Exhibit 99.14
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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.
NON-QUALIFIED STOCK OPTION AGREEMENT
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STOCK OPTION AGREEMENT dated as of April 9, 2001 between ACTV, INC., a
Delaware corporation (the "Company"), and MELVYN N. KLEIN ("Klein").
WHEREAS, Klein is presently serving as a member of the Board of Directors
of the Company; and
WHEREAS, in consideration for Klein's services to the Company as a director
to the date hereof, the Company desires and has been authorized and directed to
grant to Klein a fully-vested right and option (the "Option") to purchase
Fifteen Thousand (15,000) 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 premises, the receipt of $1.00 and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Company, the parties hereby agree as follows:
SECTION 1. Option to Purchase Common Stock.
a. Subject to Section 5 hereof, the Company hereby grants to Klein the
fully-vested Option to purchase the Option Shares from the Company at a purchase
price of $2.50 per Option Share (the "Option Price"). With respect to the
Option, the "Option Period" shall commence on the date hereof and shall
terminate in its entirety on (and the Option shall thereupon cease to be
exercisable, in any respect, from and after) April 9, 2006 (the "Option
Termination Date"), except as herein otherwise provided.
b. The Option may be exercised by Klein's delivering to the Company,
at any time on or after the date hereof but at least 30 days prior to the Option
Termination Date, a written notice (the "Option Notice"), which Option Notice
shall state Klein's intention to exercise the Option, the date on which Klein
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 Klein, Klein shall be obligated to purchase
that number of Option Shares to be purchased on the Closing Date set forth in
the Option Notice. Klein shall, upon and as a condition of the exercise of the
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 Klein, 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 Klein. Klein hereby represents
and warrants to the Company as follows:
a. In the event that Klein 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.
b. Klein understands that the Option Shares are not (and possibly 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. Klein acknowledges and unconditionally accepts that, for federal,
state 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 Klein would have been entitled if Klein 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,
re-
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classifications, 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. The Option granted hereby shall terminate
on the Option Termination Date.
SECTION 6. Transfer of Option; Successors And Assigns. Neither this
Agreement nor the Option, nor any of Klein's rights with respect thereto, shall
be assignable or transferable at any time without the prior written consent of
the Company; provided, that in the event of Klein's death prior to the Option
Termination Date, the Option shall be exercisable (to the same extent that it
would be exercisable by Klein were he then surviving) by Klein's estate or on
behalf of such person or persons to whom Klein's rights pass under his Will or
by the laws of descent and distribution. Subject to the foregoing, 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.
225 Park Avenue South, 18th Floor
New York, New York 10003-1604
Attention: Day L. Patterson,
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EVP/General Counsel
If to Klein, to:
Melvyn N. Klein, Esq.
210 Jackson Place
Corpus Christi, TX 78411
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 8. Entire Agreement. This Agreement 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 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 11. 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,
Executive Vice President
and General Counsel
/s/ Melvyn N. Klein
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MELVYN N. KLEIN
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