Exhibit 99.34
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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 JOHN C. WILCOX ("Wilcox").
WHEREAS, Wilcox is presently serving as a Class III member of the Board of
Directors of the Company; and
WHEREAS, in consideration for Wilcox's services to the Company as a
director to the date hereof, the Company desires and has been authorized and
directed to grant to Wilcox 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 Wilcox
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 Wilcox'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 Wilcox's intention to exercise the Option, the date on which Wilcox
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 Wilcox, Wilcox shall be obligated to
purchase that number of Option Shares to be purchased on the Closing Date set
forth in the Option Notice. Wilcox 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 Wilcox, 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 Wilcox. Wilcox hereby
represents and warrants to the Company as follows:
a. In the event that Wilcox 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. Wilcox 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. Wilcox 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 Wilcox would have been entitled if Wilcox 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 Wilcox'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 Wilcox's death prior to
the Option Termination Date, the Option shall be exercisable (to the same extent
that it would be exercisable by Wilcox were he then surviving) by Wilcox's
estate or on behalf of such person or persons to whom Wilcox'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 Wilcox, to:
John C. Wilcox, Esq.
580 West End Avenue
New York, NY 10024
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/ John C. Wilcox
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JOHN C. WILCOX
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