Exhibit 99.9
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THE OPTIONS TO BE RECEIVED UPON THE EXECUTION HEREOF, AND THE SHARES ISSUABLE
UPON EXERCISE OF THOSE OPTIONS, MAY NOT BE SOLD OR OFFERED FOR SALE,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED IN THE ABSENCE OF (I) AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT THERETO UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS, OR (II) AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT AN EXEMPTION FROM
REGISTRATION FOR SUCH SALE, OFFER, TRANSFER, HYPOTHECATION OR OTHER ASSIGNMENT
IS AVAILABLE UNDER SUCH ACT AND LAWS. SUCH SECURITIES ARE ALSO SUBJECT TO, AND
RESTRICTED BY CERTAIN OF, THE RESPECTIVE PROVISIONS OF THIS STOCK OPTION
AGREEMENT.
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
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STOCK OPTION AGREEMENT dated as of October 18, 2000, as amended and
restated as of January 8, 2002, between ACTV, INC., a Delaware corporation (the
"Company"), and PAUL E. FINER ("Employee").
WHEREAS, the Company desires to grant to Employee, and Employee desires to
obtain, the fully vested right and option to purchase Thirty Three Thousand Nine
Hundred Thirty (33,930) shares (the "Option Shares") of the common stock (par
value $.10 per share) of the Company (the "Common Stock"), 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 and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. Option to Purchase Common Stock.
a. Subject to Section 5 hereof, the Company hereby grants to Employee
an option (the "Option") to purchase the Option Shares from the Company at a
purchase price of $2.00 per Option Share (the "Option Price"). Employee's right
and option to purchase the Option Shares shall vest in two installments, as
follows:
Vesting Date No. of Shares Vesting
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June 13, 2001 8,482
January 8, 2002 25,448
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The "Option Period" of this Option shall commence on the date hereof and shall,
except as otherwise provided in Section 5, terminate in its entirety on (and
cease to be exercisable, in any respect, from and after) the Option Termination
Date (as such term is hereafter defined). The "Option Termination Date" shall be
whichever of the following dates shall first occur: (i) June 13, 2006, (ii) in
the event that any Change of Control (as such term is defined in Exhibit A
hereto) shall hereafter occur, the second anniversary of the date of the
occurrence of such Change of Control, or (iii) in the event that Employee shall
cease to be an employee of the Company or any affiliate of the Company prior to
the date of the occurrence of any Change of Control, the 30th day after the date
of such cessation of Employee's employment.
b. The Option may be exercised by Employee's delivering to the
Company, at any time on or after the first vesting date hereunder but at least
30 days prior to the Option Termination Date, a written notice (the "Option
Notice"), which Option Notice shall state Employee's intention to exercise the
Option, the date on which 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 prior to the Option Termination Date and no
later than 30 days nor earlier than 10 days following the date of the Option
Notice. Upon receipt by the Company of an Option Notice from Employee, Employee
shall be obligated to purchase that number of Option Shares to be purchased on
the Closing Date set forth in the Option Notice. Employee shall, upon and as a
condition of the exercise of this Option in any respect, pay to the Company all
taxes that the Company shall be obligated and/or entitled to withhold upon or in
connection with such exercise.
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 Company. Delivery of the Common Stock certificate or other instrument
registered in the name of Employee, evidencing the Option Shares being
purchased on the Closing Date, shall be made by the Company to the holder of
this Option on the Closing Date against the delivery to the Company of a check
in the full amount of the aggregate purchase price therefor.
SECTION 2. Representations and Warranties of Employee. Employee hereby
represents and warrants to the Company as follows:
a. In the event that Employee acquires any Option Shares, such Option
Shares will be acquired for his/her own account, for investment and not with a
view to the distribution thereof.
b. Employee understands that the Option Shares are not (and 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, that the
Option Shares will (in the absence of the registration thereof) bear a
restrictive legend thereon upon their issuance, 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.
c. Employee acknowledges and unconditionally accepts that, for
federal, state
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and/or local tax purposes, this Option is a non-qualified stock option, not an
"incentive" stock option, and that the Option Shares when and as issued
hereunder will not be "incentive" shares but will instead for tax purposes be
"non-qualified" shares.
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 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 Company with or into another corporation or of the sale of all or
substantially all the properties and assets of the Company 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 Company 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 Employee would have been entitled if 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 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:
(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 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 Option.
a. Termination of Option. Subject to subsections (b) - (c) of this
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Section 5, the Option granted hereby shall terminate in its entirety on (and
cease to be exercisable, in any respect, from and after) the Option Termination
Date.
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b. Option Rights Upon Disability. In the event that Employee shall
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become disabled while he/she is an employee of the Company or any affiliate or
subsidiary, the Option granted hereby shall terminate on the earlier of the
Option Termination Date or 90 days after the date of disability; provided, that
the Board of Directors or the Stock Option Committee of the Company may, in its
sole discretion, allow the Option to be exercised at any date prior to the
Option Termination Date (without regard to the date of disability), but only to
the extent that Employee was entitled to exercise the Option at the date of
his/her disability.
c. Option Rights Upon Death. In the event that Employee shall die
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while he/ she is an employee of the Company (or within 30 days after the
termination of his/her employment), the Option granted hereby shall terminate
on the earlier of the Option Termination Date or one year after the date of
death, and shall theretofore be exercisable only (i) by Employee's estate or on
behalf of such person or persons to whom Employee's rights pass under his/her
Will or by the laws of descent and distribution and (ii) only to the extent that
Employee was entitled to exercise the Option at the date of his/her death.
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 Company. This Agreement and
all of the rights hereunder shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns and 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 Company, to:
ACTV, Inc.
233 Park Avenue South - 10th floor
New York, NY 10003-1606
Attention: Day L. Patterson,
EVP/General Counsel
If to Employee, to:
Mr. Paul E. Finer
12 Floral Street
Windham, NH 03087
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.
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SECTION 8. Amendment and Restatement of Certain Prior Stock Options;
Entire Agreement. This Agreement amends and restates, and thereby replaces and
supercedes, the following stock option agreement heretofore entered into by and
between Employee and the Company: Non-Qualified Stock Option Agreement dated
October 18, 2000, issued for an original aggregate of 67,860 shares of Common
Stock (the "Prior Option Agreement"). Employee hereby confirms that he has
delivered his executed original of the Prior Option Agreement to the Company for
cancellation, and that the Prior Option Agreement is hereby cancelled and
abrogated effective as of January 8, 2002 as to all options outstanding
thereunder at that date, without retroactive effect as to any options
theretofore exercised thereunder. Consequently, this Agreement contains the
entire agreement between the parties hereto with respect to all of the options
outstanding under the Prior Option Agreement at January 8, 2002.
SECTION 9. 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.
SECTION 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to the laws of such State governing conflicts of laws.
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/ Day L. Patterson
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Day L. Patterson,
EVP/General Counsel
/s/ Paul E. Finer
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PAUL E. FINER
("Employee")
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EXHIBIT A
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Definition of "Change of Control"
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For purposes hereof, a "Change of Control" shall mean the first to occur of the
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following:
(a) the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 30% or more of either (i) the then-outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that, for purposes hereof, the following
acquisitions shall not constitute a Change in Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or one of its affiliates, or (D) any acquisition
pursuant to a transaction that complies with Paragraphs (c)(i), (c)(ii) and
(c)(iii) below;
(b) individuals who, as of the date hereof, constitute the Board of Directors
of the Company (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election or nomination for election
by the Company's stockholders was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board;
(c) consummation of a reorganization, merger, statutory share exchange or
consolidation or similar corporate transaction involving the Company or any of
its subsidiaries, a sale or other disposition of all or substantially all of the
assets of the Company, or the acquisition of assets or stock of another entity
by the Company or any of its subsidiaries (each, a "Business Combination"), in
each case, unless, following such Business Combination, (i) all or substantially
all of the individuals and entities that were the beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
or entity resulting from such Business Combination (including, without
limitation, a corporation or entity that, as a result of such transaction, owns
the Company or all or substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the same proportions as
their ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities,
as the case may be, (ii) no Person (excluding any employee benefit plan (or
related trust) of the Company or any corporation or entity resulting from such
Business
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Combination) beneficially owns, directly or indirectly, 30% or more of,
respectively, the then-outstanding shares of common stock of the corporation or
entity resulting from such Business Combination or the combined voting power of
the then-outstanding voting securities of such corporation or entity, except to
the extent that such ownership existed prior to the Business Combination, and
(iii) at least a majority of the members of the board of directors of the
corporation or entity resulting from such Business Combination were members of
the Incumbent Board at the time of the execution of the initial agreement or of
the action of the Board providing for such Business Combination; or
(d) approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
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