Exhibit 10.44 (a)
OPTION AGREEMENT
OPTION AGREEMENT dated December 1, 1995, amended on July 29, 1997 and
adjusted March 5, 1999, between ACTV, Inc., a Delaware corporation (the
"Corporation") and Xxxxxxx X. Xxxxxxx (the "Employee").
The Corporation desires to grant to the Employee the right and option
to purchase up to 1,173,000 shares (the "Option Shares") of Common Stock (the
"Common Stock"), of the Corporation, on the terms and subject to the 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. Subject to Section 5 hereof, the Corporation hereby grants to the
Employee an option (the "Option") to purchase from the Corporation 1,173,000
vested Option Shares, excluding options previously exercised, at a purchase
price of $1.50 per Option Share (the "Option Price"). With respect to the
Option, the "Option Period" shall commence on the date hereof and terminate on
December 31, 2003.
b. The Option may be exercised by the Employee by delivery to the
Corporation, at any time commencing one year from the date hereof, of a written
notice (the "Option Notice"), which Option Notice shall state the Employee's
intention to exercise the Option, the date on which the Employee 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 Employee, the Employee
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 Employee, 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 Holder. The Employee
hereby represents and warrants to the Corporation that in the event the Employee
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
Employee understands that except as set forth in Section 6 hereof, 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 except from
registration.
SECTION 3. Reorganization; Mergers; Sales; Etc. If, at any time during
the Option Period, there shall be any capital reorganization, reclassification
of Common Stock (other than a change in par value or from par value to nor 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 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 Employee would have been entitled if the
Employee had held shares of Common 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 adjusted for any stock dividend, subdivision, split-up or
combination of Common Stock.
b. If, at any time during the first 36 months of the Option Period,
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 during the first 36 months, but
converted by January 1, 2000) as he held options for immediately prior to such
transaction.
c. The Option Price shall be subject to adjustment from time to time
as follows:
(1) If, at any time during the Option Period, the number of
shares of Common Stock outstanding is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, immediately following the record date fixed for the determination
of holders of shares
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of Common Stock entitled to receive such stock dividend, subdivision or
split-up, the Option Price shall be appropriately decreased so that the number
of shares of Common Stock issuable upon the exercise hereof shall be increased
in proportion to such increase in outstanding shares.
(2) If, at any time during the Option Period, the number of
shares of Common Stock outstanding is decreased by a combination of outstanding
shares of Common Stock, then, immediately following the record date for such
combination, the Option Price shall be appropriately increased so that the
number of shares of Common Stock issuable upon the exercise hereof shall be
decreased in proportion to such decrease in outstanding shares.
SECTION 5. Termination of the Options.
a. Termination of Options in General. Subject to subsections (b) -
(c) of this Section, the Option granted hereby shall terminate and the Option
shall no longer be exercisable after of December 31, 2003.
b. Option Rights Upon Disability. If an Employee becomes disabled
while employed by the Corporation or any affiliate or subsidiary, the Board of
Directors or the Stock Option Committee of the Corporation, will allow the
Option to be fully exercised, to the extent that the Employee was entitled to
exercise the Option at the date of his disability.
c. Death of the Optionee. In the event that an Employee shall die
While he is an employee of the Corporation and prior to his complete exercise of
the Option, the Option may be exercised in whole or in part only: (i) by the
Employee's estate or on behalf of such person or persons to whom the Employee's
rights pass under his Will or by the laws of descent and distribution, (ii) to
the extent that the Employee was entitled to exercise the Option at the date of
his death, and (iii) prior to the expiration of the term of the Option.
SECTION 6. Piggyback Registration.
a. If, at any time commencing up to December 31, 2003, the
Corporation proposes to register any of its securities under the Securities 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 such registration statement, to the Employee of
its intention to do so. If the Employee notifies the Corporation within ten (10)
days after receipt of any such notice of his desire to include any Option
Shares, owned by him (on a fully vested basis) in such proposed registration
statement, the Corporation shall afford the Employee the opportunity to have any
of his Option Shares registered under such registration statement, the
Corporation shall afford the Employee the opportunity to have any of his Option
Shares registered under such registration statement; provided that (i) such
inclusion does not pose any significant legal problem and (ii) if such
registration statement is filed pursuant to an underwritten public offering, the
underwriter approves such inclusion.
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b. Notwithstanding the provisions of this Section 6, the Corporation
shall have the right at any time after it shall have given written notice
pursuant to this Section 6 (irrespective of whether a written request for
inclusion of any Option Shares 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.
c. Employee will cooperate with the Corporation in all respects in
connection with this Agreement, including, timely supplying all information
reasonably requested by the Corporation and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Option Shares. In addition, Employee will comply with all applicable
provisions of state and federal securities laws, including rule 10b-6 and will
not, during the course of a distribution, purchase any of the securities being
distributed.
d. All expenses incurred in any registration of the Option Shares
under this Agreement shall be paid by the Corporation, including, without
limitation, printing expenses, fees and disbursements of counsel for the
Corporation, expenses of any audits to which the Corporation shall agree or
which shall be necessary to comply with governmental requirements in connection
with any such registration, all registration and filing fees for the Option
Shares under federal and state securities laws, and expenses of complying with
the securities or blue sky laws of any jurisdictions; provided, however, the
Corporation shall not be liable for (a) any discounts or commissions to any
underwriter; (b) any stock transfer taxes incurred with respect to Option Shares
sold in the offering or (c) the fees and expenses of counsel for Employee,
provided that the Corporation will pay, the costs and expenses of Employee's
counsel when the Corporation's counsel is representing all selling security
holders.
SECTION 7. 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, assigns and transferees.
SECTION 8. 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 the Corporation, to:
ACTV, Inc.
1270 Avenue of the Americas - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxx, Chief Financial Officer
With a copy to:
Xxx Xxxxxxxxx, Esquire
Gersten, Savage, Xxxxxxxxx & Xxxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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If to the Employee, to:
Xxxxxxx X. 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 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 governed by, and
construed in accordance with the laws of the State of New York.
SECTION 10. Entire Agreement. This amended agreement contains the
entire agreement between the parties hereto with respect to the transactions
contemplated herein and supersedes the option agreement dated December 1, 1995
and amended July 29, 1997.
SECTION 11. 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.
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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:
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Xxxxxxxxxxx Xxxxx
Chief Financial Officer
Agreed:
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Xxxxxxx X. Xxxxxxx
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