{"id":43627,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stock-option-agreement-allaire-corp-and-macromedia-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stock-option-agreement-allaire-corp-and-macromedia-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stock-option-agreement-allaire-corp-and-macromedia-inc.html","title":{"rendered":"Stock Option Agreement &#8211; Allaire Corp. and Macromedia Inc."},"content":{"rendered":"<pre>\n                             STOCK OPTION AGREEMENT\n\n\n      This STOCK OPTION AGREEMENT (the \"AGREEMENT\") is made and entered into as\nof January 16, 2001, between Allaire Corporation, a Delaware corporation\n(\"COMPANY\"), and Macromedia, Inc., a Delaware corporation (\"PARENT\").\n\n                                    RECITALS\n\n      A. Concurrently with the execution and delivery of this Agreement,\nCompany, Parent and Alaska Acquisition Corporation, a Delaware corporation and a\nwholly owned subsidiary of Parent (\"MERGER SUB\"), are entering into an Agreement\nand Plan of Merger (the \"MERGER AGREEMENT\"), that provides, among other things,\nupon the terms and subject to the conditions thereof, for the merger of Merger\nSub and Company (the \"MERGER\"). Capitalized terms used in this Agreement but not\ndefined herein shall have the meanings ascribed to such terms in the Merger\nAgreement.\n\n      B. As a condition to Parent's willingness to enter into the Merger\nAgreement, Parent has required that the Company agree, and the Company has\nagreed, to grant to Parent an option to acquire shares of Company Common Stock\n(\"COMPANY SHARES\"), upon the terms and subject to the conditions set forth\nherein.\n\n      In consideration of the foregoing and of the mutual covenants and\nagreements set forth herein and in the Merger Agreement and for other good and\nvaluable consideration, the receipt and adequacy of which are hereby\nacknowledged, the parties agree as follows:\n\n      1. Grant of Option. Company hereby grants to Parent an irrevocable option\n(the \"OPTION\"), exercisable following the occurrence of an Exercise Event (as\ndefined in Section 2(a)), to acquire up to a number of Company Shares equal to\n19.9% of the Company Shares issued and outstanding as of the date, if any, upon\nwhich an Exercise Notice (as defined in Section 2(b) below) shall have been\ndelivered (the \"OPTION SHARES\"), in the manner set forth below by paying cash at\na price of $5.75 per share (the \"EXERCISE PRICE\"). All references in this\nAgreement to Company Shares issued to Parent hereunder shall be deemed to\ninclude any associated Rights.\n\n      2.    Exercise of Option; Maximum Proceeds.\n\n            (a) For all purposes of this Agreement, an \"EXERCISE EVENT\" shall\nmean the occurrence of any of (i) a Triggering Event (as such term is defined in\nthe Merger Agreement), (ii) the amendment by Company of the Rights Agreement or\nthe taking by Company of any corporate action which removes any applicable\nrestrictions under Section 203 of the Delaware Law or under any other Takeover\nStatute, in each case, in connection with any Acquisition Proposal; (iii) (A)\nthe public announcement of an acquisition or purchase by any person or \"group\"\n(as defined under Section 13(d) of the Exchange Act and the rules and\nregulations thereunder) of more than a 15% beneficial ownership interest in the\ntotal outstanding voting\n   2\n\nsecurities of Company or any of its subsidiaries; (B) the public announcement or\ncommencement of any tender offer or exchange offer that if consummated would\nresult in any person or \"group\" beneficially owning 15% or more of the total\noutstanding voting securities of Company or any of its subsidiaries; (C) the\npublic announcement of a bona fide proposal or offer by a person or entity\nreasonably able to consummate any of the following: a merger, consolidation,\nbusiness combination or similar transaction involving Company pursuant to which\nthe stockholders of Company immediately preceding such transaction hold less\nthan 85% of the equity interests in the surviving or resulting entity of such\ntransaction; or a sale, lease, exchange, transfer, license (other than in the\nordinary course of business), acquisition, or disposition of any material assets\nof Company; or (iv) the commencement of a solicitation within the meaning of\nRule 14a-1(l) by any person or entity other than Company or its Board of\nDirectors (or any person or entity acting on behalf of Company or its Board of\nDirectors) seeking to alter the composition of Company's Board of Directors.\n\n            (b) At any time following the occurrence of an Exercise Event,\nParent may deliver to the Company a written notice (an \"EXERCISE NOTICE\")\nspecifying that it wishes to exercise its rights to acquire Company Shares under\nthe Option and close a purchase of Option Shares and specifying the total number\nof Option Shares it wishes to acquire. Unless such Exercise Notice is withdrawn\nby Parent, the closing of a purchase of such Option Shares (a \"CLOSING\") shall\ntake place at the principal offices of Company upon such date (which shall be no\nearlier than three business days following the delivery of the Exercise Notice)\nand at such time prior to the termination of the Option as may be designated by\nParent in the Exercise Notice.\n\n            (c) The Option shall terminate upon the earliest to occur of (i) the\nEffective Time (as such term is defined in the Merger Agreement), (ii)\ntermination of the Merger Agreement pursuant to Section 7.1(a) thereof, (iii)\ntermination of the Merger Agreement pursuant to Section 7.1(f) thereof if prior\nto such termination no Triggering Event shall have occurred; (iv) termination of\nthe Merger Agreement pursuant to Section 7.1(b), 7.1(c) or 7.1(d) thereof if\nprior to such termination no Exercise Event shall have occurred or (v) 12 months\nfollowing the termination of the Merger Agreement under any other circumstances;\nprovided, however, that if the Option is exercisable but cannot be exercised by\nreason of any applicable government order or because the waiting period related\nto the issuance of the Option Shares under the HSR Act shall not have expired or\nbeen terminated, or because any other condition to closing has not been\nsatisfied, then the Option shall not terminate until the tenth business day\nafter all such impediments to exercise shall have been removed or shall have\nbecome final and not subject to appeal, and provided, further that if,\nsubsequent to exercise of the Option, but prior to any other termination of the\nMerger Agreement, the Merger Agreement is terminated by Company pursuant to\nSection 7.1(f) thereof, then (1) the Option, to the extent it has not been\nexercised, shall terminate and (2) to the extent the Option has been exercised,\nCompany may repurchase for cash all Option Shares then held by Parent at a per\nOption Share price equal to the Exercise Price.\n\n            (d) If the sum of (i) any Termination Fee received by Parent under\nSection 7.3(b) of the Merger Agreement plus (ii) the proceeds received by Parent\nfor any sales or other\n\n                                       2\n   3\n\ndispositions of Option Shares (including pursuant to Company's exercise of its\nrights to purchase Option Shares under Section 7(a) and Section 10 hereof) or\nthe Option (including pursuant to Parent's exercise of its rights to surrender\nthe Option pursuant to Section 9 hereof), plus (iii) any dividends or\ndistributions received by Parent declared on Option Shares is, in the aggregate,\ngreater than the sum of (x) $13,800,000 plus (y) the product of (1) the Exercise\nPrice multiplied by (2) the number of Company Shares purchased by Parent\npursuant to the Option (the sum of clauses (x) and (y), the \"PROFIT CAP\"), then\nall such proceeds received by Parent in excess of the Profit Cap shall be\npromptly remitted in cash by Parent to Company.\n\n      3. Conditions to Closing. The obligation of Company to issue Option Shares\nto Parent hereunder is subject to the conditions that (a) any waiting period\nunder the HSR Act applicable to the issuance of the Option Shares hereunder\nshall have expired or been terminated; (b) all material consents, approvals,\norders or authorizations of, or registrations, declarations or filings with, any\nGovernmental Entity, if any, required in connection with the issuance of the\nOption Shares hereunder shall have been obtained or made, as the case may be;\nand (c) no preliminary or permanent injunction or other order by any court of\ncompetent jurisdiction prohibiting or otherwise restraining such issuance shall\nbe in effect. It is understood and agreed that at any time during which Parent\nshall be entitled to deliver to Company an Exercise Notice, the parties will use\ntheir respective reasonable efforts to satisfy all conditions to Closing, so\nthat a Closing may take place as promptly as practicable.\n\n      4. Closing. At any Closing, (a) Company shall deliver to Parent a single\ncertificate in definitive form representing the number of Company Shares\ndesignated by Parent in its Exercise Notice consistent with this Agreement, such\ncertificate to be registered in the name of Parent and to bear the legend set\nforth in Section 10 hereof, against delivery of (b) payment by Parent to the\nCompany of the aggregate Exercise Price for the Company Shares so designated and\nbeing purchased by delivery of a certified check, bank check or wire transfer of\nimmediately available funds.\n\n      5. Representations and Warranties of the Company. Company represents and\nwarrants to Parent that (a) Company is a corporation duly organized, validly\nexisting and in good standing under the laws of the State of Delaware and has\nthe corporate power and authority to enter into this Agreement and to carry out\nits obligations hereunder; (b) the execution and delivery of this Agreement by\nCompany and consummation by Company of the transactions contemplated hereby have\nbeen duly authorized by all necessary corporate action on the part of Company\nand no other corporate proceedings on the part of Company are necessary to\nauthorize this Agreement or any of the transactions contemplated hereby; (c)\nthis Agreement has been duly executed and delivered by Company and constitutes a\nlegal, valid and binding obligation of Company and, assuming this Agreement has\nbeen duly executed and delivered by Parent, is enforceable against Company in\naccordance with its terms, except as enforceability may be limited by bankruptcy\nand other similar laws affecting the rights of creditors generally and general\nprinciples of equity; (d) except for any filings, authorizations, approvals or\norders required under the HSR Act and the applicable blue sky laws of any state,\nand the rules and regulations promulgated thereunder, or by the Nasdaq Stock\nMarket, Company has taken all\n\n                                       3\n   4\n\nnecessary corporate and other action to authorize and reserve for issuance and\nto permit it to issue upon exercise of the Option, and at all times from the\ndate hereof until the termination of the Option will have reserved for issuance,\na sufficient number of unissued Company Shares for Parent to exercise the Option\nin full and will take all necessary corporate or other action to authorize and\nreserve for issuance all additional Company Shares or other securities which may\nbe issuable pursuant to Section 8(a) upon exercise of the Option, all of which,\nupon their issuance and delivery in accordance with the terms of this Agreement\nand payment therefor by Parent, will be validly issued, fully paid and\nnonassessable; (e) upon delivery of the Company Shares and any other securities\nto Parent upon exercise of the Option, Parent will acquire such Company Shares\nor other securities free and clear of all Encumbrances, excluding those imposed\nby Parent; (f) the execution and delivery of this Agreement by Company do not,\nand the performance of this Agreement by Company will not, (i) violate the\nCertificate of Incorporation or Bylaws of the Company, (ii) conflict with or\nviolate any order applicable to the Company or any of its subsidiaries or by\nwhich they or any of their material property is bound or affected or (iii)\nresult in any breach of or constitute a default (or an event which with notice\nor lapse of time or both would become a default) under, or give rise to any\nright of termination, amendment, acceleration or cancellation of, or result in\nthe creation of a material Encumbrance on any material property or assets of\nCompany or any of its subsidiaries pursuant to, any material contract or\nagreement to which Company or any of its subsidiaries is a party or by which\nCompany or any of its subsidiaries or any of their material property is bound or\naffected, except to the extent that any such breach, default, right of\ntermination, amendment, acceleration or cancellation or creation of a material\nEncumbrance would not prevent or materially delay the performance by Company of\nCompany's obligations under this Agreement; and (g) the execution and delivery\nof this Agreement by Company does not, and the performance of this Agreement by\nCompany will not, require any consent, approval, authorization or permit of, or\nfiling with, or notification to, any Governmental Entity, except pursuant to the\nHSR Act and except for any filings required under the blue sky laws of any state\nand the rules and regulations promulgated thereunder or by the Nasdaq Stock\nMarket.\n\n      6. Representations and Warranties of Parent. Parent represents and\nwarrants to Company that (i) the execution and delivery of this Agreement by\nParent and the consummation by it of the transactions contemplated hereby have\nbeen duly authorized by all necessary corporate action on the part of Parent and\nthis Agreement has been duly executed and delivered by a duly authorized officer\nof Parent and will constitute a legal, valid and binding obligation of Parent\nand, assuming this Agreement has been duly executed and delivered by Parent, is\nenforceable against Company in accordance with its terms, except as\nenforceability may be limited by bankruptcy and other similar laws affecting the\nrights of creditors generally and general principles of equity; and (ii) Parent\nis acquiring the Option, and, if and when the Parent exercises the Option, it\nwill be acquiring the Option Shares issuable upon the exercise thereof for its\nown account and not with a view to distribution or resale in any manner which\nwould be in violation of the Securities Act.\n\n\n                                       4\n   5\n\n\n      7.    Registration Rights.\n\n            (a) Following the termination of the Merger Agreement, Parent\n(sometimes referred to herein as the \"HOLDER\") may by written notice (a\n\"REGISTRATION NOTICE\") to Company (sometimes referred to herein as the\n\"REGISTRANT\") request the Registrant to register under the Securities Act all or\nany part of the Option Shares acquired by the Holder pursuant to this Agreement\n(such Option Shares, together with any other shares of the Company's capital\nstock issuable in lieu of or with respect to such Option Shares, the\n\"REGISTRABLE SECURITIES\") in order to permit the public sale or other\ndisposition of such shares in accordance with the intended method of sale or\nother disposition stated by the Holder; provided, however, that any such\nRegistration Notice must relate to a number of shares equal to at least 2% of\nthe outstanding Company Shares and that any rights to require registration\nhereunder shall terminate with respect to any shares of the Company's capital\nstock that may be sold pursuant to Rule 144(k) under the Securities Act or at\nsuch time as all of the Registrable Securities may be sold in any three month\nperiod pursuant to Rule 144 under the Securities Act. Upon receipt of a\nRegistration Notice, the Registrant will have the option exercisable by written\nnotice delivered to the Holder within ten business days after the receipt of the\nRegistration Notice, irrevocably to agree to purchase all or any part of the\nRegistrable Securities for cash at a price (the \"OPTION PRICE\") equal to the\nproduct of (i) the number of Registrable Securities so purchased and (ii) the\nper share average of the closing sale prices of the Registrant's Common Stock on\nthe Nasdaq Stock Market for the twenty trading days immediately preceding the\ndate of the Registration Notice. Any such purchase of Registrable Securities by\nthe Registrant hereunder will take place at a closing to be held at the\nprincipal executive offices of the Registrant or its counsel at any reasonable\ndate and time designated by the Registrant in such notice within five business\ndays after delivery of such notice. The payment for the shares to be purchased\nwill be made by delivery at the time of such closing of the Option Price in\nimmediately available funds.\n\n            (b) If the Registrant receives a Registration Notice and does not\nelect to exercise its option to purchase pursuant to Section 7(a), the\nRegistrant shall use all reasonable best efforts to effect, as promptly as\npracticable, the registration under the Securities Act of the unpurchased\nRegistrable Securities requested to be registered in the Registration Notice;\nprovided, however, that (i) the Holder shall not be entitled to more than an\naggregate of two effective registration statements hereunder, and provided\nfurther, that if the Registrant withdraws a filed registration statement at the\nrequest of the Holder (other than as the result of a material adverse change in\nthe Registrant's business or prospects or the Holder's learning of new material\ninformation concerning the Registrant), then such filing shall be deemed to have\nbeen an effective registration for purposes of this clause (i), (ii) the\nRegistrant will not be required to file any such registration statement or\nmaintain its effectiveness during any period of time (not to exceed 45 days\nafter a Registration Notice in the case of clause (A) below or 60 days after a\nRegistration Notice in the case of clauses (B) and (C) below) when (A) the\nRegistrant is in possession of material non-public information which it\nreasonably believes would be detrimental to be disclosed at such time and such\ninformation would have to be disclosed if a registration statement were filed or\neffective at that time; (B) the Registrant is required under the Securities Act\nto include audited financial statements for any period in such registration\nstatement and such\n\n                                       5\n   6\n\nfinancial statements are not yet available for inclusion in such registration\nstatement; or (C) the Registrant determines, in its good faith, reasonable\njudgment, that such registration would materially interfere with any financing,\nacquisition or other material transaction involving the Registrant and (iii) the\nRegistrant will not be required to maintain the effectiveness of any such\nregistration statement for an aggregate period greater than 180 days. If\nconsummation of the sale of any Registrable Securities pursuant to a\nregistration hereunder does not occur within 180 days after the filing with the\nSEC of the initial registration statement therefor, the provisions of this\nSection 7 shall again be applicable to any proposed registration. The Registrant\nshall use all reasonable best efforts to cause any Registrable Securities\nregistered pursuant to this Section 7 to be qualified for sale under the\nsecurities or blue sky laws of such jurisdictions as the Holder may reasonably\nrequest and shall continue such registration or qualification in effect in such\njurisdictions until the Holder has sold or otherwise disposed of all of the\nsecurities subject to the registration statement; provided, however, that the\nRegistrant shall not be required to qualify to do business in, or consent to\ngeneral service of process in, any jurisdiction by reason of this provision.\n\n            (c) The registration rights set forth in this Section 7 are subject\nto the condition that the Holder shall provide the Registrant with such\ninformation with respect to the Holder's Registrable Securities, the plan for\ndistribution thereof, and such other information with respect to the Holder as,\nin the reasonable judgment of counsel for the Registrant, is necessary to enable\nthe Registrant to include in a registration statement all facts required to be\ndisclosed with respect to a registration thereunder, including the identity of\nthe Holder and the Holder's plan of distribution.\n\n            (d) A registration effected under this Section 7 shall be effected\nat the Registrant's expense, except for underwriting discounts and commissions\nand the fees and expenses of counsel to the Holder, and the Registrant shall use\nall reasonable best efforts to: (i) provide such documentation (including\ncertificates, opinions of counsel and \"comfort\" letters from auditors) as are\ncustomary in connection with underwritten public offerings and as an underwriter\nmay reasonably require, (ii) prepare and file with the SEC such amendments and\nsupplements to such registration statement and the prospectus used in connection\nwith such registration statements as may be necessary to comply with the\nprovisions of the Securities Act and (iii) furnish to the Holder and to any\nunderwriter of such securities such number of copies of the final prospectus and\nsuch other documents as the Holder or underwriters may reasonably request. In\nconnection with any registration which the Holder requests be underwritten, the\nHolder and the Registrant agree to enter into an underwriting agreement\nreasonably acceptable to each such party, in form and substance customary for\ntransactions of this type with the underwriters participating in such offering.\n\n            (e)   Indemnification\n\n                  (i) The Registrant will indemnify the Holder, each of the\nHolder's directors and officers and each person who controls the Holder within\nthe meaning of Section 15 of the Securities Act, and each underwriter of the\nRegistrant's securities, with respect to any\n\n                                       6\n   7\n\nregistration, qualification or compliance which has been effected pursuant to\nthis Agreement, against all expenses, claims, losses, damages or liabilities (or\nactions in respect thereof), including any of the foregoing incurred in\nsettlement of any action or litigation, commenced or threatened (each, a \"DAMAGE\nCLAIM\"), arising out of or based on (A) any untrue statement (or alleged untrue\nstatement) of a material fact contained in any registration statement,\nprospectus, offering circular or other document, or any amendment or supplement\nthereto, incident to any such registration, qualification or compliance, (B) any\nomission (or alleged omission) to state therein a material fact required to be\nstated therein or necessary to make the statements therein, in light of the\ncircumstances in which they were made, not misleading, or (C) any violation by\nthe Registrant of any rule or regulation promulgated under the Securities Act,\nthe Securities Exchange Act of 1934, as amended, any federal or state securities\nlaw or any rule or regulation promulgated under any of them applicable to the\nRegistrant (each matter in clause (A), (B) or (C), a \"VIOLATION\"), in each case\nin connection with any such registration, qualification or compliance, and the\nRegistrant will reimburse the Holder and, each of its directors and officers and\neach person who controls the Holder within the meaning of Section 15 of the\nSecurities Act, and each underwriter for any legal and any other expenses\nreasonably incurred in connection with investigating, preparing or defending any\nsuch Damage Claim, provided that the Registrant will not be liable in any such\ncase to the extent that any such Damage Claim arises out of or is based on any\nuntrue statement or omission or alleged untrue statement or omission, made in\nreliance upon and in conformity with written information furnished to the\nRegistrant by the Holder or director or officer or controlling person or\nunderwriter seeking indemnification, and provided, further, that the indemnity\nagreement contained in this Section 7(e)(i) shall not apply to amounts paid in\nsettlement of any such Damage Claim if such settlement is effected without the\nconsent of the Registrant, which consent shall not be unreasonably withheld.\n\n                  (ii) The Holder will indemnify the Registrant, each of the\nRegistrant's directors and officers and each underwriter of the Registrant's\nsecurities covered by such registration statement and each person who controls\nthe Registrant within the meaning of Section 15 of the Securities Act, against\nall Damage Claims arising out of or based on any Violation in connection with\nany such registration, qualification or compliance, and will reimburse the\nRegistrant, such directors, officers or control persons or underwriters for any\nlegal or any other expenses reasonably incurred in connection with\ninvestigating, preparing or defending any such Damage Claim, in each case to the\nextent, but only to the extent, that such Violation occurs in such registration\nstatement, prospectus, offering circular or other document in reliance upon and\nin conformity with written information furnished to the Registrant by the Holder\nexpressly for use therein, provided that in no event shall any indemnity under\nthis Section 7(e) exceed the gross proceeds of the offering received by the\nHolder and provided, further that the indemnity agreement contained in this\nSection 7(e)(ii) shall not apply to amounts paid in settlement of any such\nDamage Claim if such settlement is effected without the consent of the Holder,\nwhich consent shall not be unreasonably withheld.\n\n                  (iii) Each party entitled to indemnification under this\nSection 7(e) (the \"INDEMNIFIED PARTY\") shall give notice to the party required\nto provide indemnification (the \"INDEMNIFYING PARTY\") promptly after such\nIndemnified Party has actual knowledge of any claim\n\n                                       7\n   8\n\nas to which indemnity may be sought, and shall permit the Indemnifying Party to\nassume the defense of any such claim or any litigation resulting therefrom,\nprovided that counsel for the Indemnifying Party, who shall conduct the defense\nof such claim or litigation, shall be approved by the Indemnified Party (whose\napproval shall not unreasonably be withheld), and the Indemnified Party may\nparticipate in such defense at such party's expense; provided, however, that the\nIndemnifying Party shall pay such expense if representation of the Indemnified\nParty by counsel retained by the Indemnifying Party would be inappropriate due\nto actual or potential differing interests between the Indemnified Party and any\nother party represented by such counsel in such proceeding, and provided,\nfurther that the failure of any Indemnified Party to give notice as provided\nherein shall not relieve the Indemnifying Party of its obligations under this\nSection 7(e) unless the failure to give such notice is materially prejudicial to\nan Indemnifying Party's ability to defend such action. No Indemnifying Party, in\nthe defense of any such claim or litigation shall, except with the consent of\neach Indemnified Party, consent to entry of any judgment or enter into any\nsettlement which does not include as an unconditional term thereof the giving by\nthe claimant or plaintiff to such Indemnified Party of a release from all\nliability in respect to such claim or litigation. No Indemnifying Party shall be\nrequired to indemnify any Indemnified Party with respect to any settlement\nentered into without such Indemnifying Party's prior consent (which shall not be\nunreasonably withheld).\n\n                  (iv) If the indemnification provided for in this Section 7(e)\nis held by a court of competent jurisdiction to be unavailable to an Indemnified\nParty with respect to any Damage Claim, then the Indemnifying Party, in lieu of\nindemnifying the Indemnified Party, shall contribute to the amount paid or\npayable by such Indemnified Party with respect to such Damage Claim in the\nproportion that is appropriate to reflect the relative fault of the Indemnifying\nParty and the Indemnified Party in connection with the statements or omissions\nthat resulted in such Damage Claim, as well as any other relevant equitable\nconsiderations. The relative fault of the Indemnifying Party and the Indemnified\nParty shall be determined by reference to, among other things, whether the\nuntrue or alleged untrue statement of material fact or the omission to state a\nmaterial fact relates to information supplied by the Indemnifying Party or by\nthe Indemnified Party, and the parties' relative intent, knowledge, access to\ninformation and opportunity to correct or prevent such statement or omission. In\nany such case, (A) the Holder will not be required to contribute any amount in\nexcess of the aggregate public offering price of all such Registrable Securities\noffered and sold by the Holder pursuant to such registration statement; and (B)\nno person or entity guilty of fraudulent misrepresentation (within the meaning\nof Section 11(f) of the Securities Act) will be entitled to contribution from\nany person or entity who was not guilty of such fraudulent misrepresentation.\n\n      8.    Adjustment Upon Changes in Capitalization; Rights Plans\n\n            (a) In the event of any change in the Company Shares by reason of\nstock dividends, stock splits, reverse stock splits, mergers (other than the\nMerger), recapitalizations, combinations, exchanges of shares and the like, the\ntype and number of shares or securities subject to the Option and the Exercise\nPrice shall be adjusted appropriately, and proper provision shall be made in the\nagreements governing such transaction so that Parent shall receive, upon\n\n\n                                       8\n   9\n\nexercise of the Option, the number and class of shares or other securities or\nproperty that Parent would have received in respect of the Company Shares if the\nOption had been exercised immediately prior to such event or the record date\ntherefor, as applicable.\n\n            (b) Prior to such time as the Option is terminated, and at any time\nafter the Option is exercised (in whole or in part, if at all), the Company\nshall not (i) amend (nor permit the amendment of) its Rights Agreement nor adopt\n(nor permit the adoption of) a new stockholders rights plan that contains\nprovisions for the distribution or exercise of rights thereunder as a result of\nParent or any affiliate or transferee being the beneficial owner of shares of\nthe Company by virtue of the Option being exercisable or having been exercised\n(or as a result of beneficially owning shares issuable in respect of any Option\nShares), or (ii) take any other action which would prevent or disable Parent\nfrom exercising its rights under this Agreement or enjoying the full rights and\nprivileges possessed by other holders of Company Shares generally with respect\nto the Option Shares obtained by the Holder upon exercise of the Option.\n\n      9. Surrender of Option. If, at any time prior to the termination of the\nOption, any person or \"group\" (as defined under Section 13(d) of the Exchange\nAct and the rules and regulations thereunder) (an \"ACQUIRING PERSON\"): (a)\nbecomes the beneficial owner of more than a 50% interest in the total\noutstanding voting securities of Company or any of its subsidiaries or (b) shall\nhave entered into an agreement with Company for, or shall have effected, the\nacquisition of Company by merger, consolidation, business combination or similar\ntransaction involving Company, or any sale, lease, exchange, transfer, license\n(other than in the ordinary course of business), acquisition or disposition of\nmore than 50% of the assets of Company, then, Parent may, at its sole option and\nupon Parent's written request to Company, surrender the Option, to the extent\nnot previously exercised, to Company in exchange for the payment by Company to\nParent in immediately available funds of an amount equal to the product of: (x)\nthe excess, if any, of (i) the greater of (A) the highest price per share paid\nor agreed to be paid by the Acquiring Person for any Company Shares in such\ntransaction (or, if there is no readily available per share price in such\ntransaction, the aggregate consideration paid or to be paid by the Acquiring\nPerson in such transaction, divided by the number of Company Shares then\noutstanding (the value of any consideration other than cash to be determined, in\nthe case of consideration with a readily ascertainable market value, by\nreference to such market value and, in any case where the market value of the\nconsideration is not so ascertainable, by agreement in good faith between Parent\nand Company)) or (B) the average closing sale price of Company Common Stock on\nthe Nasdaq Stock Market during the 20 trading days ending with the trading day\nimmediately preceding the date of such request over (ii) the Exercise Price,\nmultiplied by (y) the total number of Option Shares as to which the Option has\nnot theretofore been exercised. Upon the delivery by Parent to Company of a\nsurrender request, each party shall take all actions necessary to consummate\nsuch surrender transaction as expeditiously as possible. Upon exercise of its\nright to surrender the Option or any portion thereof and full payment therefor\nto Parent pursuant to this Section 9, any and all rights of Parent with respect\nto the portion of the Option so surrendered shall be terminated.\n\n\n                                       9\n   10\n\n\n      10. Repurchase of Shares. Company shall have the right to purchase for\ncash (the \"REPURCHASE RIGHT\") all, but not less than all, of the Option Shares\nthen beneficially owned by Parent at an aggregate price for all such shares\n(regardless of the number of such shares) equal to the Adjusted Profit Cap.\nCompany's right to exercise the Repurchase Right shall expire on the twentieth\nbusiness day following the two year anniversary of the termination of the Merger\n(the \"MERGER TERMINATION DATE\"). In the event Company wishes to exercise the\nRepurchase Right, Company shall send a written notice to Parent specifying a\ndate (not later than ten business days and not earlier than the second business\nday following the date such notice is given) for the closing of such repurchase\n(the \"REPURCHASE NOTICE\"), provided, however that Company may not repurchase any\nOption Shares hereunder prior to the date that is one calendar year following\nthe date on which the Merger Agreement is terminated. The closing of the\nrepurchase of the Option Shares shall take place at the principal offices of\nCompany upon such specified date. Upon exercise of Company's right to repurchase\nall outstanding Option Shares and full payment therefor to Parent pursuant to\nthis Section 10, any and all right of Parent to future exercises of the Option\nshall be terminated. Notwithstanding anything to the contrary herein, if\napplication of the Adjusted Profit Cap formula below yields a number that is\nless than zero, Company may exercise its Repurchase Right as provided in this\nSection 10, and upon such exercise, Parent shall deliver all Option Shares it\nholds to Company for cancellation, and neither Parent nor Company shall pay each\nother any amount in connection with such exercise of the Repurchase Right.\n\n      For the purposes of this Agreement, the \"ADJUSTED PROFIT CAP\" means the\ndifference of (i) the Profit Cap minus (ii) the sum of (A) any Termination Fee\nreceived by Parent under Section 7.3(b) of the Merger Agreement plus (B) the\nproceeds received by Parent for any sales or other dispositions of Option Shares\n(including pursuant to Company's exercise of its rights to purchase Option\nShares under Section 7(a) hereof) or the Option (including pursuant to Parent's\nexercise to surrender the Option pursuant to Section 9 hereof), and any\ndividends or distributions received by Parent declared on Option Shares, in each\ncase, through the date of the closing of the repurchase under this Section 10;\nprovided that the Adjusted Profit Cap shall never be less than zero.\n\n      11. Restrictive Legends. Each certificate representing Option Shares\nissued to Parent hereunder (other than certificates representing shares sold in\na registered public offering pursuant to Section 7) shall include a legend in\nsubstantially the following form:\n\n      THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED\n      UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD\n      ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS\n      AVAILABLE.\n\n      12. Listing and HSR Filing. The Company, upon the request of Parent, shall\npromptly file an application to list the Company Shares to be acquired upon\nexercise of the Option for quotation on the Nasdaq Stock Market and shall use\nits reasonable efforts to obtain approval of such listing as soon as\npracticable. Promptly after the date hereof, upon request by\n\n                                       10\n   11\n\nParent, each of the parties hereto shall file with the Federal Trade Commission\nand the Antitrust Division of the United States Department of Justice all\nrequired premerger notification and report forms and other documents and\nexhibits required to be filed under the HSR Act (\"HSR FILINGS\") to permit the\nacquisition of the Company Shares subject to the Option at the earliest possible\ndate. In the event that Parent does not exercise its rights to acquire Company\nShares hereunder before the expiration of the period for which permission has\ninitially been granted pursuant to the HSR Act, the Company shall, upon request\nof Parent in connection with Parent's election to exercise this option, promptly\nprepare and file all additional HSR Filings to permit acquisition of the Company\nShares subject to the Option as soon as possible after delivery of the Exercise\nNotice and demand by Parent for preparation and filing by Company of such\nadditional HSR Filings.\n\n      13. Binding Effect. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and permitted\nassigns. Except as set forth in Section 7, nothing contained in this Agreement,\nexpress or implied, is intended to confer upon any person other than the parties\nhereto and their respective successors and permitted assigns any rights or\nremedies of any nature whatsoever by reason of this Agreement.\n\n      14.   Specific Performance; Fees.\n\n            (a) The parties hereto recognize and agree that if for any reason\nany of the provisions of this Agreement are not performed in accordance with\ntheir specific terms or are otherwise breached, immediate and irreparable harm\nor injury would be caused for which money damages would not be an adequate\nremedy. Accordingly, each party agrees that in addition to other remedies the\nother party shall be entitled to an injunction restraining any violation or\nthreatened violation of the provisions of this Agreement or the right to enforce\nany of the covenants or agreements set forth herein by specific performance. In\nthe event that any action shall be brought in equity to enforce the provisions\nof the Agreement, neither party will allege, and each party hereby waives the\ndefense, that there is an adequate remedy at law.\n\n            (b) If any action, suit or other proceeding (whether at law, in\nequity or otherwise) is instituted concerning or arising out of this Agreement\nor any transaction contemplated hereunder, the prevailing party shall recover,\nin addition to any other remedy granted to such party therein, all such party's\ncosts and attorneys fees incurred in connection with the prosecution or defense\nof such action, suit or other proceeding.\n\n      15. Entire Agreement. This Agreement and the Merger Agreement (including\nthe appendices and exhibits thereto) constitute the entire agreement between the\nparties with respect to the subject matter hereof and supersede all other prior\nagreements and understandings, both written and oral, between the parties with\nrespect to the subject matter hereof.\n\n      16.   Further Assurances.  Each party will execute and deliver all such\nfurther documents and instruments and take all such further action as may be\nnecessary in order to consummate the transactions contemplated hereby.\n\n\n                                       11\n   12\n\n\n      17. Severability. In the event that any provision of this Agreement or the\napplication thereof, becomes or is declared by a court of competent jurisdiction\nto be illegal, void or unenforceable, the remainder of this Agreement will\ncontinue in full force and effect and the application of such provision to other\npersons or circumstances will be interpreted so as reasonably to effect the\nintent of the parties hereto. The parties further agree to replace such void or\nunenforceable provision of this Agreement with a valid and enforceable provision\nthat will achieve, to the extent possible, the economic, business and other\npurposes of such void or unenforceable provision.\n\n      18. Notices. All notices and other communications hereunder shall be in\nwriting and shall be deemed given upon delivery either personally or by\ncommercial delivery service, or sent via telecopy (receipt confirmed) to the\nparties at the following addresses or telecopy numbers (or at such other address\nor telecopy numbers for a party as shall be specified by like notice):\n\n            (a)   if to Parent or Merger Sub, to:\n\n                  Macromedia, Inc.\n                  600 Townsend Street\n                  San Francisco, California  94103\n                  Attention:  General Counsel\n                  Facsimile No.:  415-626-0554\n\n                  with a copy to:\n\n                  Fenwick &amp; West LLP\n                  275 Battery Street, 15th Floor\n                  San Francisco, California  94110\n                  Attention:  Gordon K. Davidson\n                              Douglas N. Cogen\n                  Facsimile No.: 415-281-1350\n\n            (b)   if to Company, to:\n\n                  Allaire Corporation\n                  275 Grove Street\n                  Newton, Massachusetts  02466\n                  Attention:  President\n                              General Counsel\n                  Facsimile No.:  617-219-2007\n\n\n                                       12\n   13\n\n\n                  with a copy to:\n\n                  Foley, Hoag &amp; Eliot LLP\n                  One Post Office Square\n                  Boston, Massachusetts  02109\n                  Attention:  Robert L. Birnbaum\n                              William R. Kolb\n                  Facsimile No.: 617-832-7000\n\n      19.   Governing Law.  This Agreement shall be governed by and construed\nin accordance with the laws of the State of Delaware, regardless of the laws\nthat might otherwise govern under applicable principles of conflicts of law\nthereof.\n\n      20. Counterparts. This Agreement may be executed in one or more\ncounterparts, all of which shall be considered one and the same agreement and\nshall become effective when one or more counterparts have been signed by each of\nthe parties and delivered to the other party, it being understood that all\nparties need not sign the same counterpart.\n\n      21.   Expenses.  Except as otherwise expressly provided herein or in\nthe Merger Agreement, all costs and expenses incurred in connection with the\ntransactions contemplated by this Agreement shall be paid by the party\nincurring such expenses.\n\n      22. Amendments; Waiver. This Agreement may be amended by the parties\nhereto and the terms and conditions hereof may be waived only by an instrument\nin writing signed on behalf of each of the parties hereto, or, in the case of a\nwaiver, by an instrument signed on behalf of the party waiving compliance.\n\n      23. Assignment. Neither of the parties hereto may sell, transfer, assign\nor otherwise dispose of any of its rights or obligations under this Agreement or\nthe Option created hereunder to any other person, without the express written\nconsent of the other party, except that the rights and obligations hereunder\nshall inure to the benefit of and be binding upon any successor or permitted\nassign of a party hereto. No consent shall be required in connection with a\nmerger, consolidation, reorganization, sale of substantially all assets or\nsimilar transaction with respect to a party hereto. Any purported assignment in\nviolation of this Section shall be void.\n\n      24. Public Announcement. Company shall consult with Parent and Parent\nshall consult with Company before issuing any press release with respect to the\ninitial announcement of this Agreement or the transactions contemplated hereby\nand neither party shall issue any such press release prior to such consultation\nexcept as may be required by law.\n\n      25. Waiver Of Jury Trial. EACH OF PARENT AND COMPANY HEREBY IRREVOCABLY\nWAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR\nCOUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR\nRELATING TO THIS AGREEMENT OR THE\n\n                                       13\n   14\n\nACTIONS OF PARENT OR COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND\nENFORCEMENT HEREOF.\n\n\n\n\n                                    * * * * *\n\n\n\n\n\n\n\n\n                                       14\n   15\n\n\n\n      IN WITNESS WHEREOF, the parties hereto have caused this Stock Option\nAgreement to be executed by their duly authorized respective officers as of the\ndate first written above.\n\n                                          ALLAIRE CORPORATION\n\n\n                                          By: \/s\/ David J. Orfao   \n                                              ---------------------\n                                          Name: David J. Orfao\n                                          Title: CEO\n\n\n                                          MACROMEDIA, INC.\n\n\n                                          By: \/s\/ Robert K. Burgess\n                                              -----------------------\n                                          Name:\n                                          Title:\n\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6623,8105],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43627","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-allaire-corp","corporate_contracts_companies-macromedia-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43627","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43627"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43627"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43627"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43627"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}