Unit, after giving effect to any adjustment which will be required as a result
of such action. The Company shall promptly amend such notice upon the occurrence
of any change to the information specified therein or to disclose any additional
41
material information as it arises. Any notice required to be given
pursuant to this Section 5.2 shall be given in the case of any action for which
a record date is to be fixed at least 20 days prior to the record date for
determining holders of the Common Stock for purposes of such action and, in the
case of any other such action, at least 20 days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of
Common Stock, whichever shall be the earlier.
ARTICLE 6. RESTRICTIONS ON TRANSFERABILITY
-------------------------------
6.1 Restricted Transferability. The Warrants and the Warrant Stock shall
--------------------------
not be transferred, hypothecated or assigned except after satisfaction of the
conditions specified in this Article 6, which conditions are intended to insure
compliance with the provisions of the Securities Act with respect to the
Transfer of any Warrant or any Warrant Stock. Holder, by acceptance of this
Warrant, agrees to be bound by the provisions of this Article 6 and to indemnify
and hold harmless the Company against loss resulting from the Transfer of the
Warrant Stock in violation of the restrictions on transferability set forth in
this Article 6.
6.2 Restrictive Legend. Except as otherwise provided in this Article 6,
------------------
each certificate for Warrant Stock initially issued upon the exercise of this
Warrant, and each certificate for Warrant Stock issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, and are subject to the conditions
specified in a certain warrant, dated as of September 21, 1998 originally
issued by ACTV, Inc. (the "Company") to Liberty Media Corporation. No
transfer of the shares represented by this certificate shall be valid or
effective until such conditions have been fulfilled. A copy of the form of
said warrant is on file with the Secretary of the Company. The holder of
this certificate, by acceptance of this certificate, agrees to be bound by
the provisions of said warrant."
Except as otherwise provided in this Article 6, each Warrant shall be stamped or
otherwise imprinted with a legend in substantially the following form:
42
"This Warrant and the securities represented hereby have not been
registered under the Securities Act of 1933, as amended, and may not be
transferred in violation of such Act, the rules and regulations thereunder
or the provisions of this Warrant."
6.3 Notice of Proposed Transfers. Prior to any Transfer or attempted
----------------------------
Transfer of any Warrants or any shares of Restricted Common Stock, the holder of
such Warrants or Restricted Common Stock shall give 10 days' prior written
notice (a "Transfer Notice") to the Company of such holder's intention to effect
such Transfer, describing the manner and circumstances of the proposed Transfer,
and obtain from counsel to such holder, who shall be reasonably satisfactory to
the Company, and deliver to the Company an opinion whether registration of the
Warrants or Restricted Common Stock is required under the Securities Act in
connection with such Transfer. After receipt of the Transfer Notice and opinion
by the Company:
(a) if in the opinion of such counsel (which opinion shall be
reasonably satisfactory to the Company and its counsel) the proposed Transfer of
such Warrants or such Restricted Common Stock may be effected without
registration under the Securities Act of such Warrant or such Restricted Common
Stock (and in the case of a Transfer of such Warrants, without registration of
the underlying shares of Common Stock), the Company shall, as promptly as
practicable, but in any event within 3 Business Days of receipt of the Transfer
Notice and such opinion, so notify the holder of such Warrant or such Restricted
Common Stock and such holder shall thereupon be entitled to Transfer such
Warrant or such Restricted Common Stock, in accordance with the terms of the
Transfer Notice. Each certificate, if any, evidencing such shares of Restricted
Common Stock issued upon such Transfer shall bear the appropriate restrictive
legend set forth in Section 6.2, and each Warrant issued upon such Transfer
shall bear the appropriate restrictive legend set forth in Section 6.2, unless
in the opinion of such counsel (which opinion shall be reasonably satisfactory
to the Company and its counsel) such legend is not required in order to ensure
compliance with the Securities Act.
(b) If in the opinion of such counsel the proposed Transfer of such
Warrant or such Restricted Common Stock may not be effected without registration
under the Securities Act of such Warrant (and in the case of a Transfer of such
Warrants, registration of the underlying shares of Common Stock) or such
Restricted Common Stock, the holder giving the Transfer Notice shall not so
transfer such Warrant or such Restricted Common Stock unless a registration of
the Transfer of such Warrant or such Restricted Common Stock
43
or of the underlying shares of Common Stock, as the case may be, under the
Securities Act has become effective.
The holder of the Warrant or the Restricted Common Stock, as the case may be,
giving the Transfer Notice shall not be entitled to Transfer such Warrant or
such Restricted Common Stock until receipt of the opinion from the Company under
Section 6.3(a) or until registration of such securities under the Securities Act
has become effective.
6.4 Termination of Restrictions. Notwithstanding the foregoing provisions
---------------------------
of this Article 6, the restrictions imposed by this Article 6 upon the
transferability of the Warrants (except the restriction imposed by Section 6.5),
the Warrant Stock and the Restricted Common Stock (or Common Stock issuable upon
the exercise of the Warrants) shall cease and terminate as to any particular
Warrant or share of Warrant Stock or Restricted Common Stock (or Common Stock
issuable upon the exercise of the Warrants) when such security shall have been
effectively registered under the Securities Act and sold by the holder thereof
in accordance with such registration or when the Company shall have received an
opinion of counsel reasonably satisfactory to the Company and its counsel that
such legend is not required in order to insure compliance with the Securities
Act. Whenever the restrictions imposed by this Article 6 shall terminate as to
this Warrant, as hereinabove provided, the holder hereof shall be entitled to
receive from the Company, at the expense of the Company, a new Warrant bearing
the following legend in place of the restrictive legend set forth hereon:
"THE RESTRICTIONS ON TRANSFERABILITY OF THE WITHIN WARRANT CONTAINED IN
ARTICLE 6 HEREOF TERMINATED ON ______________ __, 19__ AND ARE OF NO
FURTHER FORCE AND EFFECT"
All Warrants issued upon registration of transfer, division or combination of,
or in substitution for, any Warrant or Warrants entitled to bear such legend
shall have a similar legend endorsed thereon. Whenever the restrictions imposed
by this Article 6 shall terminate as to any share of Restricted Common Stock, as
hereinabove provided, the holder thereof shall be entitled to receive from the
Company, at the Company's expense, a new certificate representing such Common
Stock not bearing the restrictive legend set forth in Section 6.2.
6.5 Additional Restriction on Transfer of Warrants. Notwithstanding any
----------------------------------------------
other provision hereof, until September 21, 2000, Liberty and its affiliates
(within the meaning of Rule 405 under the Securities Act) shall retain
beneficial ownership of a Warrant or Warrants
44
representing the right to purchase, in the aggregate, at least 500,000 Stock
Units (as that number of Stock Units may be adjusted in accordance with the
provisions of Article 4). Without the prior written consent of the Company
(which consent may be withheld in the sole discretion of the Company), Holder
shall not Transfer any Warrant (or any portion thereof) if such Transfer would
cause the requirement set forth in the preceding sentence not to be satisfied.
Until September 21, 2000, any Warrant or Warrants representing the right to
purchase Stock Units that are subject to the foregoing restriction shall bear a
legend referring to such restriction, it being acknowledged that the legend set
forth at the end of Section 6.2 is sufficient for that purpose. The foregoing
provisions of this Section 6.5 shall not affect Holder's right to exercise
Warrants as to all or any portion of the Warrant Stock that Holder has the right
to purchase or to Transfer any shares of Warrant Stock so purchased.
ARTICLE 7. MISCELLANEOUS
-------------
7.1 No Impairment. The Company shall not by any action, including,
-------------
without limitation, through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, the Company will (a) take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock
upon the exercise of this Warrant, (b) use its best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant and (c) not undertake any reverse stock split,
combination, reorganization or other reclassification of its capital stock which
would have the effect of making this Warrant exercisable for less than one share
of Common Stock. Upon the request of Holder, the Company will, at any time
during the period this warrant is outstanding, acknowledge in writing, in form
reasonably satisfactory to Holder, the continued validity of this Warrant and
the obligations of the Company hereunder.
7.2 Reservation and Authorization of Common Stock; Registration or
--------------------------------------------------------------
Approval of any Governmental Authority. Before taking any action which would
--------------------------------------
result in an adjustment in the number of shares of Common Stock comprising a
Stock Unit or in the Exercise Price, the Company shall obtain all such
authorizations or exemptions thereof, or consents thereto, as may be necessary
from any public regulatory body or bodies having jurisdiction
45
thereof. If any shares of Common Stock required to be reserved for issue upon
exercise of Warrants require registration or qualification with any governmental
authority under any federal or state law before such shares may be issued, the
Company will in good faith and as expeditiously as possible and at its expense
endeavor to cause such shares to be duly registered.
7.3 Taking of Record: Stock and Warrant Transfer Books. In the case of
--------------------------------------------------
all dividends or other distributions by the Company to the holders of its Common
Stock with respect to which any provision of Article 4 refers to the taking of a
record of such holders, the Company will in each such case take such a record
and will take such record as of the close of business on a Business Day. The
Company will not at any time, except upon dissolution, liquidation or winding up
of the Company, close its stock transfer books or Warrant transfer books so as
to result in preventing or delaying the exercise or transfer of any Warrant.
7.4 Supplying Information. The Company shall cooperate with each Holder
---------------------
of a Warrant or holder of Restricted Common Stock in supplying such information
as may be reasonably necessary for such Holder to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of an exemption from the Securities Act for the
sale of any Warrant or Restricted Common Stock.
7.5. No Stock Rights. No Holder of this Warrant, as such, shall be deemed
---------------
the holder of Common Stock or any other securities of the Company which may at
any time be issuable on the exercise of this Warrant, nor shall anything
contained herein be construed to confer upon the Holder of this Warrant, as
such, any of the rights of a stockholder of the Company, at law or equity, or
otherwise, until this Warrant shall have been exercised as provided in Section
2.1.
7.6 Loss or Mutilation. Upon receipt by the Company from Holder of
------------------
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, indemnity reasonably satisfactory to it or, in case of mutilation,
the surrender of this Warrant for cancellation, the Company will execute and
deliver to Holder a new Warrant of like denomination.
7.7 Limitation of Liability. No provisions hereof, in the absence of
-----------------------
affirmative action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of the Holder hereof, shall give
rise to any liability of such Holder for the purchase price of any Common Stock
46
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
7.8 Successors and Assigns. This Warrant and the rights evidenced hereby
----------------------
shall inure to the benefit of and be binding upon the successors of the Company
and Holder. The provisions of this Warrant are intended to be for the benefit
of all Holders from time to time of this Warrant, and shall be enforceable by
any such Holder.
7.9 Notice Generally. Any notice, demand, request, consent, approval,
----------------
waiver, declaration, other communication or delivery to be made pursuant to the
provisions of this Warrant shall be sufficiently given or made if in writing and
either delivered in person with receipt acknowledged or sent by registered or
certified mail, return receipt requested, postage prepaid, or by telecopier or
facsimile addressed as follows:
(a) If to Liberty, to:
Liberty Media Corporation
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
(b) If to any other Holder or holder of shares of Warrant Stock, at
its last known address appearing on the books of the Company maintained for such
purpose.
(c) If to the Company, at:
ACTV, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
47
Attn: Xx. Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, waiver, declaration, other communication or delivery
hereunder shall be deemed to have been only given or served on the date on which
personally delivered, with receipt acknowledged, or five Business Days after the
same shall have been deposited in the United States mail or upon receipt of
confirmation of delivery if sent by telecopier or facsimile.
7.10 Amendment. This Warrant may not be modified or amended except by
---------
written Agreement of the parties.
7.11 Governing Law. This Warrant shall be governed by the law of the
-------------
State of Delaware.
7.12 Headings. The Article and Section headings contained in this Warrant
--------
are for convenience only and do not constitute a part of this Warrant and shall
not affect the interpretation thereof.
7.13 Xxxx-Xxxxx. (a) If in the reasonable judgment of Liberty or the
-----------
Company, Liberty's holding of Warrant Stock or other securities of the Company
or its acquisition of Warrant Stock or other securities of the Company upon
exercise or conversion of this Warrant or any other security convertible into,
or any warrant, option or other right to acquire, Warrant Stock or other
securities of the Company (this Warrant, the Warrant Stock and such other
convertible securities, warrants, options and rights being referred to
individually as a "Derivative Security" and collectively as "Derivative
Securities") would require a filing under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), the Company and Liberty
each will take such actions as may be required promptly to comply with the
requirements of the HSR Act relating to the filing and furnishing of information
(an "HSR Report") to the Federal Trade Commission ("FTC") and the Antitrust
Division of the Department of Justice ("DOJ"), such actions to include (i)
preparing and cooperating with each other in preparing the HSR Report to be
filed by or on behalf of each of them so as to avoid errors or inconsistencies
between their HSR Reports in the description of the reported transaction and to
permit the filing of their HSR Reports in a timely fashion, (ii) complying with
any request for additional documents or information made by the FTC or the DOJ
or by any court and assisting the other in so complying and (iii) causing all
persons which are part of the same "person" (as defined for purposes of the HSR
Act) as such party to cooperate and assist in such compliance. The Company and
Liberty each will pay any costs that it incurs in complying with the obligations
set forth in this Section 7.13, except that each will bear one-half of any fee
payable in connection with the filing of an
48
HSR Report. It will be a condition precedent to the effectiveness of the
exercise or conversion of any Derivative Security held by Liberty or any of its
successors or assigns that either (i) no filing under the HSR Act by the holder
of such Derivative Security would be required in connection with its acquisition
of Warrant Stock or other voting securities upon such exercise or conversion or
(ii) any applicable waiting period under the HSR Act has expired or been
terminated. If an acquisition of securities of the Company by Liberty upon
exercise or conversion of a Derivative Security requires the filing of an HSR
Report, then any time period within which Liberty is required to exercise or
convert such Derivative Security will be deemed extended, up to a maximum of 90
days, to permit compliance with the HSR Act, including filing of the requisite
HSR Reports and expiration or termination of the applicable waiting period. If
the waiting period has not so expired or been terminated prior to the end of
such period of extension and of the period within which Liberty is required to
exercise or convert such Derivative Security or if Liberty determines to
withdraw its HSR Report, then the Company will use its best efforts to afford to
Liberty the benefits intended to be provided by the Derivative Security by (i)
granting to Liberty the right to acquire other securities of the Company having
the same rights, privileges and preferences as the securities originally to be
acquired, except that such other securities will not possess voting rights, on
the same terms as the securities originally to be acquired or (ii) if such
replacement right cannot be granted, providing to Liberty such other right as
may reasonably represent the value of the conversion or exercise right required
to be foregone.
(b) If Liberty, in its sole opinion, considers a request from a
governmental agency for additional data and information in connection with the
HSR Act to be unduly burdensome, Liberty may withdraw its HSR Report and rescind
its exercise or conversion of the affected Derivative Security, in which case
its rights will be the same as existed immediately before such attempted
exercise or conversion and, in addition, Liberty will have the rights described
in the last sentence of Section 7.13(a).
(c) The provisions of this Section 7.13 will (i) survive the exercise
of this Warrant, (ii) apply to any Derivative Security now held by Liberty and,
absent any provision expressly to the contrary set forth therein, to each
Derivative Security hereafter acquired by Liberty and (iii) inure to the benefit
of, and be binding on, Liberty, the Company and their respective successors and
assigns, including, in the case of Liberty, any transferee of a Derivative
Security.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
as of the date below.
Dated as of September 21, 1998.
ACTV, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------
Title: Chief Executive Officer
-----------------------
49
EXHIBIT A
EXCEPTED SECURITIES
(under clause (i) of the definition thereof)
A - 1
EXHIBIT B
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably exercises this
Warrant for the purchase of ______________ Stock Units of ACTV, Inc., and
herewith makes payment therefor, all at the price and on the terms and
conditions specified in this Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or other property
issuable upon such exercise) be issued in the name of and delivered to
___________________________________________________ whose address is
__________________________________ and, if such Stock Units shall not include
all of the Stock Units issuable pursuant to this Warrant, that a new Warrant of
like denomination and date for the balance of the Stock Units issuable hereunder
be delivered to the undersigned at the address stated below.
-------------------------------------------
(Signature of Registered Owner)
-------------------------------------------
(Street Address)
--------------------------------------------
(City) (State) (Zip Code)
Note: The above signature must correspond with
the name as written upon the face of this Warrant
in every particular, without alteration or
enlargement or any change whatsoever.
B - 1
EXHIBIT C
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Warrant, with respect to the number of Stock Units
set forth below:
Name and Address of Assignee No. of Stock Units
---------------------------- ------------------
and does hereby irrevocably constitute and appoint ___________________________
attorney-in-fact to register such transfer on the books of ACTV, Inc.,
maintained for the purpose, with full power. of substitution in the premises.
Dated:______________________________ Signature:______________________________
Witness:________________________________
NOTICE: The above signature must correspond with the name as written upon the
face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
C - 1
