EXHIBIT 10.61
ACTV EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of January 1, 2002 by and between ACTV, INC., a
Delaware corporation having an office at 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000 ("ACTV"), and XXXXXXXXXXX X. XXXXX ("Employee"),
W I T N E S S E T H :
WHEREAS, ACTV desires to employ Employee, and Employee desires to
accept employment, as the Chief Financial Officer of ACTV;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Employment of Employee. ACTV hereby employs Employee as Chief
Financial Officer of ACTV. During the term hereof, Employee shall devote all of
his business time and efforts to ACTV and its affiliates, and shall perform such
services and duties and have such powers as may from time to time be prescribed
by the Chief Executive Officer of ACTV ("ACTV's CEO") or his designee.
2. Compensation and Benefits.
a. Salary. ACTV shall pay Employee a salary at the rate of Two Hundred
Thousand dollars ($200,000.00) per year, less applicable withholding taxes and
other payroll deductions required by law, payable in accordance with ACTV's
customary payroll practices; provided, that for all purposes hereof, that
certain Salary Amendment dated as of September 1, 2001 heretofore entered into
by and between ACTV and Employee (the "Salary Reduction Amendment") shall
continue in full force and effect and shall apply hereto exactly as if this
Agreement were the Employment Agreement referred to in such Salary Reduction
Amendment, as a consequence of which Employee's salary hereunder shall be One
Hundred Eighty Thousand dollars ($180,000.00) per year, less applicable
withholding taxes and other payroll deductions required by law, until the
Rescission Date referenced in the Salary Reduction Amendment or until this
Agreement shall be amended to provide otherwise.
b. Change of Control. In the event of a "Change of Control" (as such
term is defined in Exhibit A hereto), then all then unvested, unexpired stock
options granted by ACTV to Employee, whether prior to, on or after the date
hereof and whether under any stock incentive plan or otherwise, shall become and
be fully vested and immediately exercisable by Employee, at the respective
exercise price(s) thereof, at any date prior to the respective expira-tion
date(s) thereof, and in addition Employee shall, at Employee's election, receive
a special compensation payment for the exercise cost of such of Employee's
vested options as Employee shall exercise at any time during the one year period
immediately following the effective date of the Change of Control. In addition,
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in the event that upon or within three years after a Change of Control, ACTV (or
the successor entity) shall terminate Employee's employment without cause or
shall not retain Employee at ACTV (or the successor entity) in his immediately
prior position or a substantially similar position or Employee shall terminate
this Agreement for Good Reason, then ACTV shall, upon or within 30 days
thereafter, pay Employee a one-time cash severance sum, the amount of which
severance sum shall be the lesser of (x) such sum as is equal on an after-tax
basis to Employee's then current annual base salary, for which purpose the
foregoing bonus shall be "grossed-up" to include that amount necessary to
reimburse Employee for his federal, state and local income tax liability on the
bonus and on the "gross-up" at the respective effective marginal tax rates, or
(y) such sum as shall be equal to the product of two times (i.e., double) his
annual base salary without any gross-up.
c. Bonuses. Employee shall be eligible for such bonuses, if any, as may
hereafter be determined and paid in accordance with such policies as the
Compensation Committee of the Board of Directors of ACTV may set from time to
time.
d. Benefits. Employee shall be entitled to participate in all employee
health and other benefit plans or programs of ACTV to the extent that his
position, title, tenure, salary and other qualifications make him eligible to
participate. ACTV does not guarantee the continuance of any particular employee
benefit plan or program during the period of Employee's employment, and
Employee's participation in any such plan or program shall be subject to all
terms, provisions, rules and regulations applicable thereto.
e. Exercise of Stock Options. Unless a pre-existing plan of ACTV shall
expressly forbid it, all or any portion of the exercise price of any vested,
unexercised stock options that shall become exercisable and be exercised by
Employee during the term hereof may be paid for by Employee in cash or, at
Employee's election, by Employee's delivery and transfer to ACTV of such number
of shares of ACTV common stock as Employee shall have owned for at least six
months and shall, at the date of Employee's delivery and transfer thereof to
ACTV, have a fair market value equal to the exercise price (or such portion
thereof as Employee shall then be paying thereby).
f. Insurance. ACTV shall maintain a life, accidental death and
dis-memberment insurance policy on Employee for the benefit of a beneficiary
named by Employee in an amount not less than $750,000; provided, that ACTV shall
have the right, upon 10 days prior written notice to Employee, to terminate or
otherwise cease to maintain that insurance policy in the event that ACTV
terminates or otherwise ceases to maintain any life, accidental death and
dismemberment insurance policy on each of Messrs. R. Xxxxx Xxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxx Xxxxx and Xxxxxxx X. Xxxxxxx for the benefit of a respective
beneficiary named by the respective such individual. In the event of any
termination of Employee's employment under this Agreement, Employee shall have
the right - upon written notice delivered to ACTV within 10 business days after
such termination - to assume the ownership of the foregoing insurance policy on
Employee, in the event of which timely election notice from Employee, ACTV shall
promptly assign such policy to Employee, whereupon such policy shall become the
obligation of Employee to maintain at Employee's sole cost and expense (and in
the absence of which timely election notice from Employee, the Company shall
have the right to terminate such policy, without notice to Employee).
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3. Employment At-Will/Termination.
a. Term; Termination. Employee's employment hereunder shall be at-will,
without fixed term or duration, and this Agreement and Employee's employment
here-under may be terminated at any time as follows:
i. By Employee. Employee may terminate this Agreement, and
Employee's employment hereunder, at will, upon written notice to ACTV, whereupon
this Agreement and Employee's employment hereunder (and all of ACTV's and
Employee's respective rights, duties and obligations hereunder) shall terminate,
subject in all respects to Section 3(a)(iv) hereof.
In the event that Employee shall terminate his employment for Good
Reason (as such term is hereafter defined), Employee shall be entitled to
severance pay equal to six months' of Employee's base salary, in addition to
such rights as Employee may have under any other provisions of this Agreement
(including Section 2(b) above, subject to the following proviso) upon any
termination of his employment for Good Reason; provided, that notwith-standing
anything hereinbefore set forth, Employee shall not be entitled to the foregoing
six months' severance pay if Employee is paid the one-time cash severance sum
specified in Section 2(b) upon or within 30 days after any termination of his
employment for Good Reason.
"Good Reason" shall mean any termination of this Agreement effected by
Employee on account of (i) a material breach hereof by ACTV (including, without
limitation, a reduction in base salary from the amount set forth in Section 2(a)
hereof), which breach ACTV shall have failed to cure within 15 days after its
receipt of written notice thereof from Employee, which notice shall have made
specific reference to this Section of this Agreement, (ii) ACTV's relocation of
Employee's office to a location outside of the City of New York, NY, which
relo-cation ACTV shall have failed to rescind within 15 days after its receipt
of a written rescission request from Employee, which request shall have made
specific reference to this Section of this Agreement, or (iii) the assignment to
or taking from Employee, upon or after any Change of Control, of any duties,
responsibilities, status, title or position that is or are, in the case of any
such assignment to Employee materially inconsistent with, or in the case of any
such taking from Employee materially detractive from, Employee's duties,
responsibilities, status, title and posi-tion, viewed in the aggregate, as in
effect immediately prior to such Change of Control, which assignment or taking
ACTV shall have failed to rescind within 15 days after its receipt of a written
rescission request from Employee, which request shall have made specific
reference to this Section of this Agreement.
ii. By ACTV For Cause. ACTV may terminate this Agreement, and
Employee's employment hereunder, upon written notice for cause. For purposes
hereof, "cause" shall mean Employee's (1) refusing to carry out the business of
ACTV and its affiliates, as lawfully directed by ACTV, (2) breach of this
Agreement or the CIWP Agreement (as such term is defined in Section 6 hereof) in
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any material respect, (3) engaging in conduct that con-stitutes competitive
activity in violation of Section 7 hereof, (4) conviction of a felony, (5)
con-tinuing or repeated abuse of alcohol or prescription drugs, (6) abuse of any
controlled substance, or (7) inability to perform and fulfill his assigned
duties due to a disability. Notwithstanding anything to the contrary in this
Section 3(a)(ii), ACTV may not terminate Employee's employ-ment for cause under
clause (1) hereof unless Employee shall have first received 15 days written
notice from ACTV's CEO advising Employee of the specific acts or omissions
alleged to con-stitute cause, and such acts or omissions continue thereafter.
Any termination of Employee's employment for disability shall not affect
Employee's right to receive any benefits to which he may be entitled pursuant to
any of the employee benefit plans or programs referenced in Section 2(e).
iii. By ACTV Without Cause. ACTV may terminate this Agree-ment
and Employee's employment hereunder without cause at any time, upon written
notice to Employee. In the event that Employee is terminated without cause,
Employee shall be entitled to severance pay equal to six months' salary, in
addition to such rights as Employee may have under any other provisions of this
Agreement (including Section 2(b) above, subject to the following proviso) upon
any termination of his employment without cause; provided, that not-withstanding
anything hereinbefore set forth, Employee shall not be entitled to the foregoing
six months' severance pay if Employee is paid the one-time cash severance sum
specified in Section 2(b) upon or within 30 days after any termination of his
employment without cause. Notwith-standing anything hereinbefore set forth, ACTV
covenants and agrees that if it terminates Employee's employment hereunder
without cause in connection with or in contemplation of a pending or proposed
Change of Control, then ACTV shall pay Employee the one-time cash severance sum
specified in Section 2(b) upon or within 30 days after such termination of his
employment, which payment shall (if it is made upon or within 30 days after such
termination) be in lieu of the foregoing six months' severance pay. Employee
shall be entitled to retain his assigned desktop (non-laptop) personal computer
upon any termination of his employment without cause.
iv. Survival. Notwithstanding any termination of Employee's
employment (whether effected by ACTV, any successor entity or Employee under
this Section 3 or under any other provision of this Agreement), the provisions
of Sections 6 (Confidential Information and Work Product Agreement) and 7
(Covenant Not to Compete) hereof, and Employee's covenants, duties and
obligations thereunder, shall survive such termination and shall continue in
full force and effect in accordance with the respective terms thereof; provided,
that if Employee's employment is terminated by Employee for Good Reason, the
provisions of Section 7 (Covenant Not to Compete) shall not survive or have any
force or effect after the date of such termination.
b. Termination upon Death. This Agreement and Employee's employment
hereunder shall automatically terminate upon the death of Employee, except that
Employee's estate shall be entitled to receive any amount accrued under Section
2(a) for the period prior to Employee's death and any other amount which
Employee was entitled to be paid by ACTV at the time of his death, and
Employee's estate shall be entitled to receive any benefits provided pursuant to
any of the employee benefit plans or programs referenced in Section 2(d).
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4. Expenses. Employee shall be reimbursed for all reasonable
and necessary out-of-pocket expenses incurred in the performance of Employee's
duties hereunder, provided that Employee shall have timely submitted to ACTV
reasonably detailed expense reports and receipts with respect thereto on a
timely basis. All air travel shall be in accordance with ACTV's established
travel policies as in effect from time to time.
5. Vacation. Employee shall be entitled to three weeks of paid
vacation time per year, on dates to be agreed upon between ACTV and Employee. In
the event that Employee's employment is terminated for any reason other than for
cause, Employee's accrued vacation time shall be paid to him at his then current
base salary.
6. Confidential Information and Work Product Agreement. The
parties acknowledge and confirm that Employee has, contemporaneously herewith,
executed a Confidential Information and Work Product Agreement dated the date
hereof (the "CIWP Agreement") and that such CIWP Agreement shall continue in
full force and effect.
7. Covenant Not to Compete. Employee acknowledges and confirms
that ACTV is placing its confidence and trust in Employee. Accordingly, and in
consideration of ACTV's execution of this Agreement, Employee covenants and
agrees that he will not, during the term of his employment, and for a period of
one (1) year thereafter, either directly or indirectly, engage in any business,
either directly or indirectly (whether as a creditor, guarantor, financial
backer, stockholder, director, officer, consultant, advisor, employee, member,
inventor, producer, or otherwise), with or for any company, enterprise,
institution, organization or other legal entity (whether a sole proprietorship,
a corporation, a partnership, a limited liability company, an association, or
otherwise, and whether or not for profit), which is in competition with the ACTV
Business (as defined herein). As used in this Agreement, the term "ACTV
Business" shall mean the invention, development, application, implementation,
extension, operation, licensing and/or management by ACTV and/or any ACTV
affiliate of any invention, software, technology, business, service or product
of ACTV and/or any ACTV affiliate.
Furthermore, Employee will not during the term of his employment, and
for a period of one (1) year thereafter, individually or through any entity,
directly or indirectly, without the express prior written consent of ACTV,
become an employee, consultant, advisor, director, officer, producer, partner or
joint or co-venturer of or to, or enter into any contract, agreement or
arrangement with, any entity or business venture of any kind to or of which ACTV
and/or any ACTV affiliate is a licensor or licensee or with which ACTV and/or
any ACTV affiliate is a joint or co-venturer, partner or otherwise engaged in
any material (or then potentially material) on-going business relationship or
discussions or negotiations with a view to entering into such a relationship to
provide services or products, without the prior written consent of ACTV, which
consent ACTV shall not unreasonably withhold. Nor shall Employee, during the
term of his employment, and for a period of two (2) years thereafter,
individually or through any entity, directly or indirectly, without the express
prior written consent of ACTV, make or otherwise extend any offer of full-time
or part-time employment to any officer or employee of ACTV and/or of any ACTV
affiliate, or otherwise solicit any officer or employee of ACTV and/or of any
ACTV affiliate to seek or accept any full-time or part-time employment, by or
with any person or entity other than ACTV or any ACTV affiliate.
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Employee hereby acknowledges and agrees that the ACTV Business extends
throughout the United States, and that -- given the nature of the ACTV Business
-- ACTV and/or any ACTV affiliate can be harmed by competitive conduct anywhere
in the United States. Employee therefore agrees that the covenants not to
compete contained in this Section 8 shall be applicable in and throughout the
United States, as well as throughout such non-U.S. areas in which ACTV and/or
any ACTV affiliate may be (or has, with Employee's knowledge and assistance,
prepared written plans to be) doing business as of the date of termination of
Employee's employment. Employee further warrants and represents that, because of
his varied skill and abilities, he does not need to compete with the ACTV
Business, and that this Agreement will therefore not prevent him from earning a
livelihood. Employee acknowledges that the restrictions contained in this
Section 8 constitute reasonable protections for ACTV and its affiliates in light
of the foregoing and in light of the promises to Employee contained herein.
Employee and ACTV hereby agree that, if the period of time or the scope of the
restrictive covenant not to compete contained in this Section 8 shall be
adjudged unreasonable by any proper arbiter of a dispute hereunder, then the
period of time and/or scope shall be reduced accordingly, so that this covenant
may be enforced in such scope and during such period of time as is judged by
such arbiter to be reasonable.
Notwithstanding anything hereinabove set forth in this Section 8,
Employee may - solely in his capacity as a passive investor - make equity
investments in any publicly listed company, provided that the amount of any such
investment does not exceed 2% of the issued and outstanding shares of the
capital stock of the respective class of equity securities of such company and
provided, further, that such investment does not violate any then current
investments policy published by ACTV.
Notwithstanding anything hereinabove set forth in this Section 8, the
provisions of this Section 8 shall not survive or otherwise apply to Employee
from and after any date upon which Employee may terminate his employment
hereunder for Good Reason.
As used in this Agreement, the term "affiliate" shall mean any person,
corporation, partnership, joint venture, limited liability company or other
legal entity that is controlled by ACTV. For purposes of the foregoing
definition, the term "control" shall mean the capability (whether by ownership
of, or ------- the right to vote, such equity stock or other ownership interests
as shall enable the party owning or voting same, or by the right to elect or
appoint a majority of those directors or other such persons having the
authority) to direct the policies and management of such legal entity.
Accordingly, at the date hereof, such of ACTV's affiliates as are operating
companies include ACTV Entertainment, Inc., AdVision Systems LLC, Bottle Rocket,
Inc., Digital ADCO, Inc., HyperTV Networks, Inc., Intellocity USA, Inc. and
Media Online Services, Inc.
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8. Entire Agreement. This Agreement, together with the CIWP
Agreement as executed by Employee, contains (with the exception of any stock
options that ACTV may have heretofore granted to Employee) the entire agreement
between the parties at the date hereof with respect to the employment and
compensation of Employee by or on behalf of ACTV or any affiliate of ACTV and
supersedes in all respects any prior agreement or understanding between Employee
and ACTV or any affiliate of ACTV with respect to the employment and
compensa-tion of Employee by or on behalf of ACTV or any affiliate of ACTV. The
unenforceability of any provision of this Agreement shall not affect the
enforceability of any other provision. This Agreement may not be amended or
modified in any way except by an agreement in writing signed by ACTV, as one
party, and by Employee, as the other party. Any delay in exercising, or any
failure to exercise, any rights provided by this Agreement shall not be deemed a
waiver thereof, and any express written waiver thereof shall not be deemed a
waiver of any further or future rights.
9. Assignment. Neither party shall have the right to assign
any of his or its respective rights, duties or obligations hereunder to any
third party without the prior written consent of the other party hereto,
provided that Employee's consent thereto shall not be required for or in
connection with ACTV's assignment of this Agreement to any entity that shall
succeed ACTV as a consequence of any sale of all or substantially all of ACTV's
assets, merger, consolidation or Change of Control.
10. Notices. All notices, responses, demands or other
communications under this Agreement shall be in writing and shall be deemed to
have been given when:
a. delivered by hand, with receipt confirmed;
b. transmitted by facsimile, with receipt confirmed, provided
that a copy is mailed on that same transmittal date by certified or registered
mail, return receipt requested; or
c. delivered by express delivery service, with receipt
confirmed;
in each case to the appropriate addresses or telecopier numbers set forth below,
or to such address or facsimile number as the respective party may hereafter
otherwise designate in writing:
(i) if to ACTV, to:
ACTV, Inc.
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxx,
Chief Executive Officer
Facsimile: (000) 000-0000
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with a separate and complete copy, under separate cover, to:
ACTV, Inc.
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Day X. Xxxxxxxxx,
Law Department
Facsimile: (000) 000-0000
and
(ii) if to Employee, to:
Xx. Xxxxxxxxxxx X. Xxxxx 000 Xxxx Xxx
Xxxxxx, #0X Xxx Xxxx, XX 00000
11. Specific Performance and Injunctive Relief. Employee
hereby recognizes and acknowledges that irreparable injury or damage may result
to ACTV and its affiliates in the event of a breach or threatened breach by
Employee of certain of the terms or provisions of this Agreement including,
without limitation, Employee's covenants in Section 8 hereof, and that ACTV and
its affiliates may have no adequate remedy at law for such breach or threatened
breach. Accordingly, Employee hereby agrees that, in addition to any other
available remedies in equity or at law, ACTV and its affiliates shall be
entitled to an injunction restraining Employee from engaging in any activity
constituting such breach or threatened breach and requiring specific performance
of the terms hereof. Nothing contained herein shall be construed as prohibiting
ACTV or any ACTV affiliate from pursuing any other remedies available to ACTV or
any ACTV affiliate at law or in equity for such breach or threatened breach,
including but not limited to, the recovery of damages from Employee and the
termination of his employment with ACTV in accordance with the terms and
provisions of this Agreement.
12. Arbitration. All controversies which may arise between the
parties hereto shall be determined by binding arbitration applying the laws of
the State of New York. Any arbitration pursuant to this Agreement shall be
conducted in New York, New York before the American Arbitration Association
("AAA") in accordance with its arbitration rules. Any dispute to be submitted to
arbitration must be reduced to writing and shall be provided to the other party
and to the AAA in order to initiate the proceedings. The award of the
arbitrator(s), or a majority of them, shall be final, and judgment upon the
award may be confirmed and entered in any state or federal court having
jurisdiction; provided, that the arbitrators shall not have the right to award
any punitive damages (and each of the parties hereto waives any right to claim
or receive any punitive damages, whether in any arbitration proceeding or
otherwise). Nothing in this Section 13 will prevent ACTV or any ACTV affiliate
from resorting to judicial proceedings if interim injunctive relief under the
laws of the State of New York from a court is necessary to prevent serious and
irreparable injury or harm to ACTV or any ACTV affiliate. If and insofar as
Employee shall prevail in any arbitration proceeding regarding any payment that
Employee shall claim is due him on account of or in connection with any Change
of Control, ACTV shall xxxx-xxxxx Employee for all costs and expenses, including
reasonable attorneys fees, incurred by Employee with respect thereto.
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13. Governing Law. This Agreement and any amendments hereto,
and waivers and consents with respect thereto, shall be governed by the internal
laws of the State of New York, without regard to the conflict of laws principles
thereof.
[The parties' signatures are on the following page.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ACTV, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx,
Chief Executive Officer
/s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------
XXXXXXXXXXX X. XXXXX
(Employee)
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EXHIBIT A
Definition of "Change of Control"
For purposes hereof, a "Change of Control" shall mean the first to occur of the
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 ACTV
(the "Outstanding ACTV Common Stock") or (ii) the combined voting power of the
then-outstanding voting securities of ACTV entitled to vote generally in the
election of directors (the "Outstanding ACTV Voting Securities"); provided,
however, that, for purposes hereof, the following acquisitions shall not
constitute a Change in Control: (A) any acquisition directly from ACTV, (B) any
acquisition by ACTV, (C) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by ACTV 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
ACTV (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 ACTV'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 ACTV or any of its
subsidiaries, a sale or other disposition of all or substantially all of the
assets of ACTV, or the acquisition of assets or stock of another entity by ACTV
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 ACTV
Common Stock and the Outstanding ACTV 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 ACTV or all or
substantially all of ACTV'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 ACTV Common
Stock and the Outstanding ACTV Voting Securities, as the case may be, (ii) no
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Person (excluding any employee benefit plan (or related trust) of ACTV or any
corporation or entity resulting from such Business 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 ACTV of a complete liquidation or
dissolution of ACTV.
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