Exhibit 99.16
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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 August 17, 2000, between ACTV, INC., a
Delaware corporation (the "Company"), and MARK LAZEN ("Employee").
WHEREAS, the Company desires to grant to Employee, and Employee desires to
obtain, the right and option to purchase One Hundred Thirty Nine (139) 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 is 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 $54.14 per Option Share (the "Option Price"). Employee's right
and option to purchase the Option Shares shall be deemed to have fully vested on
the date hereof, as follows:
Vesting Date No. of Shares Vesting
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August 17, 2000 139
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) August 10, 2008 (the "Option Termination Date"), except
as herein otherwise provided.
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 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
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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 in General. Subject to subsections (b) - (c)
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of this Section, the Option granted hereby shall terminate on the earlier of the
Option Termination Date or 30 days after the date of termination of employment,
except in the case of disability or death.
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
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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.
1270 Avenue of the Americas - Suite 2401
New York, New York 10020
Attention: Day L. Patterson,
SVP/General Counsel
If to Employee, to:
Mr. Mark Lazen
115 Sherman Place
South Orange, NJ 07079
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 Option Shares and supersedes all
previously
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written or oral negotiations, commitments, representations and agreements
regarding the Option Shares.
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,
Sr. Vice President
and General Counsel
/s/ Mark Lazen
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MARK LAZEN
("Employee")
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