Exhibit 10.44(a)1
OPTION AGREEMENT
OPTION AGREEMENT dated December 1, 1995, between ACTV, Inc., a Delaware
corporation (the "Corporation") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Employee").
The Corporation desires to grant to the Employee the right and option to
purchase up to 1,473,000 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 1,473,000
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. 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 of Common Stock entitled to receive such stock dividend, subdivision or
split-up, the
2
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
3
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.
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:
4
If the Corporation, to:
ACTV, Inc.
1270 Avenue of the Americas - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Day ▇▇▇▇▇▇▇▇▇, Senior Vice President, General Counsel
With a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇▇, Esquire
Gersten, Savage, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Employee, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 which includes
December 31, 1999 updated information, contains the entire agreement between the
parties hereto with respect to the transactions contemplated herein and
supersedes all previously written or oral negotiations, commitments,
representations and agreements.
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.
5
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:
--------------------------------------
Day ▇▇▇▇▇▇▇▇▇
Senior Vice President,
General Counsel
Agreed:
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇