EXHIBIT 99.5
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT dated as of November 2, 1997 (the "Agreement")
---------
is entered into by and between Desktop Data, Inc., a Delaware corporation
("Desktop"), and Individual, Inc. a Delaware corporation ("Individual").
- --------- ----------
RECITALS
--------
WHEREAS, concurrently with the execution and delivery of this Agreement,
Desktop and Individual are entering into an Agreement and Plan of Reorganization
(the "Merger Agreement"), which provides that, among other things, upon the
----------------
terms and subject to the conditions thereof, Individual will be merged with and
into Desktop (the "Merger") with Desktop continuing as the surviving
------
corporation.
WHEREAS, as a condition to Individual's willingness to enter into the
Merger Agreement, Individual has requested that Desktop agree, and Desktop has
so agreed, to grant to Individual an option to acquire shares of Desktop's
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 and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
---------
1. Grant of Option
------------------
Desktop hereby grants to Individual an irrevocable option (the "Option") to
------
acquire up to 1,726,398 shares (the "Option Shares") of the Common Stock, par
-------------
value $.01 per share, of Desktop ("Desktop Shares") in the manner set forth
--------------
below (i) by exchanging therefor shares of the Common Stock, par value $.01 per
share, of Individual ("Individual Shares") at a rate of two (2) Individual
-----------------
Shares for each Option Share (the "Exercise Ratio") and/or, at Individual's
--------------
election, (ii) by paying cash at a price determined in accordance with Section 4
below. Capitalized terms used in this Agreement but not defined herein shall
have the meanings ascribed thereto in the Merger Agreement.
2. Exercise of Option
------------------
The Option may only be exercised by Individual, in whole or in part, at any
time or from time to time, upon the occurrence of (i) the commencement of a
tender or exchange offer for 25% or more of any class of Desktop's capital
stock, or (ii) any of the events specified in Section 7.03 (c) of the Merger
Agreement, other than events described in Section 7.01(g) thereof (any of the
--------------------------------------------------------
events specified in clauses (i) or (ii) of this sentence being referred to
herein as an "Exercise Event"). In the event Individual wishes to exercise the
--------------
Option, Individual shall deliver to Desktop a written notice (an "Exercise
--------
Notice") specifying the total number of Option shares it wishes to acquire and
- ------
the form of consideration to be paid. Each closing of a purchase of Option
-2-
Shares (a "Closing") shall occur on a date and at a time designated by
-------
Individual in an Exercise Notice delivered at Individual five business
days prior to the date of such Closing, which Closing shall be held at the
offices of counsel to Desktop. The Option shall terminate upon the earlier of
(i) the Effective Time, (ii) 180 days following the termination of the Merger
Agreement pursuant to Article VII thereof, if an Exercise Event shall have
occurred on or prior to the date of such termination, and (iii) the date on
which the Merger Agreement is terminated pursuant to Article VII thereof if an
Exercise Event shall not have occurred on or prior to such date; provided,
--------
however, with respect to the preceding clause (ii) of this sentence, that if the
- -------
Option cannot be exercised by reason of any applicable government order, then
the Option shall not terminate until the tenth business day after such
impediment to exercise shall have been removed or shall have become final and
not subject to appeal. Notwithstanding the foregoing, the Option may not be
exercised if Individual is in breach in any material respect of any of its
covenants or agreements contained in the Merger Agreement.
3. Conditions to Closing
---------------------
The obligation of Desktop to issue Option Shares to Individual hereunder is
subject to the conditions that (a) all consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Option Shares hereunder shall have been obtained or
made, as the case may be; and (b) 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 any Closing, (a) Desktop shall deliver to Individual a single
certificate in definitive form representing the number of Desktop Shares
designated by Individual in its Exercise Notice, such certificate to be
registered in the name of Individual and to bear the legend set forth in Section
10 hereof, and (b) Individual shall pay to Desktop the aggregate purchase price
for the Desktop Shares so designated and being purchased by delivery of (i) a
single certificate in definitive form representing the number of Individual
Shares being issued by Individual in consideration therefor (based on the
Exercise Ratio), such certificate to be registered in the name of Desktop and to
bear the legend set forth in Section 10 hereof, and/or, at Individual's
election, (ii) a certified checks, bank check or wire transfer, as the case may
be. If Individual has elected to deliver cash in payment for any Desktop
Shares, the price to be paid by Individual in cash to Desktop at any Closing in
respect of such Desktop Shares shall be $10.34 per share (the "Exercise Price").
--------------
5. Representations and Warranties of Desktop
-----------------------------------------
Desktop represents and warrants to Individual that (a) Desktop 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 Desktop and consummation by Desktop of the
transactions contemplated hereby have been duly authorized by all necessary
-3-
corporate action on the part of Desktop and no other corporate proceedings on
the part of Desktop are necessary to authorize this Agreement or any of the
transactions contemplated hereby; (c) this Agreement has been duly executed and
delivered by Desktop and constitutes a legal, valid and binding obligation of
Desktop and, assuming this Agreement constitutes a legal, valid and binding
obligation of Individual, is enforceable against Desktop in accordance with its
terms, except as enforceability may be limited by bankruptcy and other laws
affecting the rights and remedies of creditors generally and general principles
of equity; (d) Desktop has taken all necessary corporate and other action to
authorize and reserve for issuance and to permit it to issue upon exercise of
the Option, and at all times from the date hereof until the termination of the
Option will have reserved for issuance, a sufficient number of unissued Desktop
Shares for Individual to exercise the Option in full and will take all necessary
corporate or other action to authorize and reserve for issuance all additional
Desktop Shares necessary corporate or other action to authorize and reserve for
issuance all additional Desktop Shares or other securities which may be issuable
pursuant to Section 9(a) upon exercise of the 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 Desktop
Shares and any other securities to Individual upon exercise of the Option,
Individual will acquire such Desktop Shares or other securities free and clear
of all material claims, liens, charges, encumbrances and security interests of
any kind or nature whatsoever, excluding those imposed by Individual; (f) the
execution and delivery of this Agreement by Desktop do not, and the performance
of this Agreement by Desktop will not, (i) violate the Certificate of
Incorporation or By-Laws of Desktop, (ii) conflict with or violate any order
applicable to Desktop or any of its subsidiaries or by which they or any of
their property is bound or affected or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give rise to any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of Desktop or any of its
subsidiaries pursuant, to any contract or agreement to which Desktop or any of
its subsidiaries is a party or by which Desktop or any of its subsidiaries or
any of their property is bound or affected, except, in the case of clauses (ii)
and (iii) above, for violations, conflicts, breaches, defaults, rights of
termination, amendment, acceleration or cancellation, liens or encumbrances
which would not, individually or in the aggregate, have a Material Adverse
Effect on Desktop; (g) the execution and delivery of this Agreement by Desktop
does not, and the performance of this Agreement by Desktop will not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Entity and (h) any Individual Shares acquired pursuant to
this Agreement will not be acquired by Desktop with a view to the public
distribution thereof and Desktop will not sell or otherwise dispose of such
shares in violation of applicable law or this Agreement.
6. Representations and Warranties of Individual
--------------------------------------------
Individual represents and warrants to Desktop that (a) Individual is a
corporation duly incorporated, 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 Individual and the consummation by
Individual of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Individual and no other corporate
proceedings on the part of
-4-
Individual are necessary to authorize this Agreement or any of the transactions
contemplated hereby; (c) this Agreement has been duly executed and delivered by
Individual and constitutes a legal, valid and binding obligation of Individual
and, assuming this Agreement constitutes a legal, valid and binding obligation
of Desktop, is enforceable against Individual in accordance with its term,
except as enforceability may be limited by bankruptcy and other laws affecting
the rights and remedies of creditors generally and general principles of equity;
(d) Individual has taken (or will in a timely manner take) all necessary
corporate and other action to authorize and reserve for issuance and to permit
it to issue upon exercise of the Option and will take all necessary corporate or
other action to authorize and reserve for issuance all additional Individual
Shares or other securities which may be issuable pursuant to Section 9(b) upon
exercise of the 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 Desktop Shares to Individual in
consideration of any acquisition of Individual Shares pursuant hereto,
Individual will acquire such Desktop Shares free and clear of all material
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever, excluding those imposed by Desktop; (f) the execution and
delivery of this Agreement by Individual do not, and the performance of this
Agreement by Individual will not, (i) violate the Certificate of Incorporation
or By-Laws of Individual, (ii) conflict with or violate any order applicable to
Individual or any of its subsidiaries or by which they or any of their property
is bound or affected or (iii) result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the property or assets of Individual or any of its subsidiaries pursuant to, any
contract or agreement to which Individual or any of its subsidiaries is a party
or by which Individual or any of its subsidiaries or any of their property is
bound or affected, except, in the case of clauses (ii) and (iii) above, for
violations, conflicts, breaches, defaults, rights of termination, amendment,
acceleration or cancellation, liens or encumbrances which would not,
individually or in the aggregate, have a Material Adverse Effect on Individual;
(g) the execution and delivery of this Agreement by Individual does not, and the
performance of this Agreement by Individual will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Entity; and (h) any Desktop Shares acquired upon exercise of the
Option will not be acquired by Individual with a view to the public distribution
thereof and Individual will not sell or otherwise dispose of such shares in
violation of applicable law or this Agreement.
7. [Intentionally Omitted.]
8. Registration Rights
-------------------
(a) Following the termination of the Merger Agreement, each party hereto (a
"Holder") may by written notice (a "Registration Notice") to the other party
------ -------------------
(the "Registrant") request the Registrant to register under the Securities Act
----------
all or any part of the shares acquired by such Holder pursuant to this Agreement
(the "Registrable Securities") in order to permit the sale or other disposition
----------------------
of such shares pursuant to a bona fide firm commitment underwritten public
offering in which the Holder and the underwriters shall effect as wide a
distribution of such Registrable Securities as is reasonably practicable and
shall use reasonable efforts to prevent any person or group from purchasing
through such offering shares representing more than 1% of the
-5-
outstanding shares of Common Stock of the Registrant on a fully diluted basis;
provided, however, that any such Registration Notice must relate to a
- -----------------
number of shares equal to at least 2% of the outstanding shares of Common
Stock of the Registrant on a fully diluted basis and that any rights to require
registration hereunder shall terminate with respect to any shares that may be
sold pursuant to Rule 144(k) under the Securities Act.
(b) The Registrant shall use all reasonable efforts to effect, as promptly
as practicable, the registration under the Securities Act of the Registrable
Securities; provided, however, that (i) neither party shall be entitled to more
-------- -------
than an aggregate of two effective registration statements hereunder and (ii)
the Registrant will not be required to file any such registration statement
during any period of time (not to exceed 40 days after a Registration Notice in
the case of clause (A) below or 90 days after a Registration Notice in the case
of clauses (B) and (C) below) when (A) the Registrant is in possession of
material non-public information which it reasonably believes would be
detrimental to be disclosed at such time and, in the written opinion of counsel
to such Registrant, such information would have to be disclosed if a
registration statement were filed at that time; (B) such Registrant 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) such Registrant
determines, in its reasonable judgment, that such registration would interfere
with any financing, acquisition or other material transaction involving the
Registrant. 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 therefor, the provisions of this
Section 8 shall again be applicable to any proposed registration, it being
understood that neither party shall be entitled to more than an aggregate of two
effective registration statements hereunder. The Registrant shall use all
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 the Holder may reasonably request and shall continue such
registration or qualification in effect in such jurisdictions; provided,
--------
however, that the Registrant 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 the Holder shall provide the Registrant with such information
with respect to such Holder's Registrable Securities, the plan for distribution
thereof, and such other information with respect to such Holder as, in the
reasonable judgment of counsel for the Registrant, is necessary to enable the
Registrant to include in a registration statement all material facts required to
be disclosed with respect to a registration thereunder.
(d) A registration effected under this Section 8 shall be effected at the
Registrant's expense, except for underwriting discounts and commissions and the
fees and expenses of counsel to the Holder, and the Registrant shall provide to
the underwriters such documentation (including certificates, opinions of counsel
and "comfort" letters for auditors) as are customary in connection with
underwritten public offerings and as such underwriters may reasonably require.
In connection with any registration, the parties agree (i) to indemnify each
other and the underwriters in the customary manner and (ii) to enter into an
underwriting
-6-
agreement in form and substance customary for transactions of this type with the
underwriters participating in such offering.
9. Adjustment Upon Changes in Capitalization
-----------------------------------------
(a) In the event of any change in the Desktop Shares by reason of stock
dividends, split-ups, mergers (other than the Merger), recapitalizations,
combinations, exchanges of shares and the like, the type and number of shares or
securities subject to the Option, the Exercise Ratio and the Exercise Price
shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction so that Individual shall receive, upon
exercise of the Option, the number and class of shares or other securities or
property that Individual would have received in respect of the Desktop Shares if
the Option had been exercised immediately prior to such event or the record date
therefor, as applicable.
(b) In the event of any change in the Individual Shares by reason of stock
dividends, split-ups, mergers (other than the Merger), recapitalizations,
combinations, exchanges of shares and the like, the type and number of shares or
securities which Individual can deliver to Desktop pursuant to Section 4 hereof
if full payment for an Desktop Shares to be purchased and the Exchange Ratio
shall be adjusted appropriately.
10. Restrictive Legends
-------------------
Each certificate representing Option Shares issued to Individual hereunder,
and each certificate representing Individual Shares delivered to Desktop at a
Closing, shall 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 NOVEMBER 2,
1997, A COPY OF WHICH MAY BE OBTAINED FROM INDIVIDUAL, INC.
11. Listing
-------
Desktop, upon the request of Individual, shall promptly file an application
to list the Desktop Shares to be acquired upon exercise of the Option for
quotation on the Nasdaq National Market and shall use its best efforts to obtain
approval of such listing as soon as practicable. Individual, upon the request
of Desktop, shall promptly file an application to list the Individual Shares
issued and delivered to Desktop pursuant to Section 4 for quotation on the
Nasdaq National Market and shall use its best efforts to obtain approval of such
listing as soon as practicable.
-7-
12. Binding Effect
--------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
person other than the parties hereto and their respective successors and
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Agreement. Any shares sold by a party 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 such party. 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.
13. 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 shall be brought
in equity to enforce the provisions of the Agreement, neither party will allege,
and each party hereby waives the defense, that there is an adequate remedy at
law.
14. Entire Agreement
----------------
This Agreement and the Merger Agreement (including the appendices thereto)
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
15. Further Assurances
------------------
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
constitute the transactions contemplated hereby.
16. 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
Governmental Entity of competent jurisdiction holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith and shall execute and deliver 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.
-8-
17. Notices
-------
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial delivery service,
or sent via telecopy (receipt confirmed) to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy numbers for
a party as shall be specified by like notice):
(1) if to Desktop, to:
Desktop Data, Inc.
80 Blanchard Road
Burlington, MA 01803
Attention: President
Telephone No.: (617) 229-3000
Telecopy No.: (617) 229-3030
with a copy to:
Testa, Hurwitz & Thibeault, LLP
High Street Tower, 125 High Street
Boston, MA 02110
Attention: Lawrence S. Wittenberg, Esq.
Telephone No.: (617) 248-7000
Telecopy No.: (617) 248-7100
(2) If to Individual, to:
Individual, Inc.
8 New England Executive Park-West
Burlington, MA 01803
Attention: President
Telephone No.: (781) 273-6000
Telecopy No.: (781) 273-6060
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
One Financial Center
Boston, MA 02111
Attention: Jonathan L. Kravetz, Esq.
Telephone No.: (617) 542-6000
Telecopy No.: (617) 542-2241
-9-
18. 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.
19. Counterparts
------------
This Agreement may be executed in two counterparts, each of which
shall be deemed to be an original, but both 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.
22. Assignment
----------
Neither of the parties hereto may sell, transfer, assign or otherwise
dispose of any of its rights or obligations under this Agreement or the Option
created hereunder to any other person, without the express written consent of
the other party.
[Remainder of Page Intentionally Blank]
-10-
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.
INDIVIDUAL, INC.
BY: /s/ Michael E. Kolowich
---------------------------
NAME: Michael E. Kolowich
TITLE: President and Chief Executive Officer
DESKTOP DATA, INC.
BY: /s/ Donald L. McLagan
---------------------------
NAME: Donald L. McLagan
TITLE: President and Chief Executive Officer