Exhibit 10.49
AMENDMENT
DATED AS OF DECEMBER 4, 1999
TO
HYPERTV NETWORKS, INC.
OPTION AGREEMENTS
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This Amendment is dated as of December 4, 1999 (the "Amendment") and amends all
of those certain Option Agreements (collectively, the "Option Agreements")
between HyperTV Networks, Inc. (formerly ACTV Net, Inc.), a Delaware corporation
(the "Com-pany"), and each and any of the seven individuals named on the
signature pages hereof (each a "Holder" and collectively the "Holders"), of
which Option Agreements four are dated as of March 14, 1997 and five are dated
as of October 1, 1997.
WHEREAS, the Company has, by means of the foregoing separate Option Agreements,
granted to each Holder the right and option (the "Option") to purchase such
number of shares (the "Option Shares") of the Class B Common Stock, par value
$.01 per share (the "Class B Common Stock"), of the Company as is specified in
such Holder's respective Option Agreement(s), on the terms and conditions set
forth therein;
WHEREAS, the Company's parent corporation, ACTV, Inc. ("ACTV"), is presently
pur-suing an underwritten public offering (the "Public Offering") of its common
stock (the "Common Stock"), and as a holder of securities of ACTV or of one of
its operating sub-sidiaries each Holder has an interest in the successful
completion of the Public Offering; and
WHEREAS, the parties to the Option Agreements wish to amend the terms and
condi-tions thereof;
NOW, THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. AMENDMENTS. Each of the Option Agreements is hereby amended as follows:
A. The second sentence of subsection 1(a) of each of the four Option Agreements
dated as of March 14, 1997, and the second sentence of subsection 1(a) of such
of the two Op-tion Agreements dated as of October 1, 1997 that presently include
the clause "subject to subsection 1(d) and Section 6" in that second sentence,
are hereby amended by deleting therefrom the clause "subject to subsection 1(d)
and Section 6" and by substituting in place thereof the clause "subject to
Section 6", as a consequence of which amendment that second sentence shall
commence with the words "The Holder's right and option to purchase the Option
Shares shall vest, subject to Section 6, as follows:".
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B. Subsection 1(b) of each of the four Option Agreements dated as of March 14,
1997, and subsection 1(b) of each of such two of the Option Agreements dated as
of October 1, 1997 that contain a Section 6 entitled "Termination of
Employment", is hereby amended by deleting from the beginning of the first
sentence thereof the clause "Except as limited by Section 5," and by
substituting in place thereof the clause "Except as limited by sub-section 1(d),
Section 5 and Section 6,"; and subsection 1(b) of each of the remaining three
Option Agreements dated as of October 1, 1997 (none of which three Option
Agreements contains a Section 6 entitled "Termination of Employment") is hereby
amended by deleting from the beginning of the first sentence thereof the clause
"Except as limited by Section 5," and by substituting in place thereof the
clause "Except as limited by subsection 1(d) and Section 5,".
C. The four Option Agreements dated as of March 14, 1997, and such two of the
Option Agreements dated as of October 1, 1997 that contain a subsection 1(d),
are each hereby amended by deleting therefrom subsection 1(d) in its entirety,
and substituting in place thereof a new subsection 1(d), such new subsection
1(d) to be and read as follows; and such three of the Option Agreements dated as
of October 1, 1997 that presently omit any subsection 1(d) are each hereby
further amended by adding and inserting a new subsec-tion 1(d) therein, such new
subsection 1(d) to be and read as follows:
d. The Option may only be exercised upon a "Change in Control" (as such
term is hereinafter defined). In the event that any other provision of
this Option Agree-ment shall conflict in any respect with the foregoing
restriction upon the exercise of the Option, the foregoing restriction
shall be controlling. For purposes hereof, a "Change in Control" shall
be deemed to have occurred upon either one of the following events:
(i) the Board of Directors of ACTV, Inc. ("ACTV") shall
determine that any person (other than a person who is an
officer or director of ACTV on the effective date hereof),
including any "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, has acquired, or is seek-ing
to acquire, either (a) ACTV securities having 20% or more of
the com-bined voting power of the then outstanding voting
securities of ACTV or (b) the right to acquire ACTV securities
having 20% or more of the combined voting power of the then
outstanding voting securities of ACTV; and, as to either (a)
or (b), such person or group is deemed, in the sole discretion
of a majority of the independent members of the ACTV Board of
Directors, (x) to have interests which are either not
agreeable, compati-ble or in accordance with, or which are in
conflict with, the interests of the other holders of the
voting securities of ACTV or (y) is not a suitable ac-quiror
because such person or group is unlikely to further ACTV's
policy of acting as a broad licensor and/or joint venturer of
ACTV's intellectual property, including ACTV's patents, and
ACTV's related technology; or
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(ii) a majority of the management-nominated slate of
candidates for the ACTV Board of Directors shall not have been
elected.
D. The four Option Agreements dated as of March 14, 1997, and such two of the
Option Agreements dated as of October 1, 1997 that contain a Section 6 entitled
"Termination of Employment", are each hereby amended by deleting from Section 6
thereof the words "In the event that the Holder is terminated from employment
with the ACTV Group for any reason during the Option Period, then (i)" and by
substituting in place thereof the words "In the event that the Holder is
terminated from employment with the ACTV Group for any reason during the Option
Period, then upon a Change in Control (i)".
2. "SUNSET" CLAUSE. The parties hereto hereby expressly agree that this
Amendment shall expire and be deemed null and void AB INITIO, and the amendment
effected by Section 1 hereof shall be considered to be of no force and effect
such that the original language of Section 1(d) of the Option Agreements shall
be restored, in the event that a registration statement under the Securities Act
of 1933, as amended, in connection with the Public Offering is not declared
effective by the Securities and Exchange Commission by the date 120 calendar
days after the date hereof.
3. SCOPE LIMITED. Except as expressly contemplated by Section 1 hereof, the
Option Agreements are not amended or restated, and the interpretation or
operation of any provision thereof is not affected or amended, in any way by
this Amendment.
4. DEFINITIONS IN ORIGINAL. The capitalized terms used and not otherwise defined
herein shall have the meanings set forth in the Option Agreements.
5. EFFECT OF PRIOR AMENDMENT. The prior amendment to the Option Agreements, that
prior amendment being Amendment No.1 dated as of December 3, 1999, is hereby
termi-nated and rendered of no force or effect, and is hereby superseded in its
entirety by this Amendment, effective as of the date hereof.
6. AMENDMENT BINDING. This instrument may be executed in one or more
counterparts, all of which taken together shall be deemed to constitute one and
the same instrument, and shall be binding upon each Holder that shall execute
any such counterpart, and each such Holder's respective successors and assigns,
without regard to whether or not all (or any) of the other Holders shall have
theretofore executed (or shall thereafter execute) any such counterpart.
[SIGNATURES ON NEXT PAGE.]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first set forth above.
ACTV ENTERTAINMENT, INC. THE HOLDERS
By:
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Day X. Xxxxxxxxx, Xxxxx Xxxxx
Xx. Vice President
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Xxxxxxxxxxx X. Xxxxx
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R. Xxxxx Xxxxx
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Xxxxx X. Xxxxxxx
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Xxxxx Xxxxx
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Xxxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxx
