Exhibit 3
Stock Option Agreement dated as of June 13, 1999
STOCK OPTION AGREEMENT (the "Agreement"), dated as of June 13, 1999,
by and between, DoubleClick Inc., a Delaware corporation ("Parent"), and Abacus
Direct Corporation, a Delaware corporation ("Company"). Capitalized terms used
herein but not defined herein shall have the meanings set forth in the Merger
Agreement referred to below.
WHEREAS, concurrently with the execution and delivery of this
Agreement, Company, Parent and Atlanta Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), are entering into an Agreement
and Plan of Merger and Reorganization, dated as of the date hereof (the "Merger
Agreement"), pursuant to which, among other things, upon the terms and subject
to the conditions thereof, Merger Sub will be merged with and into Company (the
"Merger"), with Company continuing as the surviving corporation; and
WHEREAS, as a condition and inducement to Parent's willingness to
enter into the Merger Agreement, Parent has required that Company agree, and
Company has agreed, to grant to Parent an option to purchase certain newly
issued shares of Company's Common Stock, par value $.001 per share ("Company
Common Stock"), upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. Grant of Option. Company hereby grants to Parent an irrevocable
option (the "Company Option") to purchase up to 1,974,516 shares (the "Company
Shares") of Company Common Stock in the manner set forth below at a price (the
"Exercise Price") of $93.25 per Company Share, payable in cash; provided,
however, that the number of shares issuable to Parent pursuant hereto and
pursuant to Section 9.05(e) of the Merger Agreement shall not exceed 19.99% of
the outstanding shares of Company Common Stock.
2. Exercise of Option. (a) The Company Option may be exercised by
Parent, in whole or in part at any time or from time to time after (i) the
termination of the Merger Agreement under the conditions described in Section
9.05(b)(i) or 9.05(d) of the Merger Agreement and (ii) immediately prior to the
occurrence of any event causing the Termination Fee to become payable pursuant
to Section 9.05(b)(ii) or Section 9.05 (c) of the Merger Agreement. In the event
Parent wishes to exercise the Company Option, Parent shall deliver to Company a
written notice (an "Exercise Notice") specifying the total number of Company
Shares it wishes to purchase; provided that, if prior notification to or
approval of any regulatory or antitrust agency is required in connection with
such purchase, Parent shall promptly file the required notice or application for
approval, shall promptly notify Company of such filing, and shall expeditiously
process the same and the period of time that otherwise would run pursuant to
this sentence shall run instead from the date on which any required notification
periods have expired or been terminated or such approvals have been obtained and
any requisite waiting period or periods shall have passed. Each closing of a
purchase of Company Shares (an "Option Closing") shall
occur at a place, on a date and at a time designated by Parent in an Exercise
Notice delivered at least three business days prior to the date of the Option
Closing. The Company Option shall terminate upon the earlier of: (w) the
Effective Time; (x) the termination of the Merger Agreement pursuant to Section
9.01 thereof (other than a termination in connection with which Parent is or may
be entitled to any payments as specified in Section 9.05(b), 9.05(c) or 9.05 (d)
thereof); (y) 90 days following any termination of the Merger Agreement in
connection with which Parent is entitled to a payment as specified in Section
9.05(b)(i) or 9.05(d) thereof (or if, at the expiration of such 90 day period,
the Company Option cannot be exercised by reason of any applicable judgment,
decree, order, law or regulation, twenty (20) business days after such
impediment to exercise shall have been removed or shall have become final and
not subject to appeal); or (z) 90 days following the occurrence of any event in
connection with which Parent has become entitled to payment of the Termination
Fee pursuant to Section 9.05(b)(ii) of the Merger Agreement (or (I) if, at the
expiration of such 90 day period, the Company Option cannot be exercised by
reason of any applicable judgment, decree, order, law or regulation, twenty (20)
business days after such impediment to exercise shall have been removed or shall
have become final and not subject to appeal and (II) at the expiration of the
12-month period following termination of the Merger Agreement described in
Section 9.05(b)(ii) or 9.05(c) if the event described therein has not occurred).
(b) Notwithstanding any other provision of this Agreement or the
Merger Agreement, in no event shall Parent's Total Profit (as hereinafter
defined) exceed in the aggregate $50,000,000 and, if it otherwise would exceed
such amount Parent, in its sole discretion, shall either (i) reduce the number
of Company Shares subject to the Company Option, (ii) pay cash to Company, (iii)
receive a smaller Termination Fee (as defined in Section 9.05(b)of the Merger
Agreement), (iv) deliver to Company for cancellation Company Shares previously
purchased by Parent or (v) any combination thereof, so that Parent's actually
realized Total Profit shall not exceed in the aggregate $50,000,000 after taking
into account the foregoing actions.
(c) As used herein, the term "Total Profit" shall mean the sum of
(i) (x)the amount (before taxes but net of reasonable and customary commissions
paid or payable in connection with such transaction) received by Parent pursuant
to the sale of Company Shares less (y) Parent's purchase price for such Company
Shares, (ii) any amounts (before taxes but net of reasonable and customary
commissions paid or payable in connection with such transaction) received by
Parent on the transfer of the Company Option (or any portion thereof) to any
unaffiliated Person(s) (if permitted hereunder) or to Company and (iii) the
amount received by Parent pursuant to Section 9.05(b), 9.05(c) and 9.05(d) of
the Merger Agreement.
3. Conditions to Closing. The obligation of Company to issue the
Company Shares to Parent hereunder is subject to the conditions that (i) all
consents, approvals, orders or authorizations of, or registrations, declarations
or filings with, any Governmental Entity or Regulatory Entity if any, required
in connection with the issuance of the Company Shares hereunder shall have been
obtained or made, as the case may be; and (ii) no preliminary or permanent
injunction or other order by any court of competent jurisdiction prohibiting or
otherwise restraining such issuance shall be in effect.
4. Closing. At each Option Closing, (a) Company will deliver to
Parent a certificate
or certificates in definitive form representing the number of Company Shares
designated by Parent in its Exercise Notice, such certificate or certificates to
be registered in the name of Parent or its designee and to bear the legend set
forth in Section 10, and (b) Parent will deliver to Company the aggregate
Exercise Price for the Company Shares so designated by wire transfer of
immediately available funds or certified check or bank check. At any Option
Closing at which Parent is exercising the Company Option in part, Parent shall
present and surrender this Agreement to Company, and Company shall deliver to
Parent an executed new agreement with the same terms as this Agreement
evidencing the right to purchase the remaining balance of the shares of Company
Common Stock purchasable hereunder.
5. Representations and Warranties of Company. Company represents and
warrants to Parent that (a) Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder, (b) the execution and delivery of this Agreement by
Company and the consummation by Company of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Company and other than obtaining shareholder approval, no other corporate
proceedings on the part of Company are necessary to authorize this Agreement or
any of the transactions contemplated hereby, (c) this Agreement has been duly
executed and delivered by Company and constitutes a valid and binding obligation
of Company, enforceable against Company in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the rights and remedies of creditors
generally and general principles of equity, (d) Company has taken all action
necessary to authorize and reserve for issuance and to permit it to issue, upon
exercise of the Company Option, and at all times from the date hereof through
the expiration of the Company Option will have reserved, that number of unissued
Company Shares that are subject to the Company Option, all of which, upon their
issuance and delivery in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, (e) upon delivery of the Company
Shares to Parent upon the exercise of the Company Option, Parent will acquire
the Company Shares free and clear of all liens, claims, charges, encumbrances
and security interests of any nature whatsoever except those imposed by Parent,
(f) except as described in Section 4.05 of the Merger Agreement and of the
Company Disclosure Schedule, the execution and delivery of this Agreement by
Company does not, and the performance of this Agreement by Company will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or the loss of a benefit under,
or the creation of a lien, pledge, security interest or other encumbrance on
assets pursuant to (any such conflict, violation, default, right of termination,
cancellation or acceleration, loss or creation, a "Violation"), (A) any
provision of the Amended and Restated Certificate of Incorporation or By-laws,
each as amended, of Company or (B) any provisions of any material mortgage,
indenture, lease, contract or other agreement, instrument, permit, concession,
franchise, or license or (C) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Company or its properties or assets,
except in the case of clauses (B) and (C) immediately above, for violations
which would not, individually or in the aggregate, have a Company Material
Adverse Effect and (g) except as described in Section 4.05 of the Merger
Agreement and of the Company Disclosure Schedule, the execution and delivery of
this
Agreement by Company does not, and the performance of this Agreement by Company
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Entity or Regulatory Entity.
6. Representations and Warranties of Parent. Parent represents and
warrants to Company that (a) Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder, (b) the execution and delivery of this Agreement by
Parent and the consummation by Parent of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and no other corporate proceedings on the part of Parent are necessary to
authorize this Agreement or any of the transactions contemplated hereby, (c)
this Agreement has been duly executed and delivered by Parent and constitutes a
valid and binding obligation of Parent, enforceable against Parent in accordance
with its terms, except as such enforceability may be limited by bankruptcy and
other laws affecting the rights and remedies of creditors generally and general
principles of equity, (d) assuming that the consents, approvals, authorizations,
permits, filings and notifications referred to in subsection (e) are obtained or
made, as applicable, the execution and delivery of this Agreement by Parent does
not, and the performance of this Agreement by Parent will not, result in any
Violation pursuant to, (A) any provision of the Certificate of Incorporation or
By-laws, each as amended, of Parent, (B) any provisions of any material
mortgage, indenture, lease, contract or other agreement, instrument, permit,
concession, franchise, or license or (C) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Parent or its properties or
assets, except in the case of each of clauses (B) and (C) immediately, above,
for Violations which would not, individually or in the aggregate, have a Parent
Material Adverse Effect, (e) except as described in Section 5.05 of the Merger
Agreement and Section 3(a) of this Agreement, and except as may be required
under the Exchange Act, the execution and delivery of this Agreement by Parent
does not, and the performance of this Agreement by Parent will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity or Regulatory Entity, (f) any Company Shares
acquired upon exercise of the Company Option will not be, and the Company Option
is not being, acquired by Parent with a view to the public distribution thereof
and Parent will not sell or otherwise dispose of such shares in violation of
applicable law or this Agreement, (g) the Company Option and any Company Shares
acquired upon exercise of the Company Option are being acquired for the account
of Parent, (h) it is an "accredited investor" as defined in Regulation D under
the Securities Act, and (i) it understands that the Company Shares may not be
sold unless such sale is registered under the Securities Act or an exemption
from such registration is available.
7. Put.
(a) Exercise. At any time during which the Company Option is
exercisable hereunder (the "Repurchase Period"), upon demand by Parent, Parent
shall have the right to sell to Company (or any successor entity thereof) and
Company (or such successor entity) shall be obligated to repurchase from Parent
(the "Put"), all or any portion of the Company Option, to the extent not
previously exercised, at the price set forth in subparagraph (i) below, and/or
all or any portion of the Company Shares purchased by Parent pursuant thereto,
at a price set forth in subparagraph (ii) below:
(i) the difference between the "Market/Tender Offer Price" for
shares of Company Common Stock as of the date (the "Notice Date") notice
of exercise of the Put is given to the other party (defined as the greater
of (A) the price per share offered as of the Notice Date pursuant to any
tender or exchange offer or other Takeover Proposal which was made prior
to the Notice Date and not terminated or withdrawn as of the Notice Date
(the "Tender Price") or (B) the average of the closing prices of shares of
Company Common Stock on the Nasdaq National Market for the ten (10)
trading days immediately preceding the Notice Date (the "Market Price")),
and the Exercise Price, multiplied by the number of Company Shares
purchasable pursuant to the Company Option (or portion thereof with
respect to which Parent is exercising its rights under this Section 7),
but only if the Market/Tender Offer Price is greater than the Exercise
Price;
(ii) the Exercise Price paid by Parent for the Company Shares
acquired pursuant to the Company Option plus the difference between the
Market/Tender Offer Price and the Exercise Price, but only if the
Market/Tender Offer Price is greater than the Exercise Price, multiplied
by the number of Company Shares so purchased;
(b) Payment and Redelivery of Company Option or Shares. In the event
Parent exercises its rights under this Section 7, Company shall, within ten
business days of the Notice Date, pay the required amount (the "Repurchase
Price") to Parent in immediately available funds and Parent shall surrender to
Company the Company Option or the certificates evidencing the Company Shares
purchased by Parent pursuant thereto, and Parent shall represent and warrant
that it owns such shares and that such shares are then free and clear of all
liens, claims, charges and encumbrances of any kind or nature whatsoever, other
than any of the same created by Company or its affiliates.
(c) Payment Restrictions. To the extent that Company is prohibited
under applicable law or regulation, or as a consequence of administrative
policy, from repurchasing the Company Option and /or Shares in full, Company
shall immediately so notify Parent and thereafter deliver or cause to be
delivered, from time to time, to Parent the portion of the Repurchase Price that
it is no longer prohibited from delivering, within five business days after the
date on which Company is no longer so prohibited; provided that, if Company at
any time after delivery of a notice of repurchase pursuant to Section 7(a) is
prohibited under applicable law or regulation, or as a consequence of
administrative policy, from delivering to Parent the Repurchase Price in full
(and Company hereby undertakes to use its reasonable best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish such repurchase), Parent may
revoke its notice of the Put whether in whole or to the extent of the
prohibition, whereupon, in the latter case, Company shall promptly (1) deliver
to Parent that portion of the Repurchase Price that Company is not prohibited
from delivering and (2) deliver to Parent as appropriate, (A) a new Agreement
evidencing the right of Parent to purchase that number of shares of Common Stock
obtained by multiplying the number of shares of Common Stock for which the
surrendered Agreement was exercisable at the time of delivery of the notice of
repurchase by a fraction, the numerator of which is the Repurchase Price less
the portion thereof theretofore delivered to Parent and the denominator of which
is the Repurchase Price, and/or (B) to Parent, a certificate for the Company
Shares it is then so prohibited from repurchasing.
8. Registration Rights.
(a) Following any exercise of the Company Option, Parent may by
written notice (the "Registration Notice") to Company request Company to
register under the Securities Act all or any part of the shares of Company
Common Stock acquired pursuant to this Agreement, including any voting
securities issued by way of dividend, distribution or otherwise in respect
thereof (the "Restricted Shares"), beneficially owned by Parent (the
"Registrable Securities") in order to permit the sale or other distribution of
such Registrable Securities, including pursuant to a firm commitment
underwritten public offering; provided, however, that any such Registration
Notice must relate to a number of shares equal to at least 4% of the outstanding
shares of Company Common Stock and that any rights to require registration
hereunder shall terminate with respect to any Shares that may be sold in any
90-day period pursuant to Rule 144 under the Securities Act. The Registration
Notice shall include a certificate executed by Parent and its proposed managing
underwriter, which underwriter shall be an investment banking firm of nationally
recognized standing and reasonably acceptable to Company (the "Manager"),
stating that Manager in good faith believes that, based on the then prevailing
market conditions, it will be able to sell the Registrable Securities at a per
share price equal to at least 70% of the Fair Market Value of such shares. For
purposes of this Section 8, the term "Fair Market Value" shall mean the per
share average of the closing sale prices of Company's Common Stock on the Nasdaq
National Market for the twenty (20) trading days immediately preceding the date
of the Registration Notice.
(b) Company shall use commercially reasonable efforts to effect, as
promptly as practicable, the registration under the Securities Act of the
unpurchased Registrable Securities; provided, however, that (i) Parent shall not
be entitled to more than two effective registration statements hereunder and
(ii) Company will not be required to file any such registration statement during
any period of time (not to exceed 40 days after such request in the case of
clause (A) below or 90 days in the case of clauses (B) and (C) below) when (A)
Company is in possession of material non-public information which it reasonably
believes would be detrimental to be disclosed at such time and, based on
consultation with counsel to Company, such information would have to be
disclosed if a registration statement were filed at that time; (B) Company is
required under the Securities Act to include audited financial statements for
any period in such registration statement and such financial statements are not
yet available for inclusion in such registration statement; or (C) Company
determines, in its reasonable good faith judgment, that such registration would
interfere with any financing, acquisition or other material transaction
involving Company or any of its affiliates. If consummation of the sale of any
Registrable Securities pursuant to a registration hereunder does not occur
within 180 days after the filing with the SEC of the initial registration
statement, then such registration shall not be taken into account as an
effective registration for purposes of clause (i) above. Company shall use
commercially reasonable efforts to cause any Registrable Securities registered
pursuant to this Section 8 to be qualified for sale under the securities or Blue
Sky laws of such jurisdictions as Parent may reasonably request and shall
continue such registration or qualification in effect in such jurisdiction;
provided, however, that Company shall not be required to qualify to do business
in, or consent to general service of process in, any jurisdiction by reason of
this provision.
(c) The registration rights set forth in this Section 8 are subject
to the condition that Parent shall provide Company with such information with
respect to Parent's Registrable Securities, the plans for the distribution
thereof, and such other information with respect to Parent as, in the reasonable
judgment of counsel for Company, is necessary to enable Company to include in
such registration statement all material facts required to be disclosed with
respect to a registration thereunder.
(d) If Company securities of the same type as the Registrable
Securities are then authorized for quotation or trading or listing on the New
York Stock Exchange, the Nasdaq National Market, or any other securities
exchange or automated quotations system, Company, upon the request of Parent,
shall promptly file an application, if required, to authorize for quotation,
trading or listing the shares of Registrable Securities on such exchange or
system and will use its reasonable best efforts to obtain approval, if required,
of such quotation, trading or listing as soon as practicable.
(e) A registration effected under this Section 8 shall be effected
at Company's expense, except for underwriting discounts and commissions and fees
and expenses of counsel to Parent, and Company shall provide to the underwriters
such documentation (including certificates, opinions of counsel and "comfort"
letters from auditors) as are customary in connection with underwritten public
offerings as such underwriters may reasonably require. In connection with any
such registration, the parties agree (i) to indemnify each other and the
underwriters in the customary manner and (ii) to enter into an underwriting
agreement in form and substance customary for transactions of the type
contemplated hereby with the Manager and the other underwriters participating in
such offering.
9. Adjustment Upon Changes in Capitalization.
(a) In the event of any change in Company Common Stock by reason of
stock dividends, splits, mergers (other than the Merger), recapitalizations,
combinations, exchange of shares or the like, the type and number of shares or
securities subject to the Company Option, and the Exercise Price per share,
shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction so that Parent shall receive, upon
exercise of the Company Option, the number and class of shares or other
securities or property that Parent would have received in respect of the Company
Common Stock if the Company Option had been exercised immediately prior to such
event or the record date therefor, as applicable. If additional shares of
Company Common Stock are issued after the date of this Agreement (other than
pursuant to an event described in the first sentence of this Section 9(a)), the
number of shares of Company Common Stock subject to the Company Option will be
adjusted so that it equals 19.99% of the number of shares of Company Common
Stock then issued and outstanding, without giving effect to any shares subject
to or issued pursuant to the Company Option.
(b) In the event that Company shall enter in an agreement: (i) to
consolidate with or merge into any person, other than Parent or any of its
Subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger; (ii) to permit any person, other than Parent or one of
its subsidiaries, to merge into Company and Company shall be the continuing or
surviving corporation, but, in connection with such merger, the then-outstanding
shares of Company Common Stock shall be changed into or exchanged for stock or
other securities of Company or any other person or cash or any other property or
the outstanding shares of Company Common Stock immediately prior to such merger
shall after such merger represent less than 50% of the outstanding shares and
share equivalents of the merged company; or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than Parent or any
of its Subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provision so that upon the consummation of any
such transaction and upon the terms and conditions set forth herein, Parent
shall receive for each Company Share with respect to which the Company Option
has not been exercised an amount of consideration in the form of and equal to
the per share amount of consideration that would be received by the holder of
one share of Company Common Stock less the Exercise Price (and, in the event of
an election or similar arrangement with respect to the type of consideration to
be received by the holders of Company Common Stock, subject to the foregoing,
proper provision shall be made so that the holder of the Company Option would
have the same election or similar rights as would the holder of the number of
shares of Company Common Stock for which the Company Option is then
exercisable).
10. Restrictive Legends. Each certificate representing shares of
Company Common Stock issued to Parent hereunder shall, to the extent applicable,
include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR
SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT, DATED AS OF JUNE 13, 1999,
A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER.
11. Binding Effect; No Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor the rights or the
obligations of either party hereto are assignable, except by operation of law,
or with the written consent of the other party. Nothing contained in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto and their respective permitted assigns any rights or remedies
of any nature whatsoever by reason of this Agreement. Any Restricted Shares sold
by Parent in compliance with the provisions of Section 8 shall, upon
consummation of such sale, be free of the restrictions imposed with respect to
such shares by this Agreement, and any transferee of such shares shall not be
entitled to the rights of Parent. Certificates representing shares sold in a
registered public offering pursuant to Section 8 shall not be required to bear
the legend set forth in Section 10.
12. Specific Performance. The parties recognize and agree that if
for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
this Agreement, neither party will allege, and each party hereby waives the
defense, that there is an adequate remedy at law.
13. Entire Agreement. This Agreement and the Merger Agreement
(including the Company Disclosure Schedule and the Parent Disclosure Schedule
relating thereto) constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof.
14. Further Assurance. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
15. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision. Each party agrees
that, should any court or other competent authority hold any provision of this
Agreement or part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith, or not take any action required
herein, the other party shall not be entitled to specific performance of such
provision or part hereof or to any other remedy, including but not limited to
money damages, for breach hereof or of any other provision of this Agreement or
part hereof as the result of such holding or order.
16. Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telegraphed or
telecopied or sent by certified or registered mail, postage prepaid, and shall
be deemed to be given, dated and received when so delivered personally,
telegraphed or telecopied or, if mailed, five business days after the date of
mailing to the following address or telecopy number, or to such other address or
addresses as such person may subsequently designate by notice given hereunder.
B. if to Parent or Merger Sub, to:
DoubleClick Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No.:(000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
and
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
C. if to Company, to:
Abacus Direct Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: W. Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State without regard to any
applicable conflicts of law rules.
18. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same instrument.
20. Expenses. Except as otherwise expressly provided herein or in
the Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
21. Amendments; Waiver. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
DOUBLECLICK INC.
By: /s/ Xxxxx X. X'Xxxxxx
-----------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Chief Executive Officer
ABACUS DIRECT CORPORATION
By: /s/ M. Xxxxxxx Xxxxx
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Name: M. Xxxxxxx Xxxxx
Title: Chief Executive Officer
SIGNATURE PAGE TO OPTION AGREEMENT
