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EXHIBIT 10.53
NTN COMMUNICATIONS, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into
as of October 7, 1998 by and between NTN COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and Stanley B. Kinsey, an individual (the
"Optionee").
W I T N E S S E T H
WHEREAS, the Company's Board of Directors authorized the grant to the
Optionee pursuant to the Company's 1995 Stock Option Plan, as amended, of an
option (the "Option") to purchase all or any part of 1,300,000 shares of Common
Stock, $.005 par value, of the Company (the "Common Stock") upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
made herein and the mutual benefits to be derived herefrom, the parties hereto
agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee the right
and option to purchase, in accordance with the terms and conditions of this
Agreement, an aggregate of 1,300,000 shares of Common Stock of which 650,000
will be exercisable at $1.00 per share and 650,000 will be exercisable at $.625
per share (the "Price"), exercisable prior to the close of business on October
6, 2008 (the "Expiration Date").
2. Vesting and Exercisability of Option. The Option will become vested
and exercisable as to one-third of the shares of the Common Stock on the first
anniversary of the Date of Grant, and as to an additional one-third on the
second anniversary of the Date of Grant, and as to the final one-third on the
third anniversary of the date hereof. The right to purchase any or all of such
shares will terminate on the close of business on October 6, 2008; provided,
however, that the right to exercise this Option is subject to early termination
upon the Optionee's "Termination of Employment" (as defined in the Plan). In the
event of the Optionee's Termination of Employment (other than by reason of death
or termination by the Company without cause) this Option may only be exercised
by Optionee, to the extent exercisable at Termination of Employment, at any time
prior to 60 days after Termination of Employment.
3. Corporate Transaction. In the event of a Corporate Transaction (as
defined below), the Committee administering the Plan shall notify the Optionee
at least 30 days prior thereto. To the extent not previously exercised, the
Option shall terminate immediately prior to the consummation of such Corporate
Transaction unless the Committee administering the Plan determines otherwise in
the exercise of its sole discretion, provided, however, that such Committee may
permit exercise of the Option prior to its termination, even if the Option would
not otherwise have been exercisable. A "Corporate Transaction" means a
liquidation or dissolution of the Company, a merger or consolidation of the
company with or into another corporation or entity, a sale of all or
substantially all of the assets of the Company, or a purchase of more than 50
percent of the outstanding capital stock of the Company in a single transaction
or a series of related transactions by one person or more than one person acting
in concert.
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4. Method of Exercise of Option and Payment of Purchase Price. Each
exercise of the Option shall be by means of a written notice of exercise
delivered to the Company and specifying the number of whole shares with respect
to which the Option is being exercised, together with any written statements
required pursuant to Section 9 below and payment of the Price in full in cash or
by check payable to the order of the Company; provided that so-called cashless
exercises may be permitted in the discretion of the Committee administering the
Plan. The delivery of shares pursuant to an exercise of this Option will be
conditional upon payment by the Optionee of amounts sufficient to enable the
Company to pay all applicable federal, state and local withholding taxes.
5. Effect of Death of Optionee. The Option and all other rights
hereunder, to the extent such rights shall not have been exercised, shall,
unless sooner terminated pursuant to the Plan, terminate and become null and
void at the end of twelve months following the Optionee's death. During the
twelve-month period after death, the Option may, to the extent exercisable on
the date of death (or earlier termination), be exercised by the executor of the
Optionee's will or the administrator of the holder's estate; provided that in no
event may the Option be exercised by any person after the Expiration Date.
6. Non-Assignability of Option. Subject to the provisions of the Plan,
the Option and the rights and privileges conferred hereby are not transferable
or assignable and may not be of fered, sold, pledged, hypothecated or otherwise
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment, garnishment, levy or similar process.
During the Optionee's lifetime, the Option may be exercised only by the
Optionee, or, subject to the provisions of Section 5, within twelve months after
his death by the executor of his will or the administrator of his estate, and
not otherwise, regardless of any community property or other interest therein of
the Optionee's spouse or such spouse's successor in interest. In the event that
the spouse of the Optionee shall have acquired a community property interest in
the Option, the Optionee, or such transferees, may exercise it on behalf of the
spouse of the Optionee or such spouse successor in interest.
7. Adjustments and Other Rights. The rights of the Optionee hereunder
will be subject to adjustments and modifications in certain circumstances and
upon occurrence of certain events including a reorganization, merger,
combination, recapitalization, reclassification, stock split, reverse stock
split, stock dividend or stock consolidation, as set forth in the Plan.
8. Optionee Not A Stockholder. Neither the Optionee nor any other
person entitled to exercise the Option shall have any of the rights or
privileges of a shareholder of the Company as to any shares of Common Stock not
actually issued and delivered to him. No adjustment will be made for dividends
or other rights for which the record date is prior to the date on which such
stock certificate or certificates are issued even if such record date is
subsequent to the date upon which notice of exercise was delivered and the
tender of payment was accepted.
9. Application of Securities Laws. No shares of Common Stock may be
purchased pursuant to the Option unless and until any then applicable
requirements of the Securities and Exchange Commission, the California
Department of Corporations and any other regulatory agencies, including any
other state securities law commissioners having jurisdiction over the Company or
such issuance, and any exchanges upon which the Common Stock may be listed,
shall have been fully satisfied. The Optionee represents, agrees and certifies
that:
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(a) If the Optionee exercises the Option in whole or in part
at a time when there is not in effect under the Securities Act of 1933, as
amended (the "Act"), a registration statement relating to the Common Stock
issuable upon exercise and available for delivery to him a prospectus meeting
the requirements of Section 10(a)(3) of the Act, the Optionee will acquire the
Common Stock issuable upon such exercise for the purpose of investment and not
with a view to resale or distribution and that, as a condition to each such
exercise, he or she will furnish to the Company a written statement to such
effect, satisfactory in form and substance to the Company, which statement also
acknowledges that the Option shares have not been registered under the Act and
are "restricted securities" within the meaning of Rule 144 under the Act and are
subject to restrictions on transfer; and
(b) If and when the Optionee proposes to publicly offer or
sell the Common Stock issued to him upon exercise of the Option, the Optionee
will notify the Company prior to any such offering or sale and will abide by the
opinion of counsel to the Company as to whether and under what conditions and
circumstances, if any, he or she may offer and sell such shares.
The Optionee understands that the certificate or certificates
representing the Common Stock acquired pursuant to the Option may bear a legend
referring to the foregoing matters and any limitations under the Act and state
securities laws with respect to the transfer of such Common Stock, and the
Company may impose stop transfer instructions to implement such limitations, if
applicable. Any person or persons entitled to exercise the Option under the
provisions of Section 5 above shall be bound by and obligated under the
provisions of this Section 9 to the same extent as is the Optionee.
10. Notices. Any notice to be given under the terms of this Agreement
or pursuant to the Plan shall be in writing and addressed to the Secretary of
the Company at its principal office and any notice to be given to the Optionee
shall be addressed to him at the address given beneath the Optionee's signature
hereto, or at such other address as either party may hereafter designate in
writing to the other party. Any such notice shall be deemed to have been duly
given when enclosed in a properly sealed envelope addressed as aforesaid,
registered or certified, and depos ited (postage and registry or certification
fee prepaid) in a post office or branch post office regularly maintained by the
United States Government.
11. Effect of Agreement. This Agreement shall be assumed by, be binding
upon and inure to the benefit of any successor or successors of the Company to
the extent set forth herein.
12. Withholding. The provisions of the Plan shall govern any
withholding that the Company is required to make with respect to the exercise of
the Option.
13. Applicability of the Plan. The Option and this Agreement will
subject to, and the Company and the Optionee agree to be bound by, all of the
terms and conditions of the Plan. The rights of the Optionee will be subject to
limitations, adjustments, modifications, suspension and termination in certain
circumstances and upon the occurrence of certain conditions as set forth in the
Plan as originally adopted, but shall not be adversely affected by any future
amendments to the Plan.
14. Laws Applicable to Construction. The Option has been granted,
executed and delivered as of the day and year first above written in Carlsbad,
California, and the interpretation,
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performance and enforcement of the Option and this Agreement shall be governed
by the internal laws of the State of California.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Optionee has
hereunto set his hand as of the day and year first above written.
NTN COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ William D. Gould
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Secretary
OPTIONEE
/s/ Stanley B. Kinsey
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Stanley B. Kinsey
6821 Farms View Court
Rancho Santa Fe, CA 92067
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