Exhibit 10.26(f)1
Exchanged Agreement
OPTION AGREEMENT
OPTION AGREEMENT, dated as of March 14, 1997, and amended on January 14,
1998 and January 4, 1999, between The Texas Individualized Television
Network, Inc. ("Texas") a Delaware corporation and ACTV, Inc. (the
"Corporation") and Xxxxxxx Xxxxxxx (the "Holder").
WHEREAS, the Holder has exercised his right on January 4, 1999 to
exchange his Class B Common Stock options in Texas for an equal number of
ACTV, Inc. options on the terms and subject to conditions hereinafter set
forth.
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.
a. The Corporation hereby grants to the Holder a fully vested
option (the "Option") to purchase from the Corporation 250,000 Option Shares,
at a purchase price of $1.50 per Option Share (the "Option Price"). The
"Option Period" shall commence on the date hereof and terminate on March 14,
2007.
b. Except as limited by Section 5, the Option may be exercised, in
whole or part, by the Holder by delivery to the Corporation, at any time
during the Option Period, of a written notice (the "Option Notice"), which
Option Notice shall state the 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, the Holder shall be obligated to purchase
that number of Option Shares to be purchased on the Closing Date set forth in
the Option Notice.
c. The purchase and sale of Option Shares acquired pursuant to the
terms of this Option 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, evidencing the Option Shares
being purchased on the Closing Date, shall be made by the Corporation to the
Holder on the Closing Date against the delivery to the Corporation of a
certified or bank check in the full amount of the aggregate purchase price
therefor.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE HOLDER. The Holder
hereby represents and warrants to the Corporation that in the event the
Holder 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
understands the Option Shares will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), 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. The
certificate or certificates representing any Option Shares shall bear the
following restrictive legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933; OR (ii) TO THE EXTENT APPLICABLE, RULE 144
UNDER SUCH ACT (OR SIMILAR RULE UNDER THE SECURITIES ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL,
IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE
ISSUER, THAN AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT IS AVAILABLE. IN ADDITION, THIS CERTIFICATE OF STOCK AND SHARES
REPRESENTED HEREBY AND HELD SUBJECT TO THE TERMS AND CONDITIONS
CONTAINED IN AN AGREEMENT BY AND AMONG THE SHAREHOLDERS OF THE
CORPORATION AND THE CORPORATION DATED AS OF MARCH 6, 1997, AND ALL
AMENDMENTS THERETO, AND MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE
WITH THE TERMS AND PROVISIONS THEREOF. A COPY OF SUCH AGREEMENT
WILL BE FURNISHED BY THE COPRPORATION UPON REQUEST."
SECTION 3. REORGANIZATION; MERGERS; SALES; ETC. If, at any time during
the Option Period, there shall be any capital reorganization,
reclassification of the Common Stock (the term "Common Stock" shall mean the
Company's Class A Common Stock and/or the Class B 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), the consolidation or merger of the Corporation with
or into another corporation or of the sale of all or substantially all the
properties and assets of the Corporation as an entirety to any other
corporation or person, the unexercised and fully vested portion of 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 the corporation
resulting from such consolidation or surviving such merger or to which such
properties and assets shall have been sold to which the Holder would have
been entitled if the Holder had held shares of Class B Stock issuable upon
the exercise hereof immediately prior to such reorganization,
reclassification, consolidation, merger or sale. The provisions of this
Section 3 shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers and sales.
SECTION 4. ADJUSTMENT OF OPTION SHARES AND OPTION PRICE.
a. The number of Option Shares subject to this Option during
the Option Period shall be cumulative as to all prior dates of calculation
and shall be adjusted for any stock dividend, subdivision, split-up or
combination of Common Stock.
b. The Option Price shall be subject to adjustment from time
to time as follows;
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, pursuant
to the formula set forth in Section 4.c.
c. Upon each adjustment of the Option Price pursuant to the
provisions of this Section 4, the number of shares of Common Stock issuable
upon the exercise hereof shall be adjusted to the nearest full share of
Common Stock by multiplying a number equal to the Option Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
issuable immediately prior to such adjustment and dividing the product so
obtained by the adjusted Option Price.
SECTION 5. TERMINATION OF THE OPTIONS.
a. TERMINATION OF OPTIONS IN GENERAL. Subject to subsection
5(b), the Option granted hereby shall terminate and the Option shall no
longer be exercisable after March 14, 2007.
b. OPTION RIGHTS UPON DEATH, DISABILITY, RESIGNATION. If a
Holder dies or becomes disabled while employed by the Corporation or resigns
from employment with the Corporation prior to his complete exercise of the
Option, the Holder (or his heirs) may exercise his Option at any time during
the option period, to the extent that the Holder was entitled to exercise the
Option at the date of such event.
SECTION 6. TRANSFER OF OPTION; SUCCESSORS AND ASSIGNS. This
Agreement (including the Option) and all rights hereunder shall not be
transferable 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, approved assigns and approved
transferees.
SECTION 7. NOTICES. All notices or other communications 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 to the Corporation:
ACTV, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
With a copy to:
Gersten, Savage, Kaplowitz & Xxxxxxxxxx
000 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxxxx
If to the Holder, to:
Xxxxxxx Xxxxxxx
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 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 deemed to have given on the third
business day following the day on which the piece of mail containing such
communication is posted.
SECTION 8. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with the laws of the State of Delaware.
SECTION 9. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the transactions
contemplated herein and amends the previous option agreement dated March 14,
1997 and amended January 14, 1998 with Texas and supersedes all previously
written or oral negotiations, commitments, representations and agreement.
SECTION 10. AMENDMENTS AND MODIFICATIONS. This 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/ Xxxxxxxxxxx X. Xxxxx
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Xxxxxxxxxxx X. Xxxxx
AGREED TO AND ACCEPTED BY
HOLDER:
/s/ XX Xxxxxxx
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Signature
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