{"id":43639,"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-plenum-publishing-corp-and-kluwer.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stock-option-agreement-plenum-publishing-corp-and-kluwer","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stock-option-agreement-plenum-publishing-corp-and-kluwer.html","title":{"rendered":"Stock Option Agreement &#8211; Plenum Publishing Corp. and Kluwer Boston Inc."},"content":{"rendered":"<pre>\n                             STOCK OPTION AGREEMENT\n\n      STOCK OPTION AGREEMENT, dated June 10, 1998, by and between Plenum\nPublishing Corporation, a Delaware corporation (the 'Company'), and Kluwer\nBoston, Inc., a Massachusetts corporation (the 'Purchaser').\n\n      WHEREAS, as a condition to its willingness to enter into the Agreement and\nPlan of Merger, dated as of June 10, 1998, among the Company, the Purchaser and\nPPC Acquisition Corp., a Delaware corporation ('Acquisition Corp.') (the 'Merger\nAgreement'), Purchaser has required that the Company agree, and the Company has\nagreed, to grant the Purchaser the option as set forth herein to purchase up to\n698,540 shares of the common stock, $.10 par value per share, of the Company\n(the 'Common Stock').\n\n      NOW, THEREFORE, to induce Purchaser to enter into the Merger Agreement,\nand in consideration of Purchaser doing so and of the mutual covenants and\nagreements set forth herein, the parties agree as follows:\n\n      1. Grant of Option. The Company hereby grants to the Purchaser an\nirrevocable option (the 'Stock Option') to purchase up to 698,540 shares of\nCommon Stock ('Option Shares') at a price per share of $73.50 ('Option Price')\npayable in cash.\n\n      2. Exercise of the Stock Option. (a) The Stock Option may be exercised, in\nwhole or in part, at any time and from time to time after any Triggering Event\n(as defined in Section 3) shall have occurred and prior to the expiration\nthereof, provided that (i) all waiting periods under the Hart-Scott-Rodino\nAntitrust Improvements Act of 1976 (the 'HSR Act') required for the purchase of\nthe Option Shares shall have expired or been waived, (ii) no breach by Purchaser\nor Acquisition Corp. shall have occurred and be continuing under this Agreement\nor the Merger Agreement and (iii) there shall not be in effect any preliminary\nor final injunction or other order issued by any court or governmental,\nadministrative or regulatory agency or authority, prohibiting the issuance of\nthe Option Shares pursuant to this Agreement. The Stock Option shall expire upon\nthe earlier of (I) the date of consummation of the merger with Acquisition Corp.\ncontemplated by the Merger Agreement, (II) twenty (20) days after the date of\nconsummation of any Superior Proposal or Acquisition Proposal (as such terms are\ndefined in the Merger Agreement) under circumstances which obligate the Company\nto pay the Termination Fee (as defined in the Merger Agreement) under the terms\nof the Merger Agreement, or (III) the date upon which the Merger Agreement is\nterminated other than in connection with the occurrence of a Triggering Event.\n\n            (b) If the Purchaser wishes to exercise the Stock Option for all or\nsome of the Option Shares, the Purchaser shall send a written notice (the\n'Notice') to the \n\n\nCompany specifying the number of Option Shares it will purchase pursuant to such\nexercise and the place and date not less than three (3) nor more than twenty\n(20) days from the date of the Notice for the closing of such purchase.\n\n      3. Triggering Event. For purposes of this Agreement, a 'Triggering Event'\nshall mean the occurrence of an event which requires the payment of the\nTermination Fee (as defined in the Merger Agreement) by the Company to\nAcquisition Corp. in accordance with the provisions of Section 6.8, 8.1 or 8.3\nof the Merger Agreement.\n\n      4. Closing. (a) At any closing on the date specified under Section 2\nhereof, (i) the Purchaser will make payment to the Company of the aggregate\nprice for the Option Shares being purchased upon exercise of the Stock Option by\nwire transfer in immediately available funds and (ii) the Company will deliver\nto the Purchaser a certificate or certificates representing the number of shares\nof Common Stock so purchased in the denominations designated by the Purchaser\nand receipt evidencing payment of any requisite stock transfer taxes. At any\nsuch closing, the Company shall deliver a certificate to the Purchaser\ncertifying that the representations and warranties made in Section 6 herein are\ntrue and correct as of the date of such closing, and the Purchaser shall deliver\na letter to the Company agreeing that the Purchaser will not offer to sell, or\notherwise dispose of, any Option Shares acquired by it pursuant to this\nAgreement in violation of the Securities Act of 1933, as amended (the '1933\nAct'), and applicable state securities laws.\n\n            (b) The closing shall take place at the location set forth in the\nNotice delivered in accordance with Section 2 hereof.\n\n      5. Covenants. (a) Upon the request of the Purchaser, the Company agrees to\nfile, as promptly as practicable, a registration statement and use its best\nefforts to cause such registration statement to become effective, as\nexpeditiously as possible, under the 1933 Act and any applicable state\nsecurities laws with respect to any proposed disposition by the Purchaser of the\nOption Shares, or any portion thereof, unless, in the written opinion of counsel\nto the Company, addressed to the Purchaser, registration is not required for the\nproposed disposition of such Option Shares; provided, however, that the Company\nshall not be obligated to file more than one registration statement (under\nfederal and, if applicable, state law) with respect to the Option Shares\npursuant to this paragraph. The Company agrees further to cause such\nregistration statement to remain effective for a reasonable period of time\nrequired for the disposition by the Purchaser of the Option Shares in a public\noffering thereof (provided, that the effectiveness of the registration statement\nmay be delayed or suspended for a reasonable period of time, but not in excess\nof 180 days, to permit the Company to consummate (i) an offering of securities,\nor (ii) extraordinary transactions that it would otherwise be precluded from\ncompleting due to the obligations of the Company under this Section 5(a)), to\nprepare and file such amendments and supplements to such registration statement\nand the prospectus used in connection therewith as may be necessary to keep such\nregistration statement effective and to comply with the provisions of the 1933\nAct with respect to the sale or other \n\n\n                                       2\n\n\ndisposition of all securities covered by such registration statement, and to\nenter into customary agreements for a secondary offering of shares (including an\nunderwriting agreement for a secondary offering of shares in customary form\ncontaining customary indemnification provisions). The registration effected\nunder this paragraph 5(a) shall be effected at the Company's expense.\n\n            (b) Upon the request of the Purchaser, the Company agrees that it\nwill promptly file applications to list any Option Shares, whether issued or\nunissued, on the NASDAQ National Market System and will use its best efforts to\nobtain approval of such listing.\n\n            (c) Upon the request of Purchaser prior to Purchaser's exercise of\nthe Stock Option, the Company shall use its reasonable best efforts to file as\nsoon as practicable notifications under the HSR Act with respect to Purchaser's\nexercise of the Stock Option and to respond as promptly as practicable to any\ninquiries received from the Federal Trade Commission and the Antirust Division\nof the Department of Justice for additional information or documentation and to\nrespond as promptly as practicable to all inquiries and requests received from\nany State Attorney General or other Governmental Entity (as defined in the\nMerger Agreement) in connection with antitrust matters. Each of the Company and\nPurchaser shall further take all reasonable actions necessary to file any other\nforms or notifications which may be required by any foreign Governmental Entity\nand to obtain any approvals which may be required in connection therewith.\n\n            (d) In furtherance and not in limitation of the foregoing, each of\nPurchaser and the Company shall use its reasonable best efforts to resolve such\nobjections, if any, as may be asserted with respect to the transactions\ncontemplated by this Agreement under any antitrust, competition or trade\nregulatory laws, rules or regulations of any domestic or foreign government or\nGovernmental Entity or any multinational authority ('Antitrust Laws'); provided,\nhowever, that nothing in this Agreement shall require, or be construed to\nrequire, Purchaser or the Company or any of their respective affiliates to\nproffer to, or agree to, sell or hold separate and agree to sell, before or\nafter the exercise of the Stock Option, any material assets, business, or\ninterest in any assets or businesses of Purchaser, the Company or any of their\nrespective affiliates (or to consent to any sale, or agreement to sell, by the\nCompany of any of its material assets or businesses) or to agree to any material\nchanges or restrictions in the operations of any such assets or businesses.\n\n            (e) Any party hereto shall promptly inform the other of any material\ncommunication from the United States Federal Trade Commission, the Department of\nJustice or any other domestic or foreign government or Governmental Entity or\nmultinational authority regarding any of the transactions contemplated by this\nAgreement. If any party or any affiliate thereof receives a request for\nadditional information or documentary material from any such government or\nauthority with respect to the transactions contemplated by this Agreement, then\nsuch party will endeavor in good faith to make, or cause to be made, as soon as\nreasonably practicable and after consultation with the other party, an\nappropriate response in compliance with such \n\n\n                                       3\n\n\nrequest. Purchaser will advise the Company promptly in respect of any\nunderstandings, undertakings or agreements (oral or written) which Purchaser\nproposes to make or enter into with the Federal Trade Commission, the Department\nof Justice or any other domestic or foreign government or Governmental Entity or\nmultinational authority in connection with the transactions contemplated by this\nAgreement.\n\n      6. Representations and Warranties of the Company. The Company hereby\nrepresents and warrants to the Purchaser as follows:\n\n            (a) The Company is a corporation duly organized and validly existing\nin good standing under the laws of Delaware. The Company has all requisite\ncorporate power and authority to enter into and perform all of its obligations\nunder this Agreement. The execution, delivery and performance of this Agreement\nand all the transactions contemplated hereby have been duly authorized by the\nCompany's Board of Directors and no other corporate proceedings on the part of\nthe Company are necessary to authorize this Agreement or any of the transactions\ncontemplated hereby. This Agreement has been duly executed and delivered by a\nduly authorized officer of the Company, and constitutes a legal, valid and\nbinding agreement of the Company, and assuming this Agreement is a legal, valid\nand binding obligation of the Purchaser, this Agreement is enforceable against\nit in accordance with its terms.\n\n            (b) Except for compliance with the requirements of the HSR Act, no\nconsent of any court or governmental authority, national securities exchange\nautomated securities quotation system or other person is necessary for the\nexecution, delivery and performance of this Agreement by the Company.\n\n            (c) The Company has taken all necessary corporate action to\nauthorize and reserve for issuance upon exercise of the Stock Option 698,540\nauthorized but unissued Common Shares. The Option Shares have been duly\nauthorized and, when issued and paid for in accordance with the terms of this\nAgreement, will be validly issued, fully paid and nonassessable. Upon delivery\nof the Option Shares to the Purchaser upon the exercise of the Option granted\nunder this Agreement, the Purchaser will receive good and marketable title to\nthe Option Shares, free and clear of any pledge, lien, security interest,\ncharge, preemptive right, claim, equity or encumbrance of any kind.\n\n            (d) The execution and delivery of this Agreement do not, and the\nperformance of this Agreement will not, (i) violate the certificate of\nincorporation or by-laws of the Company, or (ii) conflict with or result in a\nbreach of any terms or provisions of, or constitute a default or give rise to a\nright of acceleration under, or result in the creation or imposition of any\nlien, charge or encumbrance upon any property or assets of the Company under any\nindenture, mortgage, loan agreement or other agreement or instrument to which\nthe Company is a party or by which any of its property is bound or any existing\napplicable law, rule, regulation, judgment, order or decree of any governmental\ninstrumentality, court or national securities exchange having jurisdiction over\nthe Company or any of its property.\n\n\n                                       4\n\n\n      7. Representations and Warranties of the Purchaser. The Purchaser hereby\nrepresents and warrants to the Company that it is a corporation duly organized\nand validly existing in good standing under the laws of the State of\nMassachusetts and has all requisite corporate power and authority to enter into\nand perform all of its obligations under this Agreement; the execution, delivery\nand performance of this Agreement by it and all of the transactions contemplated\nhereby have been duly authorized by all necessary corporate action on its part,\nand this Agreement has been duly executed and delivered by it.\n\n      8. Representations and Warranties to Survive Delivery. All representations\nand warranties contained in this Agreement, or contained in certificates of\nofficers of the Company submitted pursuant to this Agreement, shall survive\ndelivery of and payment for the Option Shares for a period expiring on the\nearlier of (a) the first anniversary of the date of delivery and payment for the\nOption Shares and (b) the date upon which Purchaser shall have sold or otherwise\ndisposed of all of the Option Shares (other than to a direct or indirect\nmajority-owned subsidiary of Purchaser).\n\n      9. Adjustment Upon Changes in Capitalization. In the event of any change\nin the Common Shares by reason of stock dividends, split-ups, recapitalizations,\ncombinations, exchanges of shares or the like, the number of Option Shares and\nthe purchase price per share shall be adjusted appropriately.\n\n      10. No Assignment. Neither the rights nor the obligations of any party\nhereto may be transferred or assigned without the written consent of the other\nparties, except that Purchaser may assign its rights and obligations to any\ndirect or indirect majority-owned subsidiary of Purchaser.\n\n      11. Specific Performance. The parties hereto acknowledge that damages\nwould be an inadequate remedy for a breach of this Agreement and that the\nobligations of the parties hereto shall be specifically enforceable.\n\n      12. Entire Agreement. This Agreement and the Merger Agreement constitute\nthe entire agreement among the parties with respect to the subject matter hereof\nand supersede all other prior agreements and understandings, both written and\noral, among the parties or any of them with respect to the subject matter\nhereof.\n\n      13. Validity. The invalidity or unenforceability of any provision of this\nAgreement shall not affect the validity or enforceability of any other provision\nof this Agreement, which shall remain in full force and effect.\n\n      14. 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                                       5\n\n\n      15. Notices. All notices, requests, claims, demands and other\ncommunications hereunder shall be in writing and shall be deemed to have been\nduly given when delivered in person, by overnight courier or facsimile to the\nrespective parties as follows:\n\n      If to Purchaser:\n\n            Kluwer Boston, Inc.\n            c\/o Kluwer Academic Publishers bv\n            Spuiboulevard 50\n            3300 AZ Dordrecht, the Netherlands\n            Attention:  Jeffrey K. Smith\n            Facsimile: 011-31-78-63-92-268\n\n      with a copy to:\n\n            Wolters Kluwer U.S. Corporation\n            161 North Clark Street\n            48th Floor\n            Chicago, Illinois 60601-3221\n            Attention: Bruce C. Lenz\n            Facsimile: (312) 425-0233\n\n      and to:\n\n            Pryor Cashman Sherman &amp; Flynn LLP\n            410 Park Avenue\n            New York, New York 10022\n            Attention: Arnold J. Schaab, Esq.\n            Facsimile: (212) 326-0806\n\n      If to the Company:\n\n            Plenum Publishing Corporation\n            233 Spring Street\n            New York, New York 10013\n            Attention: Martin E. Tash\n            Facsimile: (212) 463-0742\n\n      with copies to:\n\n            Bressler, Amery &amp; Ross, P.C.\n            17 State Street\n            New York, New York 10004\n            Attention: Bernard Bressler, Esq.\n            Facsimile: (212) 425-9337\n\n\n                                       6\n\n\nor to such other address as the person to whom notice is given may have\npreviously furnished to the other in writing in the manner set forth above\n(provided that notice of any change of address shall be effective only upon\nreceipt thereof).\n\n      16. Governing Law. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Delaware, regardless of the laws that\nmight otherwise govern under applicable principles of conflict of laws thereof.\n\n      17. Descriptive Headings. The descriptive headings herein are inserted for\nconvenience of reference only and are not intended to be part of or to affect\nthe meaning or interpretation of this Agreement.\n\n      18. Parties in Interest. This Agreement shall be binding upon and inure\nsolely to the benefit of each party hereto, and nothing in this Agreement,\nexpress or implied, is intended to confer upon any other person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement.\n\n      19. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed to be an original, but all of which\nshall constitute one and the same agreement.\n\n      20. Expenses. Except as otherwise provided in Section 5, all costs and\nexpenses incurred in connection with the transactions contemplated by this\nAgreement shall be paid by the party incurring such expenses.\n\n\n                                       7\n\n\n      IN WITNESS WHEREOF, each of the parties has caused this Agreement to be\nexecuted on its behalf by its officers thereunto duly authorized as of the day\nand year first above written.\n\n                          PLENUM PUBLISHING CORPORATION\n\n\n                          By: \/s\/ Martin E. Tash\n                             -------------------------------------------\n                                 Martin E. Tash\n                                 President and Chairman of the Board\n\n\n                          KLUWER BOSTON, INC.\n\n\n                          By:  \/s\/ Jeffrey K. Smith\n                             -------------------------------------------\n                                 Name:  Jeffrey K. Smith\n                                 Title: President\n\n\n                                       8\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8537],"corporate_contracts_industries":[9464],"corporate_contracts_types":[9622,9626],"class_list":["post-43639","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-plenum-publishing-corp","corporate_contracts_industries-media__books","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\/43639","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=43639"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43639"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43639"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43639"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}